Freeman v Roberts
[1992] FCA 594
•19 Aug 1992
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JIJDGMENT NO. ...%~.~..JY.I;:
IN THE FEDERAL COURT OF AW3TRALIA ) 1 VICTORIA DISTRICT REGISTRY
1 NO VG 188 of 1990 1 GENERAt DIVISION 1
BETWEEN: JACK FREEMAN and NOA DINER (Applicants)
AND : AMANDA MARY ROBERTS and ROBERT GRANT (Respondents)
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Coram: Ryan J Melbourne : Melbourne Date: 19 August 1992 MINUTES OF ORDER
THE COURT DECLARES:
The document of which a copy is set forth in the Schedule to this Order and which Hugh Francis Adams signed and thereafter on 29 June 1990 delivered to a member of the Australian
! '
Federal Police as a document purporting to be a search warrant I L . . I granted by him in exercise of power, conferred on him by s.10
I t l , of the Crimes Act 1914 of the Commonwealth of Australia was :. when delivered and remains void and of no effect in law as a i warrant to enter any place or to seize any thing. , I I L L : TIE COURT ORDERS: I ' 1. That the District Registrar *of the Court cause to be
I .
'vered on request of either or both of the applicants all
ivered to the District Registrar in '
Jenkinson J herein made 3 July 1990. F , I
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AUSTRALIA 9
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2. That the respondents pay the applicants' costs of this
application, including any reserved costs, such costs to be
taxed.
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NOTE : Settlement and entry of Orders is dealt with in - I l.
Order 36 of the Federal Court Rules.
SCHEDULE
COMMONW3ALTE OF AUSTRALIA
CRIXES ACT 1914 fi SECTION 10
SEARCH W A R R A N T G&q
To : Amanda Mary ROBERTS
Robert GRANT
Of f ice r s of t h e Aus t ra l i an Federal ice
WHEREAS, I AV&/ 6 i ~ 7 y ~ l Amr. a Magistrate / a
J u s t i c e of t h e Peace i n t h e s ca t e of V lc to r i a wi th in t h e
meaning of t h a t expression i n Section 10 of t h e C r i m e s A c t 1914, being s a t i s f i e d by information on oa th placed be fo r e m e t h i s d a t e t h a t t h e r e is reasonable ground f o r suspect ing t h a t t h e r e is i n o r upon t h e premises being s l cua t ed a t and known a s "Medical Centre / Rehabilitation Cencre", 340A Abbotsford Street , North Melbourne i n t h e s a l d S t a t e , cerca in t h ings which s ac i s fy ALL of the THREZ fol lowing condi t ions , t h a t is t o say, THINGS vhlch FIRSTLY a r e any of o r more of t h e following:
FIRST CONDITION
- pa t l enc f i l e s - g a i l e n t h i s t o r y record cards
- ga t i anc account record cards
- d a i l y a t tendznce record sheecs
- ap~orncxeniz d i a r i e s - o f f i c e d i a r l e s -
d o c t o r ' s d i a r i e s - copies of Medicare assignaenc forns
- account records - - account books - cash books
- o f f i c a memos - o f f i c e instructions - Medicare Sta tement of Claims forms
- Medicare 'Claim f o r Assigned Bene f i t s ' forms - employee r eco rds
- f i n a n c i a l r eco rds
- computer d i s c s - magnetic t a p e s - medical b e n e f i t schedule books
- X-Ray f i l m s
i n c l u d i n g any of t h e t h i n g s named above on magnetic and / o r o t h e r s t o r a g e medium. SECOND CONDITION: AND which SECONDLY r e l a t e t o any one o r more o f t h e following:
- J a c k FREZXXN - Noa D I N E 3
- I lemlngtcn Medical Centre, 9 Pr inces S t r e e t , Flenrngcon
- Medical Cencre / A e h a b i l l t a t l o n Cencre, 340A
P.bbocsford. S t r e e t , North Melbourne
T R I R D CONDITION: ?&D any ocher t h i n g s a s t o xhlcn t inere a r e reasonable grounds f o r believing t h a t t h e same w r l l a f f o r d evidenca a s t o t h e comiiss ion of t h e Eollowlng
o f f encas , namely:
(i) On 17 Zune 1988 Noa DINER knowingly nade a f a l s s scacexsn t t o t h e Heal th Insurance Comm~ssion i n a
Hedicare 'C la l r~ . f o r Assigned a e n e f i c s ' f o r a , w h ~ c h .
was csed t o make a claim f o r paymen; under t h e
Eealck Insurance A c c 1973, i n c h a t t h e s a l 6 Noa
D I X A f a l s e l y dac l a red t h a c none of che anounts
c la inaC was i n res;Ject o f a p r o f e s s i o n a l s e r v i c e : . .
xhich was precluded from Meiicare b e n e f l t by
any s r o v l s i o n of t h e Heal th Insurance Acc 1973, !
cancrazy t o Sec t lon 1 2 8 B ( 1 ) o f tine Xealth L
Insurance A C i 1973.
(ii) aezveen 27 September 1988 and 13 February 1989 Noa i ,
D I E 3 knowingly made false s ta tements t o the
Xealck Insurance C o m l s s l o n r n Medicare 'Clalm f o r I : .
.:-ssigned. Benefi;sl f o m s un ich were used c o make i
c l a i n s f o r payment under t h e l i ea l th Insur+nce A C i i 1973 i n t h a c t h e s a i d Noa DINER made dec l f rac ions
c h a t t h e g ro f e s s i o n a l s e r v i c e s s p e c i f !: a s s i m e n t forms a t t a c h e d t o t h e !. : . , ;
~ssigned Benefits' forms were provided by him or on his behalf, when in fact those services had not been provided contrary to Section 128B(1) of the Health Insurance Act 1973.
(rli)
Between 31 January 1990 and 25 March 1990 Jack FREEY! knowingly made false statements to the Health Insurance Commission in Medicare 'Claim for Assigned Benefits1 forms which were used to make claims for payment under the Health Insurance Act 1973 in that the sald Jack FREEMAN made declarations that the professional services specified on the assignment forms attached to the 'Claim for Assigned Benefits' forms were provided by him or on his behalf when in fact those services had not been provided, contrary to Section 128B(1) of the Sealth Insurance Act 1973.
(iv)
Between 8 June 1988 and 25 March 1090 Noa DINER and Jack EPEEMAN did cons3rre togecher to defraud the Health Insurance Commission in that they did make claims for payment under ihe Health Insurancl Acr: 1973 in relation to se-rvlces which had not been provided, contrary CO Secaon 86A of =he Crimes Act 1914.
YOU ARE HERESY AUTRORISED wlth such asslstence and by sucn
force as is necessery and reasona5le, io encer +c any t h e the sale premises and to selze any such thlngs as satisfy ALL of cce ?:-E ajove condltlons and as may be found in ihe sald premises and for so doing this shell be your sufficient warranc .
