Harts Australia Ltd v Commissioner, Australian Federal Police

[1996] FCA 1008

CATCHWORDS

SEARCH WARRANT - formal validity of a warrant issued under s 3E of Part 1AA the Crimes Act 1914 (Cth) in aid of an investigation into suspected revenue offences - requisite state of mind of the issuing officer - whether “evidential material”, as defined in s 3C(1), can only be satisfied where the issuing officer believes (as opposed to suspects) on reasonable grounds that the material in question will afford evidence of the commission of an offence.

SEARCH WARRANT - formal validity - whether warrant contains a statement of “the offences to which the warrant relates” as required by s 3E(5)(a) where the warrant describes the kinds of evidential material to be searched for, as required by s 3E(5)(c), by reference to their capacity to prove certain specified offences.

SEARCH WARRANT - formal validity - whether warrant contains a description of “the kinds of evidential material that are to be searched for under the warrant” sufficient to satisfy s 3E(5)(c) - “evidential material” authorised to be searched for and seized identified by reference to material which satisfies three conditions - each condition expressed in broad terms, covering a wide range of material, a large number of organisations and persons and relating to four offences - whether warrant unlawful as a general warrant - authorisation of a wide search not fatal to validity of a warrant issued under Part 1AA, provided a real limit is placed by the warrant on the scope of the permitted search and seizure, particularly where issued in connection with investigation of complex transactions - significant differences between the regime introduced by the new Part 1AA and the repealed s 10(1) the Crimes Act discussed.

Crimes Act 1914 (Cth) - Part 1AA, ss 3C, 3E, 3F, 3K

Cases Considered

Arno v Forsyth (1986) 65 ALR 125
Baker v Campbell (1983) 153 CLR 52
Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 103 ALR 167
Brewer v Castles (1984) 1 FCR 55
Coco v R (1994) 120 ALR 415
Coward v Allen (1984) 52 ALR 320

Dunesky v Elder (1994) 126 ALR 522
George v Rockett (1990) 170 CLR 104
Grollo v Macauley (1995) 56 FCR 533
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952
Parker v Churchill (1985) 9 FCR 316
Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 128 ALR 657
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Trimboli v Onley (No 3) (1981) 56 FLR 321

HARTS AUSTRALIA LIMITED & ORS v THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS
QG 162 OF 1996

DRUMMOND J
BRISBANE
19 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 162 of 1996
QUEENSLAND DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:HARTS AUSTRALIA LIMITED ACN 010 765 392

HARTS PTY LTD ACN 010 093 663

First Applicants

AND:STEVEN IRVINE HART

ROBERT THOMAS ADCOCK

ASTION PTY LTD

Second Applicants

AND:THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE

First Respondent

AND:MICHAEL JOHN MORRIS

Second Respondent

AND:WILLIAM JOSEPH McKAY

Third Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  19 November 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1.  All parties have liberty to apply.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 162 of 1996
QUEENSLAND DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:HARTS AUSTRALIA LIMITED ACN 010 765 392

HARTS PTY LTD ACN 010 093 663

First Applicants

AND:STEVEN IRVINE HART

ROBERT THOMAS ADCOCK

ASTION PTY LTD

Second Applicants

AND:THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE

First Respondent

AND:MICHAEL JOHN MORRIS

Second Respondent

AND:WILLIAM JOSEPH McKAY

Third Respondent

CORAM:Drummond J

DATE:19 November 1996

PLACE:Brisbane

REASONS

By their amended application, the applicants seek to review the decision of the third respondent, a stipendiary magistrate, made on 6 September 1996, to issue a search warrant under s 3E of Part 1AA the Crimes Act 1914 (Cth)
(the Act) in relation to premises from which one of the first applicants carries on business as accountants, and also to review the decisions and/or conduct of the first and second respondents in executing the warrant.  The only issue for my determination in this phase of the proceedings is whether the warrant fails to meet the formal requirements of the relevant provisions of Part 1AA of the Act.  A copy of the warrant (minus certain explanatory material appended to it) is annexed to these reasons.

The applicant, Harts Australia Limited, is the holding company of the companies which comprise the “Harts Group”.  The applicant, Harts Pty Ltd, carries on an accounting practice at 240 Margaret Street, Brisbane (the premises specified in the warrant) and at other places in Queensland.  The applicants Mr Hart and Mr Adcock are directors of Harts Australia Ltd.

