George v Rockett

[1990] HCATrans 82

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl0 of 1990

B e t w e e n -

QUENTIN DOUGLAS GEORGE

Appellant

and

MICHAEL DANIEL ROCKETT and

WILLIAM JOSEPH McKAY SM

Respondents

MASON CJ
BRENNAN J
DEANE J

George(2)

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 APRIL 1990, AT 10 . 08AM

(Continued from 11/4/90)

1.

Copyright in the High Court of Australia

ClT 2/1/DR 30 12/4/90

MASON CJ: Yes, Mr Clifford.

MR CLIFFORD:  May it please the Court, if we could go to that

case Your Honour Mr Justice Brennan referred to

late yesterday afternoon of PALETHORPE V NEBBIA,

(1937) QWN 33. Your Honour is right, that decision

has been criticized quite trenchantly but it is

upon legislation which is different from the Code

provisions.	The legislation in that case providing
that:

"Upon complaint on oath before any justice

of the peace by any person that he reasonably

suspects -

So, there it is: the suspicion of the person that

is in question as distinct from the provision of

the Code where it must appear to a justice that

there are reasonable grounds for suspecting in the
first place and reasonable grounds for believing
in the second place.

That same sort of distinction was adverted to in New South Wales in a case of FEATHER V ROGERS

that it is not necessary to take Your Honours to.

It is reported at (1909) 9 SR (NSW) 196. That

particular decision was referred to by the Queensland

Full Court in STROPHAIR V EBBAGE, (1945) QSR 126.

It was criticized in argument that the court did not

pass an opinion on it. The distinction is pointed

up again in a more recent Queensland Full Court

decision of REG V LEE AND MATTHEWS, (1982) Qd R 295

where the legislation provided that ''upon complaint

made by a police officer that he believed".

That was a firearms-type of case and it was

merely a matter of satisfaction that the police

officer believed that.

(Continued on page 32)

ClT2/2/DR	31	12/4/90
George(2)

MR CLIFFORD (continuing):  The legislatio.n, in our

submission, is different. In PALETHORPE

the court did import the test of Chief Justice Griffith

in BRIDGEMAN, which we will come to later, but the

legislation was different and it does not, in

our submission, assist really in the construction

of the present section.

DAWSON J: Because the present section says it must appear

to do justice?

MR CLIFFORD:  Yes, Your Honour. The second point that was

raised yesterday was whether the magistrate could

look beyond the complaint. In our submission, the

answer to that is no.	The 8ection refers to a
complaint made on oath.	The only material on
oath before the justice . was the complaint.	There

have been some extentions under the OATHS ACT of

circumstances when a declaration can be used _ instead

of sworn evidence, but there has been no relevant

extension now.	It must be on oath for this
proceeding.

DAWSON J: In other words, you actually put it in the

complaint? Set it out?

MR CLIFFORD:  Yes, Your Honour.

DAWSON J:  What if you swore a - yes, I see. What is the

difference between an information and a complaint?

MR CLIFFORD: Well, a complaint in Queensland at least is

defined under the JUSTICES ACT to include an
information. It is a rather strange situation. The

term "complaint" is defined in the CRIMINAL CODE,

but the JUSTICES ACT is far from clear. It does
provide in section 51 that a complaint must be
in writing, but it does not seem, on the construction
of that section, that it has any application to

a complaint to grant a search warrant, because the

section itself is obviously talking about a

complaint giving rise to an offence and it provides

that it must be in writing where a warrant is to

issue and it need not be in writing where a

sunn:nons is to issue. But - - -

DAWSON J:  So it would not matter if you did it in two steps.

If you have a formal complaint and then that was supported by an affidavit? The two together would form the complaint.

MR CLIFFORD: That would seem to follow, Your Honour, yes.

DAWSON J:	No particular form for a complaint.
MR CLIFFORD:	No, there was a form prescribed; it was form 2

in the third schedule to the JUSTICES ACT; a

complaint to ground search warrant, but in 1964, by

Order in Co~i 1 - I can turn that up if need be - but that form

was taken out. There is now no prescribed form of complaint

to ground a search warrant.

CIT3/l/CM	32	12/4/90
George

MR CLIFFORD (continuing):  To complete the first point upon

which we addressed Your Honours yesterday, that

line of cases to which we referred we did not suggest
specifically considered the inculpatory/exculpatory

distinction but we relied upon them because they

consistently read the words "as to" or "with respect

to" in the statute as "of" and the only reference

we need add to that is a case which is on from; it is the case of REG V COLVIN,

( 1970) 1 CCC (2nd) 8, and RE BORDEN AND ELLIOT V REG,

(1975) 70 DLR (3rd) 579. I think yesterday we

might have taken Your Honours to the Canadian case

of IN RE BELL TELEPHONE COMPANY OF CANADA,

(1947) 89 CCC 196, and we will just read a short

passage from that to complete the references to

cases on that point dealing with section 629 of

the Criminal Code where Chief Justice McRuer said:

As I view it, the object and purpose

of these sections is to assist the administration

of justice by enabling the constable or other
properly designated person to go upon the
premises indicated for the purpose of procuring

things that will in some degree afford evidence

of the commission of an alleged crime. It

is not necessary that the thing in itself
should be evidence of the crime, but it must

be something either taken by itself or in

relation to other things, that could be

reasonably believed to be evidence of the

commission of the crime.

(Continued on page 34)

C1T4/1/ND	33	12/4/90
George(2)

GAUDRON J:  You do not have to put your argument so highly

do you, Mr Clifford, in this sense; sometimes

evidence that somebody has not committed a crime
will, in fact, be evidence as to the commission of
a crime, which is the expression in the statute,
but in an offence like perjury, if it is evidence
that he has not committed a crime, it is evidence

that there was no crime? It is not as to the

commission of a crime at all and there may be a

number of other offences in that same category.

MR CLIFFORD:  Yes. We would respectfully adopt that

construction, if Your Honour please, and Your Honour

is, with respect, correct. We probably do not have

to go as high but it does place the same flavour upon
the matter in the sense that perhaps the best way to

put it is that the section really has a positive

connotation, meaning evidence as to its commission,

the fact of its commission, rather than its

non-commission. So, if we could take that up, we

would make the submission that while the section may

be capable, as Your Honour Justice Dawson suggested

yesterday, of the construction that "as to" means,

in effect, "as to whether", although that is not

Your Honour's wording, that construction ought not

to be followed, but a positive construction should

be adopted, that is evidence as to the fact of

commission in that positive connotation of tending

to show the commission which I think might be

Your Honour Justice Gaudron's point, if I have

properly seized it.

GAUDRON J:  Perhaps to refine it rnore,there may be a difference

in cases where the commission of a crime must have

happened and evidence as to inculpation or

exculpation is necessarily evidence as to its

commission, and the case where it is not certain

that a crime has been committed, and exculpation, in that circumstance, would not be evidence as to the commission of a crime.

(Continued on page 35)

ClTS/1/HS 34 12/4/90

George(2)
MR CLIFFORD: That is so, Your Honour, and this

particular case, of course, hau got past tne

investigative process by the time all this

happened. There had been specific charges made

against a particular identified person and the

purpose of the warrant was beyond that

investigative stage where the police might be

wondering whether a crime had, in fact, been

committed at all. It had gone well beyond

that.

In none of the cases, in our submission,

have Their Honours suggested that it would be

sufficient to afford evidence with respect

to the commission or non-commission. All the
cases have dealt with situations where the

construction, albeit not specifically on

point,has been the positive one, that is will

afford evidence to show the commission.

DAWSON J: Well, we recognized yesterday that that would be

mostly in the mind of those concerned because

they would be looking for the commission of an

offence, but is it not the duty of the
prosecution to assess evidence before determining
whether to prosecute and to do that should not

all the available evidence be before it and

can I put with that another question, and is it

not the duty of the prosecution to lead all

relevant evidence, whether it be in favour or

against a conviction,. if it has it in its hands?

MR CLIFFORD:	It is the duty of the prosecution to assess the evidence. We would certainly accept
that. The difficulty with the exculpatory
aspect is, simply, that in the case of exculpatory
evidence made by way of statements by a person
in a documen~ if they are not admissions against
interest, it would be difficult to see how they
could be tendered by the prosecution. Assuming
that in this case Lewis had got to the stage where
he had represented himself and he had then made
notes and set out his thoughts or his reasons why
he was not guilty,  it would be hard to see how
that could ever be evidence which could go before
the court at the instance of the prosecution unless they could be used later for cross-examination purposes, Your Honour.

DAWSON J: Probably be hardly exculpatory either, in any

sense, but where you did get truly exculpatory

evidence, whether it was admissible or not, why

should not the prosecution have that for the

purpose of exercising its discretionZ

ClT6/l/JL	35	12/4/90
George(2)

MR CLIFFORD:  The submission that we make in relation to

that is that the construction of the section is

designed to the detection and suppression of

crime and its seeking out exculpatory evidence

by which a person may defend the matter really

was not intended. I am not seeking to sidestep

what Your Honour is saying - - -

DAWSON J: It is directed towards the detection and prosecution

of crime, is it not?

MR CLIFFORD:  Yes.

DAWSON J: And, of course, the detection of crime involves

assessing all the available evidence, does it not?

I mean, if the exculpatory material was determinative,

then it is something which goes to the detection of

crime in a negative sense.

MR CLIFFORD:  It does go in the negative sense. We rest with

the submission that it ought be construed in the

positive sense only, and we cannot really take that

point further. And, of course, we make that

submission on the basis that it is a matter of

balancing of interests of persons, and particularly
not persons charged, but members of the public
balancing their interest - their right to the
uninterrupted enjoyment of their homes, or their

privacy, except in those rare circumstances where

the legislature has deemed it fit that that be

invaded for the general public interest.

DAWSON J: In favour of that you could say, well the

exculpatory material is likely to surface anyway,

whereas the inculpatory material is not.

MR CLIFFORD:	Yes, Your Honour.
DEANE J:	Does this mean that if the police thought that
somebody may or may not have been the murderer of
someone else and they believed that there was a gun
hidden in his backyard, which may or may not have
been the weapon used for the killing, they would not
be entitled to get a search warrant, because all they
could say is that the gun may or may not prove his
guilt or his innocence?

(Continued on page 37)

ClT7/1/FK	36	12/4/90
George(2)

MR CLIFFORD: It goes that step further if it is suspected

that that particular person was involved in the

killing.

DEANE J:	I mean, here it is suspected that Lewis committed
perjury. What is said is, "We suspect there is a
written document which will constitute an admission that he remembered things which he said he did not
remember or that he met somebody whom he said he
did not meet.  If that document is as we suspect
it to be, it obviously answers the description".
Why is that different from, "We suspect that there
is a gun buried in his backyard which may or may not
be the murder weapon?". In each case, the search is
not for a particular identified thing. It is for a category of thing which, if it is there, answers the description in 679(b).