F'U?TEEX??ORi: 'IOU XXY, p~zsuanc iO sil~-ssz=ion (LA) of Sec~ion 10 of zne Crines Ac= 1914, where ic is nl-cessary and reasonable zo eo so for ihe s~z?ost 05 e>:ec?1c~ng =nl- warrznc, break open such doors and recogiacles as are in or upon the sal6 preslses and may do so wlih sucn assistance, ane 3y such force, as is necessary and reasonable.
day of IN TRE FEDERAL COURT OF AUSTRALIA ) 1 VICMRIA DISTRICT REGISTRY
1 No VG 189 of 1990 1 GENERAL DIVISION 1
BETWEEN: JACK FREEMAN and NOA DINER - (Applicants)
AND : DEBORAH NICOLA LAMBERT and
ROSS GREAVES(Respondents)
Coram: Ryan J Melbourne: Melbourne
Date:
- 19 August 1992 MINUTES OF ORDER
THE COURT DECLARES:
The document of which a copy is set forth in the Schedule to this Order and which Hugh Francis Adams signed and thereafter on 29 June 1990 delivered to a member of the Australian Federal Police as a document purporting to be a search warrant granted by him in exercise of power conferred on him by s.10 of the Crimes Act 1914 of the Commonwealth of Australia was
warrant to enter any place or to seize any thing. when delivered and remains void and of no effect in law as a THE COURT ORDERS: 1. That the District Registrar 'of the Court cause to be delivered on request of either or both of the applicants all things delivered to the District Registrar in compliance with the Order of Jenkinson J herein made 3 July 1990.
2. That the respondents pay the applicants1 costs of this
application, including any reserved costs, such costs to be
taxed.
NOTE : Settlement and entry of Orders is dealt with in
Order 36 of the Federal Court Rules. .
COMMONREALTH OF AUSTRALIA
CRIHES ACT 1914
SECTION 10
SEARCH WARANT
Deborah Nicola LAMBERT
Ross GREAVES
Officers of the Australian Feder31 Police
Justice of the Peace 'in the state of Victoria withln the &EREAS, I HUE#: ~4nbr #dwf. a Magistrate / a meaning of that expression in Section 10 of the Crimes Act 1914, being satisfied by information on oath placed before me this date that there is reasonable ground for suspecting that there is in or upon the premises beJng.situated at and
known as ??TlefFnwgtonW MedrcaE'' Centre", - 9 -Princes Street: '21-emington-Ln-the 'saia State, certain things which satisf? ALL of the THREE following conditions, that is to say, THINGS which FIRSTLY are any of or more of the following:
FIRST CONDITION - patient files
- patient hlstory record cards- patienc account record cards
- daily attendance record sheets
- appointment diaries
- office diaries - doctor's diaries
- coples of Medicere assignnent forius
- account records
- account books - - cash books - office memos - office instructions
_ ,___.__----.--- -- b ;
' *-'-. 1-
4 :
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. . I -.
.. . S . .- I
- Medicare Statement of Claims forms ! - Medicare 'Claim for Assigned Benefits1 forms
S- -
- . , : . - employee records
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- financial records
- computer discs . . . - magnetic tapes ,
.-. -. . -
- medical. benefit 'schedule.-books
t
- X-Ray films L : including any of the things named above on magnetic and / or
other storage medium. !
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SECOND CONDITION: AND which SECONDLY relate to any one or more of the following:
- Jack FREEMAN
- Noa DINER ! - Flemington Medical Centre, 9 Princes Street, Tlenington
b.
- Medical Centre / Rehabilitation Centre, 340A
Abbotsford Street, North Melbourne I: -
THIRD CONDITION:
AND any other things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences, namely:
. . . ,
(i) On 17 June 1988 Noa DINER knowingly made a false
statement to the Health Insurance Comission in a . 4 - Medictre 'Claim for Assigned Benefits' form, which
. . was used to make a claim for payment under the Health Insurance Act 1973, in that the said. Noa .. DINER falsely declared that none of the amounts I claimeci was in respect of a professional service
which was precluded from Medicare benefit by
any provision of the Health Insurance Act 1973,
contrary to Section 128B(1) of 'he HealthInsurance Act 1973. ..
(ii) aetwesn 27 September 1988 and 15 February 1989 Noa DINER knowingly made false statements to the Health Insurance Commission in Medicare 'Claim for Assigned Benefits1 forms which were used to make claims for payment under the Health Insurance Act 1973 in that the said Noa DINER made declarations that the pro£ essional services specified on the assignnent forms attached to the
Assigned Benefits8 forms were provided by him or on his behalf, when in fact those services had not been provided contrary to Section 128B(1) of the Health Insurance Act 1973.
(iii) Between 31 January 1990 and 25 March 1990 Jack FREEMAN knowingly made false statements to the Health Insurance Commission in Medicare 'Claim for Assigned Benefits8 forms which were used to make claims for payment under the Health Insurance Act 1973 in thpt the said Jack FREEMAN made declarations that the professional services specified on the assignment forms attached to the 'Claim for Assigned Benefits8 forms were provided by him or on his behalf when in fact those services had not been provided, contrary to Section 128B(1) of the Health Insurance Act 1973.
. (iv) Between 8 June 1988 and 25 March 1990 Noa DINER and Jack rZREEMAN did conspire together to defraud the Health Insurance Commission in that they did make claims for payment under the Health Insurance Act 1973 in relation to services which had not been provided, contrary to Section 86A of the Crimes Act 1914. YOU ARE HEREBY AUTHORISED with such assistance and by such
force as is necessary and reasonable, to enter at any time the said premises and to seize any such thinqs as ;l-.-sfy ALL of the THREE above conditions and as may be founc 211 the said premises and for so doing this shall be your sufficient warrant.
FURTHERUORS YOU .QY, pursuant to s~b-section (1A) of Section 10 of the Crimes Act 1914, where it is necessary and reasonable to do so for the purpose of executing the warrant, break open such doors and receptacles as are in or upon the said premises and may do so with such assistance, and by such force, as is necessary and reasonable.
4&&4nf(-- Victorra this 2 9 4 ) 1990.) .
IN TEE FEDERAL COURT OF AUSTRALIA ) 1 VICTORIA DISTRICT REGISTRY No VG 188 of 1990 1
GENERAL DMSION
BETWEEN: JACK FREEMAN and NOA DINER (Applicants)
AND : AWWDA MARY ROBERTS and
ROBERT GRANT(Respondents)
No VG 189 of 1990
BETWEEN: JACK FREEMAN and NOA DINER (Applicants)
AND : DEBORAH NICOLA LAWBERT and
ROSS GREAVES(Respondents)
Coram: Ryan J Melbourne : Melbourne Date: 19 August 1992 REASONS FOR JUDGMENT
Rvan J: On 9 April 1990 Robert Leslie Tuppen, a Victorian Magistrate, issued two documents, each bearing the title "Commonwealth of Australia Crimes Act 1914 Section 10 Search Warrant" ("the 9 April warrants"). These documents purported to authorize the seizure of various documents and things at 340A Abbotsford Street, North Melbourne by the respondent Roberts and another officer of the Federal Police and at 9 Princes Street, Fleminqton by the respondent Lambert and another officer of the Federal Police. Both premises were at all material times medical centres at which the applicants carried on business as medical practitioners. The 9 April warrants made reference to offences allegedly committed by the applicants under s.128B of the Health Insurance Act 1973; which concerns the making of knowingly false statements in connection with a claim for a benefit or payment under that Act. Purportedly pursuant to the 9 April warrants, the respondents Roberts and Lambert, together with officers of the Australian Federal Police, on 10 April 1990 seized a substantial number of documents and things from the applicants' premises.
The applicants challenged the validity of the .9 April warrants in proceedings before this Court, numbered VG 115 and 116 of 1990. On 28 June 1990 Jenkinson J made orders, apparently by consent, in each of those proceedings declaring that the purported warrants were void and of no effect. At the same time, his Honour also ordered that all documents and things seized pursuant to the 9 April warrants be returned to the
applicants.