The applicants rely upon three grounds to challenge the validity of the warrant. 

Firstly, it is contended that s 3E(1), on its proper construction, only authorises the issue of a warrant in circumstances in which the issuing officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, at the premises in question, any “evidential material”, an expression which it is said can only be satisfied where the issuing officer, on reasonable grounds, believes (as opposed to suspects) that the material in question will afford evidence of the commission of an offence.

Sections 3E(1) and 3C(1) provide, relevantly, as follows:

"3E(1)An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.”

“3C(1)‘evidential material’ means a thing relevant to an ... offence ... including such a thing in electronic form.”

It is said that a deficiency in the form of the warrant here in question appears on its face from the fact that the magistrate has confined himself to expressing in the warrant his satisfaction that there were reasonable grounds for suspecting that there was at a particular location certain material for which there were reasonable grounds for also suspecting (not believing) that it would afford evidence as to the commission of certain offences.  Reference was made to the well-established rule that a warrant must show on its face the requisite state of mind of the issuing officer:  see George v Rockett (1990) 170 CLR 104 at 111, a decision also relied on as showing, at 115, the significant difference been a suspicion and a belief, in the context of the process of issuing a search warrant.

The issue of search warrants was previously governed by s 10(1) of the Act. Part 1AA was inserted into the Act in substitution for that section (and associated sections) by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth), an Act which reflects the Parliament’s acceptance of the recommendations of the Committee to Review the Criminal Law of the Commonwealth (the Gibbs Committee). The applicants’ submission involves the proposition that, despite the repeal of s 10(1) and the substitution for that provision of those now contained in Part 1AA, which deal with the issue of search warrants, the law as to the circumstances in which an issuing authority is empowered to issue a search warrant has not been changed. Section 10(1) empowered a magistrate to issue a search warrant if “satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises ¼ anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of” certain offences. Section 3E now authorises the issue of a search warrant to search premises if the magistrate “is satisfied by information on oath that there are reasonable grounds for suspecting that there is ¼ any evidential material at the premises”.  I have already set out the definition of “evidential material”.

The applicants rely on the absence of any suggestion in the Explanatory Memorandum to the Amendment Act, in the Parliamentary debates on the relevant Bill and in the reports of the Gibbs Committee, that the existing law was to be or should be changed in this respect. However, the language of s 3E(1) is so clearly different from that of s 10(1) that it is, in my opinion, impermissible to read down the unambiguous words of the new provision by implying into them, through the definition of “evidential material” in s 3C(1), a restriction contained in the earlier provision. In my opinion, the clarity of the drafting of s 3E reveals a clear legislative intent to reduce the requirements to be satisfied before magistrates are authorised to issue search warrants. Provided the magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is material at premises and that there are also reasonable grounds for suspecting that the material is “evidential material”, ie, material relevant to an offence, he is authorised by s 3E to issue a warrant which will in turn authorise the search of those premises for that material.

This conclusion is reinforced by other provisions of Part 1AA. Section 3E(6)(a) requires the issuing officer to state in the warrant:

"that the warrant authorises seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c) [ie, the kinds of evidential material identified in the warrant as those to be searched for under the warrant]) found at the premises in the course of the search that the executing officer ¼ believes on reasonable grounds to be:

(i)evidential material in relation to an offence to which the warrant relates; or

(ii)a thing relevant to another offence that is an indictable offence;

if the executing offer ... believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence...”

Section 3F sets out the activities which a warrant issued under s 3E(1) authorises the executing officer (and any constable assisting him) to carry out. These include:

“to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises”; (s 3F(1)(c)) and

“to seize other things found at the premises in the course of the search that the executing officer or a constable assisting ¼ believes on reasonable grounds to be:

(i)evidential material in relation to an offence to which the warrant relates; or

(ii)evidential material in relation to another offence that is an indictable offence;

if the executing officer ... believes on reasonable grounds that seizure of the thing is necessary to prevent their concealment, loss or destruction or their use in committing an offence” (s 3F(1)(d)).

