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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Dunesky v Elder
Sign in free to access the full text
Details
AGLC
Dunesky v Elder [1994] FCA 1020
Case
[1994] FCA 1020
Decision Date
CaseChat Overview and Summary
The case of Dunesky v Elder involved an appeal against the decision to quash search warrants issued under section 10(1) of the Crimes Act. The respondents sought to have the warrants declared invalid on several grounds, including that they were excessively broad and uncertain, did not disclose an offence known to law, or that there was a failure to disclose material facts. The appellants argued that the warrants were valid and that there was no obligation on the part of the informant to disclose material facts to the justice issuing the warrants.
The primary legal issues that the court was required to decide were whether the warrants were excessively broad and uncertain, whether they disclosed an offence known to law, and whether there was a duty on the part of the informant to disclose material facts to the justice issuing the warrants. The court was also required to determine whether the warrants were invalid due to a failure to disclose material facts.
The court held that the warrants were not excessively broad and uncertain, and that they disclosed an offence known to law. The court also found that there was no duty on the part of the informant to disclose material facts to the justice issuing the warrants. The court held that the warrants were valid and dismissed the appeals. The court further ordered that the appellants pay the respondents' costs of the appeals.
The court's decision was based on a careful analysis of the language of the warrants and the relevant provisions of the Crimes Act. The court held that the warrants were sufficiently specific and that they disclosed an offence known to law. The court also found that there was no obligation on the part of the informant to disclose material facts to the justice issuing the warrants. The court held that the warrants were valid and dismissed the appeals, and ordered that the appellants pay the respondents' costs of the appeals.
Orders
Orders of the court
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.