On the following day, 29 June 1990, the respondent Lambert swore a document entitled "Commonwealth of Australia - Crimes Act 19 14 - Information (Search Warrant) " ( "the information"). The information contained allegations similar to those which led to the issue of the 9 April warrants, namely that each of the applicants had submitted claims to the Health Insurance Commission for payment for bronchospirometry services and weight loss tests which they had not in fact provided. Nine specific instances were cited. As the terms of the information will be of relevance later, it has been reproduced in its entirety in Schedule 1 to these reasons.
On the same day on which the information was sworn, the respondent Lambert attended before Magistrate Hugh Francis Adams, who issued two documents in materially identical terms purporting to be search warrants under s.10 of the Crimes Act 1914 ("the warrants"). One was issued to the respondents Roberts and Grant and was related to documents and things at 340A Abbotsford Street, North Melbourne. The other was issued to the respondents Lambert and Greaves in relation to documents and things at 9 Princes Street, Flemington. The respondent Lambert gave evidence before- the Court and it appears from that evidence that no material beyond that contained in the information was put before Magistrate Adams. A copy of the warrant issued to the respondent Roberts (which is, as I have said, materially identical to the warrant issued
which it related) is contained in Schedule 2 to these reasons. to the respondents Lambert and Greaves save for the address to Immediately following the issue of the warrants by Magistrate Adams, the respondents, together with other officers of the Australian Federal Police, simultaneously entered the applicants' premises in North Melbourne and Flemington. They each then returned the documents and things seized in execution of the 9 April warrants and obtained a receipt from the applicants for their return, before producing the new warrants issued that day and conducting a search. A wide range of documents and things, apparently not limited to those taken in the course of the search on 10 April, was seized.
It is clear from the evidence that the respondents conducted their searches primarily by instructing officers of the Australian Federal Police to search for documents and things relating to persons described on computer print-outs which had been provided by the Health Insurance Commission. Those print-outs purported to provide a complete list of bronchospirometry services allegedly provided by the applicants to their patients over the period 1 June 1988 to 8 June 1990. The print-outs indicated, amongst other things, patients' names, the dates on which the services were allegedly provided and the amount of benefits paid to the applicants for those services. The print-out in respect of services said to have been provided by Dr Freeman ran to 33 pages, each page referring to about five patients. The print-
out for services allegedly rendered by Dr Diner was 17 pages long and in the same general form. The respondents Roberts and Lambert gave frank evidence under cross-examination, conceding that they used the warrants issued by Magistrate Adams only to obtain entry and to justify their searches to the applicants. Each search and seizure was then conducted solely by reference to the computer print-outs. The respondents acted under the assumption that the scope of the computer print-outs was entirely within the ambit of the warrants.
It is common ground that the computer print-outs were not produced before Magistrate Adams on 29 June, and that they were neither incorporated into nor referred to in the
| I | information or the warrants. The print-outs were not | ||
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| apparently shown to the applicants during the course of the | |||
| I | searches conducted on 29 June. | ||
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| I | The information contained in the computer print-outs differed | ||
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| ; | significantly from the information contained in the information and the warrants. In particular, the computer print-outs referred to services allegedly provided to a large number of persons not mentioned in either the information or the warrants, over a period of time not coinciding with the periods referred to in the warrants. The respondent Lambert under cross-examination stated that at the time of the execution of the warrants she believed that the third condition justified search for and seizure of any documents | ||
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| and that consequently documents and things relating to the persons listed on the computer print-outs were all within the scope of the terms of the warrants. | |||
| The applicants challenge the validity of the warrants on a number of grounds. Before examining each of these in turn, it is desirable to identify the general principles which govern the validity of search warrants. | |||
| Competing policy considerations operate whenever a search warrant is sought by police. On the one hand, there is the presumptive inviolability, consistently recognised and jealously guarded by the common law, of a person's private domain. Legislation which is said to infringe this basic freedom is examined critically, and its scope is confined to the extent necessary to give effect to the will of Parliament. The right to individual privacy is one of the cornerstones of the common law. The weight accorded to it as an aspect of public policy in the interpretation of legislation and the resolution of specific legal disputes is profound. An excellent summary of the most important authorities from which these principles are to be gleaned is contained in | |||
| Australia Ltd v Curran (1989) 39 A Crim R 157 at 162-164 per | |||
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| Beane (1986) 70 ALR 225 at 230-232 per Brennan J. | |||
| Against the weight thus given to individual liberty is to be balanced the legitimate interests of the Executive in investigating and prosecuting crime. The relative importance of these interests has been brought into sharper focus by social and legal changes in the latter part of this century. In particular, the proliferation of statutory offences and the concomitant increase in the frequency with which offences are committed, has sharpened the ingenuity of offenders that, in turn, has demanded faster responses by police forces and more broadly defined police powers. | |||
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| private domain may, in other words, only be infringed on good grounds and where the individual can ascertain from the form of the warrant the purpose of the invasion of his or her privacy and the basis for the belief that that invasion is warranted in the interests of the investigation and prosecution of crime. | |||
| Although the particulars of the application in this matter and lengthy and detailed, the applicants' challenge to the validity of the warrants issued on 29 June rests essentially on three grounds. First, the applicants say that the existence of the words "any other things" in the preamble to the third condition of the warrants renders the warrants uncertain and meaningless. Secondly, the applicants say that the material placed before the Magistrate on 29 June did not justify the issue of warrants either at all, or in the terms in which they were issued, and that the warrants as issued are too wide and insufficiently particular. Thirdly, the applicants contend that the execution of the warrants by the respondents was flawed, because of the reliance by the respondents on material not placed before the Magistrate at the time the warrants were issued. | |||
| I am of the view that there is substance to the first and the | |||
| third of these grounds. For reasons which will become apparent, I do not consider it necessary to reach any | |||
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| The Third Condition in the Warrants - "Anv other thinasv The presence of the words "any other things" in the preamble to the third condition of the warrants creates an inconsistency which makes it impossible to determine the scope of the warrants. On the one hand, the warrants purport to apply only to documents and things which satisfy each of three stated conditions. On the other hand, the third condition refers to "any other things", which suggests that the warrants might apply to things other than those satisfying the first and second conditions. This type of inconsistency is unacceptable in a warrant because it renders it impossible for the subject of the warrant to identify the documents and things to which it relates. Although it was asserted in evidence that the inclusion of the words "any other thingsn was a typographical error, I do not regard them as severable. This case is, in my view, fundamentally different from Brewer v Castles (No 31 (1984) 52 ALR 581, in which the words "opinions of counsel" were severed from the warrants. In that case, Beaumont J said, at 583: |
"None the less, prama facre at least, a reference to documents described as "op~nions of counsel" is a reference to material which 1s privileged, and there is no suggestion in the evrdence of the present case that any reason exlsts for think~ng that the opinions in quest~on have somehow lost that status. In my op~nion, on the material before the court and, so far as I am aware, on the material available to the respondents, no case has been established for displacing the pruna facre positron that the "opinions of counsel" were and are privileged.
But, given that conclus~on, it does not follow that the warrant is wholly bad. The result is that only one of the several classes of documents specified an the warrant 1s beyond power. Yet the applicant argues that the impermissible attempt in the warrant to nominate certarn privileged materlal in some fashion rnfects the remaining parts of the warrant. In my view, no such process of
infectron occurs, even accepting the general context, namely, a warrant addressed to the serzure of documents on the premrses of a
f r m of solicitors. On the contrary, m my opmion, having regard to the structure of the warrant, at is quite possrble to sever from the warrant the offending class of documents and thus to leave the balance of the warrant undrsturbed in pornt of validity."