Sections 3E(6) and 3F show that the draftsman, in drawing the provisions of Part 1AA that govern search warrants, was alert to the significant difference between a “suspicion on reasonable grounds” and a “belief on reasonable grounds” referred to in George v Rockett. The more stringent requirement of a “belief” on reasonable grounds is imposed by the new provisions on executing officers (and their assistants) in circumstances in which it is sought to seize “things” which either are not referred to in the warrant, but which relate to the offences specified in the warrant or which relate to other quite different indictable offences. The legislation is clear in its intent, however, in imposing the less stringent requirement of a “suspicion” on the magistrate who issues the warrant. It cannot be accepted that the use of the phrases “reasonable grounds for suspecting” (s 3E(1)) and “believes on reasonable grounds” (ss 3E(6)(a) and 3F(1)(d)), and the introduction of the entirely new concept of “evidential material” is accidental and that s 3E was intended to effect no change whatsoever to the requirements of s 10(1).

The magistrate who issued this warrant has sufficiently recorded in the warrant that he is of the state of mind that must exist to justify the issue of the search warrant.  The applicants’ first ground of challenge is rejected.

The second objection to the warrant is that it fails to contain the statement required by s 3E(5)(a) of the offence to which the warrant relates. The applicants submit that, having regard to the terms of s 3E(5), there should have appeared in the warrant a statement to the effect: “the offences to which this warrant relates are ¼”, and that the s 3E(5)(a) requirement is not satisfied by setting out in the warrant the information required by s 3E(5)(c), if that information (as here) happens to describe the kinds of evidential material that are to be searched for by reference to their capacity to prove certain specified offences.

Provisions such as the old s 10(1), unlike the new s 3E(5)(a), did not in terms require the identification in the warrant of any particular offence. But it was established by judicial decision that it was essential to the validity of a warrant that it refer to a specific offence. The purpose of that requirement was to indicate the area of the search, and to “authorise seizure by reference to that offence”: R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113; Parker v Churchill (1985) 9 FCR 316 at 319; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 103 ALR 167 at 178; Grollo v Macauley (1995) 56 FCR 533 at 549. Judicial decision imposed this requirement as part of the scheme governing the issue of search warrants which was designed to enable both the officer executing the warrant and also the person at whose premises the warrant is executed, “to form some judgment” whether a particular document was within or without the authority to search for and seize conferred by the warrant and to know the permissible limits (as opposed to the exact object) of the search: see Beneficial Finance at 178 and 187-188.

The new Part 1AA is much more explicit than the old s 10(1) in spelling out the formal requirements of a search warrant. The words of s 3E(5)(a) are sufficient in themselves to show that the identification in the warrant of the offence to which it relates is essential to the validity of a warrant issued under Part 1AA. In any event, as one of the statutory requirements to be complied with when a search warrant is issued, it must be strictly complied with: George v Rockett at 110-111; Grollo v Macauley at 540, 545; Coco v R (1994) 120 ALR 415; Dunesky v Elder (1994) 126 ALR 522 at 532. It is, in my opinion, clear from the long history of this requirement of a valid search warrant that the object of the new s 3E(5)(a) is similar to the traditional requirement, viz, to indicate to both the executing officer and the person at whose premises the warrant is executed the area of the search and that seizure is authorised by reference to the stated offence.

In Beneficial Finance, Burchett J (with whom the other members of the Full Court, Sheppard and Pincus JJ agreed) dealt with the degree of particularity needed in identifying the offences to which a warrant relates. His Honour said (at 188):

“The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case.  The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search.  The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals.”

The applicants’ second objection is founded on the proposition that all that is described at pp 7 and 8 of the warrant is a characteristic that must be possessed by material before it can lawfully be seized, viz, that it must be material for which the issuing officer considered that there were reasonable grounds for suspecting that it would afford evidence of the commission of the specified offences. It was submitted that reference in this warrant to the four offences, in the context of describing the material to be searched for and seized, does not satisfy the requirement of s 3E(5)(a) that the warrant state the offence to which the warrant itself relates. Counsel points out that material to be seized may be described by reference to its value in tending to prove the commission of particular offences, but the offence to which the warrant relates is the offence in aid of the investigation or prosecution of which the warrant is issued and that offence may be quite different from an offence mentioned in the warrant only in the context of describing the material authorised to be taken. It was said, eg, that a warrant may describe material to be seized as being material that tends to prove that an offence of forgery has been committed by A, when the offence in respect of which the warrant was issued, ie, that to which it relates, is an offence of seeking to pervert the course of justice committed by B, who had put the document before a court as a genuine document, knowing it to be forged. A warrant that did not state that it related to the latter offence would not comply with s 3E(5)(a).

