Grollo & Ors v Macauley

[1995] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 1995

B e t w e e n -

BRUNO GROLLO

First Applicant

RINO GROLLO

Second Applicant

GROFAM PTY LTD

Third Applicant

GROFAM AUSTRALIA PTY LTD

Fourth Applicant

GROLLO AUSTRALIA PTY LTD

Fifth Applicant

GROLLO BROTHERS PTY LTD

Sixth Applicant

GROLLO FINANCE (HOLDINGS) PTY LTD

Seventh Applicant

GROLLO FINANCE PTY LTD

Eighth Applicant

GROLLO CONSTRUCTIONS PTY LTD

Ninth Applicant

GROLLO NOMINEES PTY LTD

Tenth Applicant

and

PETER MACAULEY, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

First Respondent

GREGORY DONALD McLEOD

Second Respondent

PHILLIP RAYMOND FRANCIS

Third Respondent

WILLIAM DRUMMOND GRAHAM

Fourth Respondent

GRAHAM ANTHONY BLAY

Fifth Respondent

PETER DAVID WOOD

Sixth Respondent

SALLY BROWN, CHIEF MAGISTRATE

Seventh Respondent

COMMONWEALTH OF AUSTRALIA

Eighth Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 11.15 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friend, MR J.G. JUDD, on behalf of the applicant.  (instructed by Arnold Bloch Leibler)

MR M.S. WEINBERG, QC:   If the Court pleases, I appear together with my learned friend, MR H.A. AIZEN, on behalf of all respondents other than the Magistrate.  (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

BRENNAN CJ:   The Deputy Registrar certifies that she has been informed by Mr Kidd of the Office of the Commonwealth Director of Public Prosecutions that the first‑named respondent was a party to the proceedings in the court below in his capacity as Commissioner of the Australian Federal Police and as he has retried from that position the Office of the Commonwealth Director of Public Prosecutions does not have instructions to act for the first‑named respondent. 

The Deputy Registrar further certifies that she holds a letter dated 22 May 1995 from the Office of the Victorian Government Solicitor advising that the seventh respondent does not intend to take an active role in this proceeding and will abide by any order of the Court save as to costs.  Yes, Mr Merkel.

MR MERKEL:   Could I hand up to your Honours a folder of some documents in cases we will briefly be referring to.  Can I indicate to your Honours that the present application involves three matters, first, the issue of the generality of the warrant and the consequences that that produces given that the three‑condition warrant has now become the equivalent of prescribed form; the second relates to the existence of the duty of a magistrate issuing a warrant to prevent the risk of interference with the judicial power where that presents itself as a real risk; and the third relates to the

question of whether the power conferred under section 10 is invalidly conferred as it is part of the judicial power of the Commonwealth.

BRENNAN CJ:   Now, that third question is one that has already been agitated in proceedings to which Mr Grollo is a party, is that right?

MR MERKEL:   Your Honour, it was, although when I come to it the present case raises in a more direct way the issue because the intercept power and the power considered in Love’s Case really was in many ways distinguishable from the search warrant power and it is only a question of whether the analogy of the search warrant power extends to the intercept power, which is a different question, but the US jurisprudence we will be relying upon has always treated the search warrant power, whatever may be the case about its analogues, as part of the judicial power, but otherwise your Honour is correct.

Could I go straight to the point of delegation.  The warrant appears at page 99 of the application book and I should indicate to your Honours that in literal compliance with the decision of this Court in George v Rockett the three‑condition warrant has evolved and gradually extended to particularly emphasise the requirement that the things to be seized answer a particular description and the courts have treated almost anything in a very general form, provided the offence is identified, as meeting that requirement and as a result our primary submission is that the form of warrant that your Honours now have before you is, in effect, the equivalent of a general warrant reinstated in purported compliance with section 10, which we say section 10 does not authorise.

Can I go briefly to the warrant.  At page 99 your Honours will see the first condition starts off with “Documents, including:” and then the remaining items are subcategories of what one may call documents or things in some physical form but are very wide.  The second condition appears to have some subject matter that it refers to but, in reality, when the warrant is served at the premises of one of the entities, virtually every document or thing at the premises will pertain to, arise out of, or be connected with or relate to the affairs of the person at the premises.  So we say that on its face it may appear to be limiting but in reality it still is in the most general terms.

