Ibbotson and Ors v Chaney and Ors

[1999] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P26 of 1998

B e t w e e n -

ROBERT FRANCIS IBBOTSON and MARIA CHERIE IBBOTSON

First Applicants

and

PAUL CHRISTOPHER FERGUSON

Second Applicant

PETER STONE

Third Applicant

and

JOHN ANTHONY CHANEY

First Respondent

ANTI-CORRUPTION COMMISSION

Second Respondent

THOMAS JOHN HANLON

Third Respondent

DAVID WARREN

Fourth Respondent

CLIVE SPIRING

Fifth Respondent

ANTHONY WARWICK

Sixth Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 11.17 AM

Copyright in the High Court of Australia

________________

MR L.A. TSAKNIS:   May it please the Court, I appear for the applicants.  (instructed by Quigley Coulson)

MR R.M. MITCHELL:   If it please the Court, I appear for the respondents to this application.  (instructed by the Crown Solicitor for Western Australia)

GAUDRON J:   Yes, Mr Tsaknis.

MR TSAKNIS:   Your Honours, the issue for determination in this application is whether a search warrant issued under section 18(2) of the Royal Commissions Act as applied by section 40(1) of the Anti‑Corruption Commission Act is valid if it does no more than repeat the general terms of the section.

GAUDRON J:   What do you say it should do?

MR TSAKNIS:   What we submit it should do is to specify at least sufficient to give the person whose premises are being searched an ability to know when an item is purported to be part of the warrant and subsequently pursuant to section 18(4), purported to be seized as being seized pursuant to the ‑ ‑ ‑

GAUDRON J:   What do you say that required in this case?

MR TSAKNIS:   To at least specify – in this case it would have required some general description of the investigation.

GAUDRON J:   Where do you get that from?

MR TSAKNIS:   It arises, we submit, your Honour, from two factors.  One follows from what we say is the position which has been adopted or developed in the common law that has now been reached that search warrants must, in the absence of unmistakable and unambiguous language, give sufficient details to enable the occupier of the premises to know what is being searched for and to identify when a particular item is searched for or being seized, whether that particular item does or not fall ‑ ‑ ‑

GAUDRON J:   Let us assume a search warrant being executed in this case on some stranger to the inquiry.  How would that stranger know by reference to what you have suggested?

MR TSAKNIS:   In our submission, a stranger would know because they would have a warrant, for example, which may say, “All or any items relevant to the importation of a narcotic substance or providing proof of proceeds of sale of a narcotic substance”, and at least in those circumstances we would say the occupier would be able to know, “Yes, these cheque books may be relevant, some of the cooking utensils may be relevant, but we don’t see how my Medicare records are relevant”, for example.  So we submit that even in very generally worded terms, an occupier will at least have some means of knowing what will be required under the search warrant.  We do not submit that the search warrant needs to go so far as to specify in precise terms the nature of the inquiry.

GAUDRON J:   What should it have done in this case?

MR TSAKNIS:   We submit in very general terms – and we do not know what the nature of the inquiry was, but to give the example that I gave your Honour, it should have.

GAUDRON J:   We know it was an inquiry by the Anti‑Corruption Commission.

MR TSAKNIS:   Yes, and we know it is in relation to a particular investigation because the Anti‑Corruption Commission or the Commissioner, special investigator, under section 8 only has powers in relation to a particular investigation.  So we submit that the warrant should have at least specified in general terms what that investigation was.

HAYNE J:   How, assuming such a specification, could the person whose premises are searched determine the question of relevance which is the critical criterion that is given in the warrant or in the statute, that is, that something relates to or is relevant to the investigation?  That presupposes, does it not, that the person whose premises are searched knows, chains of inquiry being pursued, paths being investigated?  How does the recipient of the warrant know any of that?

MR TSAKNIS:   With respect, we would say the recipient of the warrant does not need to know any of that.  All the recipient of the warrant needs to know – and it is a matter which can be the subject of indeed a very wide warrant ‑ ‑ ‑

HAYNE J:   What is the utility of that broad description to the person whose premises are searched?

MR TSAKNIS:   Confining it to the person whose premises are searched, they at least know that what would otherwise be tortious conduct has been authorised, that there is some valid lawful authority to do what is being done.  Secondly, we would also say it does have some practical utility.  However wide it may be, we submit there is a very real and big difference between saying to a person, “Here is a piece of paper which entitles us to take anything but we’re not telling you what”, and “Here is a piece of paper which entitles us to take what may appear just about anything but, when you look at it, you can decide whether this is what falls within ‘just about anything’.”  We submit that in terms of fundamental concerns about privacy and invasion of what otherwise would be lawful conduct, that is a very significant distinction.

HAYNE J:   Why is any of this still a live issue?  Things were taken, things have since been inspected, things have since been returned, all but what, the lady’s handbag, two ID cards and X cannabis seeds or something?  Is that not all that is still retained?