Counsel’s proposition is no doubt correct, as a proposition considered in the abstract.  But a warrant that authorises the seizure of material that answers the description of material that affords evidence as to the commission of an offence specified in the warrant can fairly be read as a warrant that identifies that offence as the particular offence to which the warrant relates.  It is, I think, difficult to read a search warrant that authorises the search for and taking of material, because the material will tend to prove a particular offence, in any other way (although it would, of course, always be open to the person attacking the warrant to prove that a warrant so worded was, in truth, sought to gather evidence to prove an entirely different offence from that referred to in the warrant in such a context).

In the present case, the warrant is not ambiguous on its face, since it does make clear enough that the offences listed at pp 7 and 8 are the offences to which the warrant relates in the sense I have explained.  No question arises at the moment as to whether there is available evidence extrinsic to the warrant that suggests that the warrant may in truth relate to different offences.  The applicants’ second objection must therefore also be rejected.

The third challenge to the validity of the warrant is that the warrant does not comply with s 3E(5)(c) in so far as it does not contain a description of “the kinds of evidential material that are to be searched for under the warrant” sufficient to satisfy that statutory requirement.

The warrant here in question records the magistrate’s satisfaction that there are reasonable grounds for suspecting that there is located at the premises in question evidential material which satisfies three conditions: firstly, that it is material which falls within the various descriptions of document at pp 1-3 of the warrant; secondly, that it is material which relates to one or more of the numerous organisations, trusts, companies and natural persons listed at pp 3-7 of the warrant; and, finally, that the material comprises “things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth”, offences which are then specified at pp 7 and 8 of the warrant. The warrant goes on to describe the kinds of material that are to be searched for, in purported compliance with s 3E(5)(c), as material which satisfies all three of these conditions.

The applicants submit that the first condition of the warrant, by reference to which the material to be searched for is defined, covers an extremely wide range of material, while the second condition, by listing so many organisations and persons, including the ATO, to which any material in any of the classes in the first condition must relate does little to restrict the very wide range of material capable of satisfying the first two conditions.  It is then submitted that the third condition, by identifying the material authorised to be searched for as material answering the descriptions in the first two conditions for which, in addition, there are reasonable grounds for suspecting that it will afford evidence as to the commission of one or more of the four nominated offences does little to cut down the very broad range of material to be searched for, given the lack of particulars of the offences provided in the warrant.  It was submitted that this warrant is in effect unlawful as a general warrant authorising the seizure of practically any documentation at all, a proposition which it is said one of the searching officers adopted in speaking to one of the applicants in the course of the search during which material was taken.

The term “general warrant” strictly refers to a warrant issued in times past under the prerogative power, commonly in sedition cases, and which purported to authorise the arrest of unnamed persons (and the seizure of all their papers).  Such warrants were held to be unlawful as lacking statutory authority in the old case of Entick v Carrington:  see Jowitt’s Dictionary of English Law, 2nd Ed, p 856 and Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1008-1009. However, the term is now sometimes used to describe a warrant issued under statutory authority that is so vague in its operation as to permit an unlimited search and seizure. Cf Arno v Forsyth (1986) 65 ALR 125 at 130 and 139-140 and Inland Revenue Commissioners v Rossminster Ltd at 1005-1006.

It is important to note that, despite its terms, the warrant here in question does not authorise the executing officer to search for or to seize anything. The executing officer’s authority to do both comes from s 3F(1)(c) of the Act, not from the authorisation which the magistrate has himself expressly purported to give to the executing officer at p 8 of the warrant “to search the premises for any evidential material that satisfies all of the three considerations specified above and to seize any such evidential material that may be found”. An authorisation of that sort by the issuing magistrate was essential to the validity of a warrant issued under the old s 10(1), which took the form of a statutory permission to the issuing magistrate to give the executing officer a lawful authorisation to search and seize. See Baker v Campbell (1983) 153 CLR 52 at 82, cited in George v Rockett at 110. The new s 3E(1), however, does not go beyond permitting a magistrate to “issue a warrant to search premises”, if certain conditions are satisfied. Once a warrant to search has issued under s 3E(1), it is s 3F(1), not anything that may be done by the issuing magistrate, which gives the executing officer his authority to search the premises and to seize a range of material, if found there. Section 3E(5) requires the magistrate to state in the warrant a number of things, including the kinds of material to be searched for under the warrant; but such statements are not authorisations to the executing officer to do anything, rather is the statement in the warrant of the range of information in accordance with s 3E(5), (6) and (7) required by the Act as an authoritative indication to both the executing officer and to the person whose premises are to be searched of what the executing officer can lawfully do in the course of the search he is authorised to make by s 3F.