In this case, the presence of the words "any other things" in
the third condition of the warrants infects the entirety of those warrants, because it renders them wholly incapable of clear and unequivocal interpretation. Each warrant is structured in such a way that it is impossible to determine
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any documents or things which might be within its scope without considering the meaning of each of the three conditions. As the third condition is not capable of being reconciled with the first and second conditions, the whole warrant must fail.
This point alone is sufficient to dispose of this case in favour of the applicants. However, even if the words "any other things" were severable, there remains, in my view, a serious error in the way in which the warrants were obtained from Magistrate Adams.
The Adeauacv of the Information and the Warrants and the
Failure to Advert to the Cornouter Print-outsUnder cross-examination, the respondent Lambert conceded that the only material placed before the Magistrate at the time when he issued the warrants was the information, despite the fact that computer print-outs containing material differing significantly from the matters contained in the information
were available and were subsequently relied upon in execution of the warrants. An information need not, of course, contain the details of all of the fruits of a police investigation. The relevant test is
one of reasonable suspicion, as appears explicitly in s.lO(1)
of the Crimes Act:"10. (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, aircraft, vehicle, vessel or place:
(a)
anything with respect to whach 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 evrdence as to the commission of any such offence; or
(c)
anything as to which there is reasonable ground for believing that it LB 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, aircraft, vehrcle, vessel or place, the [Magistrate or] Justrce 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, arrcraft, vehicle, vessel or place named or described in the warrant, and to serze any such thing which he or she might find there."
The words "Magistrate or" which I have parenthesized in that extract were inserted by amendments to s.10 which came into effect after 29 June 1990 by force of the Crimes Leaislation Amendment Act 1991. Nothing turns on those amendments.
Had the respondents intended to execute the warrants without reference to the computer print-outs, I doubt, without expressing any concluded view on the point, whether the information sworn by the respondent Lambert could be criticised. It lists reasonably specifically the persons from
whom statements had been obtained, the nature of the contents of those statements, and particularises the offences of which the applicants are suspected. There is a correlation between the summary of the contents of the statements obtained and the offences for which the warrants were sought, and I do not understand it to be seriously disputed that the respondents reasonably suspected the applicants of having committed the offences alleged. I am prepared to find that a Magistrate, acting properly, could have been satisfied that reasonable grounds existed for suspecting that documents and things might be found in the applicants' premises which would afford evidence to assist in the investigation of those offences.
Similarly, but for the presence of the words "any other things" in the third condition of the warrants, and leaving aside for a moment the existence of the computer print-outs, I doubt, again without expressing any concluded view, whether the warrants are otherwise objectionable. There has been a genuine attempt to list specifically the things sought, the persons and places involved, and the offences suspected. It is true that the dates mentioned in the third condition are fairly general, but the nature of the offences suspected and the suspicion that they were committed repeatedly over an extended period of time probably justifies the specification of a range of dates rather than particular days.
However, the fact that the respondents had in their possession
contained in the information made it imperative, in my view, computer print-outs provided by the Health Insurance Commission which contain specific material far beyond that for those print-outs to be placed before the Magistrate, whether by reference in, or incorporation into, the information.
In R v Curran and Torney [l9831 2 VR 133 McGarvie J considered the failure of the police to inform the Magistrates, from whom approval to use listening devices had been obtained, of certain facts material to the investigation. In concluding that this failure was fatal to the admissibility of the evidence obtained through use of the listening devices, his Honour said, at 150:
,'I consrder that substantial weight is to be accorded to the fact that the approvals from the Magistrates were obtaaned on statements which were prone to mislead as to the real purpose of the applicataons, and the fact that the Magistrates were not informed that one of the accused whose conversations were to be listened to had already been charged with the murder. On an applrcation for approval there is a duty to bring to the notice of the Magrstrate all the facts material to the decision to be made. This flows from the fact. that the application for approval to a course which affects the privacy of others and which would in the absence of the approval be forbrdden by the statute, is made without the persons to be affected by the approval being heard: cf. Thomas A Edrson Ltd v Bullock (1912) 15 CLR 679, at pp. 682-3, per Isaacs J. Although I must proceed on the basis that the misleading nature of the supporting statement was due to error arrsing from a number of persons being rnvolved, and not designed, it was a serious farlure to comply with a legal duty. Had the Magistrates been fully and correctly rnformed of all the material facts their decisrons may have been different."
A similar statement of principle appears in the judgment of a Full Court of this Court in Karina Fisheries Ptv Ltd v Mitson
(1990) 26 FCR 473 at 481:
"... to requrre a strict duty of full disclosure of material facts by
the informant seekang a warrant is but to reflect the traditaonal policy of the common law to protect the privacy of rndividuals against the arbitrary use of the power of entry and search.
The ob1rgati.cn arrses also from the fact that of necessity, the lssue of a search warrant is an ex parte procedure. In granting ex parte relief, the courts of equaty have always requared the applicant for such relief to bring to the notice of the court all facts material to the determination of the right to that relief. In such cases, as the High Court pointed out in Thornas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682:
"Uberrima frdes is required, and the party inducing the Court to act in the absence of the other party, fails in has obligatron unless he supplies the place of the absent party to the extent of bringing forwad all the material facts which that party would presumably have brought forward in his defence to that application.""
~lthough it cannot be said in this case that the failure to produce the print-outs before the Magistrate led to the granting of warrants which might not otherwise have been
issued, and although the existence of the computer print-outs is not a fact that the applicants would have necessarily brought forward had they been heard on the application for issue of the warrants, the broad policy considerations identified in the cases which I have discussed apply equally, in my view, in the instant case.
The failure of the respondents to produce the print-outs before the Magistrate led to the issue of warrants based on alleged facts which differed significantly from what was known by the respondents to be material to their investigation. Where the proposed means of execution of a warrant involve resort to material which goes beyond that on which the issue of the warrant is to be based, there is, I consider, an obligation of candour on the officers in question to divulge that material to the issuing authority. The subjects of warrants, as the cases mentioned point out, do not have an opportunity to be heard at the t h e when the warrants are
is not fulfilled if officers seeking warrants, which by sought. The obligation of candour, to which I have referred, definition authorise substantial invasions of individual privacy, withhold from the issuing authority, however innocently, material relevant to the issue or means of execution of the warrants. It follows that the failure of the respondents to bring the computer print-outs to the attention of Magistrate Adams renders the warrants void.
Even if I am wrong in the conclusion just reached, and the warrants issued by Magistrate Adams were valid, I consider that the respondents unlawfully executed the warrants by their admitted failure to refer to the terms of the warrants when determining whether or not they were entitled to seize particular documents and things in the course of their search. The scope of the computer print-outs, as I have already stated, went well beyond the ambit of the information and the warrants and the respondents had no authority to rely on them. Although I do not doubt that the respondents genuinely believed that the computer print-outs provided no more than a convenient summary of what they were entitled to seize according to the terms of the warrants, that view was insupportable as a matter of fact.
For these reasons, the application will be allowed with costs. There will also be consequential orders for the return of the seized documents and I will hear Counsel if necessary on whether an injunction should be 'granted restraining the respondents from dealing with any of the documents and things
seized in execution of the purported warrants.
