Dunesky v Elder

PETER ERIC DUNESKY AND BAY WOOL PTY LIMITED v. WENDY ELDER, SERGEANT DAVID
KING AND DETECTIVE CONSTABLE RUSSELL DEAN MCRAE
No. G231 of 1994
BRIAN EDNEY v. WENDY ELDER, SERGEANT DAVID KING AND DETECTIVE CONSTABLE
RUSSELL DEAN MCRAE
No. G239 of 1994
FED No. 1020/94
Number of pages - 23
Search Warrants
(1994) 126 ALR 522
(1994) 54 FCR 540

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BLACK(1) CJ, LOCKHART(2), BEAUMONT(2), HILL(2) AND LINDGREN(3) JJ

CATCHWORDS

Search Warrants - search warrants issued under s10(1) of Crimes Act - whether warrants were bad because they were excessively broad and uncertain or disclosed no offence known to law or there was a failure to disclosure material facts - whether duty on part of informant to disclose material facts to justice issuing warrants

Crimes Act 1914 (Cth), ss10(1), 29D
Income Tax Assessment Act 1936 (Cth), ss6(1), 161(1)

George v Rockett (1990) 170 CLR 104, applied
Lego Australia Pty Ltd v Paraggio (1994) 124 ALR 225, considered
Televantos v. The Commonwealth of Australia (unreported, 28 April 1993, Full Federal Court), considered

HEARING

SYDNEY, 19 and 20 September 1994
#DATE 20:12:1994

Counsel and Solicitors Mr D H Bloom QC, with
for the Appellants: Mr N J Williams and

Mr L McCallum instructed by Freehill Hollingdale and Page.

Solicitor for the First Mr H K Roberts, Crown Solicitor.
Respondent:

Counsel and Solicitors for the Mr M S Weinberg QC with Third and Fourth Respondents: Mr A Robertson and

Mr G T Johnson instructed by Commonwealth Director of Public Prosecutions.

ORDER

THE COURT ORDERS THAT:
1. The appeals be dismissed. 2. The appellants pay the respondents' costs of the appeals.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK CJ These appeals concern the validity of three search warrants issued under s.10(1) of the Crimes Act 1914. The form of the warrants and the issues on the appeal appear from the joint reasons for judgment of Lockhart, Beaumont and Hill JJ, which I have had the advantage of reading. Section 10(1) is also set out in the joint judgment.

I agree with Lockhart, Beaumont and Hill JJ, for the reasons they give, that the terms in which the warrants describe the suspected offences do not invalidate the warrants and that there is no substance in the appellants' further contention that, by reason of non-disclosure, misrepresentation or lack of good faith, the warrants were improperly obtained.
I also agree that a warrant issued under s.10(1) may contain a provision that identifies the objects of the search by reference, amongst other things, to a description that reflects the language of s.10(1)(b). The third condition in each of the present warrants effectively limits their scope to things that were, as a matter of objective fact at the time the warrant was issued, things as to which there were reasonable grounds for believing that they would afford evidence as to the commission of one or more of the offences described. The warrants are not general warrants at all; in fact they are very specific. In my view, however, there nevertheless remains a question whether, without additional words of limitation, the third condition sufficiently limits the warrants so that their issue was authorised by s.10(1).
It is of course well established that strict compliance with the statutory conditions for the issue of a search warrant is required. As the High Court pointed out in George v. Rockett (1990) 170 CLR 104 at 111, to insist on strict compliance is simply to give effect to the purpose of the legislation. See also Coco v. The Queen (1994) 68 ALJR 401.
One of the essential conditions for the issue of a search warrant under s.10(1) is that the required satisfaction of the justice of the peace or magistrate be "by information on oath": see George v. Rockett, esp. at 113-115, 122. In the present case the issuing justice recited in the warrants her satisfaction "by information on oath placed before (her)". The information on oath put before the justice did not however purport to be, and could not be said to be, the totality of all the information upon which a person might, as an objective matter, be satisfied that there were the required reasonable grounds for suspecting and reasonable grounds for believing. Indeed it is not hard to imagine how there could be other information, not put before the justice on oath, that as a matter of objective fact could provide reasonable grounds for believing that particular documents would afford evidence as to the commission of one or more of the described offences.
The third condition of the warrants is conceded to be of critical importance because without it the warrants would be too wide. To my mind, however, the third condition fails in one critical respect to limit sufficiently the scope of the warrants. It fails, in my view, because the third condition may be satisfied according to its terms if, as a matter of objective fact, however established, it can be said of a particular thing in respect of which the first two conditions are satisfied, that there are reasonable grounds for believing that it will afford evidence as the commission of one or more of the offences described in the warrant. In my opinion the third condition does not limit the information by which reasonable grounds can be shown to exist as a matter of objective fact to the information on oath placed before the magistrate. Thus a police officer executing any of the warrants could justify, according to the terms of the warrant, the seizure of particular documents by reference to additional facts in existence at the time the warrant was issued but, for whatever reason, not placed before the justice of the peace on oath when the warrant was being sought.
I would therefore hold that the warrants are not authorised by s.10(1) because, as I would construe them, each goes further than to authorise the seizure of a thing as to which a justice was satisfied exclusively by information on oath that there was the required reasonable ground for suspecting and the required reasonable grounds for believing. It is of course quite possible that the information provided to a justice on oath will support a variety of reasonable grounds for suspecting and believing and these grounds need not themselves be stated in anything put before the justice or in the warrant itself, but what are reasonable grounds still has to be decided by reference to the information on oath placed before the justice.
The insistence, that the law requires, on strict compliance with strictly construed statutory conditions for the issue of a search warrant operates in a case such as the present to maintain an important safeguard to the rights of individuals whose interests might be invaded, namely the requirement imposed by the Parliament in s.10(1) that the information upon which a warrant is issued be on oath: see George v. Rockett esp at 113 - 115.
I would therefore allow the appeals and set aside the orders dismissing the applications for judicial review. I would declare that the decisions to issue the warrants were not authorised by s.10 of the Crimes Act 1914 and that the warrants are of no effect. I would order the third and fourth respondents to pay the appellants' costs.