MR CLIFFORD:  We submit there are those two limbs: one you

may suspect but in order to justify the warrant

there must be reasonable grounds for believing that

it will afford evidence, in other words, that it is

not just sufficient to have a suspicion as to a
category of things, but you must be in the position -

and this is really getting into the second point of

our argument I suspose, where credibly based

probability that it will afford evidence is there

as distinct from mere suspicion.

DEANE J:	So you cannot say, "We suspect that the murder weapon is buried in his backyard", unless you can say,
"We know that there is a weapon buried in his
backyard which we not only suspect to be the murder
weapon, but which there are reasonable grounds for believing that it probably is the murder weapon?".
MR CLIFFORD:	If, for instance, he had been observed to bury

it recently that would give you the reasonable grounds

because that, concealment would tend to establish

and establish the reasonable ground for believing.

(Continued on page 38)

ClT8/l/LW	37	12/4/90
George(2)

DEANE J: But that is the point, is it not, that on your

submission a search warrant does not enable you

to search for a document of a description. You

have to know what the document is and be able to

say not only that the document may tend to

incriminate but, in effect, th~t it probably will

tend to incriminate.

MR CLIFFORD:  Yes, if there are reasonable grounds for

believing that it will. In other words, if there

were that one step further in this present case

that there had been material before the justice

saying something about the content; that is that

Lewis said in these documents which parts of the

evidence were right and which parts of the evidence

were wrong, ·something like that, if you had something

as to their nature so that you could contrast what

was said there with the evidence he had given.

DEANE J:	But then why would you not say that that may just
as well exonerate him?
MR CLIFFORD:	In this particular case, if I can go back to

that this way, Herbert's evidence, as the charges

before the court show,related not just to two charges

of perjury but about 15 charges of obtaining money

by false pretences and the first step is it is unknown

on those documents whether anything Lewis wrote

related to the perjury charges or whether it related

to the corruption charges and the receipt of money.

The two perjury charges related to specific things,

swearing as to the notebook and the meeting at
the Crest Hotel with the person Rooklyn, whereas

Herbert's evidence was over a much wider compass.

So you do not know, in this particular case,

whether it related to the matter the subject of
the perjury charges or not. It could have related

to anything.

DEANE J:	But why cannot you say, "I suspect that there is
a written admission of his knowledge and of the
meeting and if there is such a written admission
there are reasonable grounds for believing that it will of itself afford evidence as to the
commission of an offence."?  You are back to the
gun, why cannot you say, "I suspect that the murder
weapon is there", instead of having to say, "I suspect that there is a gun there and there are reasonable grounds for believing that the
particular gun that happens to be there is the
murder weapon."?
MR CLIFFORD:	The submission we make is that the construction of the section requires you to do that and dealing
with these particular documents you can say, "Well,

C 1T9 /1 /ND	38	12/4/90
George(2)

I suspect that those described documents are on

the solicitor's premises and I have reasonable
grounds for that because I set out what was told

to me", but then you must be able to say that there

are reasonable grounds for believing that they

will afford evidence.

McHUGH J:  You have not referred to the majority judgment

in Western Australia of MORSE AND THOMPSON V

HARLOCK, which supports your submission.

MR CLIFFORD:  Yes. We have really been getting into the

second point, Your Honour.	I was just trying to
close the first point.	And that is one of the

judgments that we do rely on in relation to that

second point.

BRENNAN J:  Can you tell me what the scope of section 679(a)

is? In particular I am wondering does that have

anything to say about guns?

MR CLIFFORD:  Yes.

BRENNAN J: It is not very clear.

MR CLIFFORD:	It is not clear. What is clear about it is that it imports , suspecting that it is there and
suspicion as to its nature; it is a different connotation from subsection (b).
BRENNAN J:	Yes, the words are different but I do not

understand what is meant by "anything with respect

to which an offence has been committed". I mean,

do you say that a gun is something with respect

to which the crime of murder has been committed,

for example?

MR CLIFFORD: Probably yes, Your Honour.

BRENNAN J: It would be a tortuous use of it, but I just

do not understand what the scope of it is. Are

there any cases which deal with it?

MR CLIFFORD:  It may be that the origin of that was the

common law with relation to property offences where

property was suspected to have been stolen. In the

draft Code Chief Justice Griffiths says, when he

drafted this section which was originally 704,

that it imported the existing law and it seems
to have picked up the common law right of search

and seizure in relation to stolen property.

ClT9/2/ND	39	12/4/90
George(2)

MR CLIFFORD (continuing):  So it may well be that that is

what that particular subsection picks up, but we

do draw some comfort from the fact that, in relation

to those things, whatever they are, that fall within

subsection (a), that there need only be suspicion

on reasonable grounds, not belief on reasonable

grounds, and make the submission that the section is

using the words "suspicion" or "suspected" and

believing, in different senses.	They are
deliberately chosen.

To complete that first point, it is our submission

that the construction that "as to" simply means

one way or another, whereas "as to whether" can be

tested by looking at some of the results that might

ensue from it; we appreciate that that is only a

secondary sort of argument but if you take the

position of a person represented at an inquiry who then ceases to be represented, makes his own notes

as the inquiry goes along, which notes are not then

privileged because they are not for the purpose of
his legal advisers, those notes, under that

construction, may be taken, the notes that he makes

at that time, and examined to determine then whether
there is anything which could be of an exculpatory
nature against some of the evidence which has been
led in the commission.

Leaving aside the question of whether it would be restrained as an abuse of the adversarial

procedure, if you have a person who represents

himself at a committal and makes notes, there

being no privilege attaching to those documents,
those documents could then be obtained, as was

suggested at the application for special leave here,

in order to restrain and contain the defence in its

conduct, that is that they would not be inculpatory -

they were never thought to be inculpatory - but they

would be obtained for the purpose of containing the

defence, that being the submission that was made.

DAWSON J:  You could put that on a lesser ground, that they

would not afford any evidence, but you are going to

come to that, are you not?

MR CLIFFORD:  If we may then go directly to that test which

ought to be applied in relation to reasonable grounds

for believing, His Honour, Mr Justice Connolly, with

whom Mr Justice Ambrose agreed, dealt with the matter

fairly shortly at pages 179 and 180 of the record, in

that passage which we read yesterday, saying that:

If, on examination, they contained any

observations, whether inculpatory or

exculpatory, touching his notations in

his own handwriting in his 1980 and 1981

pocket notebooks or touching a meeting at

ClTl0/1/HS	40	12/4/90
George(2)

the Cresst Hotel ..... then they were

capable of affording evidence "as to the

commission of the offences" in the sense

of being relevant.

The submission we will be making is that you have to go

further than mere relevance. They can only afford

evidence if they are going to proof and His Honour

did identify in the next passage that:

Whether any of the documents contains

matter of evidential value in relation

to the proofs to be adduced or likely
to be adduced at the trial has yet to be

demonstrated -

which, of course, was so because the documents had not

been examined but merely because, if they contained

observations, as he had said, and in that sense would

be relevant to the proofs, His Honour then went on to

say that:

It can scarcely be denied that there

are reasonable grounds for believing that

the material will afford such evidence

even if that belief should ultimately be

unfounded.

His Honour, Mr Justice Thomas, with whom

Mr Justice Ambrose also agreed, did say that it could

not be held that it was probable that the material

will afford evidence, and that appears at page 187

of the record in line 50; the passage reading:

Whilst in my view it could not be held

that it is probable that the material

will afford evidence as to these particular

offences, there are reasonable grounds for

believing that it will. It is reasonable

to believe that a person's attention would be drawn to the more controversial matters

that arose in relation to himself during

the Inquiry and that his comments upon
the evidence would tend to be drawn

towards such areas. The Magistrate

could not know and did not have to

know whether they in fact did so.

(Continued on page 42)

ClTl0/2/HS	41	12/4/90
George(2)

MR CLIFFORD (continuing): And then he used other

expressions, at page 189 starting at line 15,

dealing with that reasonable ground for
believing and said:

It is reasonable to suspect that to some extent at least the documents refer to the topics the subject of the charges.

That, in our submission, would not be a sufficient

test and he went on to say that while the present

case fell fairly close to the line to return to

what he termed the composite test, there was

sufficient for it to appear that there were reasonable

grounds and His Honour identified the foundation
as this:

The foundation for this is that they appear to be the personal notes of a suspect in circumstances where it is reasonable to

suppose that some of them will bear upon the

subject matter of pending charges.

In our submission that does not get one to the stage

of reasonable grounds for believing and . we submit

that what is done in that passage is to equate

reasonable grounds to suspect or suppose, with

reasonable grounds for believing.

BRENNAN J: Mr Clifford, the problem in this case is that

the charge is one of perjury and the false swearing

is said to be that something did not happen and

if there are extensive notes with respect to the

evidence that "something did not happen" and they

relate to facts as one might reasonably believe them

to relate to, then would not the facts, if they

exist at all, be facts which are likely to establish

the occurrence of something rather than the

non-occurrence of something?

MR CLIFFORD: That is if one, Your Honour, could draw the

inference that they related to fact~ not to what

Herbert said were the facts. In other words, if they could reasonably be taken to be Lewis's

version of the matter rather than what Herbert says

about it and why what Herbert says about it is

wrong.

BRENNAN J: Well, are the pages in question to which

annotations are attached, the pages of Lewis's
examination of the question?

MR CLIFFORD:  We do not think that is known, there is just

no material on that, Your Honour.

ClTll/1/JL	42	12/4/90
George(2)

BRENNAN J: Where then did the evidence of Lewis which appears

in our appeal book come from?

MR CLIFFORD: 

The evidence of Lewis which appeared in the book

and which was put in at the respondent's request,
for the purposes of section 213 to argue that
there was no miscarriage, comes from Lewis's own
evidence at the connnission of inquiry.

BRENNAN J: 

It has not been before the magistrate?

MR CLIFFORD: No. It was simply unknown,as we understand

the material looking at the face of the complaint,

whose evidence was the subject of the annotating

and the bundle of A4 pages was simply described

as containing his conn:nents on the evidence,

taken before the conn:nission of inquiry. The only

addition to that is that it said that there were

30 to 40 pages of connnents on the evidence under

specific headings and that seems to be all that

appears in the complaint that gives one any clue

at all as to the nature of the documents.	The
first expression "reasonable grounds for

suspecting", the meaning of that was dealt with

by His Honour Mr Justice Kitto in

QUEENSLAND BACON PTY LTD V REES, where he

contrasted it with a mere suspicion, that is

reported at (1966) 115 CLR 267, at page 303 is

the passage to which we refer, and in that second

paragraph, His Honour says:

In the first place, the precise force of the word "suspect" needs to be noticed.

A suspicion that something exists is more

than a mere idle wondering whether it

exists or not; it is a positive feeling

of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's

Dictionary expresses it. Consequently, a

reason to suspect that a fact exists is

more than a reason to consider or look into

the possibility of its existence. The notion
which "reason to suspect" expresses in
sub-s. (4) is, I think, of something which

in all the circumstances would create in the

mind of a reasonable person in the position

of the payee an actual apprehension or fear

that the situation of the payer is in actual
fact that which the sub-section describes -

And that is apt, in our submission, to refer to the

reasonable grounds for suspicion of the presence of

a particular thing.