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment herein of his Honour.Mr Justice Ryan
Associate: W C - - Date : li &,p+ fq42
Counsel for the applicants: Mr P G Nash QC and Mr I Miller Solicitor for the applicants: H S Wise Gershov h CO Counsel for the respondents: Mr M J Crennan Solicitor for the respondents: Director of Public
Prosecutions
COMMOKLinLTH OF AUSTRALIA
on
Nlcola t h e 74MBEaT $TL a Conrtabla t h e A u s t r a l i a n F c d ~ r a l 1990, Eeborah P c l i z e
i n t h e S t a t e of V i c t o r i a , h e r a i n a f t e r c a l l e d t h e ' I n f o m a n r ' a p p e s r s be fo re m e a Justice of the Peace /Mag i s t r a t e i n t h e stare of V i c t o r i a wi th in t h o meaning o f t h e e q r e s s i o n Ln
SecElon 1 0 of t h e C:i%es Act 1916 , a f t h e Commonwealth of
A u s t r a l i a and informs m e on oath:
1. She is a Constable of tha Aus t ra l i a r . Federal
P o l i c e ,? l r ren t ly atcachad t o tie Fracd and Gcneral
C r i m e 01-risron, 383 La h o b c Skraet , K e l b o ~ r n e i n t n e
s t a t e of Vxc=orla.
2. On 20 Scvembcr 1989 a f i l e war r e c e i v e d froin &he Heal th
Insurance Comrniss~on r e c u e s t i n g t h a t t \e Aust ra l ran
Federal P o l i c e i n v c a t i g a t e t h e Xodicare clalminq
b ~ t i ~ l t l e ~ of Doctor Jack F R Z E a N , born 09/08/47 and Doctor %oa DINE3 born 02/08/60.
3 . The i n f o n a n z has spoker. a t l e n g t h t o Xaalzh Snsurarce Corz~ i s s ion I n v e s t i g a t o r Nigel FLXQWICK. M r XARXICS has
provided t h e Informant vFth c e r t a i n docuner.Lca=ion and
s r a t e n e n t s cb ta ined rrom p a t i e n t s of ~ o c t o r F R E Z M : ~ and Doctor DINER.
4 .
P a t r i c i a GORSIE of L f / r , Z 6 Racecourse Road, ? l s x i n ~ t o r .
has s t a t a d i n a s igned scatement to Invea:igatar Xigel
MX?.WICK o f t h e Eeal t t i Znsuzanca C m i s a r o r . =hat:
(C: 02 2 7 t h S ~ t C e 7 3 e r l9Ea she at=cndsZ t k a X o z t h
M1-1bourne c l ic lc a t 3 4 0 8 Abbotsford Stree:, Nort2 Na-1bourns t o have va r ious tests performe.'.
(b) Or. h e r a r r i v a l a t t h e su rge ry she was t-ker. t o a
c s n s u l t i n g room by a r = c e ~ t i a n i s r . She was then
g iven an ~ l e c t r o c a r d i c g r a p h and a c h e s t X-3z;r
c s i n g emiomenz opera ted by the r e c e p t i o n ~ s t . ----
i l o c ~ c r :zL;XU t hen encezed t h e rocn a n t oa=:ined ' a blood szmple from H i s s GORRIT.
(c) Upon leaving t h e su rge ry she s igned ;xo blank
Xedicare assignment C o n s .
5 . 03 1 9 t h October i98i Miss GOXRIE vas s h o w MedScarz
a s s i g n a a t form number LE38514 (da tec 27/5/88)
doccr ih ing t i n services of b r o n c h o s p i r n e t q , E.C.G. and
c o n c u l t a t i o n p e r f o n e d by *Doctor DIh'ER. Miss GOPaIE
c z a t a s =ha+ she did. no t r e c e i v e a b r o n c o s ? i n e t r y t e s t . 6.
IshSal LOCWAN o f 63 Fe l s t ead Avenue, Sunshvfle has
stated i n ' a signad s t a t e m e n t t o 'he Inforzanf 'sat: i f,
- I I
(a) On 11 Fabrurry 1990 she a t t ended the Nort3 1 .
Helbourna C l i n i c at f 4 0 A Abbotsford S t r e e t , North i .-
Melbourne t o have var ious tests performed, I I . !
(b) on he r a r r i v a l a t t he surgery she was shown t o a !
c o n s u l t i n g rooa by a female employee. She was then
givan an electrocardiograph and a c h e s t X-Ray and I
a back X-Ray using equipment ope ra t ed by t h e I ,
female. Doctor FREaKAN then en te red t h a roon; and i ob ta ined a blood sample from Hrs LOCKMAN.
(C) Upon l eav ing the surgery Hrs LOCWAX s iqned two
b lank Xedlcclra ~ooignmont farms. on ~ 1 s t March 1990 Hro L 6 C W vas shown Madicare
aaolgnment form nunbor ET30655 ( d a t e d 21/2/90) d e s c r i b i n g the ssrvicas of a c o n s u l t a t i o n , E .C .G. , and
a broncospirmetry t e s t parformad by Doctor FREEV!. Mrs
L o C m s t a t e d that rhe d i d not: r e c e i v e a
broncospi rmet ry test. The Informant has sighted a number of Medicare
assignment forms r e l a t i n g t o other p a t i e n t s . Medicare forms i n t h e names of Datcy LEE (da ted 15/3/90), Valda
BLYTAE: (da ted 21/3/90), Marllyn dlUNTA (dated 13/2/89), Peggy Mc~THUR (dated 3/1/90) and Deidre SUTTON (dated 10/2/89) a l l list t h e s e r v i c e of broncocpirmetry a s
b e i n g performed. This t e s t involves t h e p a t i e n t blowing into a t u b e connected t o a nachina. Statcmontm have been ob ta ined from LES, BLYTHE, GIUATh, HCARTXUR and SUTTON i n which a l l p a t i e n t s mtata t h a t t hey would recall if they nad received t h a t test and could d e f i n i t e l y s t a t e t h a t t h e broncoapirm4try test! was no t parfornod.
Marian EDGXR of 1 P i t z roy s t r e e t , West Pres ton has stated i n a s igned statement t o m Nlqel W W I C K of the
Health insu rance Commrsslon that:
(a)
I n e a r l y June 1988 she a t tended t h a r l tmington Medical Cent re a t 9 Pr lnces strset, Flemlnqton aad saw Doctor DISER. Sho t o l d the doctor . t h a t sho wished t o be placed on the weignt lass' program.
The d o c t o r then sa id she vould nave t o go ts t h e i r
o t h e r surgery a t 340A AbbotsforC Street, North
- Helbourne t o have X-Rays taken t o ensure that she -
v a s h e a l t h y p r i o r t o comonclng t h e progran.
(h) On, 8/6/88
Mre EWAR at tended t h e North Me1bourr.s c l l n i c wharo sho,was given a chest X-Ray
and an
n ~ e c t r o c a r d i o g r s p h . P r i o r t o leaving t n e surgery Wrs EDGAR signed a Hedicarr ass lgnmtnt to-%.
On 10 October 1988 Wrs EDGAR vas shown Hediearc
assignment fona nunber W75116 (date& 8 / 6/86)
describing t h o secv5ces of a consultat ion, E. c,G.ar.d
c h e s t X-Ray provided by Doctor DINER. H:s EDGP.R c o n f i ? a I ~ t h a t thooo were the t e s t s eke received i n
r e l a t i o n t o the voight loss program although, D D C t O r
DINER d i d not perform thosr t e s t s a s indicated.
