Karina Fisheries Pty Ltd v Mitson

[1990] FCA 572

,.,

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JUD@J~ENT No. .~.?.?~.../.L•- I '

CATCHWORDS

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Administrative law - challenge to validity of two groups of	, -.
i
search warrants one issued pursuant to s.10 of the Crimes Act
I
1914 and the other pursuant to s.71 of the Proceeds of Crime 1987 - submissions that s.10 warrants were invalid for failure of informants to bring all material facts to the attention of the issuing justice and because the informant had relied on information that was either "unsourced or misleadingly sourced" - submissions also that justice issuing warrants was not satisfied that there were reasonable grounds for suspecting that documents or things specified in warrants were on subject premises and that there were no grounds upon which justice could find conspiracy was made out in the absence of allegations that the appellants were to receive a benefit from the acts alleged to have been done by them - discussion and rejection of each of these submissions - discussion particularly of duty of disclosure of person applying for issue of search warrant - s.71 warrants said to be invalid on grounds similar to those relied upon in relation to s.10 warrants and also for failure to state in the warrants the purpose for which they were issued and the belief of the issuing judge that the offences in question had been committed
- general discussion of s.71 - discussion of specific	. ,
!
requirements of section in relation to purpose and of the	: I
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nature of those requirements in this regard - discussion and	:
, ..
rejection of submission that judge's belief need be stated.
! I

I

22 OCT 1990
FEDERAL COURT OF

The Crimes Act 1914, s.10

Proceeds of Crime Act 1987, s.71

KARINA FISHERIES PTY. LIMITED and ORS. v. MITSON and ORS.

No. SG48 of 1990

Sheppard, Foster and Hill JJ.
Sydney

19 October 1990

IN THE FEDERAL COURT OF AUSTRALIA	) )
SOUTH AUSTRALIA DISTRICT REGISTRY )	NO. 5648 of 1990

1

GENERAL DIVISION 1

BETWEEN:

KARINA FISHERIES PTY. LIMITED

and ORS.

A~~ellants

m:

MITSON and ORS.

Res~ondents

THE APPELLANTS' APPEAL

MINUTES OF ORDER

JUDGES MAKING ORDER:	SHEPPARD, FOSTER and HILL JJ.
DATE ORDER MADE:	19 OCTOBER 1990
WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:-

1. The appeal be dismissed.

2.   The appellants pay the respondents1 costs of the appeal.

3 .   There be liberty to either party to apply on seven days' notice.

THE RESPONDENTSf APPEAL

MINUTES OF ORDER

JUDGES MAKING ORDER:	SHEPPARD, FOSTER and HILL JJ.
DATE ORDER MADE:	19 OCTOBER 1990
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:-

1. The appeal be dismissed.

1. The respondents pay the appellants' costs of the appeal.

3 .   There be liberty to either party to apply on seven dayst notice.

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

IN THE FEDERAL COURT OF AUSTRALIA )

1

BOUTH AUSTRALIA DISTRICT REGISTRY ) NO SG48 of 1990

1

GENEF#& DIVISION 1

BETWEEN:  KARINA FISHERTES PTY LTD,
AND ORS

Appellants

AND :  MITSON AND OR$

Respondents

COURT: SHEPPARD, FOSTER AND HILL JJ
PLACE: SYDNEY

DATED: 19 OCTOBER 1990

REASONS FOR JUDGMENT

The Court: The appellants, Karina Fisheries Pty Ltd, Dinko Lukin, Ann Lukin, Dean Lukin and David Franc Lukin, appeal against the decision of a judge of this Court (O'Loughlin J). At issue in the appeal is the validity of various search warrants issued either under the provisions of s.10 of the Crimes Act 1914 (Cth) ("the s.10 warrants") or pursuant to the provisions of s.71 of the Proceeds of Crime Act 1987 (Cth)

