Jones v Civil Aviation Safety Authority & Anor

[2012] HCATrans 64

[2012] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M171 of 2011

B e t w e e n -

MILTON STANLEY KNIGHT JONES

Applicant

and

CIVIL AVIATION SAFETY AUTHORITY

First Respondent

MAGISTRATE DUNCAN REYNOLDS

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 9.49 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR J.A. RIBBANDS, for the applicant.  (instructed by Maitland Lawyers)

MS D.S. MORTIMER, SC:   If it please the Court, I appear with my learned friend, MR N.A.T. HARRINGTON, for the first respondent.  (instructed by Civil Aviation Safety Authority)

HAYNE J:   There is a submitting appearance for the second respondent, I think, is there not?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Yes, Mr Nash.

MR NASH:   If the Court pleases.  The rules relating to the criminal process and the rules relating to the right of the State to infringe private interests should be clear cut.  The decision of the Full Court in this case achieves almost exactly the opposite result.  There are four reasons why special leave should be granted.  The learned judge at first instance and the Full Court have both treated as information on oath material in an exhibit to an affidavit.

HAYNE J:   Assume that to be so, if you took the affidavit without regard to its exhibit, why was the affidavit not sufficient to found the grant of a warrant?

MR NASH:   It could have founded, your Honour, grounds for a warrant in relation to one particular offence.  There was nothing in the affidavit other than the opinion of the investigator which could have justified a warrant except in relation to the offence mentioned, in our submission.

HAYNE J:   Be it so, what follows?

MR NASH:   The warrant, your Honour, was far wider than justified.  We say it was invalid because it proceeded on a basis that there was information on oath to establish the other offences.  Cutting to where it seems that the Court is thinking at the moment ‑ ‑ ‑

HAYNE J:   I am glad you know where we are thinking, Mr Nash.  Do go on.

MR NASH:   I have spent a long time, your Honour, trying to find out where your Honour is.

HAYNE J:   Good luck.  Yes, go on.

MR NASH:   The ambit of the warrant departs from the wording of section 32AF.

CRENNAN J:   This is “will” rather than “may”, that departure?

MR NASH:   No, your Honour, it is the inclusion in the warrant of the words “reasonably suspected”, because what in fact has happened is that the thing has not been defined in terms of subsection (4) but has been defined in terms of the suspicion required for the grant of the warrant under subsection (2).  There is an analogy with the decision in Dunesky v Elder where we say that the dissenting views of Chief Justice Black should be preferred to that of the majority, but it is also clear, if I can go back to the question your Honour Justice Hayne asked a couple of moments ago, the trial judge clearly based his decision in relation to the sufficiency of the material on the material contained in the exhibit, the spreadsheet.  There was also one – your Honour has persuaded me to divert accidentally. 

Another question before the Court is, what is the appropriate course for an intermediate appellate court to follow where it has sought to raise on appeal issues not canvassed at first instance but which are solely issues of law, particularly in the area of public law?  Here the validity of the warrant was in issue before the trial judge, was in issue before the Court of Appeal, but the argument was different; no more than that.  Before the trial judge there was no argument as to the status of the exhibits to the warrant, but the learned trial judge specifically held that the magistrate was entitled to be satisfied, as required by the section, by evidence on oath because the spreadsheet exhibited to the affidavit contained the requisite information.  Moreover, this error is perpetuated by the Full Court which effectively says one can swear to something by implication.  In our submission, that is not too harsh a description of it.

CRENNAN J:   Where do we find that?

MR NASH:   I apologise, your Honour, I thought I had this marked.  On page 33 of the application book in paragraph 40.  In the middle of the paragraph at about line 14:

Mr Haslam nevertheless deposed at the outset to the truth of the affidavit and it was clear from the total context, and paragraphs 14 and 16 in particular, that he asserted that he had viewed the episodes and prepared the annexure to record the relevant details of what he had viewed. 

That is not something he expressly deposes to –

Although he did not expressly depose that the schedule described incidents he had viewed when watching the television series, this was necessarily implied in what he deposed to and it was unnecessary for him to restate what was apparent. 

HAYNE J:   I would have thought myself that that is understating what appears in paragraph 15 of the affidavit:

The episodes viewed on the Channel 10 website that went to air are inconclusive as they may contain –

Now, how else is that to be read except as saying that he had looked at the footage that had gone to air?

MR NASH:   With respect, your Honour, that is something we do not challenge, but if the spreadsheet contained a deliberate error, could he be convicted of perjury?  I am sorry, I am not asking your Honour the question.  I am asking it rhetorically, of course.

HAYNE J:   The affidavit as a whole can be understood, can it not, as saying Channel 10 showed footage, some of the footage shows possible breaches of civil aviation legislation and it is amplified in paragraph 15?  Paragraph 16 I asked them for “a spreadsheet identifying the raw footage”.  Paragraph 17, they told me that they had a DVD setting it out.

MR NASH:   The raw footage that he required, your Honour, not the raw footage – I do not want to press what to your Honour is the unobvious.  We say, your Honour, if the Court pleases, that the insistence that the law requires on strict compliance with statutory conditions for the issue of a search warrant, or in the criminal law generally, is contrary to the approach taken by the Full Court in this case.  George v Rockett makes very clear statements in relation to common law attitude to the administration of criminal justice and where it conflicts with the private right of the individual to enjoy his privacy and his property. 

We say the decision is inconsistent with the reasoning in Rockett and that the Full Court, moreover, should have considered the additional grounds because they raised no issues of evidence.  They related to the validity of an administrative Act.  If, of course, the Court is of the view that the administrative Act was valid, then of course I concede that my argument carries little or carries no weight whatsoever.  If the Court pleases, subject to any questions from the Court, they are the submissions on behalf of the applicant.

HAYNE J:   Thank you, Mr Nash.  We will not call on you, Ms Mortimer.

We are not persuaded that the applicant enjoys sufficient prospects of success in disturbing the actual orders made by the Full Court of the Federal Court of Australia in this matter to warrant a grant of special leave, nor are we persuaded that it is in the interests of justice, either generally or in this particular case, that there be a grant of special leave to appeal to this Court.  Accordingly, special leave is refused.  With costs I think, counsel, is that right?

MS MORTIMER:   We are instructed to seek costs, if your Honour pleases.

HAYNE J:   Yes, with costs.  Am I right in understanding that the stay which I had earlier granted expires today?

MS MORTIMER:   Yes, your Honour, at 4.15 pm.

HAYNE J:   There is no reason, therefore, is there, to deal further with that question?

MS MORTIMER:   No, there is not, your Honour.

HAYNE J:   Yes.  Special leave is refused with costs.

AT 10.02 AM THE MATTER WAS CONCLUDED