The Informant has righted a number of HeCicare assignment forms r e l a t i ng t o other pa t i en t s . S t a b e n t s nave bean obtained from Marilyn GIWTA and Domenica GIUNTA who also #fat0 Ulat they received various tests,(baing an E.C.G., branchospirmetry, X-Ray and blood test) t o oheck the ir general h e a l t h p r i o r t o commencing a weight loco program. Both Harllyn and I?omenica GIUNTA signed Hadioare fanns a t t h e surgery i n
r e l a t l o n t o those t e s t s . I n the General Explanatory Notes of t h e Hedicara Benef i ts Schedule, Beation D.3.1, health screening
s e r v i c e is defined a s r xodlcal examination or t e s t
t h a t is no t reasonably required f o r t h e management of t h e medical condit ion of the patient . Sarvicea covered by t h i s proscription include such i t e m s a s - weight: reduction programs ...H.
Medicaro assignment forsls, a s rofarred t a i n paragngks 5,7,8,10 and 11 have been =ecsivad by t h e Health Insurance Commission attached t o a r r t a i n Medicare 'Claim f o r hSLgF.ed Bene f i t s8 fora-. Tho assignment rams and claim t o m s h a w been accepted and subsequent payments have been made by the Haalth Insurance
Conmission t o Doctor I R E Z U N or Doctor DINER. Details of t he Medicare ' C l a i m for Aasignod Bonafi ts ' forms and tha relevant Medicare Assigmmnt f a n s
mentioned i n paragraphs 7 mnd l1 are a s
follows:-
(a) Medicare assignment fonn numbered LE38514 l i s t i n g t h e servicts proviGed as Oting bronchoaprirnotry,
E.C.G., and consultation relating t o pa t i en t
P a t r i c l a GORRIE was attached t o Medicaka 'Claim " for Assigned Benefitst f o n numbered 23433, which
form was signed N. DINZZ.
-
(b) Medicare assignment t o m numbered DM75116 l i s c i n g t h e s e rv i ces grovided as being consultation ar.d
E.C.G. r e l a t i nq t o pat ient Marian B E A R was at tached t o Hed cpre IClain f o r Asslgned Baneii tJ8 to-cm numbered 23333, which form was signad H,
PINER.
(c) Medicare assignment form numbered OX25432 l l s t i n q the sarvices provided as being conau l t a t lon ,
E. C.G . and brochosprirmetry re lat ing t o pat ient
Mztrilyn CIUNTA vau a t tached t o Medicare 'Claim f o r
~ s s i g n e d Benef i t 0 1 f o r n numbered 81134, Which form was slgnad N. DINER.
(d)
Medicarr a s a i p r n e n t fona numbered PK25429 1lstlr.g
t h e ~ ~ N ~ C C S provided a s being c h e s t X-Ray,
consul ta%ion md branchospirmetry r e l a t i n g t o
p a t i e n t Damenica CIUHTA was also a t t a c h e d t o
Heal c a r e IClaim f o r Assigned Benefits' f o m
numberad 81134, (montionod i n paragraph 1 4 ( d ) ) which fern War aignod N. DINER.
(e)
Medicare e a s i g h % t n t f o r n numbered PX24456 l i s t i n g
tne services proviCad an being E.C.G. ,
c o n s u l t a t i o n and broncho~pizmatry r e l a t i n t o
p a t i e n t midre BUTTON vaa attached t o Mcd 9 care 'Claim.for Assignad BenofitaI form numbered B1130,
which Corn was signed N.DINER.( f ) Medicare assignment form nunberod ET20655 l i s t i n g t h e services provided as being c o n s u l t a t i o n ,
bronchospl rne t ry and E.C.G. r e l a t i n g t o p a t i e n t Ishbel WC- was a t t ~ e h t d t o Medicare 'Claim f o r Assigntd &netits* formnumbered M8094, which form
was signed N . DINER.
( g )
nedicare a s s i g n r e n t roxm numbered EU91@71 l i s t i n g
t h e services provided a s being c o n s u l t a t i o n and
bronchosprimetry r e l a t i n g t o pat imnt Pegqy
MCARTHUR was a t t ache4 to Kadiaarb 'Claim t o r
Assigned B e n e f t t e l tom ninnberod Q0566 , which form was signed J I FREEMAN.
(h]
Medicare assignment fo rn numbered ma 1 1 2 4 l i s t i n g
t h e s e r v i c e s provided as being coneul takion, bronchosplrmetry and E.c.G. r e l a t i n g t o pa t l ank Valda BLYTHE was a t t ached t o Hediesre 'Claim for Assigned Benef i t s1 farm nu~lsereilooa61, whlch form vas signed J. E?.EEUAN,
- ( c ) Medicare assignment form numbered LT21450 SLstLng - t h e services provided ae being consultat:on,
branchospinnetry and E. C.C. r e l a t i n g to p a t i e n tDarcy LEE was attached t o Medicare IcLalm t o r Assigned B e n e f i t s ' tonu numbered M B 1 1 3 , which form war s igned J . FRgEHAN. 15. The Informant b e l i e v e s that Doctor FREEMAN and Doctor DINER opbrata a system where pat ients ate asked t o s i q n
b lank Hodiearo assignmant f o n s p r i o r t o leaving the
su rge ry and peroan o r persons unknovn completeof cervices not provided and submtt those forms together w i t h a declaration made by e i t h e r Doctor
S'REEKAX o r Doctor DINER, t o the Wealth Insurance
Commission fo r payment, f a l s e ly s t a t i n g that those
~ a r v i c o s have been provided. The snfornant a l so bel ieves that Doctor FREEFAH and Doctor DINER request t ha t t e s t s be dono i n r e l a t i o n CO
the conmanc*mnnt of weight loss rograms, Which t e s t s do not a t t r a c t Medicara benef ts and rubsegucntly P submit t h a t forms to the Health Insurance ComrnissLon f o r paymont. On l0 April IS90 aearch warrants were executed by t h e Informant and Constzble LAMBERT a l so of t h e Australian
Fedaral PalLco, at the premises af 340A A b b o t s f o r d S t r e e t , Yorth Xelbourne and 9 Pr inces Street,
Plcmington dur ing which ce r t a in documents and items were sa iced. rol loving the execution a t the sea rch warrants, some of the material which had been seized
was returned t o t h e addresses.
In respect of th* balanaa of the propexty, on 1 2 Ppll 1990 Doctor Jack FREEHAN and Doctor Noa DINER nade appl icat ion i n t he Fedoral Court Of Aust ra l ia ,
Melbourne f o r de t la ro t ion that the search warrants
issued pursuant to Soetion 10 of t h e Crfaes Act 1 9 1 4 r e l a t l n g t o pramisss a t 14OA Abbotcford S t r e e t , North Xelbourne and 9 Princam Etrant, Flcmington had no
appl icat ion force v a l i d i t y o r a f f a c t and o the r
ancillary orders.
On 1 2 A p r i l 1390 Mr Justias NORTKROP made t h e following orders:
i . That U n t i l 4.15pn on Thursday LP April 1990 or fu r the r order the Respondento and aach of them
whether by thensalves o r their c o r v a n t ~ , agents or othewlse t o be res t ra ined from:
(a) Exetcislng or continuing t o exeralso any of t h e purported powers 0% rights pursuant to
t he CCarCh warrant dated 9 Apri l l990 di rec ted t o rnem v i t h respect to t h e premlseu
-
s i t u a t e d and known a 3 nllodieal
- C e n t r e / R a h a b i l i t a t i o n C e n t r e N , 3 4 0 A Abbotsford Street, North XeLbourno and nFlerninqton Medical Centre", 9 Princac
S t r e e t , Fleminqton i n t he s t a t e o f Viozoria.