JUDGE2

INTRODUCTION
LOCKHART, BEAUMONT AND HILL JJ These are appeals from orders made by Whitlam J dismissing applications for judicial review of decisions, made in related matters, to issue three search warrants under s.10(1) of the Crimes Act 1914.

Section 10(1) relevantly provides:

"(1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises ... 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 (against any law of the Commonwealth); 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; or that any such thing may, within the next following 72 hours, be brought into or upon the premises, ... the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises ... or place named or described in the warrant, and to seize any such thing which he or she might find there."

THE INFORMATION
3. The sworn information on which the warrants were issued is important for present purposes, so it is necessary to recite many of its terms. The introductory section of the information is in these terms:

"2. Upon the information set out in the following paragraphs, there is (sic) reasonable grounds for suspecting that there are in the following premises in the State of New South Wales, namely:

(i) the offices of Bay Wool Pty Limited ("Bay Wool") located at first floor, 15 Young Street, Sydney

(ii) the registered office of Bay Wool being the office of Edney Lawrence and Co. Accountants ("Edney Lawrence"), located at 2nd floor, 706 Military Road, Mosman,

(iii) the principal Australian office of Bay Wool being the home of Peter Eric Dunesky ("Dunesky") a director of Bay Wool, located at 7 Gilmore Close, Glenhaven,

(iv) the home of Brian Dawson Edney ("Edney") a director and the company secretary of Bay Wool located at 11 Kanangra Crescent, Clontarf, THINGS which satisfy all THREE of the following conditions: FIRST CONDITION: which are originals or copies of any one or more of the following:

(1) receipts, records of payment, invoices and statements of account,

(2) company records including minute books, share registries and share script,

(3) accounting books and records including journals, ledgers, trading accounts, profit and loss statements and balance sheets,

(4) banking records including bank statements, cheque butts and deposit books,

(5) telexes, telegrams, cables and facsimiles,

(6) correspondence,

(7) tax returns, notices of assessment (including notices of amended assessment),

(8) reports, file notes, diary entries, minutes and memoranda,

(9) things being any of the things mentioned above on;

(a) microfiche or microfilm,

(b) magnetic tape or other computer storage medium and for the purpose of producing such things in a comprehensive form, computer software, peripherals, encryption devices, modems and software and related manuals or instruction notes.

SECOND CONDITION: which relate to, arise out of or are connected with any one or more of the following:

(i) the purchase or sale of wool and wool products by Bay Wool,

(ii) the receipt or payment of monies by Bay Wool,

(iii) the receipt or payment of monies by Edney Lawrence on behalf of Bay Wool or Dunesky,

(iv) the receipt or payment of monies by Dunesky,

(v) the purchase of real estate by Bay Wool or Dunesky,

(vi) the purchase of shares by Bay Wool or Dunesky in Neverfail Bottled Water Co. Pty Limited. THIRD CONDITION: as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of one or more of the following offences against laws of the Commonwealth which offences are suspected on reasonable grounds to have been committed:

(i) Between November 1984 and January 1989 Bay Wool Pty Limited defrauded the Commonwealth contrary to section 29D of the Crimes Act 1914 in that it failed to declare all of the assessable income received during the period 1 July 1984 to 30 June 1988 to the Commissioner of Taxation.

(ii) Between November 1984 and January 1989 Peter Eric Dunesky was knowingly concerned in the commission of an offence against section 29D of the Crimes Act 1914 by Bay Wool Pty Limited, namely that Bay Wool Pty Limited did defraud the Commonwealth in that it failed to disclose all of the assessable income received during the period 1 July 1984 to 30 June 1988 to the Commissioner of Taxation.

(iii) Between November 1984 and January 1989 Brian Dawson Edney was knowingly

concerned in the commission of an

offence against section 29D of the

Crimes Act 1914 by Bay Wool Pty

Limited, namely that Bay Wool Pty

Limited did defraud the Commonwealth

in that it failed to disclose all of

the assessable income received

during the period 1 July 1984 to 30

June 1988 to the Commissioner of

Taxation.

(iv) Between November 1984 and January 1989 Peter Eric Dunesky contrary to section 29D of the Crimes Act 1914 defrauded the Commonwealth in that he failed to disclose as assessable income by money either received by him from or paid on his behalf from Edney Lawrence and Co.

accountants, such money having initially been deposited with the said Edney Lawrence and Co. on behalf of Bay Wool Pty Limited."

The information then proceeds as follows:

"3. Officers of the Australian Taxation Office, Chatswood have conducted enquiries into the financial affairs of Bay Wool and Dunesky in relation to the period 1 July 1980 to 30 June 1989.

4. Bay Wool was incorporated in New South Wales on 26 August 1976 and on that date Dunesky and Edney were appointed directors. Dunesky was also appointed company secretary. The registered office of the company is 2nd floor, 706 Military Road, Mosman and the principal Australian Office is 7 Gilmore Close, Glenhaven. There are two issued shares, one held by Dunesky and the other held in trust by Edney for Dunesky. The principal business of the company is the purchase, exportation and sale of wool and wool products.

5. The company's income tax returns for each of the financial years 1 July 1984 to 30 June 1988, ("the four financial years") and the accompanying profit and loss accounts have been examined by the Australian Taxation Office. Each of these returns was prepared and submitted by Edney of Edney Lawrence. A schedule depicting the value of gross sales, purchases and expenditure in each of these profit and loss accounts is attached hereto and marked "A". The amounts representing value of gross sales depicted in the profit and loss accounts represent the sale value of wool sold and these amounts are reflected in the company's current bank account and books of account.

(In attachment "A", a statement by way of comparison between

figures in the income tax return and figures "adjusted" by

the Australian Tax Office is made in respect of the four

years ended 30 June 1985, 1986, 1987 and 1988. In respect

of the item "Wool Sales Omitted", adjusted figures of

$385,600, $1,715, $805,751 and $2,876,650 respectively are

stated. Amounts, some substantial, are also stated in

respect of "Purchases Overstated" and "Expenditure

Overstated".)

6. Investigations reveal that since 1984 receipts for the sale of wool by Bay Wool have been deposited in the main into the company's current account number 00-105-2875 at the National Australia Bank, 181 Broadway, Sydney. Receipts for the sale of wool have also been deposited in the trust account of Edney Lawrence, account number 01-178-2693 National Australia Bank, 567 Military Road, Spit Junction.

