Guillot, David John v Scruton, Noel James & Ors Murray, Stanley Wayne v Scruton, Noel James & Ors Theodore, John v Scruton, Noel James & Ors Stuckey, John Cameron v Scruton, Noel James
[1997] FCA 429
•27 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
VG 89 of 1996
BETWEEN: DAVID JOHN GUILLOT
(Applicant)
VG 90 of 1996
BETWEEN: STANLEY WAYNE MURRAY
(Applicant)
VG 91 of 1996
BETWEEN: JOHN THEODORE
(Applicant)
AND: NOEL JAMES SCRUTON
(First Respondent)
AND: GEOFFREY GERRARD CONNELLY
(Second Respondent)
AND: PAUL FREDERICK HOPKINS
(Third Respondent)
AND: STEPHAN NICHOLAS OBERS
(Fourth Respondent)
AND: MICHAEL STAFFORD HAWLEY
(Fifth Respondent)
AND: GRAEME MACAULEY
(Sixth Respondent)
AND: COMMISSIONER OF POLICE,
AUSTRALIAN FEDERAL POLICE
(Seventh Respondent)
AND: WENDY ELDER
(Eighth Respondent)
AND: BRIAN BARROW
(Ninth Respondent)
AND: SCOTT MITCHELL
(Tenth Respondent)
AND: JELENA POPOVIC
(Eleventh Respondent)
VG 92 of 1996
BETWEEN: JOHN CAMERON STUCKEY
(Applicant)
AND: NOEL JAMES SCRUTON
(First Respondent)
AND: GEOFFREY GERRARD CONNELLY
(Second Respondent)
AND: PAUL FREDERICK HOPKINS
(Third Respondent)
AND: STEPHAN NICHOLAS OBERS
(Fourth Respondent)
AND: MICHAEL STAFFORD HAWLEY
(Fifth Respondent)
AND: GRAEME MACAULEY
(Sixth Respondent)
AND: ROHAN GUY PIKE
(Seventh Respondent)
AND: COMMISSIONER OF POLICE,
AUSTRALIAN FEDERAL POLICE
(Eighth Respondent)
AND: WENDY ELDER
(Ninth Respondent)
AND: BRIAN BARROW
(Tenth Respondent)
AND: SCOTT MITCHELL
(Eleventh Respondent)
AND: JELENA POPOVIC
(Twelfth Respondent)
Coram: Ryan J
Date: 27 May 1997
Place: Melbourne
REASONS FOR JUDGMENT
RYAN J: The four applicants seek judicial review of decisions of various respondents to apply for and grant search warrants. In each case relief is sought by way of declaration and orders quashing the various decisions.
A statement of agreed facts common to all four of the proceedings has been placed before the Court. In brief, the four applicants were at all material times fishermen. The respondents Scruton, Connelly, Hopkins, Obers, Hawley, McCauley and Pike are members of the Australian Federal Police (the "AFP"). The Commissioner of Police for the AFP has been joined under that name as a respondent to each proceeding. Of the remaining respondents, Elder was a Justice of the Peace for New South Wales, Mitchell is a New South Wales Magistrate and Barrow and Popovic are Victorian Magistrates.
Before 21 March 1995 investigations had been carried out by the AFP into certain criminal offences allegedly committed by the applicants. For the purposes, and in furtherance, of those investigations, ten warrants, the subject of these proceedings, were applied for and obtained. Although the nine warrants obtained variously between 9 November 1993 and 22 August 1994 were issued under s. 10(4A) of the Fisheries Act 1952 ("the Act"), the warrant obtained on the 15 September 1992 ("the first warrant") was issued under s. 10 of the Crimes Act 1914. The 1952 Act was repealed as to ss 1 and 2 on 10 November 1991 and as to the remainder (save for Part IVA) on 3 February 1992 by s. 3 of the Fisheries Legislation (Consequential Provisions) Act 1991. The applicants have been charged with offences contrary to s. 29B of the Crimes Act 1914, which provides:
Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain
money or any other benefit or advantage, shall be guilty of an offence.
Materials obtained under the warrants have been included in the hand-up briefs to be used in committal proceedings against the applicants. Committal proceedings before the Magistrates' Court have been adjourned pending the outcome of this proceeding.
