George v Rockett

[1990] HCATrans 79

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
DAWSON J
TOOHEY J

GAUDRON. J·

McHUGH J-

George(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY,. .11 APRIL. 1990 ,--AT 3. 25 PM

Copyright in the High Court of Australia

ClT 61/1/FK 1 11/4/90

MR J. CLIFFORD z....QC:  May it please the Court, I appear with

my learned	friend, MR T.D.O.J. NORTH, for the
appellant.	(instructed by Q.D. ~eorge, Hillhouse
and Co)

MR G.L. DAVIES, QC, Solicitor-General for the State of Queensland:

May it please the Court, I appear with my learned

friend, MR H. FRASER, for the first respondent.

(instructed by the Crown Solicitor for the State of

Queensland)

MASON CJ: The Registrar has been advised by the Crown Solicitor,

who acts on behalf of the second-named respondent,

that he does not wish to be heard, save on the

issue for costs against him, and will abide by any

order of the Court. Yes, Mr Clifford.

MR CLIFFORD:  May it please the Court, the facts in this

matter fall within very short compass. We will

seek to make two principal attacks on the decision

of Their Honours in the Full Court, the first

relating to the test applied by Mr Justice Connolly,

with whom Mr Justice Ambrose agreed, to the effect, as we read it, that it be sufficient that there may

be exculpatory material alone, or that the material

is relevant to the proofs which might be adduced

by the defence, and we will make submissions that

the proper test in the circumstances such as these

where the warrant is sought in relation to specific

offences, with which an identified person has been

charged, is whether there are reasonable grounds to

believe that that identified material will implicate

that person, or that it will yield evidence which

can be tendered by the prosecution in the subsequent

trial of that person for the offence described.

And, the second attack we will make relates

to the standard of the test applied by the

Full Court, equating, in our submission, suspecting

and supposing with believing, and it will be our

submission that the material must reach the point

where credibly based probability replaces

suspicion. The third point will relate. merely to

the question of whether it be necessary that the

evidence itself be admissible.

(Continued on page 3)

ClT61/2/FK	2	11/4/90
George

MR CLIFFORD: (continuing)~ The application which was made

to the learned Stipendiary Magistrate was made pursuant to section 679(b) of the CRIMINAL CODE, providing that:

If it appears to a justice, on complaint

made on oath, that there are reasonable

grounds for suspecting that there is -

in a particular place, and then subsection (b):

Anything whether animate or inanimate and whether living or dead as to which there

are reasonable grounds for believing that
it will of itself or by or on scientific

examination, afford evidence as to the

commission of any offence.

At that time Sir Terence ·Lewis had been charged

with the two offences of perjury, and they appear

at page 6 of the recor~. By the complaint

Mr Rockett swore to his having held the requisite

suspicion and belief with respect to the documents

and it is clear that the reliance for the warrant

lay upon subsection (b) ~ at page 8, line 15, he

swore as being his grounds for that suspicion and

belief:

There is evidence that the bundle of A4 pages was in the handwriting of the said

Sir Terence Lewis and consisted of

approximately thirty to forty pages of

comments on the evidence by the said

Sir Terence Lewis under specific headings

and was in the possession of the said

Dr Joseph M Siracusa on -

the particular date and was sent to -

Q.D. George, Hillhouse ..... There is further

evidence that the annotated transcript

also consisted of approximately thirty to

forty pages -

and tlierr he deals again with it having been in the

possession and having gone to the solicitors.

In his statutory declaration, at page 10 of the

record, he sets out what, in our submission, must

be the foundation for the grant of a warrant.

Having dealt with the existence of the documents,

he says in paragraph 9, at the foot of the page:

I have also formed the view that there are reasonable grounds for the belief that these documents aforesaid mentioned will afford evidence of the commission of the offences -

and he identifies those two offences of perjury with

with Sir Terence Lewis had at that time been charged.

ClT62/1/DR	11/4/90
George

MR CLIFFORD (continuing): That, in our submission, apart

from certain unsworn explanations which,we will

submit, are not to be taken into account is

really the only material that was before him to

establish the reasonable grounds for the belief

that the documents will afford evidence of the

commission of the offences.

In relation to the first ground - the first

point of our argument - which is ground 2(a)(ii)

the question is whether the evidence must be
inculpatory or whether it is sufficient that it
be exculpatory in order to justify the issue of
the warrant and we will argue, in due course, that
the material was so scant that the Full Court

was really driven into the situation of considering

whether merely exculpatory evidence would suffice.

TOOHEY J:	Mr Clifford, I am not sure when you drew our attention
to paragraph 9 and the reference to the documents affording evidence of the commission of certain offences that you were, as it were, flagging insufficiency as a ground of itself or merely recounting some of the history of the matter.

MR CLIFFORD:  Both, Your Honour. On this point we recounted

the history and we will be arguing on the second

point that it was insufficient.

TOOHEY J: As a point independent from the grounds appearing

in your summary of argument?

MR CLIFFORD:  No, as the second one of our summary of argument,

that there simply was not enough, that the mere

affirmation of his belief was not enough, the facts

upon which the belief is based must be stated,

there being no facts sworn to, directly or by way of

hearsay, to fourid that belief.

