Horowitz, A v Condie, B.C - [1989] FCA 203

Re: ALEXANDER HOROWITZ; CLAUDIUS BILINSKY and RICHARD SPINAK
And: BRENDAN C. CONDIE; STAN WOODS; JOHN JONES and ANDREW CORBY
No. G1153 of 1988
FED No. 203
Search Warrant
41 A Crim R 285

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Search Warrant - validity - whether warrant invalidated by the uncertainty and prolixity of its terms - legal professional privilege - Crimes Act 1914 (Cth) s. 10.

Crimes Act 1914 (Cth): s.10

HEARING

SYDNEY

#DATE 5:5:1989

Counsel for the Applicants: Mr. P. Roberts

Solicitors for the Applicants: Horowitz and Bilinsky

Solicitors for First Respondent: State Crown Solicitor's Office

Counsel for the Second, Third and Fourth Respondents: Mr. N.R. Cowdery Q.C.,

Ms. E.A. Wilkins

Solicitors for the Second, Third and Fourth Respondents: Commonwealth Director of Public Prosecutions

JUDGE1

This case concerns the validity of a search warrant issued on 2 August 1988 pursuant to s. 10 of the Crimes Act 1914 authorising Federal police officers to enter the premises of Messrs. Horowitz and Bilinsky, solicitors of Sydney, and search for and seize certain documents. The matter came before me for hearing on 31 march 1989 and by consent certain preliminary questions of law were dealt with. I then answered some of those questions. I shall now give my reasons for judgment.

At about 8.15 am on 3 August 1988 Federal Police officers visited premises on the 1st Floor of 229 Macquarie Street, Sydney where the applicants conduct their practice as solicitors. There they spoke to the second applicant, Claudius Bilinsky, and showed him a copy of the search warrant under challenge authorising certain named Federal Police officers to enter the premises and seize defined documents or classes of documents. These documents related to financial or property dealings involving the use of certain specified names by or on behalf of Franklyn Ernest Yates during the period from 23 June 1978 to 21 June 1988. The warrant stated that there were reasonable grounds for believing that those things would afford evidence as to the commission of offences against Commonwealth law. The warrant then specified some six offences under various sections of the Bankruptcy Act 1966.
Also on 3 August 1988, application was made by the applicants to this Court to restrain the further execution of the search warrant. Orders were made by Davies J. restraining the four respondents to these proceedings, who are Federal Police officers, from further executing the search warrant. A direction was also made that the documents seized pursuant to the warrant be delivered up to the Registrar of this Court forthwith. Certain consequential orders were also made and the matter was set down for directions later in August 1988.
Following the making of these orders the documents which had been seized by the Federal Police officers from the premises of the applicants were placed in a box and sealed in accordance with the orders of this Court and the box handed to the Registrar of the Court in whose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horowitz, A v Condie, B.C

Details

AGLC: Horowitz, A. & Ors v. Condie, B.C. & Ors [1989] FCA 203 (41 A Crim R 285)
Case: [1989] FCA 203
Decision Date: 05 MAY 1989

CaseChat Overview and Summary

The case of Horowitz v Condie involved a dispute over the validity of a search warrant, the uncertainty and prolixity of which were claimed to have rendered it ineffective. The matter was heard by the Federal Court of Australia. The respondent, Mr Horowitz, sought to have a search warrant executed on his premises invalidated on the grounds that it was unclear and overly detailed, which allegedly compromised its legitimacy. Additionally, the respondent raised an argument concerning legal professional privilege under section 10 of the Crimes Act 1914.

The central legal issue before the court was whether the search warrant's terms, which were considered uncertain and excessively detailed, rendered it invalid. Furthermore, the court had to determine whether documents seized during the execution of the warrant were protected by legal professional privilege. The court examined the warrant's language to ascertain if it complied with statutory requirements and whether the ambiguity or prolixity invalidated it. Additionally, the court considered the applicability of legal professional privilege to the documents in question, evaluating whether they were protected from disclosure under the relevant statutory provision.

The court found that the search warrant, despite its perceived uncertainty and prolixity, did not invalidate it. The court held that the warrant's terms were sufficient to meet the legal standards required for its validity. The court reasoned that while clarity is important, some level of detail is necessary to ensure the search is conducted lawfully and effectively. Furthermore, the court determined that the documents seized were not protected by legal professional privilege under section 10 of the Crimes Act 1914, as they did not meet the criteria for privilege. Consequently, the respondent's challenge to the validity of the warrant and the applicability of legal professional privilege was dismissed.

The court ordered that the search warrant remained valid and that the documents seized could be used as evidence in the proceedings. The respondent's application to invalidate the warrant and protect the documents under legal professional privilege was denied. The court's decision upheld the legality of the search and the admissibility of the seized documents, thereby affirming the actions taken under the warrant.

Orders