certain premises or vehicles and search and seize certain	("the s.71 warrants") authorising the respondents to enter
documents or things described in the warrants.
Each group of warrants were, save as to the description of the premises concerned and the addressees of the warrants, in similar form. Accordingly, we adopt the approach of the learned primary judge in annexing to this judgment a copy of one of the 8.10 warrants and one of the
s.71 warrants as appendices 1 and 2 to the judgment respectively as being typical of each class of warrant issued.
Before O'Loughlin J the warrants were attacked on a variety of grounds. His Honour found the s.10 warrants to be valid but declared the s.71 warrants to be invalid. The appellants appeal against so much of the decision of O'Loughlin J as declared that the s.10 warrants were valid. The respondents seek leave to appeal against so much of the decision of O'Loughlin J as held that the s.71 warrants were invalid. During the course of the hearing of the appeal, the Court indicated that it would grant leave to the respondents to appeal in respect of the validity of the warrants issued pursuant to s.71 of the Proceeds of Crime Act. The appellants have filed a Notice of Contention contending that the Proceeds of Crime Act warrants were also invalid on other grounds.
The facts were not in dispute. The respondents admitted certain facts for the purposes of the proceedings. In addition, affidavit evidence was given by Mr Allen, a
partner in the firm of Messrs Coopers & Lybrand, Chartered Accountants of South Australia, which evidence was not the subject of cross-examination and upon which the appellant relied. In addition, a transcript was made of the proceedings before Mr Field, the Magistrate who granted the warrants issued under s.10 and this transcript was tendered in evidence. No such transcript was kept of what occurred before Bollen J of the Supreme Court of South Australia when his Honour issued the 8.71 warrants. All that is known is that his Honour asked for an assurance that the guidelines on the execution of search warrants on lawyers' premises as agreed to between the Australian Federal Police and the Law Council of Australia would be complied with if the warrants were issued, one of the warrants being a warrant to enter premises occupied by a solicitor. That assurance having been given, his Honour then advised the officers of the Australian Federal Police who appeared before him that he had read the information and considered it proper to issue the warrants.
From the material before the Court it was apparent that at some time prior to September 1988 an investigation had been commenced by the Australian Taxation Office into the affairs of the appellants. It may be inferred that those investigations extended to Hong Kong because on or about September 1988 the Hong Kong office of Messrs Coopers &
Lybrand contacted the Adelaide office of that firm to advise them that Mr Dinko Lukin might be approaching that firm for
taxation advice. In due course, Mr Lukin contacted Mr Allen and retained Messrs Coopers & Lybrand of Adelaide to assist in the resolution of some taxation matters. Hr Allen was not the tax agent of the appellants and accordingly required a letter of authority from the appellants to act on their behalf before officers of the Australian Taxation Office would deal with

him. Thereafter detailed negotiations took place between Mr Alien and officers of the Australian Taxation Office. At a

conference held on or about 13 December 1988, Mr Allen provided to the Australian Taxation Office certain documents. These included a letter dated 27 December 1985 from Ataka Produce CO Limited, a reconciliation of remittances from Ataka Produce CO Limited to the appellants and certain draft unaudited accounts for a trading period to 30 June 1987.

At a later time and on or before February 1989, Mr Allen provided to the Australian Taxation Office a further document purporting to be a charter party agreement between Lukin h Sons and Ataka Produce CO Limited dated 10 October 1985. It is common ground that this latter document was unknown to the officers of the Australian Federal Police when they obtained the warrants in issue. Accordingly no reference was made to this document in the information sworn to obtain the warrants nor in any of the discussions preceding the issue of the warrants.