7. The expenditure of Bay Wool was overstated in each of the four financial years as set out in columns 6 and 7 of attachment "A". Some of the monies shown in Bay Wool's current account as expenditure upon wool had in fact been deposited to the Edney Lawrence trust account.

8. In addition enquiries at the National Australia Bank in relation to the trust account banking records and discussions with Edney revealed that a number of cheques in favour of Bay Wool were deposited to the Edney Lawrence trust account. These amounts were omitted from the amount of sales reported in the tax returns submitted by Bay Wool in the four financial years. A schedule depicting these cheque deposits is attached hereto and marked "B".

9. Enquiries show that some of the monies held in the Edney Lawrence trust account were paid to Dunesky or deposited into his private bank accounts. Private expenditure by Dunesky was met by funds withdrawn from the trust account in the form of bank cheques payable to Holman Webb Solicitors, Neverfail Bottled Water Co. Pty Limited, Brash's and S Kane. Attached hereto and marked "C" is a schedule setting out particulars of certain payments drawn on the trust account.

(By way of illustration, the items stated in attachments "B"

and "C" between 11 July 1984 and 5 February 1985 were as

follows:

Attachment "B"

DATE DRAWER DRAWERS BANK DEPOSITS 11-Jul-84 Bay Wool Pty. Ltd. N.A.B. Broadway $9,876.40 10-Sep-84 Pacific Wool P/L N.A.B. Broadway $26,643.17 9-Oct-84 F. Whitbread and Co. N.A.B. New Farm $87,638.27 22-Oct-84 F. Whitbread and Co. N.A.B. New Farm $69,987.62 5-Nov-84 Bay Wool Pty. Ltd. N.A.B. Broadway $21,617.18 22-Jan-85 F. Whitbread and Co. N.A.B. New Farm $108,263.12 5-Feb-85 F. Whitbread and Co. N.A.B. New Farm $119,710.56 Attachment "C"

DATE CHEQUE NO. PAYEE WITHDRAWALS 11-Jul-84 49570 $9,376.40 11-Jul-84 49571 Cash $500.00 10-Sep-84 49587 S. Kane $26,143.17 10-Sep-84 49588 Cash $500.00 22-Oct-84 49600 P. Dunesky $87,138.27 22-Oct-84 286501 Cash $500.00 5-Nov-84 286503 P. Dunesky $68,987.62 5-Nov-84 286504 Cash $1,000.00 5-Nov-84 286502 S. Kane $21,117.18 5-Nov-84 286505 Cash $500.00 5-Feb-85 286511 P. Dunesky $108,263.12)

10. The income tax returns of Dunesky for the years 1981 to 1988 were prepared by Edney of Edney Lawrence. A schedule depicting wages, dividends and other income in respect of each of the four financial years is attached hereto and marked "D".

11. An audit by the Australian Taxation Office has revealed that Dunesky underdeclared his income in each of the four financial years. Withdrawals from the Edney Lawrence trust account were not declared nor was interest derived from the operation of various accounts held by Dunesky. A schedule which sets out this undeclared income, which is additional to that set out in schedule "D" is attached hereto and marked "E".

12. Enquiries establish that Bay Wool understated income by the sum of $4,553,799 during the four financial years. The Australian Taxation Office has calculated the tax avoided as $2,207,961. A schedule setting out further details of the tax for each year is annexed hereto and marked "F".

13. Dunesky during each of the four financial years failed to report the receipt by him of funds paid from the trust account. In addition income in the form of interest has been understated in Dunesky's tax return. It is estimated that during the four financial years Dunesky understated his personal income by the sum of $1,888,138. The tax applicable in relation to this additional income is $1,100,159.

14. Australian Taxation Office auditors have spoken to Dunesky and Edney. In addition statements by Dunesky and Edney prepared by solicitors acting on behalf of Dunesky have been supplied to the Australian Taxation Office.

15. When interviewed on 6 March 1989 Edney stated that it was at his suggestion that funds from sales were deposited into the trust account so that funds would be available to pay for purchases at short notice. Edney stated that he was unaware that funds were used for Dunesky's private spending. By letter dated 19 April 1989 (copy annexed hereto and marked "G") Edney noted that certain receipts had been omitted in Bay Wool's return. He stated 'The failure to bring the abovementioned income to account in the company, having regard to the declaration on the face of the company's income tax returns for these years would appear to constitute a false or misleading statement in those years.' Edney then submitted that there were mitigating circumstances.

16. Edney signed the declaration on the tax return of Bay Wool each year to the effect that all monies received by Bay Wool had been declared.

17. Dunesky was interviewed on 6 March 1989. He admitted that cheques from the Edney Lawrence trust account had been used during 1987 and 1988 for non business purposes. He stated that he had had the intention to 'fix things up' but had not got around to it.

18. Later submissions received by the Australian Taxation Office have sought to claim that real estate bought with funds from the Edney Lawrence trust account should have been bought in the name of Bay Wool and not Dunesky. Similarly it has been sought to be claimed that shares in the company Neverfail Bottled Water Co. Pty Limited should have been issued to Bay Wool and not Dunesky. Edney was a director and the secretary of this company and prepared minutes which showed that 15,000 'A' shares had been allotted to Dunesky at a premium of $717,641. Neither of these submissions is accepted by the Australian Taxation Office. There is however a dispute between Dunesky and the Australian Taxation Office concerning the characterisation of some of the monies received by him from the Edney Lawrence Trust Account in the 1988 financial year as assessable income."

Attachment "G" to the information (referred to in par. 15 above) should be recited. It is a letter dated 19 April 1989 from Messrs Edney Lawrence and Co., Chartered Accountants to the Deputy Commissioner of Taxation in these terms:

"Dear Sirs,

Re: Bay Wool Pty Limited and Mr Peter Eric Dunesky We refer you to your request to examine the bank records of Mr. Peter Eric Dunesky, Director and Principal Shareholder of Bay Wool Pty. Limited, as part of an audit of the affairs of that company. We note that you have already inspected bank statements and cheque butts for various accounts in the name of Mr. Dunesky but that you require details of the various bank deposits in those accounts for the years ended 30 June, 1987 and 30 June 1988. The bank accounts referred to above are as under:

Australian and New Zealand Banking Group Limited - Epping - Account number 2242-27263

National Australia Bank - Broadway - Account number 00123-217 Commonwealth Bank of Australia - Circular Quay - Sydney - Account number 0012-9572

State Bank of New South Wales - Hunter Street - Sydney - Account number 33-0014-00

Schedules setting out details of all deposits to these accounts during the abovementioned periods are attached to this letter together with supporting documentation where appropriate.