It is third condition that gives rise to the problem because we say properly understood, when your Honours look at the offences that are said to be limiting of the things that are to be seized and in respect of which there is the requisite suspicion, your Honours will find the first three offences are in general terms related to conspiracy but the third is the one we would focus on because in a sense the warrant is as broad as the widest of the offences in the third condition and your Honours will see that that really deals with the offence of conspiracy without reference to subject matter.

Now, the effect of a warrant having that breadth we say ultimately is to literally say that that which is in the warrant is of a particular description, but we say that a particular description was a term developed by the Court in Rockett for the purpose of requiring what the issuing magistrate was to be satisfied may be at the premises, but in gradually widening the content of what may fall within a particular description we say the magistrates issuing warrants and the no doubt police in different States and Commonwealth preparing them have reinstated effectively the general warrant.

Can I take your Honours to document No 2 in our folder.  I should say document No 1 is merely a reference to a transcript in a recent special leave application in this Court in Dunesky where it was conceded that although the federal Act has been amended it does not affect this question of the three‑condition warrant.  The second case is Stanford v Texas in the United States Supreme Court where the problem ‑ ‑ ‑

BRENNAN CJ:   Before you leave that matter of Lego Australia, how do you distinguish the refusal of special leave in that case from your present application?

MR MERKEL:   Your Honour, because the fourth document is actually the warrant in Dunesky and it does not suffer the defects of the warrant in the present case.  Your Honours will see that all three conditions are expressed more narrowly.  The first may be not of significance, but it is not “documents, including” but particular categories of documents, but the second, your Honours, does not relate to the affairs of the person at whose premises the warrant is to be enforced but relates to a particular subject matter in respect of which the offences are said to have occurred, and the third relate to offences which are not said to be conspiracies but which each identify the subject matter of the particular offence.

BRENNAN CJ:   I appreciate that there is a distinction in the actual warrants in the two cases, but as I read the transcript of the argument and the decision in the case of Lego, the principle that was raised was whether or not the third condition is one which of necessity, being framed in those general terms, vitiates the warrant on its face and that was dealt with by a question by Justice Deane at page 14, submissions at pages 22 to 23 and, as I read the transcript, it comes to the point of saying that there is nothing wrong with that form provided that there is some satisfactory material upon which the issuing magistrate could come to the conclusion.

MR MERKEL:   Your Honour, I accept that and it is for that reason we have identified the important distinction, that the distinction that we have identified raises a different principle to that which was before the Court.  We do not attack the three‑condition warrant, your Honour.  It is not that.  It is the question of whether one gets to a stage where the line of the words “things that answer a particular description” leads one to so broad a description that section 10 becomes the authorisation to reintroduce a general warrant.  We say that is the issue raised in this case but not in Dunesky.

BRENNAN CJ:   But the question that Justice Deane put in Dunesky and upon which much of the following debate seemed to proceed was a question which postulated this situation:

the police had a confession that said, “The things that will prove my guilt of this are in the bedroom of the house at” such‑and‑such an address.  Would you say it would be impossible to get a search warrant?

That is at page 14.

MR MERKEL:   Yes, your Honour.

BRENNAN CJ:   In other words, nothing specified as to the character of the things, simply that they would be incriminatory and that they are at a particular address.

MR MERKEL:   I appreciate that, your Honour, and the answer we would give is that if the lack of particularity as to the things were such that it became the equivalent of a general warrant, that is not authorised by section 10, but the Dunesky warrant did not suffer that defect because there was not that lack of particularity.

BRENNAN CJ:   That may be so but the principle that was addressed on the hearing was one which went beyond the terms of the warrant to the generality of the terms in which the third condition was expressed and it seems to me that the problem that arises with a three‑condition warrant expressed in the generality of the terms that are here is to be found in the sufficiency of the evidence which grounds the warrant, not in the terms of the warrant itself and I can well understand an attack on this warrant on the basis of insufficiency of evidence.