The material suspected of being at the nominated premises and to be searched for is identified in the warrant as material that satisfies three conditions, the second of which confines the material to material relating to a large group of persons:  but this warrant does not have the defect of the warrant considered in Arno v Forsyth, which led the Court to describe its reach as so wide as to “approximate a general warrant” (pp 130, 140 and 144-145), because it specifically identifies each member of the group.  The third condition is that the material must be material as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of four offences; each offence is described by reference to the relevant section of the Crimes Act and the dates (covering a period of years) between which the offence is said to have been committed are stated.  In two cases, offences a) and b), the sole perpetrator of the fraud and the victim (the ATO) is stated, while in each of the other two cases, offences c) and d), which both involve conspiracies to defraud the ATO, only some of the conspirators are named, it being said in each case that the conspiracy was committed by the named persons “and others”.

The form of the warrant follows that used in warrants issued under the old s 10(1) which were considered in cases such as Arno v Forsyth; Beneficial Finance; Dunesky v Elder; Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 128 ALR 657 and Grollo v Macauley.  It was well established that “there is nothing wrong in principle with the adoption of the three stages required by these warrants which ... [operate] as a refining process having the legitimate effect of narrowing, by stages, the scope of inquiry to be undertaken by those executing the warrants”:  Propend Finance at 667 per Beaumont J; see also Grollo v Macauley at 536, per Black CJ, and Dunesky v Elder at 536. The requirement in the warrant that, before material can be taken, it must satisfy the third condition referred to in the warrant, viz, that it must be material for which there are reasonable grounds for suspecting that it will afford evidence as to the commission of one or more of the offences referred to in the warrant, has been held, in relation to warrants issued under the old s 10(1), to be effective as a limitation on the kind of material that can lawfully be seized under the warrant. All the judges in Dunesky v Elder were of the opinion that such a condition by reference to which the material to be searched for and taken under the warrant issued under the old s 10(1) was described, can only be satisfied if, as a matter of objective fact, it can be said that there are reasonable grounds for believing that the material will afford evidence as to the commission of one or more of the offences stated in the warrant: see pp 524, 536 and 539. The Chief Justice differed from Lockhart, Beaumont and Hill JJ in thinking that such a condition infringed the principle, established by George v Rockett, that the requisite satisfaction for the purposes of the old s 10(1) must be that of the magistrate, not that of the executing officer, because it failed to limit the information by which reasonable grounds could be shown for the belief that material taken under the warrant would afford evidence of the commission of an offence in respect of which the warrant was issued to the information on oath that was placed before the magistrate who issued the warrant: the other three judges held that the condition did so limit the information to which regard could be had. See also Grollo at 536.

The form of the warrant here in question does not differ from those in these cases, save that where the third condition specifies certain offences, no particulars are given of the conduct said to constitute the particular offence. This omission is said to be one reason why the warrant does not comply with s 3E(5)(c). In Dunesky, Propend and Beneficial Finance, the warrant did, to a greater or lesser extent, give some information on that matter.  However, the warrant in Grollo (set out at 56 FCR 551-555) was no more informative in this regard than the warrant now of concern, at least so far as offences numbered 1, 2, 3 and 11 are concerned. As appears from para 1 of condition 1 at 56 FCR 552, it authorised the seizure of a range of material wider than that referred to in the instant warrant, viz, documents, including sound and visual recordings, without any limitation and, as appears from condition 2 at p 552-553, it authorised the seizure of any such documents that were connected with the affairs of any one or more of 17 persons, companies and organisations and with the affairs of any of the members of the Australian Federal Police.

The attack on the warrant in Grollo as being so wide in its terms as to be general in nature and therefore invalid was rejected.  Northrop and Ryan JJ said:

“In the present case, condition one identifies a large number of things, some of which are generically described such as diaries, banking records, disks, video tapes, films and files.  ¼  The volume or extent of things cannot, by itself, preclude the existence of the requisite suspicion and belief.”  (p 547)

“¼  In the light of the material contained in the ‘information’, there were reasonable grounds for suspecting that those things were in the identified premises or vehicles.  [The Court had before it the information on which the magistrate relied to issue the warrant.]