TOOHEY J: That is your 2(iv), is it?

MR CLIFFORD: Yes, Your Honour.

TOOHEY J: Yes, thank·:you.

(Continued on page 5)

ClT63/l/JL	4	11/4/90
George

MR CLIFFORD:  In relation to the point of whether material

which may be merely exculpatory is sufficient,

His Honour Mr Justice Connolly dealt with this at

page 179 and he referred first at the top of the page,

relating to falsity of the testimony and the state

of mind of the person charged, to this that:

statements of the person charged may

well bear directly or indirectly upon
the proof of falsity as well as upon any

evidence tendered in disproof thereof.

The same applies with even greater force

to proof that the false statement was

made knowingly.

Identifying the charges of perjury as having related to statements made before the commission of inquiry

His Honour went on to say:

and the documents the subject of the
search warrant were statements of the

witness in relation to the inquiry, in

particular, his handwritten comments on

certain passages in the transcript of the

inquiry. 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 the

Crest Hotel with a person who might,

possibly by other evidence, be demonstrated

to be the same person as the man named
in the second charge, such notations
were capable of affording evidence "as to
the commission of the offences" in the
sense of being relevant to the proofs to
be adduced by the prosecution as well as
the proofs-which might be adduced by the

defence.

His Honour did point out at the bottom of page 179

and the top of page 180 that:

Whether any of the documents contained

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.

We would interpolate there that not only had it not

been demonstrated, it simply was not know, but what

His Honour, with whom His Honour Mr Justice Ambrose

agreed, was saying in that passage in our submission

that if it be inculpatory or exculpatory at the time

of issue of the warrant, whichever it be it is

capable of affording evidence as to the commission

of the offences in the manner required by section 679.

C1T64/1/HS	5	11/4/90
George

MR CLIFFORD (continuing):  Our submission is that anything

suggesting that the belief need only be that it

will relate in some way to the commission of an

offence and may, indeed, be evidence tending to

exculpate the accused or suspect is contrary to

the meaning of section 679 and is unsupported by

any prior authority.

His Honour Mr Justice Thomas took a slightly different approach at page 187. At about line 10

or 11, His Honour said:

What is needed is a reason to believe some

connection exists between that material and

the charge such that it will afford evidence

"as to the commission of the offence". It

does not need to be of itself admissible

evidence.

Then His Honour set out a number of authorities

really of a general nature, in our submission,

and went on to say at line 30:

The material does not in my view need to tend

to incriminate a particular suspect. Indeed

the police may obtain a search warrant before

they even have a suspect. It simply needs

to be relevant to the commission of a suspected

offence. Thus a warrant should issue with

respect to a suspected weapon used in relation to an offence whether or not it seems probable

that the fingerprints or other indicia thereon

would tend to incriminate or to clear a suspect.

And it is our submission that to look at the matter

at the time of issue of the warrant on the basis

that, '·'Well, it may incriminate, it may clear",

does not satisfy the section and what the section

is aimed at - that is particularly with reference

to this case, is evidence that will implicate the

person in relation to whom the warrant is issued.

McHUGH J:  But what do you mean by that? Supposing the police

believe a gun has been buried in a third party's

backyard, would 679 authorize a search warrant

to obtain the gun, even though they do not know

who owns it or - - -?

(Continued on page 7)

C 1T65/1 /ND	6	11/4/90
George

MR CLIFFORD:  If the situation is also that there are

reasonable grounds for believing that it ~ill

afford evidence as to the·colDill.i.asion of an offence,

in the sense of inculpating someone or demonstrating

the offence.

TOOHEY J: But you want to read into se~~9(b), do

you not, the words:  • ·

cormnission of any offence

by the person against whom the warrant is sought?

MR CLIFFORD:	Yes, in the situation here where it is issued against a particular person in relation to
particular charges where he has already been charged .. It has gone past the stage of where
there may_ bete some sort of question of interest raised as to a firearm and it is in those early
investigative stages, we would submit, that the
basis of the section by intruding on people's
right of privacy or right not to have their
premises searched for without good reason, that
that can only be done where,(a) there are reasonable
grounds for suspecting that there is something there and,(b) that there are reasonable grounds for believing that it will, of itself, or otherwise afford evidence. as to the cormnission of any offence.
There is a difference in section 679(a),
which does not apply. to this case,·
but that is based on the words "suspecting" an..:
"believing" and does not really arise at this point.
That relates more to our second point.
BRENNAN J:	Mr Clifford, could I take you back to the text

of section 679 itself?

MR CLIFFORD:  Yes, Your Honour.

BRENNAN J: And the phrase:

If it appears to a justice, on complaint made

on oath, that -

now, can the issuing justice have regard to any

material. other than that contained in the complaint?

MR CLIFFORD: There is some authority we will come to later,

Your Honour, which seems to suggest that if he has

sworn evidence he can act on that, but there is

an argument that he certainly cannot go beyond the

complaint in the statutory declaration which

supports it.