ClTll/2/JL	43	12/4/90
George(2)

MR CLIFFORD (continuing):  The words "suspicion" and

"belief" were distinguished in MORSE V THOMPSON,

(1977) WAR 65 at page 72, in a very short passage,

where His Honour picked up what was said in a

New Zealand case. His Honour said:

Suspicion and belief are of course

different states of mind.

And that is all we need say about that particular

case, but the matter was developed rather in the

SEVEN SEAS PUBLISHING PTY LTD V SULLIVAN decision,

to which His Honour was referring. That is

reported at (1968) NZLR 663 at line 35:

"To 'suspect' is to "imagine something evil

or undesirable, or on slight or no

evidence to "imagine or fancy something

wrong, to imagine or fancy something to

"be possible or likely. To imagine something,

especially something "evil, is possible".

On the other hand, to "believe" is "To have evidence or faith, and "consequently to

rely upon, to give credence to, to believe
in its existence "or occurrence".

And of course, in our submission, the expression here "reasonable grounds to believe" excludes

"faith". And that distinction between "suspicion"

and "belief" and "reasonable grounds to believe"

requiring a higher degree of satisfaction was

recognized by Justice Lavan in MORSE V THOMPSON, (1977) WAR 65 at 76. At the bottom of the page,

line 45 or so:

what is necessary is that having regard to

the complaint the magistrate should have

expressed his satisfaction not only that there

were reasonable grounds for suspecting that

the copy documents in question were at the

time in the offices of Paterson and Dowding

for believing that they would afford

evidence of the commission of Criminal
Defamation.

but also that there were reasonable grounds

TOOHEY J:  How is that expression given effect to, Mr Clifford?

Does the magistrate utter those words at the time

of issuing the warrant or is the issue of the warrant

itself an indication that the magistrate has gone

through the formalities which the Act requires?

MR CLIFFORD:  There does not seem to be any way of

recording the finding. We suspect that what

would normally occur would be that having considered

the matter he would then issue the warrant and

CIT12/l/CM	44	12/4/90
Goerge(2)

that would probably be the only finding, as it

were, the issue of the warrant itself.

TOOHEY J: Well then I take it you are not suggesting that

the warrant is somehow vulnerable because there

is no evidence of an independent expression of

satisfaction by the Magistrate, if the terms of the warrant itself sumehow reflect what the Act

requires.

MR CLIFFORD:  Well if the terms of the complaint were

sufficient, the expression of the warrant would

indicate the findings having been made to the

appropriate degree, the warrant not being in any

sense a formality, the consideration having been

given to it and the decision then to issue it

being expressed. But what happened, it seems, is

that the complaint was sworn before the Magistrate

and then the warrant issued upon consideration of

the complaint and wrongly, we would submit, on

conversation.

(Continued on page 46)

CIT12/2/CM	45
George(2)

MR CLIFFORD (continuing):  The grounds must be stated in the

warrant itself in order to show its jurisdiction

on its face, and the warrant in this case does

contain the statement at line 11 or 12 on page 12 of the record: whereas the complaint has been made

as to which there are reasonable grounds for

believing. And then on the next page, line 15:

AND WHEREAS it appears to me the said

Justice that there are reasonable grounds

for so suspecting and so believing.

So the warrant itself, I am sorry, does contain

the positive finding.

TOOHEY J: Well then, I am not quite clear what the point is

that is being made. I rather thought at one stage

you were suggesting that some conversation that had

taken place might, as it were, have destroyed the

efficacy that the warrant would otherwise have had?

MR CLIFFORD:  No, the submission that we make is that the

magistrate is only entitled to rely on the sworn

complaint and that ultimately what was in the

sworn complaint here was not sufficient for there

to be reasonable grounds for believing. That

required the decision of the magistrate and all

he had was the police officer'_ s statement that

there were reasonable grounds for believing. There

was no other evidence before him.

TOOHEY J: That is your BRIDGEMAN V MACALISTER point?

MR CLIFFORD! Yes, Your Honour. What we are submitting at

this stage is that there is a clear distinction

between suspicion and belief; suspicion in the

first paragraph; belief, or reasonable grounds

for believing in subsection (b). We submit that

if you are left at the end of the day, looking at

the documents, knowing no more than that

evidence may be uncovered if they are obtained, that
that simply is not sufficient.	We read yesterday

from the case of HUNTER V SOUTHAM, where

Justice Dixon, who I think is the present Chief Justice

of the court, dealt with a situation where the question

was whether "may" be uncovered by the search, was

enough on the terms of the particular statute -

holding that statute unconstitutional, and

His Honour said in that passage we read out

yesterday, at pages 658 and 659 - and we will not
read the whole passage again, that to associate the

concept of the objective criterion, the necessity

for a consistent standard for identifying the

point where the interests of the individual can

be overtaken.:

C1Tl3/l/FK	46	12/4/90
George(2)

To associate it with an applicant's

reasonable belief that relevant evidence

may be uncovered by the search, would be

to define the proper standard as the

possibility of finding evidence.

And went on to say that the common law, the
American Bill of Rights and section 443 of the

Canadian Criminal Code, which is to the same effect

as our section 679, must be looked at in this way,

that:

The State's interest in detecting and

preventing crime begins to prevail over

the individual's interest in being left alone at the point where credibly-based

probability replaces suspicion.

And, it is our submission that reasonable grounds

to believe is of the same standard. There must be

a credibly based probability that the documents will

afford evidence, not just a thought that they may,

or a supposition.

TOOHEY J: But the complaint in this present case set out what

was said to be the grounds of suspicion and belief,

did it not?

MR CLIFFORD:	Yes, but it said nothing as to what the grounds were. It described the documents, Your Honour, but as to the reasonable grounds, it simply recited, on
page 7:

as to which there are reasonable grounds

for believing that it will ..... afford

evidence as to the commission of offences.

(Continued on page 48)

C1Tl3/2/FK	47	12/4/90
George(2)

TOOHEY J: Well, I was rather looking at page 8 where the

grounds of suspicion and belief a~e detailed.

MR CLIFFORD:  What those grounds do, in our submission, is

establish the suspicion that the documents are

in the premises in relation to which the search

warrant is to issue. They describe them, "consisting

of 30 or 40 pages comments on the evidence under

specific headings and an annotated transcript

also of 30 to 40 pagei'but that is all that is said

about them and, in our submission, that simply

cannot be enough to establish reasonable grounds

for believing that they will afford evidence.

DAWSON J:  What if that is a matter of inference? Do you

have to state the inference?

MR CLIFFORD: 

We would submit that you cannot draw the inference

without having some indication, at least, of their
contents. It seems to be a matter of saying that
since the transcript relates the evidence in the
commission, you draw the inference that these

comments relate to the evidence. It is a further

step to say that you infer that they relate to the
perjury charges or the evidence relating to the
perjury charges as distinct from the 15 corruption

charges and then it is a further step again to say

tha t they will afford evidence as to the

commission of perjury. There are just too many steps,

in our submission,to get to reasonable grounds
for believing.

McHUGH J: 

It has got to be more precise than perjury, has it not?

It has to be that they will afford - there are

reasonable grounds for believing that they will

afford evidence	that he falsely swore that he
had no idea what certain	notations in his own

handwriting in his 1980/81 notebooks referred to

or that he afforded' evidence that he knowingly

falsely swore to the effect that he had never met

in a private room of the Crest Hotel. If your

construction of the section is right, it has got a

very narrow view. It has got a very narrow scooe.

MR CLIFFORD:  Compass, yes, but what we do submit is that whatever

the construction on that mere description you cannot

draw those several steps of inference and get to

reasonable grounds for believing that these documents

will afford evidence as to the commission of these

two specific offences of perjury. There is - I think

we referred yesterday to RE WORRALL and there are

some statements in the dissenting judgment of

Roach, Justice of Appeal. He dissents as to the

result. That is, RE WORRALL, (1964) 48 DLR (2nd) 673,

at 682, and we do not need to read the whole passage.

ClT14/l/LW	48	12/4/90
George(2)

That was a case where the person swore merely that

he has reasonable grounds for believing that there
are things that may afford evidence, and His Honour
pointed out strongly:

There is a vast distinction between a sufficiently grounded belief and mere suspicion.

And we make the submission that, with the description of the documents before the M..agistrate here,

all that he could have reached as a satisfaction was

that they may contain evidence, no more. And towards the end of the paragraph, His Honour pointed out that the section:

does not authorize the issue of a warrant for

that purpose -

of going into somebody's premises simply to see what,

if anything, could be found that might be evidence

because all that was said there was that these things

may provide evidence.

The dissent, I am reminded, is that the other

members of the Court said that the particular evidence

in that case was sufficient, but we simply use that

to point up the distinction.

(Continued on page 50)

ClT14/2/LW	49	12/4/90
George(2)

MR CLIFFORD (continuing): If we could pass to

BRIDGEMAN V MACALISTER upon which we rely quite

heavily, (1898) 8 QLJ 151, Chief Justice Griffith,

dealing with a search warrant, in the first

column on page 153, about two-thirds of the way
down - and there is only one sentence on that

column that we need:

But the information must state the ground,

the reasonable ground, for suspicion.

His Honour went on to say, at the end of the judgment, about eight lines from the end in the

second column, dealing with the document:

It merely contains a statement that the

deponent suspects they are conceale~ for

which suspicion he gives no relevant

foundation. Therefore, the ground for

the exercise of this summary power was

wanting, and the magistrate was acting
without jurisdiction -

and the submission we make is that it is not sufficient, merely, that the person swear to having reasonable grounds without setting out those

reasonable grounds.

That seems to have been the view of the

Queensland Full Court in an earlier case which is

set out on page 185 of the record, HEDGES V GRUNDMANN,

(1985) 2 Qd R 263, at 269, and we do not need to go

beyond the passage which is set out in the record.

There is a citation from His Honour

Mr Justice Moynihan and he said:

"It seems to me unarguable that the susp1.c1.on

and belief referred to by the section,

founded as it requires on reasonable grounds,

must be that of the justice who issues the

warrant. The suspicion or belief of the

complainant, for example, is irrelevant

save in so far as it is properly capable of

founding the required conclusion by the
justice. What the complainant is required
to do is to furnish to the justice reasonable
grounds for the latter to conclude, in the
exercise of a judicial function, that it
appears to him that the suspicion and belief

required by the section have been established."

That is in line, in our submission, with the

American cases. In NATHANSON V UNITED STATES,

(1933) 290 US, the Supreme Court of the United States held,

at page 47 - I will read the passage:

C1Tl5/l/DR	50	12/4/90
George(2)

Under the Fourth Amendment, an officer may

not properly issue a warrant to search a

private dwelling unless he can find probable

cause therefor from facts or circumstances

presented to him under oath or affirmation.