You will note from the attached schedule of bank deposits into the various accounts of Mr. Dunesky that there are numerous deposits from the trust account of this firm and which directly relate to the proceeds of the sale of wool belonging to Bay Wool Pty. Limited. These proceeds have not been included in the company's assessable income for the years ended 30 June 1987 and 30 June 1988. As a result, the company's income for those years has been understated by $957,160 as under:

Year ended 30 June, 1987 $759,186 Year ended 30 June, 1988 $197,974 The effect of these transactions is that Mr. Dunesky should have appeared as a debtor in the 1987 and 1988 accounts. Steps are being taken to make these adjustments in the 1989 accounts.

The failure to bring the abovementioned income to account in the company, having regard to the declaration on the face of the company's income tax returns for those years would appear to constitute a false or misleading statement in those years. Whilst this would appear to constitute deliberate evasion for the purposes of income tax ruling number 2517, it is submitted that there are mitigating circumstances in that what occurred can best be described as Mr. Dunesky being overtaken by events rather than having embarked on a plan to transfer assets of the company for his own benefit.

During the year ended 30 June, 1986, Bay Wool Pty. Limited was appointed a purchaser of wool for a Japanese woolen goods manufacturer represented by an agent in Australia. At the time of appointment it was stressed by the agent that, at any time, he might wish to draw amounts of consultants fees owing to him by Bay Wool Pty. Limited under the arrangement and he emphasised that it was imperative that there be no delay in making the funds available. This caused a dilemma for Mr. Dunesky in that he is absent from Sydney for extensive periods during the year while attending wool sales throughout the Commonwealth and it was distinctly possible that the Japanese agent might seek payment of the consultants fees due to him whilst Mr. Dunesky was attending one of these sales. Mr. Dunesky was the sole signatory on the company's bank account. His first solution was to make a calculation of the approximate amount of consultants fees that he thought would be due to the agent from time to time and to deposit wool sales proceeds from time to time into a number 2 account in the name of the company to isolate such funds and to insure that they would be available at all times. He then realised that this could be a problem in that the bank may confuse the number 1 and number 2 account of the company. He then decided to place such funds in the trust account of Messrs Edney, Lawrence and Co., chartered accountants of Mosman and made arrangements for that firm to remit funds as and when required, to the personal bank accounts of Mr. Dunesky in order that his wife could draw such consultants fees when they were demanded by the Japanese agent. Because he anticipated that any amounts paid from the trust account of Messrs Edney, Lawrence and Co. would represent allowable expenditure for Bay Wool Pty Limited, he merely transferred sales proceeds which had not been recorded in the company's books to Messrs Edney, Lawrence and Co. and there the matter rested. He did not think it would be necessary to bring to account either the sales proceeds or the consultants fees payments in the books of account of the company.

Throughout the period in question, Mr. Dunesky requested Edney, Lawrence and Co. to remit various sums either to his personal accounts or to his solicitor as arranged. Unfortunately Mr. Dunesky did not pay the consultants fees from his personal bank accounts but paid them from Bay Wool Pty. Limited. As Mr. Dunesky is the only employee of the company as mentioned above and as he works extremely long hours in order to service all that needs to be done in a company with such a large business, he completely overlooked advising Messrs Edney, Lawrence and Co. that the sums had not been paid for consultants fees and he did not instruct this firm to bring to account as income in the returns for Bay Wool Pty. Limited the wool sales proceeds that were deposited into this firm's trust account. As can be seen from the schedule of bank deposits and property transactions, all the funds in question, namely $957,160 were used by Mr. Dunesky for his personal use. In addition it has now come to our notice that several items of income were omitted from the personal income tax return of Mr. Peter Eric Dunesky during the years ended 30 June, 1986, 30 June 1987 and 30 June, 1988 and we set out details of this omitted income hereunder:

Year ended 30 June, 1986

Interest received - State Building

Society Term Deposit $ 492 === Year ended 30 June, 1987

Interest received - State Building

Society Term Deposit $ 472 Interest received - Lloyds

International Limited $ 3,158 $ 3,630 ===== Year ended 30 June, 1988

Interest received - State Building

Society Term Deposit $ 503 ==== Although it is realised that you are unable to treat this as a voluntary disclosure, we draw your attention to paragraph 51 of income tax ruling number 2517 and ask that this disclosure be treated as positive co-operation as expressed in that paragraph.

Yours faithfully,

EDNEY, LAWRENCE and CO"

THE FORM OF THE WARRANTS
6. The warrants purport to authorise named members of the Australian Federal Police to enter several premises said to be the premises of the appellants, Peter Eric Dunesky ("Dunesky") and Bay Wool Pty. Ltd. ("Bay Wool") and of Edney Lawrence and Co. ("Edney Lawrence"). Each of the warrants is in the same form, authorising that entry and the seizure of things which satisfy the three conditions specified in para. 2 of the information. Each of the warrants recite that the justice, "being satisfied by information on oath ... that there is reasonable ground for suspecting that there is in premises (then specified) THINGS which satisfy all THREE of the following conditions...." It will be noted that the third condition in the information refers to s.29D of the Crimes Act. It is there provided that a person who defrauds the Commonwealth is guilty of an indictable offence.

THE GROUNDS OF THE APPLICATION FOR JUDICIAL REVIEW
7. In order to understand the nature of the proceedings dealt with at first instance, it will suffice to refer to the amended application for an order of review filed on behalf of Mr. Edney. This application sought review of the decisions to issue the warrants in respect of the office of Edney Lawrence and the home of Mr. Edney. Relevantly, the grounds of the application were stated in these terms:

"The grounds of the application are:

1. That the decisions were not authorised by the enactment in pursuance of which they were purported to be made, being Section 10 of the Crimes Act 1914 (Cth). PARTICULARS

(a) The warrants are too general in that the documents which could be seized pursuant to the warrant are too broadly described.