CIT66/l/CM	11/4/90
George

BRENNAN J: Well,in this case there was no sworn evidence,

is that right?

MR CLIFFORD: There was a statutory declaration as well as

the complaint.

BRENNAN J:	Was it made on oath?
MR CLIFFORD:	That is at page 9 of the record, Your Honour.
BRENNAN J:	I am looking solely at 679 at the moment and what

I am anxious to discover is whether or not, in order to see whether the foundation for the issue of a

search warrant under paragraph (b) of 679 has been

laid, it i-s permissible to look at anything beyond

what appears at pages 7 and 8.

MR CLIFFORD:  There does not seem to be any clear authority

which finally decides that point, Your Honour. sworn evidence. You cannot act simply on

conversations~ But there are cases which suggest that

the complaint can be supplemented by a note of

sworn evidence given. Mr Solicitor has been good

enough to inform me that the point is that the

statutory declaration is not on oath.

DAWSON J: The complaint says at the bottom of it:

sworn before me.

MR CLIFFORD:  Yes.

DAWSON J: I thou~-~u said it was not sworn.

MR CLIFFORD:  The complaintwas, in fact, sworn,as we understand it,

but not the - - -

DAWSON J:  Sorry, I must be missing something. There was a corrplaint ma.de

on oath?

MR CLIFFORD:  It says· "taken and declared" on page 9.

The complaint itself does not, on the face of it,

contain anything other than a signature but it seems

to be verified, as it were.

MASON CJ:  But the paragraph 3 of the statutory declaration,

the declarant says:

Prior to swearing the complaint.

ClT67/1/LW	8	11/4/90
George

MR CLIFFORD:  Yes.

BRENNAN .f: ,:. If I understand it correctly the procedure

which seems to have been followed in this case,

according to a report to Inspector Coughlan,is

that the officer who is seeking the issue of

a search warrant goes to the Magistrate with a

draft coo:plaint and says, "I wish to swear this

before you and to ask you, on the basis of

this sworn complaint, to issue a search warrant','.

MR CLIFFORD:  Yes.

BRENNAN J: And then he has the oath administered to him

there and then~ is that right or is it not right?

MR CLIFFORD:	Yes, on page 14 of the record, Mr Rockett says that he went to the Magistrates Court
office and in the presence of the chief clerk
signed the statutory declaration. Having then
had a conversation with the Magistrate when
he told him various things, at page 16 of the
record , he corrected the statutory declaration
and then swore out the complaint to ground the
warrant.and the search warrant was then issued
after that so the complaint was, in fact, sworn
before the Magistrate at that time.

BRENNAN J: Well, now, the Magistrate obviously also had

the statutory declaration, which was unsworn,

and some answers to questions?

MR CLIFFORD:  Yes.

BRENNAN J: Does that not raise the question of whether it is

right to look at the material other than the

complaint and then the next question is, "Who has to determine whether there are reasonable grounds for suspicion"?

MR CLIFFORD: Well, as to the first part, it would be our

submission . that he certainly was not entitled

to rely on the conversation which was not

sworn.- the conversation which preceded the

swearing of the warrant - because that was not

taken on oath. As to the - - -

DAWSON J:	I must say I am not following. what you a:re .. saying.
You are. saying that everything that. the Magistrate
can rely _on :has to be on oath?

ClT68/l/JL	9	11/4/90
George

MR CLIFFORD: If it is to constitute evidence rather than

just being by way of explanation.

DAWSON J: Well, certainly the complaint has to be on oath,

but why does the other material you put before the

justice have to be on oath?

MR CLIFFORD:  If it is to constitute evidence, in our submission,

it must be on oath• If it is merely - - -

DAWSON J: Where do you get that from?

MR CLIFFORD: Well, that really was something we wanted to

develop a bit later, but there are Canadian authorities

that say he is not entitled to rely on an unsworn

conversation as a ground for a conclusion that there

are reasonable grounds for believing. But that is

really getting into the second point.

MASON CJ: Yes, Mr Clifford.

MR CLIFFORD:  To follow up, Your Honour Mr Justice Brennan's

question, the authorities establish clearly, in our

submission, that it must be the belief of the

magistrate not the belief of the police officer

which founds the issue of the warrant.

BRIDGEMAN V ~.ACALISTER, one of the cases on our

list, goes to that, and there are other cases in the

Canadian cases which we will deal with.

MASON CJ: Well, that accords with the words of the section,

does it not?

MR CLIFFORD: Yes, it does, Your Honour. As to the purpose

of search warrants, we rely upon some of the remarks

that were made by this Court in BAKER V CAMPBELL,

(1983) 153 CLR 52.

(Continued on page 11)

ClT69/1/FK	10	11/4/90
George

MR CLIFFORD (continuing): First~of all, in order of what

is said at page 69.there is a very short passage

from His Honour the then Chief Justice.

MASON CJ: This was a search warrant under section 10 of

the Commonwealth CRIMES ACT, was it?

MR CLIFFORD:	Yes, Your Honour.
MASON CJ:	And are the provisions identical or similar?