A preliminary issue of some significance concerns the submission by Counsel for the respondents that these proceedings ought to be dismissed as tending to fragment and delay the pending criminal proceedings. A Full Court of this Court in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 has recently examined this issue.
The Full Court said, at 187:
The principle is well established that criminal proceedings should not be fragmented by other courts' entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial.
It was noted, however, in discussing exceptions to this general rule that in claims for discretionary relief, by way of judicial review, a distinction can be drawn between cases which turn on (a) pure questions of law and (b) those where the issue raises a question of mixed fact and law. The Full Court went on to observe, at 188:
Prima facie there is much to be said in favour of the court's, in the exercise of its discretion, hearing and determining claims of type (a), above, if they are brought forward at an appropriate time. Where the facts are simple and few and the point is one of law, a claim may, as an exception to the fragmentation principle, be entertained
on an application for judicial review, even if it could affect the admissibility of evidence.
It seems to me that this proceeding comes within this exception. Far from there being any dispute as to fact, a common statement of facts has been agreed by both sides. The issues to be resolved are purely questions of law. Counsel for the respondents have emphasised that, even if this Court were to review the issuing of the warrants, the magistrate conducting the committal proceedings, or the trial judge, if any of the applicants are committed for trial, would still have to resolve, applying the principles enunciated in Bunning v Cross (1978) 141 CLR 54, whether to admit evidence obtained upon execution of the search warrants. Nevertheless, a ruling by this Court on the validity of warrants which have been issued may well be of assistance in resolving that problem of admissibility. It follows, in the circumstances, that to entertain the present application will not result in an undesirable fragmentation of the criminal proceedings. I shall, therefore, consider, for myself, whether the warrants have been validly issued.
Counsel for the applicants put the warrants into two categories. The first category embraced the first warrant issued on 15 September 1992 under s. 10 of the Crimes Act 1914. The first warrant was in what has become the customary form authorizing the holder of the warrant to search the specified premises for things which satisfied three stipulated conditions. The first condition limited the search to one for originals or copies of one or more of very generally described classes of documents. The second condition required the objects to be:
things which relate to, arise out of, or are connected with the transportation, purchase and/or sale of gemfish by or on behalf of the holders of licences or permits in relation to any of the following boats:
Boat NameLicence or Permit Holder Act
Ajax III Innes Bros 1952
Anne Marie V Kevin James Gray 1952
Antonia Richard, Ross & Paul Bagnato 1952
Arakiwa Guiseppe Bagnato 1952
Baroness Francesco Pirrello Jnr 1952
Charissa Charissa Pty Ltd 1952
Consolato C.R. & F.M. Musumeci 1991
(nominee Anthony John Musumeci)
Then followed similar details of a further ten vessels all of them referable to the 1992 Act. The second condition concluded with the notation:
where 1952 Act refers to and means the Fisheries Act 1952 and where 1991 Act refers to and means the Fisheries Management Act 1991
The third condition stipulated in the first warrant was in these terms:
THIRD CONDITION
things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth by the licence or permit holders listed in the second condition above or by persons acting on their behalf:
In relation to the 1952 Act boats listed in the second condition above, offences under section 13(2) of the Fisheries Act 1952 of:
(a)contravening section 13(1)(f) of that Act by, being the holder of a licence under that Act, contravening or failing to comply with a condition of that licence by taking gemfish from the South East Fishery by the method
known as trawling without having unused quota in respect of that gemfish;
(b)contravening section 13(1)(g) of that Act by, being the holder of a licence under that Act, causing or permitting a person acting on his/her behalf to contravene or fail to comply with a condition of that licence by taking gemfish from the South East Fishery by the method known as trawling without having unused quota in respect of that gemfish;
(c)contravening section 13(1)(h) of that Act by, being a person acting on behalf of the holder of a licence under that Act, contravene or fail to comply with a condition of that licence by taking gemfish from the South East Fishery by the method known as trawling without having unused quota in respect of that gemfish;
(d)section 13(1)(i) of that Act by doing an act prohibited by a notice for the time being in force under section 8 of that Act, namely taking gemfish from the South East Fishery by the method known as trawling contrary to Fisheries Notice No. SEF 1 dated 9 December 1991.