(b) Reading, pe;using, aisseminating, tampering with, o r copying i n cny way any documents o r o ther items seized ln tno exercise or continuing exercise of any of t k e purported powers or rights pursuant co the said sear
warrant.
( C ) Unlng any inforaa t ion ob ta lned by then
from any of t h e document. or other i t e m s s o seized.
a . First Direct ions hearing be ondorsed 1O.lSam Fedoral Court of Aust ra l ia a t 450 L i t t l e Bourkc
Street, Melbourne i n the s t a t e of V f c t o r i a on 19 A p r i l 1990.
3. Dirac t t h a t t h e Application and a copy a t t h e
Order be served on or before Sa tu rday 1 4 A p r i l 1990. I . Any A f f i d a v i t s t o be rel ied upon by the Applicants
to be f i h d and served on o r before Tuesday 1:
April 1990.
5. Reoorve Cocts.
2 0 . Following making of tha orders t h e d o c u m n t s and items s e i z e d pureuant t o the warrants, which had n o t been
(. r e t u r n e d t o the addresses from whore t h e y were se ized ,
were placed i n t h a custody of t h o D i r e c t o r of Publ ic
P rosecu t ions at t h o k o f f i c e s l o c a t e d a t 25th f l o o r , 200 Queen Street, Melbourne.
2 1 . The said Orders wore extended by consent u n t i l 18 Ha
1990 by t h e Honoursblo Hr. 1990. Justice Northrop on 1 9 Apri i' 2 2 . On 10 Hay L990 the Xonourabla Hr. 3usticc Sweeney nade
t h e f ol lowinq Order I
"That Clause (I) of the Order mad. by t h e Honourable Xr. J u s t i c e Northrop on the 19th A p r i l 1990 be amended By including Clause ( l h ) to readt NO~tlITHSThUDINQ Cleuse (1) tho ~ p p l i c a n t s shal l be
al lowed access t o t h e documento i n tho prarence of
t h e Respondents t o obtain copibn af m y dacuments seizea and t h e Respondents shall ba allowed by
themselves o r t h e i r Agent8 t o copy such .documents
and t o provide them t o the Appl i can t sq .ll
2 3 . On 18 May 1990 me HOnour~ble Hr. Jus t i ce Jankinron
Bade t h e following Order:-
"That the Order contained i n paragraph 1 of the Orclar
made by Mr. Justice Nornuop on 1s A p r i l 1990 as
Anended by t h a Order poncained i n paragraph 1 of tha Order mde by M Juetce sweeney an l0 Hay lQ9O c o n t i n u e i n effact until Judgement in t h e proceeding ar
further Order in the meantime.
. .
| i | . . |
. .. -
| ' | &. | .C | . |
| . | . |
24. On 28 June 1990 the Honourable Hr. ;rustic* Jmnkinaan
made the foLlowLng Orders:
1.
Each thing seized in or: upor. the premises situated at and known as the "Flemington Medical Centre", 9 Princes Street, Flamington in the state of Victoria on 10 April, 1990 by a member or the Australian Federal Polica be delivered to the Applicants or either of them at the said prelses between the hour of 10.00 a-m. and the hour ot 1.00 p.n. on 29 June, 1990.
7 .
The Order contained in paragraph 1 of the Order of Mr. Justice Northrop made on 19 April, 1990 as amended on 10 May.1990 continue in effect until 5-00 p.m. on 29 June, 1990.
3 , Thn Respondents pay the Applicants reservad casts
and costs on this day.
4 . The ~rocnoding is otherrise dismissed.
l=
\
AND furthar informm ne on oath that: by reason Of these matters aforesaid thoro i s zaanonable grounds tor suspecting that thoro ia i n t h & premises a t 340A Abbotsford Strest , Xorth nalbeurne and at 9 Princes Street, Plemington
Certain thingn vhich cat is fy ALL of t?e three following
condit ions - that i s to say, THINGS vhich firstly are any
one or more o f the following.
- pat i en t history record cards
- patient account rseotd cards
* dally attendance r e c o d sheets
| i | I | - appoinrment diaries |
| - office diaries |
| 1 |
- doctorla diaries -. - copies of Medicare Assignment foms
- account records , - account boaRI - cash books - office memos - office instructions *.. .
-
-1.- .
.' '
- Xcdicare Statement o f Claim6 tom#
I
- Medicare ' C l a i m for Assigned Benefits' fortas - employee records
- financial records- oomputar discs
- magnetic tapas
- medical bonef i t schedule books- X-Ray filmn
including any of the thing0 naned above on magnezlc
and/or other storaga mediun.
AND which SECONDLY relate t o any one or more ot *.c
( following t
- Flaxington Medical Contra, 9 Princes Street, FLmington - Medical Centre / Rehabilitation Centre, 340A Abbotsiord Gtroot, North Melbourne
LYIRD CoSBrTIo~: M D ao to Vkich THIRDLY there are
reasonable grounds for believing that tha sane will afford
evidenca as to the oommiseion of tha following offe~ces,
namely:
( i l on L7 June 1968 Noa DINER knowingly made a fa l se statement t o the Health Insurmaa Comniusio~ in a
Ueeicara 'C:ais ~orhss igned Benofitcl form, which
( Was used t o make a o l a h for payment undar L!e - Health Insurance Act 1972, in that the said Noa
DINER falsely declared that none of the ~ m u n t s
" claimad was i n respect of a professional norvica Which was precluded from Hadicara bonefit by any provision 08 the l c a l t t Insurance Act 1973. contrary t o Section 128B(l) of the Health
Insurance Act 1973. * (ii) Between 27 Soptarnbee 1988 and 1s r~bruary DINER knowingly made false statozents to the 1989 NOS
Health Insurance Comisslon in Xedicara 'Claim for
Assigned Benafits' form6 which vere used t o maXa
claims for payment under cne noalth Insurance Ac
1973 i n that the said Noa DIRER madethat the professional servicas specified on
assignment forms a t tached t o t h e 'Claim f o r Assigned Benef i t s1 torme were provided by him or on h i s behal f , when i n f a c t those serVices had n o t
been provided, cont rary t o Sec t ion 128B(1) or the Health Insurance Act 1973.
( i i i l Between 31 January 1990 and 25 March 1990 Jack
FREEMAN knowingly made false s ta tements t o the
Health Ihsurancr Commission i n Medicare 'claim f o r Assigned Benef i t s1 forms which were used t o
make claime f o r payment under t h e Heal th insurance
A c t %Q73 in t h a t the s a i d J a c k FREEHAN zade
d e c l a r a t i o n s t h a t t h e p ro fes s iona l s e r v i c e s - ~ p o c i i i ~ d on tha nssignment foms a t t ached t o the
'Claim to r Assigned Benef i t s1 forms were provided by him or on h i s behalf when i n fact t h o s e
s e r v i c e s had not been provided, contrary t o Gection 128B(L) of the Health Insurance Act 1973 .
( i v ) Eatweon 8 Juno l98E and 25 March 1990 Noa DINER and Jack TREEMAN did conspi re t o g e t h e r t o defraud
( . make claims for p a p n t under t h e Health Insurance
t h e Hoalth I n ~ u r a n c o Comiseion i n t h a t they d i d
hot l973 i n r r l a t i o n t o narv ices which had n o t
been provided, oont rary t o Sect ion 86 of t h e Crines A c t 1914 .