MR CLIFFORD:  Yes, Your Honour. And the particular reference

is the treating of "as to" as being equivalent to "of"

the commission of. the offence. Not quite two-

thirds of the way down page 69 - this, of course,

is dealing with section lO(b) which is the identical

subsection - His Honour said:

The Parliament may well have considered that

the public interest which requires that

communications between lawyer and client made

for the purpose of legal advice or
representation should be kept confidential
should yield to the higher public interest

in the suppression of crime, which requires

that evidence of the commission of a crime

should be available to those charged with
the detection of crime, and if necessary should

be placed before the court before which the

alleged offender is to be tried.

That, in our submission, expresses the purpose

of the section; that is, to obtain evidence of

the commission of a crime not to go on a broader

expedition.

There is a passage also in the judgment of

Your Honour the Chief Justice at page 81 upon which

we rely for this proposition.

(Continued on page 12)

1 1 11/4/90

George

MR CLIFFORD (continuing):  At the bottom part of page 81, the

last paragraph:

The search warrant has been described as

"part of the investigative pre-trial

process of the criminal law, often employed seizure of materials which will implicate a
early in the investigation and before the

identity of all of the suspects is known".

person in the commission of the offence.

The search and seizure which it authorizes

is designed, among other things, to yield

evidence which can be tendered by the

procesution in the subsequent trial of a
person for the offence described in the

warrant.

That, in our submission, is particularly applicable

here where the particular offences are identified

and the charges have already been made, and we rely

on that passage and submit that the purpose must be

to implicate the person in the commission of the

offence. At page 83 in a further passage one-third
of the way down, having dealt with the impossibility
of police officers making a judgment on the

admissibility or probative value of material,

Your Honour said:

The considerations suggest that par.(b)

and the concluding words of the section,

in so far as they relate back to par.(b),

are looking to documentas as to which there

are reasonable grounds for believing that

they will will in some way implicate the
persons named in the warrant, or, if no

person is named, someone in the commission

of the offence.

There is also a passage in the judgment of His Honour

Mr Justice Wilson which is dealing with the question of whether evidence is admissible and the question of privilege.

(Continued on page 13)

C1T71/l/HS	12	11/4/90
George

MR CLIFFORD (continuing): Half-way down on page 92,

His Honour says:

In any event -

that is in the paragraph in the middle of the

page in the middle of that paragraph -

the words "afford evidence" in section l0(b)
are used, in my opinion, in their ordinary
sense of "make manifest" or "reveal".

So we submit that the purpose then is to make manifest or reveal an offence. Your Honour

Mr Justice Brennan at page 102, about one--third

of the way down, says:

One of the purposes of section l0(b) is
to authorize the search for and seizure of

a thing which can become evidence as to the commission of an offence when it is

tendered at a trial occurring after execution of the warrant, and the belief that the thing seized will afford avidence is to be held in

reference to such a trial.

And further, Your Honour said at page 106, third line:

But it is notopen to the courts to decide

whether the public interest served by the

privilege should be given paramountcy over

the public interest served by exercise of

a statutory power to search for and seize

things that are reasonably believed to

afford evidence of an offence.

So, in our submission, the thrust of those passages

is really that the purpose is to afford evidence, to

demonstrate an offence and of course, where the

person charged is already known, to implicate - - - (Continued on page 14)

CIT72/l/CM	13	11/4/90
George

TOOHEY J:  Mr Clifford, I am not entirely clear as to the

way in which this argument is developing. Are you

focusing on the tests that Justice Connolly and

Justice Thomas applied because there was a finding by the eourt that the evidence was not capable of meeting the literal language of section 679, or

were Their· Honours- simply saying, "Well, we don't

have to go that far. It is enough if the evidence meets one or other of these tests that the members

of the court laid down."?

MR CLIFFORD:  Our submission is that Their Honours adopted a

test that it was not necessary to decide or to form

a belief or to have reasonable grounds to believe

that it may be inculpatory. It could be either

exculpatory or inculpatory, but our submission is

that that is not enough. There must be reasonable

grounds to believe that it will afford evidence in

the sense of inculpating, or implicating, a person.

TOOHEY J: Well, do I take it from that that no member of the

court said affirmatively that the material sought
pursuant to the search warrant was not capable of

affording evidence as to the commission of an

offence?

MR CLIFFORD:	No one said it was not capable of doing that, no.
TOOHEY J: But	members of the Court said it was not necessary

that	it go that fari is that the way you are putting
it?	I mean, that is not your argument, but is that
what	you are saying the members of the court - that
that	is the way-in which they approached the matter?

MR CLIFFORD:  What we say is the members of the court said

it was not necessary to have a belief that it may

inculpate or exculpat~ in point one and, secondly,

that when they.got to the stage of deciding whether

Their Honours, not knowing anything of the contents the words of the section had been satisfied	of the material, really made equivalent to"reasonable
grounds for believing' what were no more than grounds
for suspecting that it may afford evidence.

(Continued on page 15)

ClT73/l/DR	14	11/4/90
George

TOOHEY J: And that conclusion was reached in what way - I

am not asking you to go to the detail, but by
reference to the material placed before the

Magistrate when the warrant was extracted or

some other material?