Before detailing the submissions made by the parties, it is useful to set out the substance of the information that was placed before Mr Field. There were a number of differences between this information and that placed before his Honour, Bollen J, but save as to two respects these differences play no part in the issues between the parties. The information referred to the following offences said to be reasonably suspected of having been committed by the appellants namely,

(a)	That between 1 July 1984 and 13 April 1989 there had been a conspiracy to defraud the Commonwealth by failing to include income derived by the sale of seafood in Japan in the taxation returns submitted for and on behalf of Karina Fisheries Pty Limited from 1 July 1984 to 24 October 1984 contrary to S. 86 (l) (e) of the crimes Act [presumably S. 86 (l) (a) was intended] and thereafter contrary to s.86A of that Act;
(b)	That between 1 July 1984 and 13 April 1989 there had been a conspiracy to prevent the enforcement of a law of the Commonwealth namely s.17 of the Income Tax Assessment Act 1936 by the failure of Karina Fisheries Pty Limited to declare the income derived from sales of seafood in Japan in its taxation returns that being an of fence against S. 86 (l) (b) of
the Crimes Act;
(c)	That there was an omission in the full accounting records of Karina Fisheries Pty Limited of the full income derived from the sale of seafood by it in Japan with the intention of defeating the purposes of a taxation law; and
(d)	That the Commonwealth had been defrauded by the failure of Karina Fisheries Pty Limited to include income derived from the sale of seafood in Japan in its taxation returns.

The informant said in the information that he had been told " c e r t a i n th ings and handed c o p i e s o f c e r t a i n documents" by officers of the Australian Taxation Office. The

documents in question as listed were the letter of 27 December 1985, the reconciliation of remittance, the draft unaudited accounts (to all of which we have already referred), a provisional registration from the Naval Force of Honduras relating to a ship named "D Three" indicating an issue date of 18 February 1987 and a document dated 26 June 1985 relating to the purchase of a vessel "Daito Maru No 18". It is common ground that this last document ( " t h e purchase agreement") had not been provided by Messrs Coopers & Lybrand or the appellants to the Australian Taxation Office or any other person. The evidence is silent as to how it was obtained by the Australian Taxation Office. The information then continues by referring to records supplied by Messrs Coopers &

Lybrand, Hong Kong " v i a Coopers & Lybrand, Adelaide"

indicating that an amount of yen 45,027,062 was earned but not

the year ended 30 June 1985; that an amount of yen	included as income for the purpose of assessing taxation for
297,652,722 for the year ended 30 June 1986 and an amount of yen 176,400,885 for the year ended 30 June 1987 had similarly been earned but not included as income. The information continued:

"33. The copy o f t h e Memorandum o f Agreement

(Appendix B) between ATAKA PRODUCE CO LTD and LUKIN & SONS of 5 Bonanza Road, Port Lincoln,

a t Clause 2 sets a purchase p r i c e o f Yen 155,000,000 for t h e 'DAITO MARU No 18' t o be

paid i n t h r e e i n s t a l m e n t s ( s i c ) o f : -

( a ) Yen 4,600,000 on or before 31 J u l y 1985

(b) Yen 90,000,000 on or before 31 December

1985 - -

( c ) Yen 60,400,000 on or b e f o r e 30 A p r i l 1986

wi th	i n t e r e s t	ca lcu la ted	a t 8.2	per	c e n t	per
annum.

34. The document appearing a t Appendix A i n d i c a t e s

t h e amount o f Yen 83,589,269, b e i n g a part o f

t h e proceeds from t h e s a l e o f tuna and s k i p

jack i n Japan appl ied a s p a r t i a l payment o f No.	18 Daito Maru between 5 A p r i l and 27 December
1985.

35.     By telex message No. 462/89 from the Honduran Department o f de Seguridad Maritima dated 5 November 1989, Claudo C a s t i l l o TORRES, Chie f o f

Maritime S e c u r i t y , advised t h a t t h e s h i p ' D
THREE' i s owned by D THREE S DE R.L. and t h a t a
d i r e c t o r o f the company i s Dinko LUKIN.
36.	The Informant believes t h a t fo l lowing t h e s a l e
o f t h e 'DAITO K4RU No 18', l i s t e d i n Appendix B

a t Clause 1 a s 373.25 tons gross and 193.89

net, t h e vessel was renamed ' D THREE' and i s

c u r r e n t l y r e g i s t e r e d i n t h e Republic o f

Honduras w i t h tonnage recorded a s 373.25 tons

gross , 193.89 net.