This, however, does not conclude the matter.  The things authorised to be seized are limited to those things identified in condition one which come within the limitations expressed in each of conditions two and three, namely that the things must pertain to, arise out of, be connected with or relate to the affairs of any one or more of the named persons and that they could afford evidence of the commission of the identified offences.”  (p 548)

“In the present case, the categories of offences are identified with some precision, but the categories of things to be seized are not capable of being identified so precisely.  This highlights the problem.  The search is wide but the power to seize is limited to those things which bear the necessary relation to the categories of offences identified.

¼

The authority to search for the things identified in condition one arises by implication from the power to seize.  The search, of necessity, may have to be very extensive.  Where documents are involved, it will be necessary to look at the contents to enable the searcher to determine
whether the document is one which comes within conditions two and three of the warrants.  The fact that many documents, as well as other things, which may need to be examined otherwise than by reading, are involved cannot affect the validity of the warrants.  Only those documents that come within conditions two and three can be seized lawfully.  ¼”  (p 549)

That the search carried out under a warrant issued under the old s 10(1) could lawfully involve a period of temporary possession for the purpose of examining the material searched to identify what can properly be seized was also accepted in Trimboli v Onley (No 3) (1981) 56 FLR 321 at 335-336.

The High Court said, in George v Rockett, at 118, that: “the requirement of ‘reasonable grounds for believing’ in [the Queensland Act and in old s 10(1)(b)] performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms”. But their Honours did not regard the warrant in Grollo as conferring an unlimited power of search and seizure, although they acknowledged that it conferred wide powers in both regards. The description in a warrant of the material to be searched for in a broad or non-specific fashion was also held not to be inconsistent with compliance with the conditions for the issue of warrants set out in the old s 10(1) in Dunesky at 535 and in Propend Finance at 667.

These decisions show that a warrant authorising a search of very substantial width could comply with old s 10(1), so long as the scope of the permitted search was subject to real limits. The justification for this is that a search warrant can be issued as an aid to an investigation, as well as an aid in gathering evidence to support a prosecution, ie, that a warrant can be issued to aid the investigation of complex transactions at a time when it is uncertain what particular offence may in fact have been committed and who may have been involved: see Baker v Campbell at 81 and Coward v Allen (1984) 52 ALR 320 at 332. Further justification for upholding the formal validity of warrants that in terms authorise a search and seizure that is, within broad limits, a wide one is that they permit that to be done only in circumstances in which there are reasonable grounds for suspecting the presence of material having evidential value: it is, I think, a significant protection against abuse of the power to employ search warrants that whether the material that was placed before the issuing magistrate to procure the issue of the warrant was sufficient to constitute such grounds will generally be able to be scrutinised by the Court, under what are now wide ranging powers of review: see Grollo at 546 and George v Rockett at 114 and Inland Revenue Commissioners v Rossminster Ltd at 998. (It would, I think, be difficult to sustain a warrant if the information on oath on which it was issued was not presented to the magistrate in written form.)

The warrant here in question was issued in aid of an investigation into what plainly appear to be tax avoidance offences.  Comments in the cases on search warrants suggest that the balance to be maintained between the administration of justice and those of the citizen is not determined in a vacuum, but having regard to the legislation involved and the nature of the criminal activity suspected.  When warrants issued for the purposes of investigating complex taxation frauds are challenged, the statement of Lockhart J in Arno v Forsyth at 139 is relevant:

"When investigations are proceeding into alleged tax evasion on a large scale it may be impossible to define documents in search warrants other than in rather general terms.  If the terms are so general or vague as to suffer from the vice of a general warrant then plainly it is bad; but it must be remembered that at the time the warrant is issued the matter is obviously at an investigatory stage and there will not be sufficient evidence in a form admissible at a criminal trial to prove the alleged offences. The purpose of the search is to obtain such evidence.  It is necessary to reconcile the two competing public interests that offences involving tax frauds should be detected and punished on the one hand and the right of the individual to protection of the law from unjustified interference with his privacy and property on the other.  It is in the public interest that those who commit offences involving fraud in relation to tax should be brought to justice.  It is at least equally in the public interest that individual liberty should be protected by the courts whose function it is to protect individuals from abuse of power by the Executive arm of government.  The balancing of the claims of the due administration of justice and those of the citizen whose rights must be jealously protected is not determined in a sterile vacuum but with due regard to the legislation involved and criminal activity suspected.  The complexity of taxation frauds which often involve numerous persons and entities, and the concomitant difficulties associated with the gathering of documentary evidence to support the laying of charges highlights the dangers of too readily striking down warrants on the ground of generality in cases of this kind.”