MR CLIFFORD:  By the material placed before the Magistrate,

Your Honour. Their Honours did not go to the

additional material which the Crown had sought

to put before the court. It was merely in relation

to the material which the Magistrate had before

him.and Mr Justice Thomas held that the mere

belief of the prosecutor for the warrant was not

suffic~~nt and that what had to be gone into was

whether there were reasonable grounds for the

Magistrate believing that material is sufficient.

TOOHEY J:	I think I understand, thank you.
MR CLIFFORD:	So, it is our submission that what Your Honours

had said in BAKER was really intended to convey

the meaning,afford evidence of the commission of

an offence not simply provide evidence as to whether

or not an offence had been connnitted and. certainly

not evidence tending to show that an offence has not

been connnitted, or has not been committed by the

person named. It is true that that point was not

directly argued but our submission is that what

Your Honours have said really works on the premise

that that section authorizes one thing and that

is the search for documents in relation to which

there are reasonable grounds for believing that

they will afford evidence inculpating a person, or

establishing that an offence had, indeed, been

committed and not simply evidence relating to a

question whether or not an offence has been connnitted

or, indeed, evidence tending to exculpate.

(Continued on page 16)

C1T74/l/JL	15	11/4/90
George

MR CLIFFORD (continuing):  And something similar to that

has been said by His Honour Mr Justice Lockhart

in a short passage in CROWLEY V MURPHY, 34 ALR 496,

at 522.to 523. At the bottom of page 522, at

about line 40, His Honour says:

There is a distinction between the words "will afford" and the words "may afford" which appear

in some authorizing statutes. That the

documents to be seized "will afford" evidence

as to the commission of offences is a matter

for the justice to determine when issuing
the warrant, not the officer executing it.

"Will afford" means not that the documents

must be sufficient to result necessarily in

a conviction; but that they have some probative

connection with the offence alleged.

And we would~submit that what that means is that

there are reasonable grounds for believing they

will prove something in relation to the offence

alleged.

DEANE J:  But the word "suspecting" qualifies all this.

MR CLIFFORD: "Suspecting" relates only to the existence

of the documents in a particular place, Your Honour.

DEANE J: But, I mean, you are approaching it as if'~easonable

grounds' imposes something more than will. I mean,

what if it read "suspecting that there is something

which will afford evidence"? You do not get into

reasonable grounds on the basis that you know

something is there and you know precisely what

it is and so on.

MR CLIFFORD:  But there is a difference because this section

uses the word "suspecting" and also the word

"believing".	As to the existence of documents
in	particular places it is a question of suspecting,
under the introductory words, as to whether they

will afford evidence. It is a question of reasonable

grounds for "believing" which, in our submission,

imports a different standard from merely suspecting.

(Continued on page 17)

C 1T75/1	/ND	16	11/4/90
George

DEANE J:	But the argument really is to the effect that the
qualification "reasonable grounds for believing that it",
as it were, imposes a harsher test than if it was simply "will of itself afford evidence", because all
that is required is that there is suspicion that
there is something there that will afford evidence.
MR CLIFFORD:	Well, no, in our submission, there has got to

be a belief at that second stage as to the nature

of the document.

DEANE J:  Well that means suspicion must be, on your argument,

a sufficiently identified document to have a

reasonable' belief about it.

MR CLIFFORD:  Yes, that is so. That follows from that

argument, yes. His Honour Mr Justice Lockhart

referred to RE WORRALL, (1965) 2 CCC 1, as

authority for the proposition that he made there.

It might possibly be said that what Mr Justice Lockhart had said was equivocal and left open the search for

exculpatory evidence but when one has regard to the

decision in the Ontario Court of Appeal, to which

His Honour was referring, that, in our submission,

cannot be said.	At page 677, Chief Justice Porter
of Ontario said:

The police officer is not a judicial

officer. It was not his function to

decide whether the articles in question

should be seized or not. It was the duty

of the Justice, upon the evidence before

him, to decide this question. He must

determine whether there are reasonable

grounds to believe that the articles in

question will afford evidence with respect

to the offence alleged. This does not mean

that the articles will afford evidence

sufficient to result in a conviction.

It means, I think, that the Justice must

consider whether the production of the

articles will afford evidence which would

be relevant to the issue, and would be

properly tendered as evidence in a prosecution

in which the alleged fraud is in issue.

(Continued on page 18)

ClT76/l/HS	11/4/90
George
MR CLIFFORD (continuing):	So it is our submission that that,

again, is referring to evidence, or documents, or
things as to which there are reasonable grounds for

believing that they will provide incriminatory

evidence, or implicate someone. That view, in our

submission, gains some support also from what was

said by His Honours Mr Justice Burchett in

PARKER V CHURCHILL, 63 ALR 326, at 337, where

His Honour says:

"The expression "will afford evidence" does not import a requirement that the documepts must be necessarily sufficient

to achieve a conviction; it is sufficient
that they have relevance to, or probative

connection with, an issue arising upon an

allegation of the offence alleged, or that

they "will in some way implicate the

persons named in the warrant, or, if no

person is named, someone in the connnission

of the offence".