WHERETOM t h e Infonnbnt prays t h a t a Search W a r r a ~ t nay be
g r u n t e d t o the respective manbero of the Aust ra l ian Federal Police -3IFG them with ouch rna ia tanco and with such
.ior=e as is necessary and reaeonabl*, to en te r a t any time
the r e s p e c t i v e places spcoFfi*d i n t h e second condition, and
t o uny such t h i n g s as e a t i e f y ALL of t h e THREE above
c o n d i t i o n s and a s nay be found i n the said proniren.
m a t ' i ' qhhra* i n t h e )
scate of v i c t o r i a t h i s 3
I Signature of I n f o m a a t
COMMONTEALTH OF AUSTRALIA
CRIKES ACT 1914 fi SECTION l0
SEARCH WAR- G&%
To : Amanda Mary ROBERTS
Robet& GRANT
O f f i c e r s o f the Aus t r a l i an Federal ~ b i c e WHEREAS, I ht~ %&S{ . a M a g i s t r a t e 1 a
J u s t i c e of t h e Peace i n t h e s t a t e of V l c t o r i a w i t h i n the
meaning o f t h a t express ion i n Sec t ion 10 o f t h e C r i m e s A c t
I
1914, b e i n g satisfied by i n f o r a a t i o n on o a t h p l a c e d b e f o r e
me t h i s date t h a t t h e r e is reasonable ground f o r suspecting t h a t t h e r e is i n o r upon t h e prernises be ing s i t u a t e d a t and
I
known as lfMedic+l Cencre / R e h a b r l i r a t i o n Cencre", 340A
Abbotsford S t r e=x , North Xelbourne l n the s a l d S t a t e ,
c e r c a i n t h i n g s wnlcn s a t r s f y ALL of t h e ThaE2 following
| ! | c o n d i t i o n s , | t h a t 1s t o say, | TALNGS uhich FIRSTLY | a r e any of |
o r more o f the following:
FIRST CONDITION
- p a t r e n r flies - p a t r a n c h i s t o r y r e ~ s r d cerds - p a t l e n c account record ca rds - d a l l y a t t endance racord shee r s
- appornrmenr d i a r i e s
- o f f i c e d i a r i e s - d o c t o r ' s d i a r i e s - c o p i e s of Medicare assrgnnenr forms
- accounc r eco rds
- account books
- c a s h books - o f f i c e memos -
o f f i c e i n s t r u c t i o n s
- ~ e d i c a r e Sta tement of claims forms - Medicare
' C l a i m f o r Assigned Benef i t s1 forms - employee records
- f i n a n c i a l r eco rds - computer d i s c s - magnetic t a p e s - medical b e n e f i t schedule books
- X-Ray f i lms
i n c l u d i n g any of t h e t h i n g s named above on magnetic and / o r
o t h e r s t o r a g e medium. SECOND CONDITION: AND which SECONDLY r e l a t e t o any one o r more o f t h e following:
- J a c k FREEXU - Noa DINZR
- Fleningrcn Medical Centre , 9 Pr inces Streer-,Fleningion
- MeBical Centre / X e h a b i l l t a ~ i o n Centre , 3 4 0 A
Abboisford S t r e e t , North Eielbourne
THIRD CONDITION: AKD any o t h e r t h i n g s a s t o wi?ic:? t h e r e a r e reasonable grounds f o r S e l l e v r n g t h a t t h e same w i l l a f f o r d evldance as t o t h e comxss lon of t'ne fo l lowing
ozfences , nemely: On 17 Zune 1988 Noa DINE?. knouingly made a f a l s e s z a i e l e n c t o t h e Heal th Insurance Conmission i n a
Eiedicrre ' C l a i m f o r Assiqned 3 e n e i i t s 1 m , which
.- was used t o make a c la im f o r payment under t h e .
r .ealr5 Insurance A c t 1973, i n m a t t h e s a d Noa
D I N L F -3f+sely d e c l a r e d t h a t none 02 t h e anounts
c l a i n e 5 was i n r e s p e c t of a p r o f e s s i o n a l se-rvice which was precluded from Xedicare b e n e f i t by
any g r o v i s i o n o f t h e Heal th Insurance Ac; 1973,
conzr r ry t o Sec t ion l28B(1) o f t h e H e a l t h
I n s u r m c e Ac= 1973. (il) aecveen 27 September 1988-and 15 February 1989 No2
-- DINE3 knowingly made f a l s e statements t o t h e .-.ealCk Insu rance Commission i n Medicare ' C l r i n f o r Xssiqned. 3enefi;s1 forms uhlch were usod CO make c la l r l s f o r gakment under t h e Heel th Insurance Acc
1973 i n t h a t t h e s a l d Noa DINER made d e c l f r a t i o n s
-&at t h e g r o f e s s i o n a l services
a s s l g m e n t forms a t t a c h e d t o
~ s s i g n e d B e n e f i t s 1 forms were provided by him o r
on h i s b e h a l f , when i n f a c t t hose s e r v i c e s had n o t
been provided c o n t r a r y t o Sec t ion 128B(1) of t h e
Hea l th In su rance A c t 1973. (ili) Between 3 1 January 1990 and 25 March 1990 J a c k FZEEMAN knowingly made f a l s e s t a t emen t s t o t h e
Hea l th In su rance Commission i n Medicare 'Claim f o r
Assigned B e n e f i t s 1 forms whlch were usad t o make
c l a lms f o r payment under t h e Heal th Insurance A c t
1973 i n t h a t t h e s a l d J ack FREEMAN made
d e c l a r a t i o n s t h a t t h e p ro fe s s iona l s e r v l c e s
s p e c i f i e d on t h e assignment forms actached t o t h e
' C l a i m f o r Assigned Benef i t s ' forms were provided
by h i m o r on h l s behalf when i n f a c t t h o s e
s e r v i c e s had n o t been provided, c o n t r a r y t o
S e c t l o n 1 2 8 B ( 1 ) of t h e i ieal th Insurance A c t 1973. ( i v )
Between 8 J u n e 1988 and 25 Karch 1990 Noa DINER
and J a c k FEEMAN d l d conspire t o g e t h e r t o def raud
t h e R e a l t h Insurance Comnission i n thar: t h e y d i d
a a k e c l a lms f o r payment under t h e E e a l t n Insurance
A c t 1973 i n r e l a t i o n t o s e r v i c e s which had n o t
been provided , concrary t o Sec t ion 86A o f t h e
C r i m e s ~ c 1 9 1 4 . t
YOU ARE HEREBY AUTEORISED wit'n such assistance end Sy such f o r c e a s 1s neces sa ry and r e a s o n a ~ l e , co ence r a= any t i m e t h e s a i d p r z n i s e s and CO s e r z e any such t h i n g s a s s a t i s f y ALL of i n e T E Z Z a3ove conditions end a s may be found i n t n e s a ~ d pramlses an8 f o r s o doing =his s h a l l be your sufficient warranc.
?URT35X?OR1 YOU FAY, pursuanr: t o suj-seccion ( I ) of Section
1 0 of =he Cr inas Ac; 1914, wnsre r t i s necessary and.
r e a s o n a ~ l e CO do s o f o r cne pur2ose of executing =he warran=, Sreak open such doors and receptacles a s +re i n o r upon tine s a l d p r a x i s e s 2nd may do so wi th sucn e s s l s c a n c e ,
+nd 3y such f o r c e , a s is necessary and r e a s o n a ~ l o .
day of