MR MERKEL:   Your Honour, the difficulty is that the evidence becomes very general and if one gets to the stage where there is grounds to raise the required suspicion that there will be documents that may be at the premises that may be assisting in evidence, the real question of importance, we say, which this Court has not considered, is whether it can go so far as to become a general warrant.  I accept what your Honour says, that Justice Deane raised it in that general way, but in the end what the Court stated in Dunesky was that the issue did not enjoy sufficient prospects of success and that must be a reference to the specific warrant before their Honours.  We say that the reality of the present case is, if one looked at the third offence, this is as close as one can come to the general warrant which has been abolished since Entick’s Case 230 years ago and which has constitutional protection against being issued in the United States and we would say it would be a big step, it would be a big step ‑ ‑ ‑

BRENNAN CJ:   Yes, there is no doubt about the importance of the general warrant issue, Mr Merkel, but “On the findings that were in fact made” was the preliminary words that were used by the Court on that occasion.  Now, where do we have here any reference to the sufficiency of the evidence on which the warrant was issued?

MR MERKEL:   Your Honour, as I understand it, it was before the Court and one of the issues was to examine the warrant and the sufficiency of it we would put is a different question but linked to the generality of that which it authorises, but our problem is this, your Honour, that once one accepts the question as Justice Deane raised it, it merely requires a suspicion that there will be at the premises unidentified objects which may relate to the commission of the offence, your Honour, the real question is, “Does that material alone justify the issue of a general warrant?”  It is that point that becomes the point of importance. 

If this case only related to whether there was a sufficiency of material to issue a general warrant, we would say that would be a case relevant to be decided by reference to its own facts, but what has happened now, your Honours, is since George v Rockett those words answering things of a particular description have taken on a warrant in the Federal Court judgments which have now been cemented into law subject to only this Court reviewing them to issue the general warrant and we say that is the issue of importance and we say it would be a sad event if a search warrant which has been recognised by the courts and this Court in George v Rockett were able to be transformed into a general warrant without this Court having considered the consequences of what it said in George v Rockett .

So we say the passage I was going to take your Honours to in Stanford v Texas directly raises that kind of issue where one had the most general of terms - that is in our second document, your Honour - a warrant in the most general terms that led to the broadest of seizures and their Honours saying at page 480 that:

this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant.

We say that that itself is an issue of importance and one can only say that look at this warrant and the issuing officer executing it must seize things which effectively becomes, by reason of the generality of the warrant, the things which in the mind of the executing officer the reasonable or requisite suspicion or belief is established and there is no longer the coincidence because of the generality with the things that satisfied the issuing magistrate.

DAWSON J:   The warrant has been executed, has it?

MR MERKEL:   Yes, it has been executed, your Honour.

DAWSON J:   What happened to the papers which were seized?

MR MERKEL:   The papers, your Honour, are in the possession of the Federal Police but their ultimate use will await the outcome of these proceedings.  We should indicate to your Honours that the reason why the present case raises the issue in such an important form is their Honours at page 60 in the majority judgment themselves said at line 18:

The search warrants are convoluted and obscure.

Which is the ultimate effect of the purported requirement with George v Rockett .  We say there can be no more apt description of a general warrant which on its face should be invalid.

DAWSON J:   They are not convoluted or obscure, are they?  You just say they are too general.

MR MERKEL:   Your Honours, I think what their Honours were saying is if one reads the three conditions and the variety of possibilities and the generality that they become convoluted and obscure, but I use the word “general”, your Honour, in their effect but a stepping stone towards it is the convolution and obscurity that they have in getting there.

DAWSON J:   What is the convolution?

MR MERKEL:   I think, your Honour, the interweaving of the conditions and the affairs and the offences, but my real point is that generality is a sufficient word for me because it reinstates the general warrant which section 10, we say, has never been taken to authorise.