And, of course, His Honour is relying upon what

Your Honour the Chief Justice had said in implicating the persons named.

There is a similar approach taken in another case to which Your Honour the Chief Justice referred

in BAKER V CAMPBELL. That is a Canadian case:

ATTORNEY GENERAL OF NOVA SCOTIA V MacINTYRE,

(1982) 132 DLR (3rd) 385.

(Continued on page 19)

ClT77/l/FK	18	11/4/90
George

MR CLIFFORD (continuing): And once again, in our submission,

the same approach is taken. That is in the case

of a statute which, as is shown at page 388, uses

the expression:

with respect to -

instead of the expression "as to the commission

of an offence", which our Act uses. _ Section 443

is set out on page 388 and the middle paragraph,

subsection (b),is the relevant one:

anything that there is reasonable ground to
believe will afford evidence with respect

to the commission of an offence against

this Act.

DEANE J: But are not (a), (b) and (c) descriptive of

types of documents? They do not direct attention to

an actual state of belief. Then why is it not

sufficient here to say that the policeman showed,

or the complaint showed reasonable ground for
suspecting that there might be documents in the

handwriting of X which indicated that the evidence

which he had given was perjured and that would

mean that documents which, on 'reasonable grounds

forbelieving that it will of itself or by or on

scientific examination, afford evidence"?

MR CLIFFORD:  If it were merely descriptive and that the

complaint saying so was enough, then that would

mean that the justice did not have to apply his
mind to anything so long as the matter was sworn

in terms of the complaint. But in fact the cases

say that it is necessary for the person issuing

the warrant to be satisfied of the composite test

or the two· things, (a) that there is reasonable

ground to suspect there is and (b) that there is

reasonable ground to believe.

(Continued on page 20)

CIT78/l/CM	19
George
DEANE J:	But as •I put to you earlier, that assumes that you cannot have a search warrant on the basis that you
suspect that there are things there which could reasonably be seen as effective evidence unless
you are in a position where you can identify what
those things are precisely so that someone can
before you find out what they are, swear the '
reasonable grounds.  Why do we simply read (b)
as descriptive of the sort of thing that must be
suspected of being there?
MR CLIFFORD:	In our submission, it is not read that way.

It ought to be read as a requirement that there

be a reasonable ground to believe.

DEANE J: And what, the cases establish that, do they?

MR CLIFFORD:  Yes, I think I can go that far.

DEANE J: In that case, do not let me take you out of

your order.

MR CLIFFORD: Well, I will go to them a bit later. But really

what was said in WORRALL went part of the way to that,	1	1that the justice must determine whether there are
·
reasonable grounds to believe that the articles in question will afford evidenc~', so that it is a question
that he must determine, whether they will afford
evidence with respect to the -offence, that is, to
that standard provided in the section, not in the ultimate sense.

DEANE J:	I do not want to take time but if you look at WORRALL,
that was quite different. There the police officer
swore there·was reasonable ground to believe that there were certain books and documents; there the reasonable grounds acquainted with the suspecting in
659.  (Continued on page 21)

ClT79/1/LW	20	11/4/90
George

MR CLIFFORD: Yes, but it still does say, Your Honour, that

the justice must determine whether there are

reasonable grounds to believe. It is not merely

treated as simply descriptive.• There he swore

that they may afford evidence, merely that they

may afford evidence and it was obvious, in our

submission, that the court decided this did not

mean that the justice did not apply his mind to

the question whether production would afford

evidence, so it was a separate question, in

our submission,and it was a case where not much

was said factually but we propose to argue that

factual basis a little bit later, if we may,
and at the moment concentrate on the submission

that there must be a probative connection - a

tendency to implicate or to prove a particular

offence. On that point we had gone to

ATTORNEY GENERAL OF NOVA SCOTIA V MacINTYRE and
had referred Your Honours to the terms of the

section, and at page 397 dealing with the

nature of a warrant, and this is the passage

that Your Honour the Chief Justice had referred

to in BAKER:

A search warrant may be broadly defined

as an order issued by a Justice under

statutory powers, authorizing a named

person to enter a specified place to search

for and seize specified property which

will afford evidence of the actual or

intended cormnission of a crime.

And, once again, that is not used in a non-descriptive

"as to" sense, it is used in the word "afford

evidence of" the actual or intended cormnission

of a crime. So that, in our submission, it is

necessary that that be what it is,not simply

may be exculpatory, but something which can properly

be believed as will afford evidence of the corrnnission,

or intended cormnission. (Continued on page 22)

ClT80/l/JL	21	11/4/90
George

DAWSON J: Mr Clifford, I suppose in the vast majority of

cases what the police are looking for is evidence

of the commission of a crime. It would be fairly

rare that they would be looking for the opposite.

It does not really appear from any of these

references that the judges that have used these

words have turned their minds to that question,

does it?

MR CLIFFORD:	No.
DAWSON J:	They have used the words they have because that

is the usual case, is it not?