McHUGH J:  But those United States cases are really no

assistance here, are they?

(Continued on page 52)

C1Tl5/2/DR	51	12/4/90
George(2)

MR CLIFFORD: It is our submission that the same principle

applies that mere affirmance of belief or mere

suspicion is not enough. That does not, itself,

found the jurisdiction.

McHUGH J: That is because you are construing the fourth

amendment.

MR CLIFFORD:  In that case it was the fourth amendment but

that same standard was applied by HUNTER V SOUTHAM,

the Canadian case to which we referred earlier,

and it really follows, in our submission, that

section 679 requires the same thing, that is that

there must be the satisfaction by the judicial

officer of reasonable grounds to believe not merely

on the swearing of the complaint to the effect

that the complainant so says.

Similarly, in MORSE AND THOMPSON V HARLOCK,

(1977) WAR 76, it was said that - as we have said

before and we will not read it out merely to

emphasize it, both:

the justice must be satisfied on the sworn

evidence before him, first that there are

reasonable grounds for suspecting the presence

in any place of the object of the search,

and second that there are reasonable grounds

for believing that such will afford evidence - - -

TOOHEY J:  Mr Clifford, you have to look at the complaint

overall, do you not? It is easy to imagine some

cases in which the offence is identified in such

a vague way that it is very difficult to see any

connection between the offence and the material

that is sought to be obtained on warrant. But

at the other end of the spectrum you might find

an offence that is parti~ularized in such a

way that the connection between the offence and

the material sought to be obtained really just

leaps out of the written page. Really, all I am

suggesting to you is that what may constitute

reasonable grounds for belief in terms of the

section depends to a large extent upon the

particular offence referred to in the complaint

and the material itself and that the connection

may - or the likelihood of such a connection may

be apparent from a comparison of offence and material

but whether this case falls into that category

is another matter.

MR CLIFFORD:  We would accept the distinction that

Your Honour has made, of course, but what we do

make the submission here is simply that there is

not that apparent connection in the sense that

there is no clear reasonable ground for erecting
that foundation that one may relate to perjury

52   12/4/90

George(2)

generally as distinct from corruption; two, that

they relate to these specific offences without knowing even the subject of the annotations or

even that part of the transcript which is annotated.

We do make the submission that the - appreciating

that it is a fourth amendment matter - United States

cases are right in the emphasis that they put upon

the necessity for the judicial officer to reach

the particular conclusion.

The cases that support that proposition, in

our submission, establish what is necessary under

section 679 and that is that it is not enough to

merely say the belief, the facts upon which the

belief is based must be said, and it follows from

that that the facts on which the belief is said

to be based here were simply insufficient.

The particular cases - and it is probably not necessary that we read the passages in any

detail - appear in JONES V UNITED STATES,

362 US 257, where the court emphasized that probable

cause is not established by an affidavit which
merely states the belief that there is cause to

search without stating the facts upon which the

belief is based.

(Continued on page 54)

C1Tl6/2/ND	53	12/4/90
George(2)

MR CLIFFORD (continuing):  Similarly, the same sort of approach

was taken in AGUILAR V TEXAS, (1964) 378 US 108,

at pages 114 to 115. It was emphasized there that

while hearsay can be used, the underlying
circumstances must be so demonstrated as to enable
the inferences from the fact which lead to the

complaint to be drawn by a neutral and detached

magistrate and distinguish that from the mere

acceptance of the proposition that the police

officer's belief was enough or, indeed, in that

case, an unidentified informant.

We make no complaint to the effect that a

magistrate cannot use hearsay evidence in a situation
like this, so long as it is put in the complaint,

and the grounds of it are sufficiently expressed but

ultimately then, we submit, that this material before

the Magistrate might give rise to a suspicion or

supposition that it could not reasonably ground a

belief. Rockett swore that there was evidence that

the bundle of A4 pages was in Lewis's handwriting,

that it consisted of approximately 30 or 40 pages

of comments on the evidence by Lewis under specific

headings. That is all it was and probably even this

Court could take note of the fact that the Fitzgerald

Commission ran for a very long time, and he further

swore that there was evidence that the annotated

transcript also consisted of 30 to 40 pages.

TOOHEY J:	What is the relevance of Mr Rockett's declaration?
MR CLIFFORD:	The statutory declaration?
TOOHEY J:	Yes.
MR CLIFFORD:	Well, our submission is it is not able to be used

by the Magistrate because it is not sworn. It is

really of no particular relevance, but it does not

seem to add anything, in any event, as to the content

or nature of the documents, or go any further to

identify those parts of the evidence to which the

comments might relate.

DAWSON J:  Well, it is of no relevance at all and we need not

worry about it.

MR CLIFFORD:  No. So that there were grounds, we would concede,

for the Magistrate forming a suspicion that the
documents were there, but there was not enough to

form a reasonable belief that they will afford

evidence, in our submission, and we will simply

adopt the approach that was taken by the Supreme

Court of Canada in RE RESTAURANT LE CLEMENCEAU AND

DROUIN, (1987) 42 DLR (4th) 761, at pages 763 to 764, and the passage starting at the bottom of page 763

and going over to page 764 points out that:

C1Tl7/l/HS	54	12/4/90
George(2)

In order to perform his duty of supervision, the judge had to determine whether the facts on which the

informant's belief was based were such

that his belief was indeed reasonable.

None of these facts -

were disclosed, and that the judge had elected not
to seek further information so he could not and did

not verify the reasonableness of the be 1 i e f and a 11 that

he was left with here was just that general

description which, in our submission, was not enough,

and we also adopt - which is no more than an example

and we will not trouble the Court by reading in

detail from it - the approach taken in RE WATERFORD

HOSPITAL AND.THE QUEEN, (1983) 6 CCC (3d) 481, where

the affidavit merely established that the policeman

had been advised by a doctor that the accused who

was charged with murder had made certain informations

which he believed to be irrelevant and admissible in
contemplated proceedings and the court held that that

was not enough because all that showed was that the

peace officer was satisfied of that and that there

was simply no detail set forth whereby one could examine

and decide that the material would afford relevant,

and in that case they added the rider "admissible",

evidence.

Similarly, in TVW LIMITED V ROBINSON,

(1964) WAR 33, Chief Justice Wolff, at page 35,

pointed out that there was:

an absence of any finding on the face

of the warrant -

merely -

a reiteration of the terms of the

complaint.

(Continued on page 56)

C1Tl7/2/HS	55	12/4/90
George(2)

MR CLIFFORD (continuing): That, passage does not take us

anywhere, in particular really, because in this

case there is a finding that His Honour

Mr Justice Negus, at page 37 said very clearly,

following BRIDGEMAN V MACALISTER that:

It is the duty of a justice before

issuing such a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing

the respective matter ..... and that those

grounds are reasonable.

He cannot satisfy himself about

those matters in accordance with the

requirements of the CRIMINAL CODE unless

the grounds are stated on oath preferably

in the complaint -

and further pointed out that it did:

not state the ..... grounds for his

suspicion or ..... belief -

in that matter, and as we have said all that is

done, in the present case, is merely to swear

that there are reasonable grounds but no facts

are put forward other than the description of

the document.

There are similar approaches taken and in

MITCHELL V NEW PLYMOUTH CLUB, (1958) NZLR 10 - - -

MASON CJ: Is it necessary to go through all these cases,

Mr Clifford?

MR CLIFFORD:  No, we would merely refer to them and invite

the Court to read them later. There is simply a

consistent requirement that there must be the

sworn facts that the justice canlook-at~examine and

belief of the informant is of secondary significance	then be satisfied of reasonable ground, that the ·
only and we simply identify those cases as
MITCHELL V NEW PLYMOUTH CLUB, (1958) NZLR 1070
where it was suggested that the justice could hear
further sworn evidence if he saw fit and that is
the point that Your Honour Mr Justice Dawson was raising earlier about putting other material with
the complaint.

DAWSON J:	It---was ·r~lly, ·not other material but	a . complaint
can expand.

MR CLIFFORD:  Yes, yes,and in RE BELL TELEPHONE COMPANY OF CANADA,

(1947) 89 CCC 196, at page 198, we finish that

point by making the submission that on what was

ClT18/1/JL	56	12/4/90
George(2)

in the complaint there simply was not enough
to reach the conclusion that there were
reasonable grounds for believing that that

material will afford evidence as to the

commission of the offence. And, finally,

that point as to whether the document must

itself constitute admissable evidence, that

was raised briefly at the application for

special leave and we suggested to the Court

it might conveniently be dealt with here.

The question does not appear anywhere to have been settled; that the document must

constitute admissable evidence before it can be

searched for and seized was doubted by

Your Honour the Chief Justice in BAKER at

page 82 and by His Honour Mr Justice Wilson,

at page 92. Your Honour, Mr Justice Brennan,

at 102,held that the relevant belief must be

that the document will afford evidence and that

one of the purposes of the provision is to

seize a thing which can become evidence but that

a warrant cannot authorize a search for and

seizure of documents- and I am paraphrasing- which will not be admitted if produced by the

prosecution in circumstances where that would be

subvert the adversary procedure and, of course,
as Your Honour will recall that was dealing with
the question of whether privilege wa~ a bar

to the exercise of the warrant. Your Honour

Mr Justice Dawson expressly refrained from

deciding that question in GRAHAM V BAKER, and the only other consideration we could find it

was where Mr Justice Forster in LANDER V MITSON,

the reference to which is in Your Honours list,

found it unnecessary to determine whether it

constituted admissable evidence holding it sufficient

that the document would constitute evidence.

BRENNAN J: Well, what assistance, if any, do you derive

from section 682 in comparison to 679(b), second

paragraph: 

MR CLIFFORD: Yes, would Your Honour just pardon me a

minute.

(Continued on page 58)

ClT18/2/JL	57	12/4/90
George(2)

MR CLIFFORD:  There would seem to be a suggestion in the

second part of the second paragraph that if a

person is committed for trial for an offence

committed with respect to that thing which

probably picks up 679(a)., that Your Honour referred

to earlier or committed under such circumstances
that the thing is likely to afford evidence, it

is to be at discretion detained, it would tend

to suggest that it ~ gotta be a thing that is

likely to afford evicience, in which case it can

be detained for the purpose of being produced in

evidence.	So that would tend to a suggestion that
the thing itself must somehow be admissible.	We

have not, I must confess, really looked at that

section an4 I apologize. I can only just give

Your Honour an impression of it.	We had not
considered it.

TOOHEY J: Mr Clifford, I am not sure I understand the

point that is being made here. I understand it

perhaps in relation to material that is likely
to be the subject of legal professional privilege,

but when you speak of the admissibility of the

material here, are you suggesting that somehow

there must be a demonstration as to its relevance

to the charges referred to in the complaint?

Or are you saying something different?