But I go to the second ground, which we say is of equal importance, and that is that there was material before his Honour which found that there were at the time of the issue of the warrant a number of civil proceedings in the court involving the same parties.  His Honour summarises them at page 4 of the application book at lines 10 to 30.  His Honour makes finding in the application book starting at page 17.  I would only ask your Honours to read lines 26 to 35 where his Honour said it was submitted and his Honour accepted and going down to line 30:

there was a likelihood that in the course of executing the three warrants members of the Australian Federal Police would inspect documents providing information relevant to the pending litigation and would seize some of those documents as documents as falling within the scope of the warrants.

I will not take your Honours to the other passages, they are referred to in the material, but his Honour found that there was a risk of interference with the administration of justice.  The question that that raises very starkly is the decision of Mr Justice Lockhart in Arno v Forsyth, which is the third case in our folder.  The Federal Court had to deal with the same question in respect of legal professional privilege which we would say enjoys no greater protection than documents that may interfere with the course of justice.  Can I take your Honours to page 587 when his Honour was confronted with this problem, where there was a risk that legal professional privilege could be breached by the terms of a warrant.  At 587 point 3 his Honour restated the principles of Baker v Campbell and said in the last point:

Section 10 must, it seems to me, be now construed as excluding from the “things” which it authorises to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege.

His Honour then at point 9 said:

it would be contrary to the reasoning of the majority in Baker v Campbell for this Court to hold that it is only at the stage of execution of a search warrant that questions of legal professional privilege require consideration.  Section 10 must, it seems to me, be now construed as excluding from the “things” which it authorises to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege.

His Honour at the bottom of 588 refers to serious consequences if the issuing magistrate does not consider the question and then concludes at 589.  A conclusion that we say applies with equal if not greater force in respect of the documents that may risk interfering with the course of justice, his Honour said:

In the circumstances of this case and in the light of Baker v Campbell in my opinion the justice who issued the warrant should not have done so unless he was satisfied either that procedures would be adopted to safeguard the rights of the respondent and of his clients in relation to documents to which professional privilege would be expected to attach or that it was likely that professional privilege did not render the documents immune from search and seizure.  In either case the warrant should have been appropriately endorsed.

Now, of course, what has happened since then is ‑ ‑ ‑

GUMMOW J:   But was that the view of the court in Arno v Forsyth?

MR MERKEL:   No, the other two judges did not really deal with that directly because their Honours found that the warrant was bad on other grounds and what happened is it did not come back in that sense since because the police have adopted a proviso which is at page 112 to protect against legal professional privilege.  Now, what we say in the present case is his Honour Mr Justice Jenkinson at page 21 found there was no such duty, notwithstanding his Honour’s satisfaction that there was the requisite risk.

In the Full Court their Honours found that the question was to be answered by reference to improper purpose or contempt itself, which we say is the wrong question.  It really sidesteps the question raised by his Honour.  There is a duty to protect against the risk or there is not.  That question is not answered by reference to say was the warrant itself a contempt or an improper purpose, and the irony of that result is it means that effectively the documents that may interfere with the course of justice in a real sense can never be challenged as such because the warrant’s validity of the Full Court’s decision is established and stands, provided it was not a contempt or issued for an improper purpose.  Documents may be obtained which the executing party was not entitled to obtain, used, and the use will always be lawful because the warrant was lawful.  So we say the sidestepping of Justice Lockhart’s question means the issue never gets raised.  We say it is an important question.

BRENNAN CJ:   Mr Merkel, you have an extension of five minutes.

MR MERKEL:   Thank you, your Honour.

DAWSON J:   But if improper use was to be made of the documents, that could be prevented.

MR MERKEL:   But when your Honour says “improper use”, once the ‑ ‑ ‑

DAWSON J:   You mean in other proceedings, do you not, that they will be used in other proceedings?

MR MERKEL:   Yes.

DAWSON J:   Well, if they were sought to be used in other proceedings and that use was improper, there would be a remedy.

MR MERKEL:   Yes, but what we would say, your Honour, is that their Honours’ answer to that question is if the warrant was not a contempt and was not issued for an improper purpose then there is no suggestion that the documents seized could not be used in associated proceedings.  That would not be an improper use because it was never anteceded by an improper purpose.  There is no such restriction that the documents can only be used for a narrow or specific purpose.  We would say no leave of the court would be required to use them, but we say that the real point of Justice Lockhart’s decision is it is the risk of this interference that it is the duty of the magistrate to protect a party against. 