37A. The Informant a l s o believes t h a t one or more o f t h e fo l lowing persons: -

Dinko LUKIN

Dean LUKIN
David Franc LUKIN

Anna LUKIN

i s assoc ia ted w i th t h e fo l lowing companies

r e g i s t e r e d	o u t s i d e	t h e	Commonwealth	o f
Aus t ra l ia : -

LUKIN INTERNATIONAL PT6
D-THREE S . DE R.L.
GAUNET COMPANY
ATAKA PRODUCE COMPANY
ATAKA NOUSUISAN COMPANY
DAITO GYOGYO

I T O m PRODUCE COMPANY

DAITO GYORUI COMPANY LIMITED

E n q u i r i e s show t h a t LEWIS and COBLE Tax Agen ts

o f 4 t h F loor , 815 P a c i f i c Highway, Chatswood i n

the S t a t e o f New Sou th Wales, prepared and

submi t t ed t a x a t i o n r e t u r n s for the f i n a n c i a l

y e a r s 1982/83, 1983/84, 1984/85, 1985/86,

FISHERIES PTY LTD.	1986/87 and 1987/88 for the company M I N A
Enquiries a l s o show t h a t NICHOLLS GERVASI and
Company, S o l i c i t o r s , o f 211 V i c t o r i a Square,
Ade la ide and a l s o o f 82 Tasman Ter race , Por t
L i n c o l n , i n the s a i d S t a t e have a c t e d for and
on b e h a l f o f Dinko LUKIN, Ann LUKIN, Dean LUKIN
or David LUKIN, i n m a t t e r s concern ing b u s i n e s s
or commercial a f f a i r s .
E n q u i r i e s show t h a t COOPERS and LYBRAND,
Accountan t s and A d v i s e r s , o f 41 C u r r i e S t r e e t ,
Ade la ide , have s u p p l i e d c o p i e s o f documents and
i n f o r m a t i o n r e l a t i n g t o the o v e r s e a s t r a d i n g
a c t i v i t i e s o f v a r i o u s entities a s s o c i a t e d w i t h
Dinko LUKIN t o the A u s t r a l i a n Taxa t i on O f f i c e .
From enquiries made and the documents
a f o r e s a i d , the Informant believes t h a t the
persons named i n paragraph 37A a r e closely
a s s o c i a t e d w i t h the f i s h i n g i n d u s t r y i n Sou th
A u s t r a l i a and o p e r a t e through a number o f
A u s t r a l i a n and f o r e i g n r e g i s t e r e d companies.
Tuna f ish i s one o f the p r i n c i p a l e x p o r t
commodi t ies .
The tuna produc t s a r e m a i n l y e xpor t ed t o Japan
by KARINA FISHERIES PTY LTD and a r e s o l d
through commission a g e n t s .
The Informant s u s p e c t s t h a t the monies acc ru ing
from the s a l e s o f t h e f i s h were i n p a r t
d e p o s i t e d i n the SUMITOMO BANK and /or used t o
purchase commercial a s s e t s o u t s i d e A u s t r a l i a .
Only a p a r t o f the monies was r e m i t t e d t o the
A u s t r a l a s i a and New Zealand Bank, Ade la ide and
s u b s e q u e n t l y i n c l u d e d a s income i n the t a x a t i o n
r e t u r n s o f MINA FISHERIES PTY LTD.
The In formant f u r t h e r s u s p e c t s t h a t the monies
not r e m i t t e d and thereby not r e t u r n e d a s income
were used t o purchase, m o d i f y or r e f i t a t l e a s t
one s p e c i a l i s e d freezer vessel f o r p r o c e s s i n g
and t r a n s p o r t i n g f ish produc t s . I t i s
suspec t ed t h a t work c a r r i e d o u t i n Singapore was paid for from the SUMLJTOMO BANK account
A d d i t i o n a l f i n a n c i n g was provided by the through the GXUNET COMPANY o f Hong Kong.
SINGAPORE INTERNATION1LL MERCHANT BANK LIMITED (S.I.M.B.L.). A l o a n from S.I.M.B.L. o f
A$500,000 i s shown on the ba lance sheet f o r
KARINA FISHERIES PTY LTD for y e a r end ing 30th June 1988. "