MR CLIFFORD:  No, I probably have not been clear. What we

are submitting is that it must be demonstrated

at the time of the warrant that it will be

relevant, but there seemed to be suggestions in

some of the cases that a warrant could issue only

if the thing would itself be admissible in

evidence if later seized and we really mentioned

that point; it had been raised, but not decided,

but it does not really fall for consideration in

this case~ as we see it. ,with the only qualification

one supposes being that if the documents were

totally self-serving, and that is not admissible

as admissions against interest, they would not be

admissible, but on the construction of the section

which we advance, the point does not really fall

for any decision. We simply mention that it has

never been decided whether the power to search in

relation to documents is restricted to documents

that would be admissible. It would be a bit

difficult to decide at that early stage that they

would be admissible, of course.

TOOHEY J: Well then, should we not concern ourselves with

the ground of appeal at the top of page 195,

the ground that is under the subparagraph there?

MR CLIFFORD:  It does not really arise, in our submission.

CIT19/l/CM	58	MR CLIFFORD, QC 12/4/90
George (2)

TOOHEY J: Well it either does or it does not.

MR CLIFFORD:  No, it does not. So ultimately the test that

we submit ought be applied is that set out

in our outline of argument, the proposit~on

is to what the section permits in relation to

inculpatory or exculpatory material, and we submit

that this material was not sufficient for the

establishment of reasonable grounds for believing

that it will afford evidence. There is no other

submission we wish to make to Your Honours.

MASON CJ:	Thank you, Mr Clifford.
MR CLIFFORD:	Thank you, Your Honour.
MASON CJ:	Mr Solicitor.

MR DAVIES: May it please the Court, may I hand up some copies

of our outline.

MASON CJ: Yes, Mr Solicitor.

MR DAVIES:  Your Honours, the first point we make in

paragraph 1 of our outline is a point which was

initially made by Your Honour Justice Deane to

our learned friend during the course of argument

yesterday and that is that paragraph (b) here

is no more than descriptive of the character of

the thing in respect of which. a suspicion on

reasonable grounds is required. Your Honours, we

also made the point in paragraph 1 of our outline
that it is important to distinguish other

statutory provisions from this one.

(Continued on page 60)

CIT19/2/CM	59	12/4/90.
George(2)

1:1R DAVIES (continuing): All of the Canadian prov1.s1.ons -

and there appear to be successive provisions in

similar terms - have, in the opening words of a

section, where ours says "reasonable grounds for

suspecting" they have "reasonable grounds for

believing" or "reasonable grounds for belief".

Can I just take Your Honours to those cases which - - -

DAWSON J: Just before you do that. What you are saying

in the first paragraph is that in this case, if

there are reasonable grounds for suspecting that

there were admissions against interest in those

documents, that is enough to satisfy the - - =

1:1R DAVIES:  Yes, that is right. Your Honours, the Canadian

cases - can I deal with them in chronological
order because the statutory provisions seem to be

simply replacement provisions or relevantly so.

The first of them was the BELL TELEPHONE CO1:1PANY

case - which our learned friend, I think, gave the

Canadian criminal case's reference and I will give

Your Honours the same reference - and the statutory

provision appears at the bottom of page 197.

Your Honours will see it says:

"Any justice who is satisfied by information

upon oath that there is reasonable ground

for believing -

That was section 629. That seems to have been

replaced by a section 429 by the time of RE WORRALL

in 1964 and the Dominion Law Report reference to

the section is at page 675 of RE WORRALL,which says:

A justice who is satisfied by information

upon oath that there is reasonable ground

to believe -

and then again that seems to have been replaced by

the time of ATTORNEY GENERAL OF NOVA SCOTIA ET AL V

MacINTYRE in 1982 by a section 443, which appears

at page 388 of the Dominion Law Report reference

to MacINTYRE and, again, it is "reasonable ground

to believe".

BRENNAN J:  But we are not looking at the relevant words there,

are we?

MR DAVIES:	I am sorry, Your Honour.
BRENNAN J:	I mean, is "reasonable grounds to believe that"

so forth and so on, and if you take the one from
MacINTYRE' s case:

(b) that there is reasonable ground to believe - now, it is the second "reasonable ground to believe"

that Mr Clifford has focused upon in his submission -

ClT20/l/DR	60	12/4/90
George(2)

MR DAVIES: It is.

BRENNAN J:	- - - and it is not much to the point, is it, to look at the first expression "reasonable ground to believe" or "reasonable ground to suspect"?
MR DAVIES:	It is if the construction is as we have put it,

relying on the point which Justice Deane made

yesterday.

BRENNAN J:  I see.

DAWSON J: That is, the governing word is "suspect".

MR DAVIES:	Yes.
DAWSON J:	In the end everything is based upon suspicion.

MR DAVIES:  Yes, that is our point. Yes, that is why we

are referring to the opening words because, we

submit, that is the correct construction of the

other provision.

BRENNAN J: Yes.

MR DAVIES:  Your Honours, can I say something generally about

the American and Canadian cases? First, none of

them really advert to the question which our

learned friend has argued here and, secondly, as

has already been mentioned by more than one of

Your Honours, they really are affected by constitutional

considerations: in Canada, by clause 8; and in

America, by the fourth and in some cases even the fifth amendment. That consideration and how one

really treats these constitutional questions

differently from questions of statutory construction

was, in fact,. dealt with in the case of

HUNTER V SOUTHAM to which our learned friend

referred, at page 649, in the Dominion Law Report

reference. (Continued on page 62)

ClT20/2/DR	61	12/4/90
George(2)

MR DAVIES (continuing):  I will not read the passage,

Your Honours, but it commences about the middle

of the page, where it said:

The task of expounding a constitution is

crucially different from that of construing

a statute.

And then, the passage goes on from there. Your Honours,

I do not think the point which we make in paragraph 2 requires

us to take Your Honours to those passages in the

judgments. We are content to leave Your Honours

read those passages which we have identified in

that paragraph.

Can I then go to ground 2(a)(ii) of the

notice of appeal, and the meaning of the words

"as. to" where they appear secondly in paragraph (b)

of section 679, and what we say they mean is,

"about" or "concerning". In other words, they are not as

paraphrasing, the word "of" has been used, no question has really arisen as to any such

restrictive as they might be if one construed them
as meaning 'of". And, again we should say that not

only in the Canadian cases, but also in the

distinction as arises on our learned friend's

argument here.

So, what we say those words mean is

"about" or "concerning" so that the words "as to	the commission o:: Lny offence" mean "about 11 or
"concerning" whether that offence is committed and,
if so, by whom. And we say that really for a
number of reasons. First of all, simply looking at the language of the section itself, staying with
paragraph (b), "as to" appears twice in paragraph (b) and, in our respectful submission, we submit with
respect that where it appears on the first occasion,
it cannot mean anything other than "about" or
"concerning", and it would be curious if it were
given a narra.ver ccnstruction on the second occasion
where it appears.

The other is that the effect of our learned

friend's construction of the words "afford evidence

as to the commission of the offence", would really

be, in effect, to construe them as "afford evidence

that an offence has been committed". And, those
words "that an offence has been committed" appear

in paragraph (a), and we submit, with respect, that

had the statutory intention been to mean that, then

the words which are in paragraph (a) would have been

used.

ClT21/l/FK	62	12/4/90
George(2)

DAWSON J:  Can I take you back to your first point,

Mr Solicitor? It cannot be correct, can it:

when you look at the word "suspect" it cannot

govern the whole of the situation because, as

it is ··· · · said that reasonable grounds for

suspecting that there is something that will

do something, but when you add "will on

reasonable grounds" that must pinpoint a second

place for the consideration of reasonableness,

and it is not the reasonableness of the

suspicion?

MR DAVIES:  Your Honour, what we would submit in answer

to that is that where the phrase is "as to which

there are reasonable grounds for believing", it

must be something less than "will". In other

words, if paragraph (b) had read "anything which

will afford evidence of the commission of the

offence" then there would be no doubt, in our

respectful submission, that reasonable grounds

for suspecting would govern that, and the way it

has been phrased in paragraph (b) must be a

requirement less than that.

DAWSON J:  I think I have not made myself clear. Really

what you are saying is, there must only be reasonable

grounds for suspecting that there is something

which will afford evidence in existence.

MR DAVIES:	Yes.
DAWSON J:	But there are two stages. You have got to suspect

that something is in existence - - -

MR DAVIES:	Yes.
DAWSON J:	- - - and you have to have reasonable grounds

for believing that it will do something.

(Continued on page 64)

ClT21/2/FK	63	12/4/90
George(2)

MR DAVIES:	No. We would submit, with respect, that the reasonable grounds are for suspecting that there
is at a place a thing of a particular character.
DAWSON J:	Yes, well, that is what the section, I am suggesting,

does not do. It posits a two-stage process, not

a one.

McHUGH J: Yes, how do you identify the reasonable grounds

for believing? Who has that task?

MR DAVIES: Well, once you come to the question of the character

you say, well, is your suspicion of a document

of that character, or if it is not of that character,
of something in respect of which there is reasonable

grounds for believing it is of that character.

DAWSON J:  But you cannot do that if you just base yourself

on suspicion entirely?

MR DAVIES: Well, obviously there must be something upon which

you have reasonable grounds for suspicion and the

something must be sufficient that you have reasonable

grounds for suspicion that it is of that character

but, perhaps, not sufficient for reasonable grounds

for suspecting that it would have the character

where it would be evidence of thecormnission of an

offence. One can see gradations of that within that

framework.

Your Honours, could I then perhaps go back to the

second point which I was advancing which was really

with respect to the meaning of the words "as to"

and the last point we really wanted to make which

appears in paragraph 3(c) of our outline and that is

that the meaning which we have put on the phrase is a meaning with which both Mr Justice Connolly

and Mr Justice Thomas put on it. Can I take Your Honours

to those passages because they are both reasonably

short.

Mr Justice Connelly's passage, Your Honours,

really can be surmnarized at just above line 40:

It must be emphasised that what the

CR;:f;!1lNAL CODE requires is that there be

reasonable grounds for suspecting the presence

of material which it is reasonably believed

will afford evidence, -

and he is not really saying it has to be either way
and as appears from the passages which go before it.

Mr Justice Thomas, at page 187 - and I will not attempt

to read the whole of that page, Your Honours, although

it is really relevant and it finishes really at about

line 50, where he says:

ClT22/1/LW	64	12/4/90
George(2)

Whilst in my view it could not be held

that it is probable that the material will

afford evidence as to these particular offences,

there are reasonable grounds for believing that

it will -

and he goes on to say at page 189, where he - I should perhar:

will not read it, Your Honours, but to read the whole

of the paragraph, the full paragraph, on page 189.

Your Honours, there is really a danger in our

learned friend's construction, of the way in which

he puts it. I am really seeking to have a different

construction and different circumstances: if it is

a document which might be self serving,that there

be one construction, · if it is a gun or something of

that kind there might be a different construction.

In our respectful submission, to construe "as to"

in the way we have gives the section a construction

for all circumstances.