MR CLIFFORD:  Yes. It is really our submission that we have

not been able to find any case at all where it

has been said that it is proper to go looking for

material which will establish the grounds of defence

or be relevant to the proofs which the defence

might adduce, as His Honour Mr Justice Connolly

spoke of, or, indeed, that it is proper to go

searching for the exculpatory material which might

be in someone's possession.

DAWSON J:  But what you are contending for involves you reading

words which appear in the section other than in

their literal meaning, does it not!?. "Afford evidence

as to the commi,ssi6n off' an offence, you would

say must be read "afford evidence of the commission

of" an offence?

MR CLIFFORD:  Yes, Your Honour, that is what we are saying

is the effect of it.

DAWSON J:  But in its literal meaning the section has a

different effect to the one for which you are

contending?

MR CLIFFORD:  It is capable of it but in view of its purpose

and the limitation of the power to go into the

premises of people who are not accused, such as

third persons, to pick up evidence, we would submit that that only applies for the purpose of searching

out evidence "of the commission of an offence".

DAWSON J:  Then what Justice Deane says to you has some

significance there because the limitation is that

the document must be of a particular class. We

are not going to have the police getting warrants

to go and look for anything and everything just

because it might have some exculpatory effect.

MR CLIFFORD:  That is so, Your Honour, yes.

22   11/4/90

George

TOOHEY J: Although it is a curious situation, as you describe it, Mr Clifford. If the police are carrying out inquiries as a result of some

suggestion that an offence has been committed

and they get together in various ways a collection

of material that perhaps points to the commission
of an offence and they are alerted to the existence

of a document which, if it lives up to what they

have been told, might completely extenuate the

person into whom they are investigating, you would

say that there is no power under the relevant

section of the Code to obtain a search warrant

in order to take possession of that material?

(Continued on page 24)

C1T81/2/ND	23	11/4/90
George

MR CLIFFORD: That follows as the inevitable consequence of

the submission we have made that it must be

evidence that tends to implicate, Your Honour.

DAWSON J: What if the evidence could go either way. They

just do not know.

MR CLIFFORD:  If they do not know then, in our submission,

there are not reasonable grounds for believing that
it will afford evidence as to the commission. If

there is no idea which way it is going to go or

where it is going to go - - -

DAWSON J: No, it will go one way or the other but they do

not know.

MR CLIFFORD:	We would submit that there must be grounds for believing that it will afford evidence of the
commission, that is, that it will be implicatory.

DEANE J: But if they know that there is either a document

that will or will not answer the relevant description,

why have they not reasonable grounds for suspecting

that there may be a document of the relevant

description? I mean, all that is required is that

they suspect that such a document may be there.

MR CLIFFORD: Yes, but they have to have grounds for believing

in relation to its nature, if Your Honour please,

which goes one step further and means you must know

something about its nature.

DEANE J: Well, that is if they are required to believe before

they are allowed to suspect which strikes me as a

quite extraordinary effect of section 679.

MR CLIFFORD:	Now, the submission that we make is that the suspicion is in relation to the location of the
document. They need only suspect that it is on
certain premises but that there must be grounds for
believing. that it will afford evidence which is a
second step, if you will, but different from
merely suspecting that there may be a document
there. This question was also touched upon in
HUNTER V SOUTHAM, (1984) 11 DLR (4th) 641, the
relevant pages being 658 and 659.

(Continued on page 25)

ClT82/l/DR	24	11/4/90
George

MR CLIFFORD (continuing): This case turned upon two things,

one was the provisions of particular sections of
the COMBINES INVESTIGATION ACT, and the other were
the provisions of the constitutional article,
section 8 of the Carta~, Cha_~ter of Rights and

Freedoms, and it is of relevance, in our submission, for a couple of reasons: section 10 of the

COMBINES INVESTIGATION ACT applied a much lesser

test. It appears at page 644 of the report, at the

top, and it was necessary there merely, that the:

Director believes there may be evidence relevant to the matters being inquired

into.

And, section 8 is set out further down the page,

providing that:

Everyone has the right to be secure against unreasonable search o.r seizure.

At page 658, and I will read the whole passage because

we will be relying on it under both limbs of our

argument:

The purpose of an objective cr~rion for

granting prior authorization to conduct

a search or seizure is to provide a

consistent standard for identifying the

point at which the interests of the State

in such intrusions come to prevail over

the interests of the individual in

resisting them. 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. This is a

very low standard which would validate

intrusion on the basis of suspicion, and

authorize fishing expeditions of considerable

latitude. It would tip the balance strongly

in favour of the State and limit the right

of the individual to resist to only the

most egregious intrusions. I do not

believe that this is a proper standard for

securing the right to be free from

unreasonable search and seizure.

Anglo-Canadian legal and political

traditions point to a higher standard. The

cormnon law required evidence on oath which

gave "strong reason to believe" that stolen
goods were concealed in the place to be

searched before a warrant would issue.
Section 443 of the CRIMINAL CODE authorizes

a warrant only where there has been information

ClT83/l/FK	25	11/4/90
George

upon oath that there is "reasonable

ground to believe" that there is evidence

of an offence in the place to be searched.