Before the learned Magistrate, the informant first swore as to the correctness of the information. Thereafter his Honour asked:

" B r i e f l y would	you	e x p l a i n	t o me	how and	why
the f a c t s o f f e n c e s have been	which	a r e	a l l e g e d	i n the	i n f o r m a t i o n

g i v e rise t o the r e l e v a n t s u s p i c i o n t h a t

committed."

An explanation was then given and the learned
Magistrate questioned the informant about various aspects of

the warrants and the premises referred to in them. There was

privilege and the Law Council guidelines. His Honour then	also some discussion of the question of legal professional
made the following comments:

. . .

I	am	s a t i s f i e d t h a t the	f a c t s	a l l e g e d	g i v e
rise	t o the	r e l e v a n t	s u s p i c i o n s	t h a t	i s a

s u s p i c i o n t h a t the o f f e n c e s p a r t i c u l a r l y

i n the i n f o r m a t i o n have been committed by

one o r more o f the persons named. The

language	used	i n	the	documents	i s
comprehensive ,	c l e a r	and	p r e c i s e	a s	it
r e a s o n a b l y	can	be	when	d e a l i n g	w i t h
m a t t e r s	o f	the	complex i t y	o f	the

a c t i v i t i e s o f the Lukin Group and o f their

income t a x a f f a i r s . There a r e reasonable

grounds t o believe t h a t t h e r e i s a

r e l e v a n t l i n k e x i s t i n g between the

suspected o f f e n c e s and the documents and

t? t o be searched for and s e i z e d . I

cons ider	t h e	na ture	o f	those	a r t i c l e s	t o
be s e i z e d a r e s p e c i f i e d adequate ly i n the	and	the	na ture	o f	the	o f f e n c e s

in format ion and i n the forms o f warrants I

am s a t i s f i e d t h a t the amendments made by me t o the p laces t o be searched have been s p e c i f i c a l l y i d e n t i f i e d , where I have made

amendments	they have	r e l a t e d	t o premises
occupied	a s pro fe s s iona l	of f ices and	the

amendments a r e t o l i m i t the search t o

those p a r t s o f those premises occupied by

the r e l e v a n t f i rm or i n d i v i d u a l . As t o

the other premises I am s a t i s f i e d t h a t they are whol ly occupied by members o f the

Lukin Group. I am s a t i s f i e d t h e motor

vehicles have been s p e c i f i c a l l y i d e n t i f i e d

and a r e l i n k e d t o the Lukin Group.

The c l a s s e s o f documents have been

i d e n t i f i e d by reference t o their

c h a r a c t e r i s t i c s a s b u s i n e s s records

per ta in ing t o the b u s i n e s s o f the Lukin

Group i n the f i s h i n g i n d u s t r y i n Aus t ra l ia

and overseas.

I am s a t i s f i e d t h a t the documents and the

oral i n format ion suppl ied by Sergeant

Mitson today provided ample evidence i n

the non t echn ica l sense o f t h a t word o f

the l ikely commission o f one or more o f

the o f f e n c e s s p e c i f i e d over the period

1984 t o 1989.