In relation to the 1991 Act boat listed in the second condition above, offences under section 95(5) of the Fisheries Management Act 1991 of:
(a)contravening section 95(1)(d) of that Act by, being the holder of a fishing concession, contravening a condition of that fishing concession by taking gemfish from the South East Fishery in excess of the quota assigned to the boat in relation to gemfish;
(b)contravening section 95(1)(e) of that Act by, being the holder of a fishing concession, causing or permitting a person acting on his/her behalf to contravene a condition of that fishing concession by taking gemfish from the South East Fishery in excess of the quota assigned to the boat in relation to gemfish;
(c)contravening section 95(1)(f) of that Act by, being a person acting on behalf of the holder of a fishing concession, contravene a condition of that fishing concession by taking gemfish from the South East Fishery in excess of the quota assigned to the boat in relation to gemfish.
In Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 O'Loughlin J declared that paragraph 11 of the South East Fisheries (Industrial Transferable Quota) Management Plan 1991 ("the Plan") adopted a statistical fallacy in calculating fishing catch quotas and, consequently, rendered the Plan void. That judgment was published on 28 July 1992 before the issue of the first
warrant. It was submitted that the consequence of that decision was that prosecutions for offences under s. 13 of the 1952 Act, insofar as they alleged contravention of, or failure to comply with, licence conditions established under the Plan, were thereafter not maintainable. The judgment of O'Loughlin J was subsequently affirmed by a Full Court of this Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381. That judgment was followed in Coleman v Gray (1994) 55 FCR 412.
In Coleman v Gray certain fishermen who had been operating in the South East Fishery and who had been prosecuted by Commonwealth officers for alleged breaches of licence conditions, sought declarations from Einfeld J to the effect that none of the offences alleged pursuant to the 1952 Act gave rise to maintainable charges. Einfeld J held that the logical consequence of O'Loughlin J's decision in Austral Fisheries was that the whole of the licensing scheme under the Plan fell with the fallacious mathematical calculations in paragraph 11 of the Plan. Consequently, no prosecution could be maintained for a relevant offence said to have been constituted by a contravention of the 1952 Act. On appeal, Davies, Beaumont and Gummow JJ in Coleman v Gray (1994) 55 FCR 412 dismissed the appeal against Einfeld J's decision save in one immaterial respect and upheld the declaration that none of the charges laid pursuant to s. 13 of the 1952 Act could be maintained.
Counsel for the present applicants submitted that the charges invoking s. 13(1) of the 1952 Act referred to in the first warrant, were similarly not maintainable and that accordingly, the warrant, to the extent that it authorized the seizure of anything that might provide evidence of the commission of what were described as offences against that sub-section, was invalid as s.10 of the Crimes Act is predicated on an offence against a law of the Commonwealth having been, or being intended to be, committed. Counsel for the applicants accepted that this argument did not support an attack on the first warrant insofar as it authorized the seizure of material which might provide evidence of the commission of offences under s. 95(5) of the Fisheries Management Act 1991.
Counsel for the respondent submitted that the contentions which I have just outlined had not been pleaded and that no material to support those contentions had been placed before the Court. In reply, Counsel for the applicants submitted that no amendment to the pleadings was required and that all that was raised was a question of law. The latter submission is, in my opinion, correct and no amendment to the pleadings is required. Moreover, in the light of the authorities noted above, and the contentions advanced by the applicants' counsel, no prosecution could have been maintained in respect of the offences purportedly created by s. 13 of the 1952 Act. Consequently, there was, to that extent, no proper basis for the issue of the first warrant under s. 10 of the Crimes Act.