To the same effect are the comments in Inland Revenue Commissioners v Rossminster Ltd at 999, 1005.

Although each case in which the validity of a warrant is challenged must depend on its own particular circumstances, if this warrant had been issued under the old s 10(1) there are no material differences between it and the warrant in Grollo and I would regard Grollo as providing good reason for holding the warrant here in question to be valid in form.  I would not accept that the absence of further particulars in the statement of offences in condition three of this warrant renders the warrant bad for generality.  There also appears to be no relevant difference between the form of this warrant and that held to be valid in form in Brewer v Castles (1984) 1 FCR 55 by Beaumont J, who said, at 62: “In my opinion, the present warrant is reasonably clear in its operation and it does achieve the degree of specificity thus required. I do not think that, on a fair reading, the warrant can be ‘read up’ into an unlimited power of seizure as the applicant suggests”. See also Coward v Allen at 331-332.

Part 1AA is significantly different from the old s 10(1). Sections 3E(1) and 3C(1) permit the issue of a warrant on a reasonably grounded suspicion that, among other things, there is at the premises a thing relevant to an offence. This is a less stringent regime than that contained in the old s 10(1), which permitted the issue of a warrant if, among other things, there were reasonable grounds for belief that there was at the premises a thing which would afford evidence as to the commission of an offence, for two reasons.  Firstly, a belief involves a higher level of certainty as to the existence of a thing with the nominated characteristics than does a suspicion as to the existence of that thing:  see George v Rockett at 115-116. Secondly, whether a thing will afford evidence as to the commission of an offence involves, as the High Court, in George v Rockett, said, at 119-120, showing that the thing “will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters”. In my opinion, a thing will be “relevant to an offence” in a wider range of circumstances than that: material is not required to be relevant to proof of an offence to be “evidential material” in respect of which a warrant can issue under s 3E(1). The Court, in George v Rockett, made it clear, at 120-121, that things which tend to show that no offence was committed are not things which will afford evidence as to the commission of an offence and so could not be made the object of a search warrant under the old s 10(1); however, such things are, in my opinion, capable of being relevant to an offence and so can be made the object of a warrant issued under s 3E(1).

Further, in George v Rockett, at 117, the Court said that the statutory provision in the old s 10(1), which permitted the issue of a warrant if, inter alia, the magistrate held a reasonably grounded belief that a thing suspected of being in the premises would afford evidence as to the commission of an offence, required the object of the search to “be identified either as a specific object or as an object which answers a particular description”. Under s 10(1), the warrant was required to focus on the object of the search and to identify it either by name or by a particular description. Section 3E(5)(c), however, requires only that the warrant state “the kinds of evidential material that are to be searched for under the warrant”. The object of the search can thus be stated in the warrant by generic description. Section 3E(5)(c) reflects a deliberate relaxation of the old law: see the Fourth Report of the Gibbs Committee, paras 38.35 to 38.39. It makes it easier in practical terms to identify reasonable grounds for suspecting that material of interest to the investigator will be on the premises and for suspecting that that material will have the requisite informational effect, particularly when the warrant is sought at a stage of an investigation when the investigator has an incomplete understanding of the activities in the course of which an offence is thought to have been committed. The relaxation in the law in this respect, in my opinion, may well be significant. For example, depending on the available information, material sufficient to ground only a reasonable suspicion that the whole of the books of a company somewhere contained an entry evidencing the theft of company funds might well be sufficient to permit their seizure, notwithstanding s 3K(2), since the whole of the books reasonably suspected of containing an incriminating entry could, I think, fairly be said to be relevant to that offence.Such a result was impossible under the old s 10(1): see George v Rockett at 118-119.