(b) The warrants do not on their face disclose any offence known to law, and therefore do not show jurisdiction.

2. That the making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purportedly made.

PARTICULARS

(a) The warrants were uncertain and therefore the power exercised pursuant to them was exercised in such a way that the result of the exercise of the power was uncertain.

(b) The First Respondent failed to take account of relevant considerations, namely facts that were known to the Second Respondent but were not disclosed to the First Respondent.

3. That the decisions involved an error of law, by reason of the matters referred to in Grounds 1 and 2 above.

4. That there was no evidence or other material to justify the making of the decisions.

5. Procedures that were required by law to be observed in connection with the making of the decisions were not observed in that the Second Respondent failed to disclose material facts to the First Respondent."

Relief was claimed in the application under (1) the Administrative Decisions (Judicial Review) Act 1977; (2) s.39B of the Judiciary Act 1903; and (3) the associated jurisdiction conferred by s.32 of the Federal Court of Australia Act 1976 and its accrued jurisdiction.

THE ARGUMENTS OF THE PARTIES AND THE DECISION OF THE PRIMARY JUDGE
9. At the trial, and before us, the appellants contended that the warrants were bad on their face, in that their terms were, it was argued, uncertain and overly complex.

It was also said that the warrants failed to identify offences known to the law; and in particular, the reference in the information and the warrants to "assessable" income was criticised on the ground that the only relevant statutory obligation was to lodge a return stating all income derived in the sense explained in North Coast Grazing Pty. Ltd. v Federal Commissioner of Taxation (1987) 15 FCR 104; that is to say, the argument went, there was no statutory obligation to disclose "assessable" income.
At first instance, Whitlam J held (1) that the warrants stated the requisite satisfaction of the justice of the peace and (2) that the substance of the offence could be plainly understood. The particulars given of the offences, although inappropriately phrased, were in order, his Honour held, because, applying observations by Burchett J in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 (at 545), they "narrow the statement of the offences so as to indicate that the offences relate to particular activities, and they indicate boundaries for the area of search".
The appellants further argued at the trial, and before us, that those seeking the issue of the warrants had failed to discharge the "strict duty of full disclosure of material facts" to the justice of the peace in the sense explained in Karina Fisheries Pty. Ltd. v Mitson (1990) 26 FCR 473 at 480-3; it was contended that they should have disclosed that, in the course of a tax audit, the Australian Tax Office already had obtained numerous documents from Bay Wool, Mr. Dunesky and Mr. Edney.
In rejecting this submission, Whitlam J said:

"It cannot be the case that an informant is obliged to set out everything that is known to him. What he or she must disclose are the material facts. Unless a fact can be identified as having been both not disclosed and material (in the sense that it may have affected the exercise of discretion of the JP), there will be no breach of the relevant duty. The applicants are unable to point to such a fact. The fact that many of the documents sought by the warrants might be originals of documents, copies of which were already available to the informant, could be readily inferred from the information."

THE GROUNDS OF APPEAL
14. By their amended grounds of appeal, the appellants again contend that the warrants were bad because (1) they were excessively broad and uncertain; (2) they disclosed no offence known to the law; and (3) there had been a failure to disclose material facts.

CONCLUSIONS ON THE APPEAL
(a) The principles to be applied
15. As the Full High Court said in George v Rockett ("Rockett") (1990) 170 CLR 104 (at 110), a case concerned with a provision in substantially the same terms as s.10(1) of the Crimes Act, the questions now raised turn on the construction of the provision and, of course, its application in the present circumstances. In Rockett, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ went on (at 110-1) to point out that because a search warrant authorises an invasion of premises without the consent of those in possession or occupation, its validity depends upon the fulfilment of the statutory conditions; and that, since the provision is a far-reaching exception to the common law rules protecting property and privacy, a warrant must comply strictly with the statutory conditions governing its issue.

The High Court proceeded to consider the operation of the relevant conditions under three headings (1) the justice's function; (2) the material to ground the issue of a warrant; and (3) the facts to be established, as follows:

(1) The justice's function 17. As to the justice's function, it was held (at 111) that the opening words of the provision impose upon the justice the duty of satisfying himself or herself, independently of the views of those seeking the warrant, that the requisite conditions are fulfilled: see, e.g., Televantos v The Commonwealth of Australia (unreported, 28 April 1993, Full Federal Court). Additionally, the warrant should express the justice's satisfaction that there are reasonable grounds for the suspicion and belief.

(2) The material to ground the issue of a warrant 18. With respect to the material to ground the issue of a warrant, the High Court held (at 114) that the statutory requirement is that the sworn information should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in the statute. If that requirement is not satisfied, any information otherwise conveyed is immaterial.

(3) The facts to be established
19. As to the facts to be established, it was held that the statute requires that the justice must be satisfied that there are "reasonable grounds for suspecting" that there is in any premises "anything" as to which there are "reasonable grounds for believing that the thing 'will ... afford evidence as to the commission of any offence'" (at 115). It was further held (at 115) that suspicion and belief are different states of mind; and that, in its ordinary meaning, "suspicion" is "a state of conjecture or surmise where proof is lacking" and that the facts which can reasonably ground a suspicion may not reasonably ground a belief; yet some factual basis for the suspicion must be shown. It is necessary to identify the subject matter of suspicion and the subject matter of belief. The better view is that it is the existence of the thing, not merely its location, that is, in a provision such as s.10(1), the subject of "suspicion" rather than "belief". However, their Honours went on to say (at 117):

"So to hold does not deprive the requirement of 'reasonable grounds for believing' in par.(b) of significance. That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search. A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location." (Emphasis added)

The High Court held that the phrase "will afford evidence as to the commission of (an) offence" does not suggest that the only things for which a search warrant might be issued are things which are or will become admissible in evidence. As their Honours said (at 119-20):

"The power to issue a search warrant is in aid of criminal investigation as well as in aid of proof at the trial, though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to. An object will answer the description in par.(b) if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identify of the person or persons who committed it or any other information material to the investigation of those matters."

(4) Is there a duty of disclosure?
21. No question arose for consideration in Rockett in this area. However, it has previously arisen for consideration in this Court.