Each of the nine warrants in what Counsel for the applicants called the second category was also in the customary "three condition" form. The first condition similarly limited the search to one for originals or copies of a wide range of documents. The second condition required those documents to "relate to any one or more of the following". Then followed a list of some sixteen natural persons, including each of the applicants, Guillot, Murray, Theodore and Stuckey. The third condition was in these terms:
THIRD CONDITION
AS to which THIRDLY there are reasonable grounds for believing that the same will afford evidence as to the commission of any one or more of the following offences, namely that:
1.In an SEF 2 return relating to fishing made or purporting to be made on or about 31 July 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) John Cameron Stuckey furnished information that was to the knowledge of John Cameron Stuckey false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
2.In an SEF 2 return relating to fishing made or purporting to be made on or about 1 August 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) David John Guillot furnished information that was to the knowledge of David John Guillot false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
3.In an SEF 2 return relating to fishing made or purporting to be made on or about 2 August 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) Stanley Wayne Murray furnished information that was to the knowledge of Stanley Wayne Murray false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
4.In an SEF 2 return relating to fishing made or purporting to be made on or about 4 August 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) David John Guillot furnished information that was to the knowledge of David John Guillot false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
5.In an SEF 2 return relating to fishing made or purporting to be made on or about 4 August 1992 at Port Welshpool in
the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) John Cameron Stuckey furnished information that was to the knowledge of John Cameron Stuckey false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
6.In an SEF 2 return relating to fishing made or purporting to be made on or about 7 August 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) Stanley Wayne Murray furnished information that was to the knowledge of Stanley Wayne Murray false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
7.In an SEF 2 return relating to fishing made or purporting to be made on or about 21 August 1992 at Port Welshpool in the State of Victoria under the Fishing Regulations in force under the Fisheries Act 1952 (Cwlth.) John Cameron Stuckey furnished information that was to the knowledge of John Cameron Stuckey false or misleading in a material particular contrary to paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth.).
8.Between 1 January 1992 and 31 December 1992 at Port Welshpool and other places in and out of the State of Victoria John Cameron Stuckey, David John Guillot, and Stanley Wayne Murray did contrary to the provisions of paragraph 86(1)(a) of the Crimes Act 1914 (Cwlth.) conspire with Jane and John Argyros and diverse other persons to commit offences against a law of the Commonwealth to wit paragraph 14(2)(ba) of the Fisheries Act 1952 (Cwlth).
The nine warrants in the second category were issued after 14 September 1992 purportedly pursuant to s. 10 of the 1952 Act. By that date, however, the Act had been repealed by the Fisheries Legislation (Consequential Provisions) Act 1991.
Accordingly, the applicants submit, the warrants were improperly issued because it was impossible for any document to afford evidence of the commission of any offence against s. 14(2)(ba) of the 1952 Act which had been repealed with effect from 3 February 1992. Section 14(2)(ba) provided that:
A person who-
(ba)in a record, report, return or other document relating to fishing made, given or furnished, or purporting to be made, given or furnished, under this Act, the regulations or a plan
of management, makes a statement or furnishes information that is, to the knowledge of the person, false or misleading in a material particular;
is guilty of an offence punishable, on conviction, by-
(c)if the person is a natural person - a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both; or
(d)if the person is a body corporate - a fine not exceeding $25,000.
It seems to be indisputable that offences against s. 14(2)(ba) on which the warrants in the second category were predicated, involved the making of materially false or misleading returns under Reg. 15A of the Fisheries Regulations. That regulation defined "Management Plan" as:
The South East Fishery (Individual Transferable Quota) Management Plan made by the Minister on 9 December 1991 and published in the Gazette on 9 December 1991;
Reg. 15A(2) applied to:
SEF species [of fish] taken by a boat in relation to which units under the Management Plan have been allocated or have been assigned as a result of a transfer.
The Management Plan was clearly The Plan which was effectively avoided ab initio by O'Loughlin J in Austral Fisheries v Minister for Primary Industries (supra) - see esp. at 464. As a result, it was impossible for the purported making of any SEF return to constitute an offence against the 1952 Act.
It has been accepted on both sides that the fact of the repeal of the 1952 Act and the terms of the judgment of O'Loughlin J in Austral Fisheries were put before the issuing Magistrates and Justice at the time of the application for each of the warrants in the second category. It follows from the
conclusion which I have just reached that it was not open, as a matter of law, to the Magistrates and the Justice to be satisfied that any of the documents specified in the warrants in the second category might have afforded evidence as to the commission of an offence against the 1952 Act. I shall make declarations accordingly.
In the light of that conclusion, it is strictly unnecessary to consider the remaining issues which centred on the application of the Acts Interpretation Act 1901 and whether the applicants for the warrants retained their status as officers under the 1952 Act after its repeal. However, out of deference to the careful arguments which have been addressed to those issues, I shall outline my views on them.