The i s s u e o f l e g a l pro fess ional p r i v i l e g e

i s almost c e r t a i n t o be r a i s e d i n

connect ion w i t h the execu t ion o f these

warrants. I n o t e t h a t the documents have

been c a r e f u l l y d r a f t e d t o n o t o n l y make

r e f e r e n c e t o l e g a l pro fess ional p r i v i l e g e

b u t t o provide f o r some reasonable means

o f r e s o l v i n g i s s u e s which may a r i s e . In

p a r t i c u l a r t h e warrant d i r e c t e d t o the

premises o f t h e f i rm Nicholls Gervasi ,	solicitors for t h e Lukin Group has been
d r a f t e d t o incorporate t h e gu ide l ines
agreed between the Aus t ra l ian Federal
Pol i ce and the Law Council o f Aus t ra l ia .
I n o t e a l s o t h a t exhaus t i ve prov is ions
have been inc luded for r e s o l v i n g the
i s s u e s o f pro fess ional p r i v i l e g e which may
a r i s e i n the search o f premises o f o t h e r
pro fess ional adv i sors t o the Lukin Group.
I n other warrants the appropriate
r e f e r e n c e has been made t o l e g a l
pro fess ional p r i v i l e g e .
I am i s s u e the warrants. s a t i s f i e d t h a t it i s appropriate t o
I t a k e i n t o account i n s o dec id ing t h a t
the format o f paragraphs 20, 21, 22 i s
appropriate . I have regard to the f a c t
t h a t t h a t format has been adopted on
adv ice o f t h e DPP fo l lowing Federal Court
r u l i n g i n the case o f Mitson and the Law
S o c i e t y o f South Aus t ra l ia . "

The section 10 warrants

The appellants submitted that the s.10 warrants were invalid and of no effect for four reasons:-

1.   That the informant had failed in his duty to bring all material facts before the issuing justice.

2. That the informant had in the information used material that was either unsourced or misleadingly

sourced.

3. That the learned Magistrate in issuing the s.10 warrants had applied the wrong test in determining to issue the warrants, in that he had failed to be satisfied that there were reasonable grounds for suspecting that there were in or upon the premises named in the warrants the documents or things referred to in those warrants, notwithstanding that the warrant itself on its face stated such a satisfaction.

4.  That the material information disclosed no grounds upon which the magistrate could find that a conspiracy existed because it did not state in terms that the appellants were to receive a benefit from the acts alleged to have been done by them.

Submissions on the respondents' appeal

In the decision appealed against the learned primary judge held the s.71 warrants to be invalid on two grounds. First, his Honour held that the warrants did not set out the purpose for which the warrants were issued as required in s.71(7) of the Proceeds of Crime Act. Second, his Honour held that the warrants were invalid because they did not contain a reference to the nature of the indictable offences that had been or were believed to have been committed and so in this other respect also breached the provisions of s.71(7) of the

Proceeds of Crime Act.

The respondents submitted that his Honour had erred in so doing and that properly construed, the 9.71 warrants complied with the provisions of s.71(7). By way of contention the appellants submitted that the s.71 warrants were invalid for three further reasons, namely:-

1. That like the s.10 warrants the s.71 warrants were obtained in circumstances where the informant had

failed to disclose to the judge all material facts
relevant to the matter in issue before him.

2.   That the information contained material that was

anonymously and misleadingly sourced.

3. That the s.71 warrant did not disclose on its face that the judge issuing the warrant was satisfied that any of the pre-conditions to the issue of the warrant referred to in s.71(5) or s.71(6)(b) of the Proceeds of Crime Act had been satisfied

The Validity of the 8.10 warrants

The appellant submitted that there was a duty on any informant applying for a warrant to bring to the notice of the Justice or Judge issuing the warrant all the facts material to the decision to be made to him. So much was held by the learned trial judge and was not in dispute in the appeal.

That there should be such a duty flows out of the very nature of a search warrant and the procedure which	applies to its issue. A search warrant of the kind provided
for in s.10 of the Crimes Act (and also by 8.71 by the Proceeds of Crime Act) confers upon the person to whom the warrant issues authority to search premises and seize documents in the possession of another and thus authorises an invasion of the privacy of persons in lawful possession or
occupation of the premises in which the search is to take place: Baker v Gam~beU, (1983) 153 CLR 52 at p.82, Georae v Rockett (1990) 64 ALJR 384.