In Lego Australia Pty Ltd v Paraggio (1994) 124 ALR 225, a judgment of a Full Court of this Court (Beaumont, Hill and Whitlam JJ) Beaumont and Whitlam JJ, in joint reasons for judgment, said at 238:

"... in our view ... there is no general, in the sense of abstract, 'duty' of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see R v Kylsant (1932) 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.

Put differently, the primary question here is not whether the informant was under an obligation to disclose to the Justice a particular fact, but whether the statements in the Information were sufficient to satisfy the requirements of s. 10(1). There is also a question whether the decision to grant the warrant was induced by fraud."

Hill J in a separate concurring judgment said at 251-2:

"Thus it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the Magistrate or Justice is not such as to mislead and that any omission of relevant matter was inadvertent. This is merely another way of saying that the informant must in compiling the information act in 'good faith'. The power to lay an information before a Magistrate or Justice for the issue of a warrant, like all powers, must be exercised in good faith and for the purpose for which the power was conferred. If the informant does exercise the power in good faith then the issue of the warrant can not be criticised upon the basis that material was inadvertently excluded from the Magistrate's attention. Absent good faith upon the part of the informant the result will be different."

In the penultimate paragraph of his Honour's reasons, Hill J said as follows:

"I would accordingly hold that the obligation of an informant for a warrant to make disclosure should be stated in terms of good faith and by way of corollary, that a failure in good faith to disclose material relevant to the issue which the Magistrate or Justice has to determine will bring about the result that the discretion exercised by that functionary to issue a warrant will have miscarried by virtue that the procedures required by law for the issue of the warrant will not have been observed." (at 253)

Counsel for the appellants argued that the passages which we have recited from the joint judgment of Beaumont and Whitlam JJ and the judgment of Hill J reveal different approaches, and that this Court, constituted by five judges, should resolve the differences and decide for itself whether there is a duty on the part of the informant to disclose material facts to the Justice issuing a warrant and, if so, to define the nature and scope of the duty.
We do not find it necessary to consider whether their Honours' judgments reflect differences of principle or merely of emphasis because, for reasons given later, if there was an obligation to disclose the material facts, this duty was discharged here. (b) The application of these principles in the present circumstances

(i) Are the warrants too broad and uncertain?
26. It will be recalled that the warrants recite the justice's satisfaction, by the sworn information, that there is "reasonable ground for suspecting that there is in (specified) premises ... THINGS which satisfy all THREE of the ... conditions (then stated)."

In support of their contention that the warrants lacked the necessary particularity, the appellants rely upon the observations of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v R (1994) 120 ALR 415 (at 418) that -

"Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language."

In our view, the source of the authority to search and seize in the present case is to be found clearly expressed in s.10(1). The essential question here is whether the conditions there stipulated were, in the instant circumstances, strictly complied with. In undertaking this inquiry, no real assistance can be gained from a consideration of the analysis made of the sufficiency or otherwise of informations and warrants in other instances. All the decided cases have emphasised that sufficiency in this context must depend upon the particular circumstances of the matter at hand. It follows, in our view, that no useful purpose will be served here by a comparative analysis of the kind sought to be made in the arguments advanced on behalf of the appellants, of first, the adequacy of other informations and warrants in the decided cases and, secondly, of the reasons why those informations and warrants were, or were not, held to be insufficient.

As has been noted, complaint is made as to the width of the warrants. It is said that they are not sufficiently specific, in their terms, in identifying the object of the search. We reject the submission.
It is true, as the High Court observed in Rockett (at 117), that "the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence." But it must follow that the real question here is whether that requirement has been satisfied, bearing in mind, as the High Court also pointed out in Rockett (at 117), that the "more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location".
In our opinion, there is nothing in the form of the warrants, and in particular, there is nothing in the description of the things the object of the search, which leads to the conclusion that any of the warrants is bad. Subject, as has been said, to compliance with the conditions stipulated in s.10(1) as explained in Rockett, it is not, in our opinion, impermissible to describe the object of the search in a broad, or non-specific fashion.
Were the statutory conditions fulfilled in the present case, looking at the matter objectively in the sense explained in Rockett? In our view, the requisite conditions were complied with for these reasons.
In the first place, in terms of the justice's function, it was sufficient, in our view, for the justice to express her satisfaction in a recital in the warrants by information on oath by reference to what are said to be the requisite matters stated in the form of the three conditions then specified. The observations in Rockett (at 111) discussed above do not suggest that the expression of the justice's satisfaction must take any particular form.
The justice expressed her satisfaction as having been derived from the material in the sworn information. There is no suggestion that the justice's satisfaction was derived from other material. The second element described by the High Court, the material to ground the issue of a warrant, has been established.
Has the third ingredient (the facts to be established, as the High Court described it (at 115)) been made out? In order to decide this, it will be necessary to consider the terms of the warrants in light of the information.
In their terms, the warrants purport to authorise entry upon the premises specified and further purport to authorise seizure of "any such things that satisfy ALL of the THREE above conditions and as may be found in the said place". This leads one to inquire as to the meaning of the three conditions. It will be necessary to take them individually in the first place, but, ultimately, to take them collectively in the sense that one only arrives at the final stage of the inquiry (the third condition) after a thing has satisfied both of the previous conditions.
Some of the things nominated in the first condition are described by reference to their specific character, for instance, "receipts". Other things described here are defined in a broader fashion, for example, "file notes" or "memoranda". However, the definition of what may be searched for and seized is narrowed or refined by the language of the second condition. By the terms of the second condition, the thing in question must also "relate to, arise out of or (be) connected with" any of the transactions described. It is true, as counsel for the appellants submitted, that "relate to" and the other phrases used here are wide in their import. However, again their operation is refined by the character of the stated transactions, notwithstanding that some of them are described broadly, as for instance, the "receipt or payment of monies by Dunesky".
Once more, the refining process takes us to the third condition. In this condition, we find a number of limitations. First, there must be reasonable grounds for believing that the thing will afford evidence as to the commission of one of the nominated offences alleged. It will be necessary to come soon to the way in which the alleged offences were described. But first, mention should be made of an argument that in this condition there is an impermissible attempt to delegate to the police officer a discretion to decide which things may be seized (see Auckland Medical Aid Trust v Taylor (1975) 1 NZLR 728; Rosenberg v Jaine (1983) NZLR 1).
Section 10(1) requires that the requisite satisfaction, as Rockett decided, is that of the justice and not that of the executing officer. But, in our view, the third condition does not infringe this principle. Rather, in our opinion, by referring to "reasonable grounds" of the kind specified, the condition makes it clear that the warrant is, in objective terms, limited to, and in accordance with, the conditions laid down by the provisions of s.10(1). In particular, its operation does not depend upon the subjective opinion of the executing officer. If the executing officer seizes things as to which the relevant reasonable grounds do not (objectively) exist, the seizure is not authorized by the terms of the warrant. The possibility that an executing officer may exceed or even misconstrue the terms of the warrant does not demonstrate that its terms are "too broad and uncertain."
Two matters should be noted in this connection. First, the present question is one of initial validity of the warrant so that, of necessity, the matter is tested as at the date of its issue. Secondly, it must follow that anything done, or omitted to be done, by the executing officer cannot bear upon the initial validity of the warrant. The officer's function is to execute the warrant in accordance with (1) its terms and (2) the provisions of s.10(1). If there is a failure to comply with those terms or those provisions, it may be accepted that the officer could be liable on that account and that, on a quia timet basis, the Court might restrain apprehended future illegal action. But that is another matter. As has been said, the present question is whether the justice acted within power.
It will be recalled that the third condition commences with a reference to there being "reasonable grounds for believing that (things satisfying the first two conditions) will afford evidence as to the commission of one or more of the ... offences against laws of the Commonwealth (then described) which offences are suspected on reasonable grounds to have been committed". Two comments may be made here, neither of which suggests that the warrant might be invalid on that account. In the first place, the reference to the requisite belief and suspicion is a recitation of the relevant requirements of s.10(1). No departure from the statutory provisions is involved. Moreover, as has been said, only those things which, objectively speaking, are able to satisfy, inter alia, these aspects of the statutory conditions may lawfully be seized by the police. Secondly, in our view, the real object of the third condition is the identification of the kind of offences alleged. Again, this is done as part of the refining process we have mentioned. In our opinion, this is a permissible method of drafting a warrant with a view to compliance with the requirements of s.10(1).