Your Honours, the other point which we make under

this heading is the one we make in paragraph 4 of our

outline and is the emphasis on the very early stage
in an investigation in which a search warrant is often
issued and the severe restriction that our learned

friend's construction would place upon any such

investigation, and it is really illustrated by

Your Honour Justice Deane's point about the gun.

That point or the fact that this is used at a very

early stage in investigation was really mentioned

by Your Honour Justice Brennan in BAKER V CAMPBELL

where Your Honour said - I will not take Your Honours

to it because it is only a sentence,

at page 100, in the last line of the first

paragraph:

(Continued on page 66)

ClT22/2/LW	65	12/4/90
George(2)
MR DAVIES (continuing):

Indeed, the things obtained by executing

a warrant may determine whether or not a

prosecution should be commenced.

And there are a couple of other cases which I have

not included in our outline but which I should

perhaps refer Your Honours to passages where that

point is made.

DEANE J: If I could interrupt you, Mr Solicitor, so much

of this depends, does it not, on the identification
of the object of the search in that, to go back
to Justice Dawson's question, you have obviously

got to give substance to reasonable grounds for

believing. Here, if you identify the object of

the search as a written admission, for example,
that he met Rooklyn, you would then say, "Were
there grounds for suspecting the existence of a

written admission that he met Rooklyn; second,

are there reasonable grounds for believing that

such a written admission that he met Rooklyn will

of itself constitute evidence?" The other approach

is that you are not allowed to identify what you

are searching for but you have got to identify

the material in which you are searching. If that

approach be right, what is put to you would probably

be unanswerable.

MR DAVIES:	Yes.
DEANE J:	In other words, if you say, "I am looking for this
material and there is a 49 per cent chance that that material will contain the kidnap note", if
you apply it to that material you cannot say there
are reasonable grounds for believing because it
is a 49 per cent but if there are grounds for
suspecting that the kidnap note is there then
obviously if you apply it to the kidnap note you
will have reasonable grounds for believing which,
in one sense, comes back almost to a matter of
impression, does it not?

MR DAVIES: It does, indeed, Your Honour.

McHUGH J:  But your submission requires reading "anything"

as evidence, does it not?

MR DAVIES:	No, Your Honour.
DEANE J:	No, some material thing.
MR DAVIES:	Yes, anything at all.

C1T23/1/ND	66	12/4/90
George(2)

McHUGH J: Well, I know, but it has got to be evidence,

has it not? That is what you are really looking

for:

suspecting that there is in any house -

evidence -

as to which there are reasonable grounds for

believing that it will. .... afford evidence

as to the commission of any offence - - -

MR DAVIES:  Well, I mean, that is perhaps using the term

twice but, no, we would submit that one is looking

at - I mean, obviously, the purpose of the section

in the end is to try to uncover evidence, there

is no doubt about that. If that is what

Your Honour is putting to me the answer is "Yes",

of course.

DAWSON J:  But is it not clear enough that the first half is

to prevent wild goose chases? There has to be

something in existance which you can - you have

to suspect the existence of something. That is

the first step. The next step is that that

something has to afford reasonable grounds for

believing that it will afford evidence?

MR DAVIES:  Your Honour, I do not think I can advance this

argument any further than I have.

DAWSON J: That is the dichotomy, is it not?

MR DAVIES:	They are the two views, I accept that.
McHUGH J:	But do you accept that it must be. read narrowly

because both the common law, all the European
convention on human rights, international.: ...
in relation to human rights, constitutions all

over the world, have all been at pains to

protect the security of a person's home against

search?

(Continued on page 68)

ClT23/2/ND	67	12/4/90
George(2)

MR DAVIES:  Your Honour, I accept that there are clearly two

policy questions involved in this; one is the

protection of the individual's home and the other is

the need to obtain er iminal just ice, and it is a balancing

of those two policy questions. Your Honours, can I

then just return to the point I was making in

paragraph 4 and the other references I was going

to give Your Honours. The first is to

Mr Justice Lockhart's decision in CROWLEY V MURPHY

at the reference our learned friend has given

Your Honours, and can I give Your Honours three

passages in that case. The first is at page 514

line 10 where he talks about:

evidenGe bearing upon the commission

of crime.

Sorry, that is not his. That is his quotation from

Lord Cooper in LAWRIE V MUIR, but then he takes it up

at the bottom of page 515 in the last full paragraph

where he says that:

This does not mean that the justice must

be satisfied that the things to be

searched for will necessarily afford

evidence sufficient to result in a

conviction; but simply whether they will

be relevant in some way to the issue, if

found.

And finally is a passage which I think our learned

friends read to Your Honours, and I shall not, at the

bottom of page 522, finishing with the reference to

RE WORRALL. The other case, Your Honours, is

PARKER V CHURCHILL, to which our learned friends also

referred, at the same reference, the Australian Law

Reports reference, in the judgment of Justice Burchett,

at page 337, again in a passage which our learned friends

cited to you and I will not read. But, of course,

again I emphasize none of these cases really deal

with the question specifically argued here.

BRENNAN J:  Does NEWTON's case have anything to say that is

relevant to this case, Mr Davies, REG V TILLETT;

EX PARTE NEWTON?

MR DAVIES:  Yes. We looked at that, Your Honour. I think

the answer to that question is no. Your Honours, in

view of our learned's friend concession, we do not

propose to say anything about ground 2(b) but can I

say something then about the facts. We say in

paragraph 6 that it is·not suggested that if the

Full Court's construction of the section was correct

its application of it to the facts here was in error.

Can I tell Your Honours first what happened before

the Full Court.	Your Honours may have seen this
from the judgment.

C1T24/l/HS	68	12/4/90
George(2)

The appellant did not argue before the

Full Court that the Magistrate should not take into

account, in addition to the complaint, the other

material which was before him - that is the statutory

declaration and the oral discussion between the

Magistrate and Detective Sergeant Rockett - before

he issued the warrant, and that was referred to in

the Full Court in the judgment of Justice Thomas

at two places. The first is at page 183. After

reciting the facts which include those other than

appear in the complaint, His Honour said, in the

paragraph on page 183 just below line 30:

Thus far there is no controversy.	The
parties accepted that factual matrix
as having been properly before the
Magistrate.

Then again at page 188 His Honour said more specifically,

in the fifth-last line:

(Continued on page 70)

C1T24/2/HS	69	12/4/90
George(2)

MR DAVIES (continuing):

I may say that no point was taken on

this appeal on the question whether this
pariticular information was properly before

the Magistrate.

And that is including the statement by

Detective Sergeant Rockett. Nor, might we add,

was this a point taken in the notice of appeal

to this Court.and there are good reasons why

the appellant would not want to take this point,

even if it is a good one. One is that it might

well have been said by the Full Court that even

if the complaint was insufficient that there had

been no miscarriage of justice when one looks at

the other facts which could have been, but were not

sworn, before the Magistrate and another is that

the respondent here would have been able immediately
after to swear out a fresh complaint in which those
facts could have been included and either course
would have only had the effect, in the end, of

incurring further costs by the appellant.

Whatever the reason the appellant, in our

respectful submission, should not be allowed to

take this point now. _ One consequence, for

example, if the point had been taken before the

Full Court, is that the Full Court might have considered that additional material on, for example,

the question of whether there had been a

miscarriage of justice.

DAWSON J:	Is miscarriage of justice or no miscarriage of justice point available here? These are statutory requirements, they are either mandatory or
direct. - - -

MR DAVIES: Well, Your Honour, it is in the proviso to

section 213 of the JUSTICES ACT.

DAWSON J:  I see, but what does it say?

MR DAVIES: It says:

Provided that notwithstanding that the

Court or Judge may be of opinion that any

point raised by the order to review might be

decided in favour of the appellant the Court

or Judge may discharge the order if it or he considers that no substantial miscarriage of

justice has occurred.

DAWSON J: That is the answer.

MR DAVIES:  Yes.

ClT25/l/JL	70	12/4/90
George(2)

TOOHEY J:	Mr Solicitor, could I just ask you something
about the chronology. There is a statement
at the top of 183 that:

Mr Rocket ..... supplied a statutory

declaration to the Magistrate containing

material on which he relied in seeking it -

it being the warrant.

MR DAVIES:  Yes.

TOOHEY J: The complaint though was made, as I understand it,

on 21 August, was it?

MR DAVIES:  I do not think it is dated, in fact, Your Honour.

It is dated but it was not sworn that day I

am told. I think His Honour really got that

from the memorandum which appears on page 14,

which indicates that he furnished a statutory

declaration first on 22 August.

TOOHEY J: It rather looks as if the complaint had been

made by then or sworn by - - -

MR DAVIES:  No, well a complaint was sworn out before that

Magistrate. I think what His Honour Justice Brennan

said about the usual course of events is correct,

then I am reminded, Your Honour, if you go to page 16

you see it specifically.

(Continued on page 72)

ClT25/2/JL	71	12/4/90
George(2)

MR DAVIES (continuing):

I than handed Mr McKay ..... -

this is at about line 40:

my complaint to	ground search warrant
which he read.	He then produced a bible
and I swore out	the complaint to ground a
search warrant.

BRENNAN J:  Mr Solicitor, what was shown to the

Magistrate? The complaint itself and what else?

MR DAVIES: Statutory declaration.

BRENNAN J: Yes.

TOOHEY J:  I am having trouble with that answer, because

if you look at page 9, Mr Rockett says in
paragraph 3:

Prior to swearing the complaint, I familiarised myself with part of the transcript -

and then he goes on broadly throughout that

declaration to speak a~ to his own state of

mind.

MR DAVIES:  Yes. Without mor~ perhaps one might think that

he had sworn out the complaint by the time he
had made the s·:atutory declaration, but clearly

that does not seem to be the case, Your Honour.

TOOHEY J:  So that although he deposes chronologically to

having done certain things prior to swearing

the complaint, we are not to read that as if the

complaint had been sworn when the declaration

had been made. Is that what you are putting to us?

MR DAVIES: That is an earlier complaint, Your Honour.

BRENNAN J: That is the SIRACUSA.

MR DAVIES:	Yes, that is the SIRACUSA search warrant. Yes, thank yo~ Your Honour.
DEANE J:	Mr Solicitor, could I take you to your reliance
on the proviso. If the material was inadequate,
the warrant was a nullity.  Now, that being so,
how could the Court say, "We find the warrant was a nullity, but we apply the proviso"? If the
warrant is a nullity the appellant would be entitled
to lock his doors and call the police to repel the police.
CIT26/l/CM	72
George(2)

MR DAVIES:  I am not sure how to answer Your Honour there.

It is something I really had not thought through

properly,perhaps. Your Honour may well be

correct in that, whilst not conceding it I do

not have a ready answer to it, but of course ic

does not affect the other argument we advance.

It does not affect the argument that there might have been very good reason for the appellant here

not to have raised it, because it is certainly

true that we could have immediately sworn out

a fresh search warrant and an appropriate course

for the court to take might have been that which

was taken in that Canadian case to which we refer

at the end of our outline, DOBNEY FOUNDRY, where

the court really ordered that the documentsbe

returned after a certain time, thereby giving the

authority an opportunity to swear out a fresh warrant.