As pointed out by the High Court in Georue v Rockett

at 386:

" I n prescr ib ing cond i t ions governing the i s s u e

o f search	warrants,	the l e g i s l a t u r e has sought
t o balance	the need	f o r an ef fect ive criminal

j u s t i c e sys tem aga ins t the need to p r o t e c t t h e

ind iv idua l from a r b i t r a r y i n v a s i o n s o f h i s

pr i vacy and property . Search warrants

f a c i l i t a t e the gathering o f evidence aga ins t ,

and the apprehension and c o n v i c t i o n o f , those

who have broken the cr iminal law. I n enac t ing

S . 679 [Criminal Code ( Q l d ) ] the l e g i s l a t u r e has

given primacy to the p u b l i c i n t e r e s t i n the

effective admin i s t ra t ion o f cr iminal j u s t i c e

o v e r the p r i v a t e r i g h t o f the i n d i v i d u a l t o

e n j o y his pr i vacy and	property .	...
S t a t e and	Commonwealth	s t a t u t e s have made many

excep t ions t o the common l a w p o s i t i o n , and

S . 679 i s a far-reaching one. Nevertheless, i n

cons t ru ing and apply ing such s t a t u t e s , it needs

t o be k e p t i n mind t h a t they au thor i se the

invas ion o f i n t e r e s t s which the common law has

always valued h i g h l y and which, through the

W r i t of	Trespass ,	it went	to great	l e n g t h s t o
p r o t e c t .	Against	t h a t	background,	the

enactment o f cond i t ions which must be f u l f i l l e d

before a search warrant can be l a w f u l l y i s s u e d

and executed i s to be seen a s a reflection o f

the	l e g i s l a t u r e ' s	concern	to g i v e	a	measure	o f
pro tec t ion	t o	these	i n t e r e s t s .	To	i n s i s t	on

strict	compliance	w i t h	the	s t a t u t o r y cond i t ions
governing	the	i s s u e o f search	warrants	i s

s i m p l y t o g ive e f f e c t t o the purpose o f the

l e g i s l a t i o n . "

So too, to require a strict duty of full disclosure of material facts by the informant seeking a warrant is but to reflect the traditional policy of the common law to protect the privacy of individuals against the arbitrary use of the power of entry and search.

The obligation arises also from the fact that of necessity, the issue of a search warrant is an ex parte procedure. In granting ex parte relief, the courts of equity have always required the applicant for such relief to bring to the notice of the court all facts material to the determination of the right to that relief. In such cases, as the High Court pointed out in Thomas A. Edison Limited v Bullock (1912) 15 CLR 679 at p. 682:

"Vberrima Fides i s required, and the par ty inducing the Court t o a c t i n the absence o f the o ther par ty , f a i l s i n h i s ob l iga t ion unless he

suppl ies the place o f the absent p a r t y t o the

extent o f bringing forward a l l the material

f a c t s	which	tha t	p a r t y	would	presumably	have
brought	forward	i n	h i s	defence	t o	that

app l i ca t ion . "

The appellants submit that in all of the search
warrants in question the informant failed to comply with the

obligations imposed upon him. This failure is said to arise

informant to advert to the charter party agreement which, it	from two circumstances. The first was the failure of the
is conceded, was in the possession of the Australian Taxation Office. The second respect in which the failure is said to arise is the failure to make clear that the documents referred to in the information, with the exception of the purchase agreement, had all been provided by Meesrs Coopers and Lybrand acting on behalf of the appellants.
The significance of the charter party agreement was, it was said, to negate the implication that arose from the	; '
!

purchase and sale agreement.	It demonstrated, so it was said,	I.
t .
!
I

that no conspiracy to defraud existed because the monies not	i
!
remitted from Japan to Australia were used to pay for the	I
, .
1 .
rental of the vessel under the charter party agreement which	I .
I .
rental would have been an allowable deduction so that no	, -
income tax would have been evaded.
!
. .
i '