(ii) Do the warrants disclose an offence known to the law?
41. The relevant offence is, as stated in the warrants, defrauding the Commonwealth contrary to s.29D of the Crimes Act. Section 29D so provides. The criticism is made that, by referring to a failure to disclose "assessable" income, the information and warrants were inconsistent with the provisions of s.161(1) of the Income Tax Assessment Act 1936, ("the Assessment Act") as it then stood. By s.161(1), it was provided that every person shall furnish to the Commissioner a return setting forth a full and complete statement "of the total income ... and of any deductions or losses". That is, the argument runs, the focus of s. 161(1) is not upon "assessable" income. The argument proceeded that "assessable" income may include profits or gains of a capital nature which would not fall within the concept of "income" according to its ordinary and natural meaning, which is the meaning to be attributed to the words "the total income" in s. 161(1). It was argued that to this extent the information and the warrants failed to disclose a relevant alleged offence.

In our view, the submission should not be accepted. The argument fastens on the words "assessable income" in the information and the warrants on the assumption that they bear the same meaning as they do in the Assessment Act (s. 6(1)), namely, "all the amounts which under the provisions of the Assessment Act are included in the assessable income", an expression which may include profits or gains of a capital nature. There is no justification for that assumption. As used in the information and warrants, the expression "assessable income" means simply all of the income received which may be assessable income under the Assessment Act. The fact that "assessable income" as defined in the Assessment Act may include capital gains or profits which are not embraced within the ordinary understanding of the word "income" as used in s. 161(1) is not to the point.
There is a further, and independent, reason for rejecting the appellants' argument. The relevant offence, that of defrauding the Commonwealth, is stated in the information and the warrants. The addition of the particulars of the offence by reference to the omission of "assessable" income not only is not misleading, but also, in our view, actually assists the reader of the warrants to understand better the nature of the offence alleged than if the matter had rested with a general statement of the offence in the language of s.29D.

(iii) Was there a failure to disclose material facts to the justice?
44. The information stated that an investigation and tax audit had been carried out. Moreover, the facts alleged in the information and its attachments clearly conveyed the message that the authorities already held a substantial body of information and material. In other words, it was made plain to the justice that although a considerable amount of material alleged to support a case of "laundering" already was held, a search for other material was desired to supplement the existing information. There was nothing improper or even unusual in the authorities taking this course. On the contrary, it reasonably could be expected that they would wish to do so in order to check the position so far as possible before making a decision to prosecute or not to do so.

Nor is there any substance in the contention of counsel for the appellants that there was in this case a misrepresentation by omission or a lack of good faith on the part of the informant.
No case for judicial review has been made out. We would dismiss the appeals, with costs.

JUDGE3

LINDGREN J I concur in the reasons found in the joint judgment of Lockhart, Beaumont and Hill JJ and in the orders proposed by their Honours, but wish to add the following observations in relation to two issues. I take the joint judgment and the judgment of the Chief Justice as read.