Before its repeal, the 1952 Act provided by s. 10(4) and (4A):
Where an officer has reasonable grounds to believe that there is on any land or in any premises any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, the officer may make application to a Justice of the Peace for a warrant authorizing the officer to enter the land or premises for the purpose of ascertaining whether there is on that land or in those premises any such document, equipment or thing.
(4A)If, on application by an officer under sub-section (4), a Justice of the Peace is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, on the land or in the premises to which the application relates, any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, the Justice of the Peace may issue a warrant authorizing the officer, together with any other person named in the warrant, to enter that land or those premises, during such hours of the day or night as the warrant specifies, or, if the warrant so specifies, at any time, and to exercise the powers referred to in sub-paragraphs (1) (ab) (ii) and (iii).
Section 4 of the same Act relevantly defined "officer" to include a member of the AFP or a member of the Police Force of a State or Territory.
Counsel for the respondents submitted that the validity of the warrants in the second category was saved by s. 8 of the Acts Interpretation Act 1901 which provides:
Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
It was submitted on behalf of the respondents that s. 8 permitted an "investigation" to be instituted or continued as if the repealing legislation had not been passed. The effect of paragraph (c), it was said, was to preserve liability for the offences alleged to have been committed while paragraph (e) protected investigations into those offences. Investigations might thus be continued or instituted in respect of such offences by whatever means the investigators
might consider appropriate, including procuring the issue of, and executing, search warrants.
Two alternative arguments were advanced by Counsel for the applicants against this contention. First, it was said that the issue of a search warrant is not an investigation but rather a procedural matter and so not preserved by paragraph (e); see Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 at 245. Accordingly, the procedure provided for under s. 10 of the 1952 Act was no longer available when the Act was repealed. Alternatively, even if s. 10 of the 1952 Act was preserved, one had to be an "officer" to apply under that section and the repeal of the Act included s. 4 which accorded that status to, amongst others, members of the AFP. Thus, it was said, no standing was afforded to any of the applicants for the warrants in the second category, each of which was therefore void.
In my opinion, s. 8(e) preserves the "right" to continue investigations. I do not regard s. 10(4A) of the 1952 Act as being procedural in the sense in which the Rules of the Supreme Court of Queensland were held in Yrttiaho v The Public Curator of Queensland to possess that character. I regard the rule to which effect was given in that case as confined to matters which are procedural in the sense that they govern proceedings in a court to enforce or vindicate preserved or vested rights, liabilities or immunities. Thus, in a passage
quoted by Gibbs J in Yrttiaho, Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 observed, at 267:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch. D. 62. "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done" (1876) 3 Ch. D. at p. 69.
Although the power to issue a warrant under s. 10(4A) of the 1952 Act was reposed in a Magistrate or Justice of the Peace, it remained an administrative power. Despite being adjectival in character, it was not procedural in the sense of being in aid of curial proceedings so as to attract the operation of the principle discussed in Maxwell v Murphy. Given the acceptance by Counsel for the applicants that section s. 8(e) of the Acts Interpretation Act preserves the continuation of investigations into whether offences have been committed against a repealed Act, it would be curious if a mechanism for pursuing such an investigation, like a search warrant, remained available only if the administrative act of issuing the warrant had occurred before the repeal.
Similar reasoning would have led me, had it been necessary, to conclude that the right or privilege of a member of the AFP to
exercise all or any of the powers conferred on "officers" by the 1952 Act in respect of offences committed or matters which accrued before its repeal was preserved by s. 8(c) and (e) of the Acts Interpretation Act. However, as already indicated, I have been constrained to allow the applications for the substantive reason discussed above. I shall hear Counsel on the form of orders and the question of costs.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Appearance - VG 89, 90, 91 and 92 of 1996
Counsel for Applicants : Mr R. Tracey, QC
and Mr G. Silbert
Solicitors for Applicants : McMahon Fearnley
Counsel for Respondents : Ms L. Lieder, QC
and Mr R. Brett
Solicitors for the Respondents : Australian Government
Solicitor
Date of Hearing : 30 May 1996
Date of Judgment : 27 May 1997
0
8
0