We say that arises even more starkly because of the generality of the warrant.  The more general the warrant, the less the prospect of anyone being able to show improper purpose or contempt because you will not be able to show that the documents sought to be seized related to the particular litigation.  So we say that there is a catch 22 inherent in that problem, but the real complaint we make about what happened here is their Honours sidestepped the question and have not answered the question raised by his Honour Justice Lockhart which is an important question directly associated with the generality of the warrant.

BRENNAN CJ:   But the problem is different, is it not?  Justice Lockhart was concerned with a limitation on the power to grant a search warrant and to execute a search warrant derived from the reading down of the power by reference to legal professional privilege.  Now, here there is no question about the reading down of the power.  It is a question of whether by reason of the use that the documents may be put to subsequently to the execution of the warrant there may be an abuse of process.  It is a different legal problem.

MR MERKEL:   We would say with respect, your Honour, it is not.  We would say that what his Honour was concerned with was the risk that documents seized could breach legal professional privilege.  The problem we are concerned with is that the documents seized could interfere with the course of justice and it is the protection against the risk that his Honour found was the duty.  The duty arose because a warrant could not authorise either course of conduct and, indeed, what Justice Dawson put to me may be very supportive of that.  If it is to be an improper use then it must be at the antecedent step that the protection arises to avoid the information being put in a position where it can be improperly used because there is not other protection.

As his Honour said, once the information intermingles itself in the mind of those who are the litigants, one can never really establish use in the required sense.  So we say that unless the duty is imposed at issue there is no duty, but in view of the time I will move on to the third point and I only wanted to say very briefly about judicial power that in contrast to the case your Honours heard last week on the intercept, the search warrant power has since the 13th Century been a function of justices and we say at 1900 had become part of the judicial power, albeit that it was conferred through legislation since Entick’s Case.  The Fourth Amendment in the United States was the constitutional embodiment of the Entick principle and it has always been regarded as requiring, as section 10 requires, a neutral and independent decision.  That has been treated in the United States as part of the judicial power ‑ ‑ ‑

GUMMOW J:   Is that right?  I am looking at footnote 18 on page 766 of the United States v United States District Court.  I thought this was agitated in the other matter.  It does not mean an officer exercising the judicial power of the United States under Article III.

MR MERKEL:   I am sorry, I missed that, your Honour.

GUMMOW J:   It does mean an officer of the United States is appointed under Article III to exercise the functions of a judge.

MR MERKEL:   That is so, your Honour, but that arises from the ‑ ‑ ‑

GUMMOW J:   The word “magistrate” is used in a popular sense.

MR MERKEL:   Yes, but, your Honour, that is so because in the United States, in contrast to the jurisprudence in Australia, judicial power has been exercised or conferred on persons other than judges and, indeed, Mistretta’s Case is an example that your Honours were referred to last week, that the sentencing commission with judges and non‑judges was placed in the judicial branch and in the United States non‑judges have exercised judicial power with a freedom that has not been existent here, but in 766 in the middle of the second column, your Honours, it is very clear that, as their Honours say:

This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.

That was in the context of the search warrant being part of the judicial power.

GUMMOW J:   I realise that and that is where footnote 18 appears.

MR MERKEL:   Well, your Honours were referred to a lot of jurisprudence last week on the question and we say it has always been treated as part of the judicial power, albeit exercised in some instances by persons other than judges.  We would say that for those reasons this is a case appropriate for the grant of special leave because it does raise three important questions not considered by this Court which have far reaching consequences and we say it is an apt vehicle for that.  If your Honours pleases and I am sorry for the extended time taken, your Honours.

BRENNAN CJ:   Mr Weinberg.