Your Honours, I did not intend any of that

argument to be taken as a concession that the

Magistrate was limited to a consideration of the

complaint only because we submit,with respect,

that it really depends on the wording of a section

and the wording of this section is different from

that which was considered, for example, in

BRIDGEMAN V DOWNES. There would not be any doubt

on the section considered in BRIDGEMAN V DOWNES

that the information had to be given on oath in
respect of which the Justice had to be satisfied,

because the words of the section there were:

If information shall be given on oath to a

justice that there is reasonable cause -

McmJGH J:  Is this BRIDGEMAN V MACALISTER?

MR DAVIES:  Yes. I am distinguishing really the wording

of a section in BRIDGEMAN V MACALISTER.

:McmJGHJ: 

I am sorry, I thought you were mentioning

BRIDGEMAN V DOWNES, that is - - -

MR DAVIES: 

Did I say - BRIDGEMAN V MACALISTER, Your Honours.

The section in that case, in our respectful
submission, is materially different from that in this

case, and what we really say is that in this case

what section 679 requires is that there must be
a complaint on oath and upon that complaint being

made, the Justice then must be satisfied that there
is reasonable ground for suspecting.

CIT26/2/CM	73	12/4/90
George(2)

MR DAVIES (continuing):  The basis upon his satisfaction is

not required to be on oath though the complaint is.

And we would submit, with respect, that that is

materially different in that respect from the

wording in the POLICE ACT which was considered in

BRIDGEMAN V MacALISTER and, indeed, from section 10

of the CRIMES ACT which is rather in the form of

a section in BRIDGEMAN V MacALISTER than in the

form here.

In any event, Your Honours, we make the point

that on the complaint alone there was reasonable

grounds for the relevant suspicion here. As has been said by Your Honours, the charge is related

to knowingly giving false evidence and they really

are related to - well, in one case - falsely

asserting a lack of recollection but, in both

cases, are in respect of negative evidence. If

one looks at the complaint, and perhaps one should

not construe it too narrowly, but it is very

difficult - or it may be difficult - to appreciate,

upon the complaint itself whether the evidence

to which the documents are said to refer were simply

the evidence of Sir Terence Lewis.

Can I just pause there to say that I think

Your Honour Justice Brennan asked our learned friends that question: whether th.e evidence was of any particular person, and it does appear on the face

of the complaint it was the evidence of Sir Terence

Lewis. That appears at line 20 of page 8. But,
when it is referring back to - when it says,
"comments, for example, on the evidence by

Sir Terence Lewis", the evidence of Sir Terence Lewis - and the only evidence of Sir Terence Lewis which is

referred to: specifically rather than generally in

the search warrant is the false evidence - the

alleged false evidence of Sir Terence Lewis.

So, at least on one construction of the complaint,

Your Honours, the handwritten comments are handwritten

comments with respect to the alleged false evidence.

McHUGH J: Mr Solicitor, what I do not understand is why is

it thought that these 30 to 40 pages of evidence,

on your construction of the section, would only be

relevant to these two specific charges as opposed to

the other 14 charges? Mr Herbert gave evidence, apparently, of

MR DAVIES:  There was nothing before the Magistrate before

that of any other charges.

McHUGH J:  I know. There is a document in the front of the

book showing some 16-odd charges and - - -

ClT27/l/DR	74	12/4/90
George(2)

MR DAVIES:	But that was not before the Magistrate on any - - - one assunes he ,;.;ould have given evidence about those
McHUGH J:	No, I know, but Herbert's name runs right through it so

matters. Perhaps it is just my curiosity as to why

it was thought that these 30 or 40 pages of

annotations of the transcript only supported the

commission of these two charges as opposed to any

of the other charges?

MR DAVIES:  Your Honour, on one view of the construction of the cornplai

that is so. That is, it is limited - where it

says that the 40 pages of comments are on the

evidence by Sir Terence Lewis, but the evidence of

Sir Terence Lewis which is specifically referred

to in the complaint is the alleged false evidence.

So, on that construction of the complaint, that

would answer Your Honour's question but if that

is not the correct construction then I cannot

narrow it down any more than that.

McHUGH J: Yes.

(Continued on page 76)

ClT27/2/DR	75	12/4/90
George(2)

MR DAVIES:  But, I mean, obviously, in our respectful

submission, even if they are on Lewis's

evidence generally, and they are certainly

not on Herbert's evidence; they are on

Lewis's evidence, because that is certainly

stated specifically in the complaint, that the - - -

GAUDRON .J: Well, I would not have read it that way,

Mr Solicitor, I am sorry.	Maybe I am missing
something entirely - - -

MR DAVIES:  Sorry, that it is not on the evidence of

Sir Terence Lewis.

GAUDRON J:  They are comments by Sir Terence Lewis, but

not necessarily comments on the evidence given

by Sir Terence Lewis. I just would not have

read it that way, but if I am missing something

I would be grateful for your•assistance.

McHUGH J: What is the phrase, "by the said Terence Lewis",

what does that refer to, evidence or comments?

MR DAVIES: Well, Your Honours, if one reads the sentence

as a whole, Sir Terence Lewis is referred to

earlier, it would be unnecessary to add, "by the

said Terence Lewis" if, in fact, it were the comments,

because it says earlier on in the same sentence,

"It was in the handwriting of Sir Terence Lewis"

and so construing it - a better construction in

our respectful submission, is that the second

reference to Sir Terence Lewis is a reference to

the evidence by Sir Terence Lewis.

Your Honours, even if the comments were on

the evidence generally of Sir Terence Lewis, they

were, as appears from the complaint, under specific

headings, one would have thought it reasonable -
probably the only reasonable conclusion, that these

were vital part of the evidence in respect of which

it might reasonably be suspected that he was in

difficulty and therefore might have some comment

to make.

McHUGH J: Well, I must say. what, no doubt, coloured my

construction of it was reading the evidence that

was before the Queensland Full Court. But if you

look at Mrs O'Hagen's statement at page 41, line 12:

I saw that it was all in Sir Terence's

handwriting with clear headers. I think the first was "Evidence of Jack Rooklyn".

MR DAVIES: Well, that is one charges, of course.

ClT28/l/FK	76	12/4/90
George(2)

McHUGH J: Yes, I know, but that suggests that they were

comments by him on evidence of Rooklyn and

other people, for example, not on his own

evidence.

MR DAVIES: Well, possibly, Your Honour, but the other

construction, if you construe that together with

the complaint, then it is his own evidence with

respect to the evidence of Jack Rooklyn, because

what was put to him, as Your Honours will have

seen, in effect, was that he met Jack Rooklyn at the Crest Hotel and he denied that; Jack Rooklyn

no doubt having said, perhaps, he met him at the

Crest Hotel; perhaps that is something one can

infer.

GAUDRON J:  Can I take you also, Mr Solicitor, to paragraph 1

of the complaint? That seems to put it in terms

not involving any ambiguity and seems to be dealing
with precisely the same subject-matter.

MR DAVIES:  Yes, perhaps, Your Honour, yes.

GAUDRON J: For myself, I would have married up the two

statements.

(Continued on page 78)

ClT28/2/FK	77	12/4/90
George(2)
MR DAVIES:	I take Your Honour's point.	Your Honours, once one,

of course, gets to the other material, they then

show a lot more than that. They show a sequence of

events from which it would be reasonable to believe -

not just suspect; reasonable to believe - that after

a search warrant had been executed on Siracusa

that after a conversation with Lewis's solicitor,

he and the solicitor formed the view that this was

evidence which would implicate Lewis in the commission

of these offences unless they were protected in some

way by privilege. And can I just mention where - - -

BRENNAN J:  Now, how does that work in terms of the materials

before the Full Court? The Full Court still had

to determine, did they not, whether the warrant was

a valid warrant, and in order to determine it,

though the material was before them, were they

entitled to treat the material as having been sworn

before the Magistrate?

MR DAVIES:  Your Honour, in talking about the material I was

not talking about what was called the supplementary

material. I was talking only of the material which

was, in fact, before the Magistrate, whether rightly

or wrongly.

BRENNAN J: Yes, but be it so before the M..agistrate, the

Full Court still had to determine whether the warrant

was validly issued and in order to determine that

they had to determine whether the statutory

requirements were satisfied. In order to determine

whether the statutory requirements were satisfied

they had to identify out of the material before

the Magistrate the complaint on oath.

MR DAVIES:  If our submission about the other material being properly before the Magistrate is wrong.

BRENNAN J: Well, even if it be right, that it is properly before

the Magistrate in a sense that there is nothing

wrong in the Magistrate looking at it, verifying

his impressions from the complaint or even checking

the complaint against other material is correct.

The question might still be for the Full Court on the

complaint which was part of the material before the

Magistrate with the conditions of the section

satisfied.

MR DAVIES:  Your Honour, in our respectful submission, if our

construction is correct,then the question before the

Court is whether it appeared to the Magistrate that

there were reasonable grounds for suspecting, by

whatever material was before him, whether on oath or
not, and it was really on that basis that I was referring

Your Honours to that material which was before the

ClT29/l/LW	78	12/4/90
George(2)

Magistrate, not to what was described as the

supplementary material which would indicate, perhaps

only if the proviso is relevant, the application

of the proviso, or that proper order in the circumstances

would be to delay the return of the documents to

allow a fresh warrant to issue. Now, that material

which was before the Magistrate, whether properly or
not, included the perjury summons and it included
the statutory declaration and it is included the

oral discussion between Rockett and the Magistrate,

and that really showed that the perjury summons

was issued on 12 July; that these documents were	in Siracusa 1 s possession on 11 August; that the
earlier search warrant on Siracusa was executed
on that day, on 11 August, and immediately after
that, the execution of that search warrant, Siracusa then sent to George these documents so that they would be privileged, the purpose being, after discussion with George, that the documents would be privileged.
Now, that appears from the additional matter which
was before the Magistrate. So, in our respectful
submission - - -

(Continued on page 80)

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GAUDRON J:	Where do we find the evidence that Dr Siracusa sent them to the solicitor so that would be
privileged - - -?
MR DAVIES:	That is at the bottom of page 15 and the top

of page 16, Your Honour. And I am reminded, as

I think I told Your Honours earlier, that the

parties before the Full Court treated all of this

as being properly before the Magistrate.

So, Your Honours, in our respectful submission,

even if the question depends solely on the Full
Court and this Court looking at the complaint,

then there were reasonable grounds for the necessary

suspicion, there were very much stronger grounds

and grounds for a positive belief that the evidence

would implicate Lewis if the Magistrate had been

entitled to look at that material which was before

him and which was not questioned as being properly

before him in the Full Court.