Further, under the old s 10(1), the only opinion that was relevant to delimiting the scope of the search and seizure authorised by a warrant was that of the issuing magistrate; the executing officer’s opinion on whether, in relation to a particular document, there were reasonable grounds for believing that it would afford evidence as to the commission of an offence mentioned in the warrant was held to be irrelevant to delimiting the range of documents authorised to be seized by the warrant (although the executing officer was himself required, at the time of seizure of an article, to have the actual, ie, subjective, belief that it was within the warrant: Trimboli v Onley (No 3) at 333 to 337): see Dunesky v Elder at 536. This is no longer true in relation to warrants issued under s 3E(1) of Part 1AA. Section 3F(1)(c), as the source of the authority of the officer who executes a search warrant issued under s 3E(1) to search for and seize material of the kind specified in the warrant, is dependent for its operation on the issuing magistrate holding the opinion referred to in s 3E(1). However, s 3F(1)(d) expands the scope of a warrant issued under s 3E(1): such a warrant also authorises the seizure of (but not the search for) certain material found in the course of the search authorised by s 3F(1)(c) other than material of the kind specified in the warrant, viz, other material which “the executing officer or a constable assisting believes on reasonable grounds to be” material other than of the kind specified in the warrant but which is nevertheless relevant to the offence to which the warrant relates and material relevant to any other indictable offence (but only if, in both cases, the executing officer or a constable assisting also believes on reasonable grounds that the seizure is necessary to prevent the concealment or destruction of the material or to prevent its future use in the commission of an offence). A warrant issued under s 3E(1) is now dependent, as to part of its scope, on the reasonably grounded opinion of the executing officer (or one of those assisting him). The position under the old law in this regard was not settled: see the Fourth Gibbs Committee Report, para 37.3, at p 260. The new Act thus encourages the authorities to ensure that the officer named as the executing officer, or at least those assisting him, will have personal involvement in the investigation and detailed knowledge of all the kinds of material likely to be of possible assistance in advancing the investigations, since s 3F(1)(d) authorises the seizure of material outside the warrant if any of those involved in its execution know enough about the investigation to be able to draw on their personal knowledge to form for themselves, inter alia, a reasonably grounded belief that the material discovered in the course of the search, although not of a kind specified in the warrant, nevertheless is evidential material that relates to the offence to which the warrant itself relates.

Another clear indication that the intent of Part 1AA is to extend the powers conferred by a search warrant in favour of the authorities and against the interests of the private occupier of premises is contained in s 3K(2): the power to examine for the purpose of determining if material found at the premises is of a kind that can lawfully be seized, which power is implicit in the power to search, was, under the old law, limited to a power to examine only at the premises at which the warrant was executed: see Trimboli v Onley (No 3) at 337. Section 3K(2) abolishes that restriction.

The old s 10(1) can be seen to have permitted the issue of warrants that conferred wide powers of search and seizure, provided the warrants set real limits to those powers. The new Part 1AA frees the power to issue search warrants from some of the limitations that existed under the old law and also expands, in a number of respects, the authority to search and seize that is dependent on the issue of a warrant. There is therefore no justification to interpret Part 1AA more restrictively than the old s 10(1).

That a wide search is authorised will not, in my opinion, be fatal to the formal validity of a warrant issued under Part 1AA, especially if it appears that the warrant is issued in connection with the investigation of what are, or appear to be complex transactions:  where the form of a warrant is attacked as too wide, that attack will succeed only if the warrant can be characterised as one under which a general, ie, unlimited, search is authorised.  Here, it appears that tax fraud is suspected, details are unknown, and are being investigated.  In my view, the three conditions, when taken together, do serve to sufficiently limit the area of the search to prevent the warrant being, in its terms, impermissibly general.

The formal requirements of Part 1AA have been satisfied and the warrant is therefore valid on its face.  However, since I understand there is to be further litigation with respect to this warrant in this proceeding, I will not incorporate this conclusion in a formal declaration or order until final judgment is given in the proceeding.

I certify that this and the preceding 24 pages
are a true copy of the reasons for judgment
herein of the Honourable Justice Drummond.

Associate:

Date:  19 November 1996

Counsel for the applicants:  Mr J A  Jerrard QC and

Mr L DBowden

Solicitor for the applicants:  Hawthorn Cuppaidge & Badgery

Counsel for the first and second             Mr P R  Dutney QC and

respondents:  Mr P D T  Applegarth

Solicitor for the first and second

respondents:  Australian Government Solicitor

Solicitor for the third respondent:             Crown Solicitor for the State of Queensland

Date of Hearing:  16 September 1996