MR WEINBERG:   If the Court pleases, if I could deal firstly with the argument about impermissible delegation and undue width.  It is our submission that no relevant distinction can be drawn between the contentions advanced by our learned friends in this application and the argument that failed to find favour with the Court on 18 April in the Dunesky matter.  We say that the question that was asked by Justice Deane on that occasion was a most pertinent, indeed, a devastating question to which there really can be no proper or adequate answer if one is attacking three‑condition warrants on the basis that they do not specify with precision the kind of document which is to be sought.

BRENNAN CJ:   There is nothing in George v Rockett that suggests that a third condition in terms such as this one is always appropriate no matter what the state of the supportive evidence is.

MR WEINBERG:   No, your Honour, indeed, we accept that, but what George v Rockett was about ultimately was, as your Honour indicated, evidential sufficiency or insufficiency of the evidence in those particular circumstances and that is not in issue ‑ ‑ ‑

BRENNAN CJ:   But is it right that these three‑condition warrants in these general terms are, as it were, being processed regularly through magistrates on the basis that the evidence is sufficient?

MR WEINBERG:   Your Honour, are they being used generally?  The answer is, yes.  We would cavil with the word “processed”.  Applications are being made.  Magistrates are considering the information in support.  Magistrates are well attuned to what the requirements of satisfaction are through George v Rockett and only if the evidence is sufficient to justify the grant of a warrant are warrants granted.  There is one way in which ‑ ‑ ‑

BRENNAN CJ:   I mean, the question that was asked by Justice Deane was one which postulated a very particular set of circumstances, namely, that a suspect had said, “You will find the evidence against me in my bedroom.”

MR WEINBERG:   Yes, your Honour, and it was designed and did show that there could not be a requirement as a condition for validity of a warrant that one identify with a high degree of precision the kind of document or the kind of thing which would afford evidence of the commission of the offence or which there would be reasonable grounds to so believe, but there is one sense in which the change in the legislation that has occurred is of some significance and I just wanted to draw to the Court’s attention that the new legislation no longer requires reasonable belief that the items to be found will afford evidence of the commission of an offence.  The standard of satisfaction has been reduced from belief to suspicion, reasonable suspicion, and ‑ ‑ ‑

GUMMOW J:   Which section is that, Mr Weinberg?

MR WEINBERG:   Your Honour, one has to go to the provisions of the Crimes (Search Warrants and Powers of Arrest) Amendment Act No 65 of 1994 and the key provision is section 3E which subsection (1) refers to “evidential material”

reasonable grounds for suspecting that there is, or will be within the next 72 hours, any evidential material at the premises.

One then goes to the definition of “evidential material” in the interpretation section under section 3C:

evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form-

and one then goes to the definition of “thing relevant to an indictable offence” which is found in section 3 of the Crimes Act and under section 3 that definition is:

anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence -

so by that circuitous route what the Parliament has done is to alter the requirement that there be reasonable belief to a reasonable suspicion.  The Court will, of course, recall the distinction that was drawn between “belief” and “suspicion” in George v Rockett.  But this is not a case about evidential sufficiency.  It was argued at first instance that there was not sufficient evidence to justify the issue of a warrant in these terms and that finding that was made at first instance to the contrary by Mr Justice Jenkinson really was not attacked on appeal at all.  The way the case was conducted in the Full Court was that there is an attack upon the three-condition warrant.  There is something wrong with warrants in this.form and.on their face they are bad.  In our submission, it would be quite wrong for this Court to grant special leave to enable a different issue, namely, one of evidential sufficiency to be agitated before the Court.

There has been a finding made by the trial judge that there was evidential sufficiency for a warrant in these terms and your Honour the Chief Justice is, with respect, quite correct in saying that the broader the term of the description of the object, the more difficult it will be to achieve evidential sufficiency.  We accept that, and that plainly is what George v Rockett said but what George v Rockett did not say, with respect, was that one cannot have a warrant which contains general descriptions provided there is sufficient evidence to support it, and you seek such a warrant at your own peril.

The other point we make in relation to impermissible delegation - I think it was addressed in my friend’s written submissions - we simply rely upon the way that was dealt with by the Full Federal Court as being entirely apt and appropriate.