If we are wrong, in our respectful submission,

in the submissions we make that the test has been satisfied upon the evidence before the Magistrate then, in our respectful submission, the proper

course would be, because that evidence, even ignoring
the additional evidence and, certainly, additional

evidence takes it even further, because that evidence

would be sufficient, that the proper course in

this Court would be the course which was adopted in RE DOBNEY FOUNDRY, the case to which we refer in the last paragraph of our outline, which is to really, in effect, delay an order for - to mold

an order so that the return of the documents is

delayed for a specific period to enable a further

search warrant to be issued.	They are our submissions,
may it please the Court.

MASON CJ:	Thank you, Mr Solicitor.	Mr Clifford.
MR CLIFFORD:	My learned friend, Mr North, will reply if

the Court pleases.

MR NORTH:  Your Honours, if I may deal firstly with the point

made by our learned friends, that you gain no

assistance from the United States or Canadian cases

by reason of them being tainted as being cases

dealing with the construction of constitutional

instruments. Perhaps the first matter to be said

with respect to that is that the Canadian cases

are only so tainted if they are so tainted after

1982 when the Charter of Rights came into force.

So earlier Canadian cases do not carry any such

taint.

But, in any case, it is as a result of the passage that was read earlier in HUNTER V SOUTHAM

C1T30/1/ND	80	12/4/90
George(2)

that we place reliance on the United States and

Canadian cases. Your Honours will recall that

Mr Justice Dickson in that case, at pages 658 and

659 of the report, was construing section 8 of

the Charter of Rights and drew attention to

section 443 of the Criminal Code and applied a

construction to the phrase "there are reasonable

grounds to believe" as one identical in the standard

it applies to the standard applied by section 8

of the Charter of Rights and by the standard applied

by A~ticle 4 of the Bill of Rights in the American

Constitution.

(Continued on page 82)

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MR NORTH	(continuing): So it is that - Mr Justice Dickson
and the Canadian Supreme Court equate reasonable
grounds to believe, in section 443, as importing
the same standard as is imposed by the constitutional
provisions that give rise to our submission that you
can place reliance on the United States and the
Canadian provisions. In effect, His Honour - to use
his words - at the bottom of page 658:

The phrasing is slightly different

but the standard in each of these

formulations is identical. The

State's interest in detecting and

preventing crime begins to prevail over

the individual's interest in being

left alone at the point where

credibly-based probability replaces
suspicion.

It is in that context that it is our submission that this Court can gain assistance from cases such as

JONES' case and AGUILAR V TEXAS and NATHANSON in

the United States Supreme Court where those cases

point to the very grave danger of the person issuing

the warrant relying on grounds which, in effect, are

merely the statements of conclusion from fact without

any summary of the fact from which those conclusions
are drawn and, with respect to our learned friends,
when, in submissions, you are forced to place

constructions upon and find constructions relying

on the grammar of the conclusions drawn in the grounds

in the complaint in order to found the jurisdiction

for the issue of the warrant it points again to the

grave danger of relying on the conclusions drawn by

the investigating officer from the evidence.

Now, it is not our submission that a great

verbatim recounting of the evidence relied to form

the ground must find its way into the complaint, but

a sufficient summary so that the justice who is asked

to issue the warrant can satisfy himself from the

summary of facts that the grounds of belief are, indeed,

reasonable must appear there. To merely state the

belief by way of conclusion or an inference by way of

conclusion, without some sufficient summary of the

facts, gives rise to the danger that you are, indeed,

asking justices to issue warrants based on fine

constructions of the words within the warrant.

(Continued on page 83)

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MR NORTH (continuing):  The additional material to which

our learned friendsrefers, being the matters
which were sought to be put before the Full Court

and upon which the Full Court did not rely,

in any event, in our submission, do not take the

matter any further with respect to the reasonable

grounds for belief as to the connnission of the

crime. They add considerable weight to the

suspicion, and indeed,there is no doubt that

documents of that description - general description -

exist and exist where they were found, but as

their contents and as to their relationship to

the two particular charges referred to in the

complaint and the warrant they add nothing, in our

respectful submission.

GAI.JDRDN J: What about the statement that they were sent to

the solicitor to obtain privilege? Does that not

give rise to an inference?

MR NORTH: Well, perhaps, on page 16 of the record, the

reaction of the magistrate to that information

is, at least, indicative, Your Honour, of what

reliance he placed on it and he is recorded there

by Mr Rockett as having said:

But your warrant was in relation to

tapes.

Now, I will not read the entire memorandum but what,

in effect, Mr Rockett was telling the Magistrate was

that there was a previous search of Dr Siracusa's

rooms and Dr Siracusa said something to the effect

that "he was happy to cooperate" and the warrants,

in that instance, were searching for tape recorded

conversations between Dr Siracusa and

Sir Terence Lewis. And it would appear that

Mr Rockett sought to draw an inference that the failure to tell him about these documents was, in

some way, by Dr Siracusa-imputes to Dr Siracusa

and Sir Terence Lewis some guilty reason to wish

to conceal the existence of these documents.

(Continued on page 84)

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MR NORTH (continuing): Perhaps, quite properly, the

Magistrate observed that whilst Dr Siracusa
undertook to co-operate fully with respect to
the tapes, there is no reason for that undertaking

to be construed as an undertaking to disclose that

there were additional material in written form.

That there be a conversation at some stage after a
search between the solicitor acting upon

Sir Terence's behalf and Dr Siracusa about these

extra documents; and that it was Dr Siracusa's

belief that they were delivered to the solicitor

in order to obtain privilege, does not give much

assistance as to the purpose in the solicitor's
mind and, further, is not, in our respectful

submission, indicative necessarily of any guilty

motive for doing so but, perhaps, indicative of a
cautious and prudent approach being taken by the

solicitor on behalf of Sir Terence saying, "Well,

whip them in here, I want to have a look at them

and they may well be privileged'before they are

searched for.

It does not indicate that the solicitor

himself has knowledge as to its contents and to

draw an inference that they thereby are more

likely to contain matters implicating Sir Terence

in perjury charges than not implicating him is

drawing a very long bow, in our submission. So,

in our submission, I do not think much assistance

was gained by the Magistrate from that information

and not much assistance can be gained, as we

understand our learned friend's submission, from

that information in order to determine the

ultimate order that ought to be made by this Court

if we are right in submitting that the warrant

was invalid.

It is our submission, in relation to that,

it is indeed· the cas~ as Your Honour Mr Justice Deane

pointed out to our learned friend, if the warrant

was invalid it was a nullity; the jurisdiction was

never raised. (Continued on page 85)

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MR NORTH (continuing): But, further, the possession by the

authorities of this material, if the warrant was

invalid, is not lawful and any order of this Court

which delays the return of the material to the

person who has better title to it is, in effect,
adding support to the unlawful possession and

ought not, in our submission, be considered.

Unless there is any specific matter that

Your Honours wish - - -

DEANE J: Mr North, can I raise something with you which

really I should have raised with you before, but it

is concerning me a little bit, and that is	does
anything turn, in your submission, on the

description of the documents in the complaint and in the search warrant? I mean, what, for example, if the description had been "all the documents in

the office"of the particular solicitor on the basis
that there were grounds for suspecting that among
those documents there might be a written statement

that would constitute an admission? Where do we go?

MR NORTH:  My difficulty with answering that question directly

is that, if the grounds are simply for suspecting that

it might be implicatory, it does not matter how you

describe the documents, the grounds are insufficient

simply because they do not equate with the grounds

as expressed in the section itself.

(Continued on page 86)

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DEANE J:	No, I think you have missed the point of my
question and that is:  assume there were grounds
for suspecting that all the documents in the
solicitor's office would include a written
admission and grounds for believing that the
written admission would be admissible? It would be one thing to issue a search warrant for a written admission or the particular letter; it
would be another thing to issue it for all the
documents. What I am just wondering about is,
here the suggestion is that among all these
documents there may be one or two that would be
relevant.  Does anything turn upon the fact that
instead of trying to identify the basis upon which
documents might be relevant they have simply
issued a warrant for all of the documents regardless
of whether particular pages or so on are of the type that can be made the - - - ?
MR NORTH:	Your Honour, would you excuse me for a moment?

DEANE J: Well, I am not really asking you to answer, it

that could conceivably become relevant in my mind	just seemed to me I should raise it in. that it is something
subsequently.

MR NORTH:  Perhaps, Your Honour, only to say that a

description of the documents for the purposes

you have described points closely to it being a

fishing expedition in the sense of it being a

search on the basis of simply possibility, without

advancing it further. I do not know that I can

assist Your Honour - I do not know that I have

assisted Your Honour at all and that may be because

of my inability to understand - - -

DAWSON J:  You would say the thing whtch is

referred to has to be sufficiently identified or

else the warrant is bad?

(Continued on page 87)

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DAWSON J: The section talks of anything. It seems that

you have to identify the thing.

1YJR NORTH:  And Your Honour, with respect, that goes back

to the connnon law prohibition against general
warrants and a warrant just going really,search

for and seize anything and - - -

DEANE J:  But it has itentified it. It has identified a

very large bundle of documents and has then said,

we want to seize them all on the basis that among
them there may be comments by Lewis about

Rooklyn and connnents by Lewis about his own

evidence, but - - -

DAWSON J:	But you would say that is impermissible
1YlR NORTH:	Yes, it would be  our submission that it is

impermissible. It is taking it too far there and

it takes it beyond the proper function of a warrant,

in effect.

DEANE J:	Thank you.
1YlR NORTH:	Unless there is any other matter, Your Honours,

those are our submissions.

MASON CJ: Yes, thank you, Mr North. Mr Solicitor,do you

want to say anything about this point raised by

Justice Deane?

MR DAVIES:  Your Honour, all I would say generally is that

obviously the more closely one can identify what

is being sought, the more likely it is to come

within provisions of a section.

MASON CJ:  What was operating in my mind partly, Mr Solicitor,

was, if my approach,on.lyfor the sake of questions,

that the relevant document would be the

letter and not a bundle of documents which were

suspected of containing the kidnap letter were

found to be the right one, here the complaint and

the search warrant identifies as the relevant

document the whole bundle and the transcript and

the notes and not parts dealing with Rooklyn or

dealing with Lewis's own evidence~ in the sense that

if among those documents it emerged there were

private letters to his family and everything else,

the warrant authorizes their seizure. I am not

suggesting anything necessarily turns on it. It

just seems to be a relevant thing.

(Continued on page 88)

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George(2)

MR DAVIES: Well, there is always a difficulty, I suppose,

on how closely one can identify documents in a

situation such as this, Your Honour, and I would

only answer, that is about as closely as one can

identify them, because to identify them more

closely, you would have to identify them in terms

of - I am saying - such documents as are relevant

to that and that, really, in our respectful

submission, might be doing it too narrowly.

in the sense that it is leaving to the custodian
of the documents the task of sorting out the

relevance rather than identifying the documents

by character, than by their relevance to a

particular topic. I cannot answer any further.

MASON CJ:  The Court will consider its decision in this

matter and adjourn sine die.

AT 12.35 PM THE MATTER WAS ADJOURNED SINE DIE

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