MR TSAKNIS:   It is a live issue, your Honour, because Mr Ferguson, who is one of the applicants in this application, is facing criminal charges.  Copies were made of all these documents.  Those criminal charges are still pending and they are awaiting the results of what may or may not be able to be used in relation to the evidence that was seized.  Perhaps if I may just advance one further point, it is not only in the case of the person whose premises are being searched; it needs to be remembered, in our submission, that this warrant can be exercised by any person, not merely the person who sought it.  So in terms of the statute, a member of the Commission may seek a warrant issued, for example, to a named police officer.  In those circumstances, there would really be no way of knowing what the police officer would be authorised to do.

GAUDRON J:   Yes, but to make any of these arguments you have to point to something in the statute, do you not?

MR TSAKNIS:   Yes, we do.

GAUDRON J:   What do you point to in the statute?

MR TSAKNIS:   We point to the combined interpretation of section 18(2) when read together with section 18(11).  If I may invite your Honours to turn to section 18(2) of the Royal Commissions Act, that section reads:

Where a Judge of the Supreme Court is satisfied, on the application of a Commissioner or a person appointed by the Attorney General to assist the Commission, that there are reasonable grounds for suspecting that there may be relevant material in or on particular premises, the Judge may issue a search warrant authorizing a named person or named persons –

(a) to enter and search the premises –

I will stop there, your Honours.  If one then turns to subsection (11) and looks at the definition of “relevant material”, one sees:

“relevant material” means documents, books, writings or things that are or appear likely to be relevant to the Commission’s inquiry.

So it is our submission that section 18(2), when it talks of “relevant material”, clearly adopts the interpretation of subsection (11).

GAUDRON J:   I would have thought that subsections (2) and (11) were of almost perfect generality, that it would be difficult to read into them some limitation of the kind which you now advance.  There may be an argument that if there was a common law requirement, being words of generality they would not dispense with it, but this is a warrant by a Supreme Court judge.

MR TSAKNIS:   We do not challenge the grounds which the Supreme Court judge may have had or his state of belief.

GAUDRON J:   No, but are there not peculiar considerations applicable?

MR TSAKNIS:   In our respectful submission, those peculiar considerations were largely swept aside in the case of Ousley v The Queen whereby the High Court in that case, as your Honour will be aware, said that the issue of whether or not a warrant is issued by a judge of a Supreme Court does not nevertheless remove it from being an administrative act.

GAUDRON J:   No, and does not save it from statutory requirements.

MR TSAKNIS:   Indeed, your Honour.

GAUDRON J:   But where are they here?

MR TSAKNIS:   We say they are here because there is an ambiguity whether or not when section 18(2) talks about “relevant material” and where you have a definition of “relevant material” meaning relevant to the Commission’s inquiry, your Honour is faced with two interpretations.  One, as the majority of the Full Court adopted, is that it is a matter of generality.  One simply repeats the words of the statute because one gets no assistance from the words “the Commission’s inquiry”.  The other interpretation is that by inserting the statutory reference, there must be some relationship between the relevant material and the Commission’s inquiry and that must be ‑ ‑ ‑

HAYNE J:   As a matter of fact or on the face of the warrant?

MR TSAKNIS:   On the face of the warrant, your Honour.

HAYNE J:   What is it that you say makes it obligatory to disclose on the face?

MR TSAKNIS:   Two matters.  One, that the common law has recognised or has developed to the point where, if a statute is not unambiguous or unmistakably clear on the point, a search warrant must specify sufficient details to enable the recipient and the person searching the premises to know what may properly be the subject of the warrant.  In our submission, that is the first point.

The second point and confirmed by that – or we say the statute properly evinces an intention to follow the common law – is that if one does not apply that reasoning, section 18(2) becomes impossible of application and it also leads to extraordinary powers being conferred pursuant to subsection (4).

GAUDRON J:   This common law principle, that is established, you say, by Tillett?  Is that the case on ‑ ‑ ‑

MR TSAKNIS:   Yes, your Honour.  We say ‑ ‑ ‑

GAUDRON J:   Any others?

MR TSAKNIS:   It effectively commenced with Tillett.  There have been a number of decisions, – I have set them all out in paragraph – there are quite a number of them, Beneficial Finance v Federal Police.  They are all set out, I think, in paragraph 10 of ‑ ‑ ‑

GAUDRON J:   Now, they are all quite different statutory contexts, are they not?

MR TSAKNIS:   They are different statutory contexts.

HAYNE J:   And warrants issued by JPs or equivalent.

MR TSAKNIS:   Yes, your Honour.

HAYNE J:   With all that encrustation of learning about justices and jurisdiction appearing on the face of the record.

MR TSAKNIS:   Yes, your Honour.  We do see that those decisions were issued by justices or made by justices but the significant point about that distinction, we say, has been largely swept away by the decision in ‑ ‑ ‑

HAYNE J:   By Ousley.