The "suspected on reasonable grounds to have been committed" issue.
2. The words "which offences are suspected on reasonable ground to have been committed" in the THIRD CONDITION are, in my opinion, "words of recital", that is to say, they are a factual description of all four of the offences subsequently referred to in the paragraphs numbered (i), (ii), (iii) and (iv) of the THIRD CONDITION. They are not "words of qualification", that is to say, they do purport to limit the offences referred to, to those of the four offences specified that "are suspected on reasonable grounds to have been committed".
The issue of the source of the "reasonable grounds for belief" referred to in the warrants.
3. The Chief Justice is of the view that the words in the THIRD CONDITION, "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of one or more of ..." do not suffice to limit the warrants to the extent that sub-section 10(1) requires. With great respect, I am not of that view.
It cannot be disputed that in becoming satisfied that there is reasonable ground for suspecting that there exists at the location in question a thing within the description in para 10(1)(b), the magistrate or justice ("the Issuer") is confined by reference to the information on oath: George v Rockett (1990) 170 CLR 104 at 113-115. The point of difference between the Chief Justice's view and mine is that according to his but not mine, some words such as "found by reference to the sworn information" would have to be inserted immediately following the words "reasonable grounds" in the THIRD CONDITION if the warrants in the present case were to be made intra vires in conformity with George v Rockett.
In my opinion, this construction of sub-section 10 (1) fails to take into account that the very existence of a thing in respect of which a warrant may be issued need not be the subject of reasonable grounds for "belief" and need be the subject only of reasonable ground for "suspicion". Sub-section 10(1) cannot be intended to require that the Issuer be satisfied that at the time of issue there actually exist in relation to any specific thing, the reasonable grounds for belief referred to in para (b). The reason is that the sub-section does not go so far as to require that there then exist reasonable grounds for belief that the offence has in fact been committed or that any thing referred to in the paragraph does in fact exist at the location specified. Paragraph (b) describes a quality which the thing will be found to possess if it exists - a quality of a thing suspected to exist. A thing having the quality referred to in para (b) must, on reasonable grounds found by reference to the sworn information, be suspected to exist at the location specified: in a case where only suspicion existed previously if the thing is in fact found to exist it is only at that stage that it can be said that a specific thing must be believed on reasonable grounds to have the quality referred to.
The construction of sub-s 10(1) and the task of the Issuer are usefully considered in the context of the nature of the offences in question and the nature and extent of things apt to afford evidence of the commission of such offences. The first question confronting the Issuer is whether he or she is satisfied by the sworn information that the offences suggested are suspected on reasonable grounds to have been committed. I assume henceforth that the Issuer is so satisfied. In the present case, the offences suspected on reasonable grounds to have been committed extended over a period of more than four years from November 1984 to January 1989. The first principal offence referred to (in para (i) of THIRD CONDITION) is that Bay Wool Pty Ltd ("Bay Wool") defrauded the Commonwealth by failing to declare all its assessable income for four financial years. Moreover, the sworn information (referred to in the joint judgment) suggests that a substantial number of transactions generated income for Bay Wool over that period. Accordingly, numerous documents and financial records might be expected to afford evidence of Bay Wool's assessable income over the four financial years, and of the fraudulent nature of Bay Wool's alleged failure to declare that income. Similar observations apply to the other principal offence alleged (against Dunesky in para (iv) of the THIRD CONDITION) and to the accessory offences alleged (in paras (ii) and (iii) of the THIRD CONDITION.
I assume henceforth that the Issuer is satisfied by the sworn information that there is reasonable ground for suspecting that there are, at the location in question, documents which have the quality that, if and when inspected, they would induce a belief in a reasonable person (George v Rockett, supra, at 112) that they will afford evidence as to the assessable income of Bay Wool or otherwise of the commission of one or more of the specified offences.
Neither the informant nor the Issuer can describe specifically all or perhaps any of those documents. Yet it is to be supposed that sub-section 10(1) was intended to enable the issue of effective search warrants in respect of offences of this kind. It is difficult to see how this might be achieved unless the warrants describe the documents by reference, in some way, to an offence suspected of having been committed (see The Queen v Tillett (1969) 14 FLR 101 (ACT/Fox J) at 113). Although it is conceivable in the present case that all documents satisfying the FIRST CONDITION and the SECOND CONDITION were documents as to which there were reasonable grounds for believing that they would afford evidence as to the commission of one or more of the offences, reflection might suggest some which did not possess this further quality. (It was not submitted that the warrants were supportable by reference to the FIRST CONDITION and SECOND CONDITION alone.)

This is a difficulty which confronts the Issuer who must ask which of the potentially numerous documents satisfying the FIRST CONDITION and the SECOND CONDITION, sub-section 10(1) permits to be made the subject of a warrant. The answer is, relevantly, any "as to which there are (objectively) reasonable grounds for believing that (they) will afford evidence as to the commission of any" offence falling within para (a) of sub-section 10(1) and (necessarily) specified in the warrant.
The Issuer must found exclusively upon the sworn information and must assume that those executing a warrant will have only the terms of the warrant and the terms of the documents being inspected as the basis for deciding whether there are reasonable grounds for believing that the latter will afford evidence as to the commission of an offence referred to in the former. The more information a warrant contains as to the nature of the suspected offence, the better equipped will those executing it be to determine whether there are reasonable grounds for believing that a particular document will afford evidence of the commission of the offence. In my opinion the offences are described with sufficient particularity in the warrants in the present case to negate any suggestion that the description of the objects of search and seizure is too general and uncertain in that respect.
The words "any such thing" towards the end of sub-s 10(1) refer back, relevantly, to the words of para (b), "any thing as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence". On one view, the sub-section authorises the issue of a warrant for the seizure of, relevantly, documents on the basis that the reasonable grounds for belief referred to in para (b) are to be found exclusively by a comparison of the terms of the documents inspected with the terms of the offence stated in the warrant (a view which has much to commend it). If so, the warrants in this case, by incorporating the language of para 10(1)(b), are within the authority conferred by sub-s 10(1) so construed. Another view is that the sub-section authorises the issue of a warrant for the seizure of, relevantly, documents on the basis that the reasonable grounds for belief referred to in para (b) may be found in part otherwise than by a comparison of the terms of the documents inspected with the terms of offence stated in the warrant. According to this view, the sub-section permits the issue of a warrant authorising seizure by reference to "reasonable grounds" based, for example, on the contents of the sworn information, or even on facts which were not before the Issuer. Again, according to this alternative construction, the warrants in the present case, by incorporating the language of para 10(1)(b), are within the authority conferred by sub-s 10(1) so construed.
Several Australian cases suggest that a description of the objects of seizure by reference to the existence of reasonable grounds for belief that they will afford evidence as to the commission of a specified offence may be appropriate: see The Queen v Tillett (1969) 14 FLR 101 (ACT/Fox J) esp at 112-113; Crowley v Murphy (1981) 34 ALR 496 (FCA/FC); Arno v Forsyth (1986) 9 FCR 576 (FCA/FC); Croft v Jumeau (1990) 22 FCR 276 (FCA/Jenkinson J) esp at 285; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 (FCA/FC); Beneficial Financial Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 (FCA/FC); Grollo v Macauley (1993) 45 FCR 336 (FCA/Jenkinson J) esp at 349-350.

[1994] FCA 1020

20 DECEMBER 1994