The second matter that my friend raises and relies upon - perhaps before I go on to that can I just say this that, in our respectful submission, when the Chief Justice, the then Chief Justice Sir Anthony Mason, said the matter did not “enjoy sufficient prospects of success”, his Honour had had the argument of principle agitated before the Court, not merely an examination of the particular warrant, and we also say that the particular warrant in the case of Dunesky was, in truth, although my friend seeks to distinguish it, not really narrower than the warrant that is before the Court in this case.

If I may turn then to the second point which - - -

BRENNAN CJ:   We do not need to trouble you on the second point.  In relation to the third point, that is, the judicial power, there is a consideration of that, of course, already pending in the Court.

MR WEINBERG:   Yes, there is.

BRENNAN CJ:   Have you any submissions to make as to the way in which that matter might be considered on this application.

MR WEINBERG:   Your Honour, we take the view that there is no relevant distinction that can sensibly be drawn between the power to grant a search warrant and the power to issue a telecommunications warrant under the Telecommunications (Interception) Act or, indeed, a listening device warrant or any of a host of warrants of the kind that are available to be issued including warrants permitting bodily samples to be taken or fingerprints to be ordered.  We say that they are either all administrative in nature or they are all an exercise of judicial power.  We would have thought, with respect, that when this Court determines the other matter, Grollo v Macauley, in relation to the Telecommunications Act, if the submissions advanced by our learned friend, Mr Castan, to the effect that that was an exercise of judicial power are made good then the inevitable consequence would be that that holding would determine that contrary to the views of this Court, and the Federal Court for many years, the power to issue warrants under section 10 and now under section 3E involves an exercise of the judicial power of the Commonwealth.  If it did, then, plainly, many warrants would fall because, in particular, these warrants are vested persona designata and plainly are vested persona designata and it is inconceivable that the exercise of the judicial power of the Commonwealth could be vested in that way.

BRENNAN CJ:   What then would be the result if that were to happen in the case of this warrant?

MR WEINBERG:   This is not really a case, your Honour, about anything other than whether or not evidence will be or should be admissible in a forthcoming trial.  My friend has his documents back.  There is no question of him being denied access to documents that his client needs.  He has copies.  When I say he has them back, he has copies of all documents.  It really is about pre-empting or anticipating an argument based on Bunning v Cross in a criminal trial which is forthcoming.

We would submit that if this Court, in the matter that was heard last week, were to hold that the function of issuing a telecommunications interception warrant involved an exercise of the judicial power of the Commonwealth, my friend would have his remedy in the trial.  He would be entitled to say to a trial judge, with a great deal of power, that necessarily the holding of this Court in relation to that issue meant that the issue of the search warrant, in this case, involved an exercise of the judicial power of the Commonwealth and then, for what it was worth, he might seek to have the evidence obtained under the warrant excluded in the exercise of the Bunning v Cross discretion.  He might have some difficulties at that point, the police and everyone else having acted on the footing that the legislation was, as it were, constitutionally valid.

We say that no prejudice would be done to my friend, no harm would be done to my friend, if that were the course that the Court were to take and refuse special leave.

BRENNAN CJ:   Now, if special leave were granted in this case and Mr Merkel was successful on that third point, what then would be the situation?

MR WEINBERG:   This and many other warrants, no doubt, would be bad, beyond power, and then my friend’s clients would have an argument that they could seek to raise in the trial that the evidence obtained should be excluded because it involved - - -

DAWSON J:   The same argument as in the previous - - -

MR WEINBERG:   The Bunning v Cross argument?

DAWSON J:   Yes.

MR WEINBERG:   Not quite the same argument because in the previous matter there is a right of exclusion under the statute.  Your Honour will recall that under the Telecommunications (Interception) Act there is automatic inadmissibility.  Under this statute, if the power were said to be judicial and therefore beyond power, the consequence would be, at best, a Bunning v Cross application.

BRENNAN CJ:   But would you have the evidence to tender?

MR WEINBERG:   We would certainly have the evidence to tender unless the Court made orders that we restored the documents and we would certainly be submitting to the Court that any questions of relief would need to be dealt with separately.  There is authority in Parker v Churchill, for example, that even if there is an unlawful search, it does not necessarily follow that the Court should make orders for the return of the original documents.  That is a separate question to be addressed and we would be seeking to be heard in argument.