MR TSAKNIS:   Yes, by the decision in Ousley in that the decisions or the principles which those decisions stand for are equally applicable when one is simply challenging what must appear on the face of the warrant as distinct from the judge’s satisfaction.

GAUDRON J:   Was not Ousley again in a particular statutory context?  I mean, the issue there was, was it not, whether the rules complied with the statute?

MR TSAKNIS:   Yes, your Honour, and that, of course, also, was a telephone interception case which, we submit ‑ ‑ ‑

HAYNE J:   But there was a statutorily prescribed form of warrant.

MR TSAKNIS:   Yes, there was, your Honour.

HAYNE J:   Not here.

MR TSAKNIS:   Here, there is a statutorily prescribed form, obviously but, we say it cannot be read.  One needs to interpret that statute.  One needs to make sense of that statute and, we say, both on its face ‑ ‑ ‑

HAYNE J:   But the statute does not give you a form for the warrant, does it?

MR TSAKNIS:   No, it does not.

HAYNE J:   All we have is section 18.

MR TSAKNIS:   Yes, your Honour.  That is all we have.  It does not give you a form but what is being done in this case is that the form – the statute has been treated as a form and it is the search warrant that simply mirrors the terms of the statute.  If I might invite your Honours to quickly look at the terms of the statute, which is really the gravamen of the concern here and that is at page 70 of the appeal book.  It commences at page 70 of the appeal book and on page 71 your Honours will note, five lines from the top of the page, the warrant simply mirrors the wording of subsection 18(2).

HAYNE J:   And what you say it misses is, at about line 15, investigators’ investigation being an investigation into - - -

MR TSAKNIS:   Into a particular matter.

HAYNE J:   So, being an investigation, the example you gave, I think, was importation of narcotic goods or something, was it?

MR TSAKNIS:   Narcotics, that is right.

HAYNE J:   And the statutory base for saying that should be included, you said, was 18(2) plus 18(11).

MR TSAKNIS:   And also, which, to our submission, is, at best, ambiguous and if it is, at best, ambiguous then we would submit that the common law field was…..such as Beneficial Finance, Justice Toohey’s decision in Ryder v Morley which emphasised that one, both being the recipient and one having to execute a warrant, needs to know the basis for that execution.

There is, your Honours, a practical point which I touched upon and one needs to interpret these, we submit, in the light of the extraordinary powers given in subsection (4), the powers which can be exercised by a person who does not know what the warrant is about.

HAYNE J:   They are pretty standard warrant powers but to the recipient of the warrant they are pretty extraordinary.

MR TSAKNIS:   Yes, extraordinary powers and it includes a power under section 21 for the Commission or the Commissioner to retain those items “for such reasonable period as it or he thinks fit”, so, effectively, it would be very difficult, if not impossible, once the Commission says, “I’m taking these”.  I do not have to specify what the inquiry is about to have any form of particular scrutiny about the warrant. 

The other observation or the other comment I should make in relation to the warrant itself, your Honours - I am confining my arguments to specifying the nature of the inquiry being specified because the warrant in no other respects specifies anything.  It would be possible as an alternative, in our submission, which was recognised in Ryder v Morley, rather than specifying the investigation to specify the particular items that may be seized or the purpose or something else, provided that the person being searched knows what is being seized and what is the subject of the search.

That is not possible in this case because there is absolutely no specification of the items but, in our submission, we accept what was there said in Ryder v Morley that one can look at the warrant as a whole and one does not need to actually have the investigation.  One can simply look at the warrant as a whole and see whether or not there are any other matters which are properly specified which enable the occupier to know what the subject of the warrant is.

Your Honours will recall in Ousley v The Queen there was some detailed discussion about warrants in the context of a listening devices warrant and I would simply refer your Honours to observations in that case which were made by, certainly, three of the Justices in that case:  Justice Toohey at page 516, Justice McHugh at page 537 and Justice Gummow at page 546 which expressly drew a distinction between warrants of the type being considered in that case and search warrants of the type being considered in this case and pointed out there were particular privacy and tortious considerations which are obvious in relation to search warrants which are not obvious in relation to or not applicable to listening devices.

We do accept that it is a matter of statutory construction but we say in terms of both the statute itself and also having regard to the common law, that there must be some specificity in the statute beyond a completely general statute.  Those are my submissions, your Honours.

GAUDRON J:   Thank you, Mr Tsaknis.  We need not trouble you, Mr Mitchell.

We are of the view that the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, the application is refused.

MR MITCHELL:   May it please the Court, I would seek an order for costs.

GAUDRON J:   You do not resist that?

MR TSAKNIS:  No, we do not, your Honour.

GAUDRON J:   The application is refused with costs.

AT 11.35 AM THE MATTER WAS CONCLUDED