And I emphasize the words "evidence of an offence" because of their particular relevance to our present

point, and simply remind the Court that section 443

uses the words "with respect to", not the words,

"as to", but they are similar:

The American BILL OF RIGHTS provides that

"no warrants shall issue but upon probably

cause, supported by oath or affirmation ... ". standard in each of these formulations is

identical. The State's interest in detecting

and preventing crime begins to prevail over
the individuals interest in being left alone
at the point where credibly-based probability
replaces suspicion. History has confirmed the
appropriateness of this requirement as the
threshold for subordinating the expectation

of privacy to the needs of law enforcement.

Where the State's interest is not simply law

enforcement as, for instance, where State

security is involved, or where the individual's

interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant

standard might well be a different one.
That is not the situation in the present case.

In cases like the present, reasonable and

probably grounds, established upon oa~, to

believe that an offence has been committed

and that there is evidence to be found at the

place of the search, constitutes the

minimum standard ..... for authorizing search

and seizure.

And, it is our submission that our section 659,

and section 443, and the interpretation of section 8

are all such that it is necessary that there be

evidence of an offence, ·· that is evidence of the

commission, or evidence implicating in the place

to be searched, before the power to issue the

warrant arises.

ClT83/2/FK	26	11/4/90
George

MR CLIFFORD (continuing):  There is a similar use of the

word "commission of any such offence" in

section 629 of the CRIMINAL CODE referred to in

RE BELL TELEPHONE COMPANY OF CANADA, 89 CCC 196.

Section 629(b) is in materially identical terms in

that it refers to:

anything which there is reasonable ground

to believe will afford evidence as to the

commission of any such offence.

DAWSON J:	Well, "will" is different from "may", of course.
MR CLIFFORD:	I am ~orry, Your Honour?
DAWSON J:	"Will afford evidence", rather than "may afford

evidence".

MR CLIFFORD:  Yes. That is the same as ours, "will afford", and

on page 198 in the second-last paragraph His Honour

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 28)

C1T84/1/HS	27	11/4/90
George

:MR CLIFFORD (continuing): And he goes on to say:

Before a Justice may issue a search

warrant, it is necessary that there be a sworn information that contains such

a statement of facts as satisfied the Justice - and that is a point which was raised earlier	,,
, ,

that there are reasonable grounds for believing

any of the things set out in section 629.

It is not sufficient that the Justice should

be satisfied - he must be satisfied on

reasonable grounds

and,in our submission, that does also answer

Your Honour~searlier point that there must be a satisfaction on "reasonable grounds" of that.

TOOHEY J: A lot of these cases, Mr Clifford, turn upon the

breadths of the warrant., It does not necessarily

detract from the question of the principle you are
arguing, but in the present case the documents

were identified with some precision, as I understand

the papers, and their relevance"as td~ if not"of,

the commission of an offence', accepting your

distinction for the moment,	it is probably readily
unaccepted.	I am not sure where that takes us but

it is just that some of these cases, I think, need

to be read having regard to the scope of the warrant

that was sought to be issued.

MR CLIFFORD:	Yes. What we are trying to do with those cases, appreciating that they are not precisely deciding
that point, is to show that consistently the courts
have taken the view that the thing must be a thing
that will afford evidence"of the commission!' that is
relation to that that as to these particular
in the implicatory sense and it would follow in
documents it would not be enough to be able to
conclude logically -and this is getting into the
second point~ that they may refer to the evidence
of other people on the subject of the charges. He must also be able to say that there are reasonable grounds for believing that they will afford
evidence to be used in the prosecution,that is
establishing the offence or implicating Lewis.

(Continued on page 29)

CITSS/1/CM	28
George

MR CLIFFORD (continuing): And as to the implication, I mean

it is a case where the identity of the offender -

the alleged offender - is known so it can only be,

in our submission, a situation where you determine whether there are reasonable grounds for believing

that these documents will afford evidence of

perjury. That is, that they will incriminate him

and, we will submit in dealing with that a bit

later that there simply is not anything known as to
the nature of them, what they broadly refer to

may be garnered from the fact that there are things

written on transcript, but there is nothing known

as to the contents of the writing.

MASON CJ:	Now, Mr Clifford, how long will the balance of
your argument take?
MR CLIFFORD:	I am almost finished that pointi I would think

about 25 minutes to finish the second point,

Your Honours.

MASON CJ: And, Mr Solicitor, how long?

MR SOLICITOR:	I should think about an hour, Your Honour.
BRENNAN J:	Mr Clifford, in asking you the question about the

construction of 479(b), the concern that I had,

as I have now verified, was born of a vague recollection

of PALETHORPE V NEBBIA, (1937) QWN, a case which

does not seem to have had an unvarnished career

in the sense that it has been accepted equitably

outside Queensland, but so far as I know it has

not been departed from within Queensland.

You might care to have a look at that overnight.

MR CLIFFORD:  I might have·a look at that overnight,.

Your Honour.

MASON CJ:	We will adjourn until 10 o'clock tomorrow
morning.

AT 4 .33 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 12 APRIL 1990

C1T86/l/JL	29	11/4/90
George