BRENNAN CJ:   Well, of course, you would, but the question that I was raising was whether or not, if there were a successful challenge as the result of this application and a successful appeal following it, would the applicant not be entitled to seek to recover the documents which were the fruit of the then held to be unlawful warrant?

MR WEINBERG:   Yes, he not only would but he has in these proceedings.  That is one of the forms of relief that he seeks.

BRENNAN CJ:   Then it would not be a mere Bunning v Cross discretion which otherwise would be the limit of his remedy if special leave is now refused.

MR WEINBERG:   It would depend, your Honour, on whether secondary evidence could be given of the contents of documents which have been seen and photocopied; whether he would be entitled not merely to the return of the documents seized but also of any copies of such documents seized. 

BRENNAN CJ:   Perhaps that raises Calcraft v Guest again.

MR WEINBERG:   It does, your Honour, and there are many more complex issues than that.  So, it is not an easy question to answer.  At this stage what we would be saying, your Honour, is that so far as the future were concerned, if special leave were granted here, we would not be wanting to be taken as having conceded that the consequence of a finding that section 10 was invalid led to any consequences in terms of either return

of original documents or any evidential consequences.  We would say they would be matters for a trial judge.  But our primary submission, of course, is that the applicants’ position in relation to section 10 is fully protected by the outcome of the matter that was argued last week and he gains nothing further by having this point agitated again before the Court and having the same cases and the same arguments presented to the Court.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Weinberg.  Yes, Mr Merkel?

MR MERKEL:   We would say on the first point that the lowering of the evidentiary hurdle only makes more important the question of the generality of the three condition warrant which is in wider use and the conditions of which have gradually extended.  On the second point, your Honours, we would say that the question of the validity of these powers is an issue of critical importance but we would say that relief sought in the present case includes relief under the AD(JR) Act which would give the Court wide discretionary powers which would go far beyond any Bunning v Cross question and, indeed, at appeal book page 127 we have sought injunctive relief.

So, we say that these matters are far reaching and are appropriate for the grant of special leave for the reasons we have put forward to your Honours.  If your Honour pleases.

BRENNAN CJ:  The Court will adjourn briefly in order to consider the course which it should take.

AT 11.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM

BRENNAN CJ:   There is nothing in the reasons for judgment in George v Rockett (1990) 170 CLR 104 which in general terms would affirm the appropriateness of warrants containing the third condition of what has been described as the three‑condition warrant in this case. But, as the discussion in the case of Lego Australia Pty Ltd v Parraggio, No S142 of 1994, shows, there may be particular cases in which the evidence grounding the search warrant supports a warrant in that form.  In this application, however, the attack is not made on the sufficiency of the evidence but on the form of the warrant.  Another factor which is significant is that the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) has introduced a varied statutory regime governing the exercise of the power to issue search warrants. For these reasons, the application so far as it rests on the third condition of the search warrant is refused.

The second ground of the application is that the fruits of the execution of the warrant may be used for purposes foreign to those for which the warrant was issued.  This argument enjoys insufficient prospects of success to justify a grant of special leave.

In relation to the third ground, the Court notes that a question - at least analogous to the question which is now sought to be argued - is under consideration by a Full Court of this Court.  In the circumstances, the appropriate order is to refuse a grant of special leave but to reserve to the applicant leave to renew his application on the third ground if he should be so advised after the judgment of the Full Court in Grollo v Palmer is delivered.  Special leave is accordingly refused.

MR WEINBERG:   I do not know in the light of your Honour’s order what attitude the Court would take to an application for costs.

BRENNAN CJ:   It would take an unfavourable attitude to any application by you.

MR WEINBERG:   I will not make it, your Honour.

MR MERKEL:   I will not make it either, your Honours.

BRENNAN CJ:   In that case the matter will be disposed of by refusal of special leave subject to that leave being reserved.

AT 12.15 PM THE MATTER WAS CONCLUDED