There are two answers to this submission.	The first, is	I -
I I

that the existence of the charter party was unknown to the	t
informant seeking the warrants. It was, as is agreed, in the possession and control of the Australian Taxation Office. But it is simply not true to say that documents that are in the possession of the Income Tax Office are thereby taken to be known to the Australian Federal Police seeking a warrant. The police do not act on instructions from the Australian Taxation Office. The decision to obtain a warrant is a decision to be
made independently by the police based on the information	known to them. If that information is incomplete because
there is a document in the possession of some other person which would or might tend to show that no offence was committed that fact can not operate to invalidate the warrant.
The second answer is that the offence of conspiracy consists of the agreement of two or more persons to do an	i \
i r
unlawful act or to do a lawful act by unlawful means:
!  i

OrDonovan v Vereker & Ors (1987) 76 ALR 97 at p. 110 per Northrop J with whom Fox J agreed at 99; Mulcahv v _R (1868) LR 3 HL 306 per Willes J at p. 317 quoting Lord Denman in fi v Jones (1832) 4B & Ad 345.

As the Full Court of this court pointed out in O'DonOvan v Vereker (supra) a final determination of the income tax issues cannot be undertaken in a trial for conspiracy to defraud the revenue in respect of income tax. That is an issue which falls to be determined only in proceedings under Part V of the Income Tax Assessment Act 1936.

The second matter of complaint amounts in essence to saying that the duty to give disclosure required the information to set out that Coopers and Lybrand were the accountants for the appellants, a fact which is admittedly not disclosed. The significance of this fact is said to be that

that the appellants had supplied the documents voluntarily	the issuing Justice would have perceived from the information	notwithstanding that they might have appeared to be against their interest.
It is not disputed that the information referred to the fact that Coopera and Lybrand had supplied copies of the documents in question to the Australian Taxation Office. Having regard to the agreed fact that an investigation had commenced into the affairs of the appellants before the information was supplied, the present is not a case where the information was supplied voluntarily by a tax payer in advance of any investigation of his affairs being commenced. While it certainly would have been preferable if the information had revealed that Coopers and Lybrand were in fact the advisers of the appellants, so much could probably have been inferred from paragraph 45 of the information which refers to Coopers and Lybrand as being not only accountants but also "advisers".

I I
,,..
I

A fact will be material in the relevant sense if that fact be one that m (not would) have affected the	1.
I
I .
exercise of the discretion on the part of the justice to issue
the warrant: B v Curran & Torney [l9831 2 VR 133 at pp.150-1. Curran's case was an extreme one. There, after the arrest of	I .
i
Messrs Curran and Torney on counts of armed robbery and of one	; m
of them on a count of murder, a warrant was sought and
obtained under the provisions of the Listenina Devices Act	1969 (Vic) authorising the use of a listening device in the
door of one of the cells being the cell in which Mr Curran was	! -
( 3

placed to record conversations between the two of them. The , .

conversations in fact recorded provided strong evidence that	1 .
j - /

. 4 .

the two accused had committed the murder. However in applying

: !

for the warrant the informant had not disclosed to the issuing

I

justices that one of the accused, whose conversations were to	P I
i
be listened to, had already been charged with the murder.
i ..
Although on the facts of the case the misleading nature of the
1.:  L
l '

information was due to error and did not arise by design, it

was held nevertheless that there had been a serious failure on

.

the part of the informants to comply with the legal duty of disclosure. The case was one where, no doubt, had the information fully and correctly set out the fact that one of the persons whose conversations were to be intercepted had been charged with murder this fact would have made a difference to the decision.

It is clear that the test to be applied, consistent with ordinary administrative law principles, is that the justice's omission to take into account a material factor need only be one that may affect the decision and does not need to be one which of necessity affects the decision or which might on the balance of probabilities affect the decision. However, as Mason J pointed out in Minister for Aboriqinal Affairs v Peko Wallsend Limited (1985-6) 162 CLR 24 at p.40, a matter

not taken into account " . . . m i g h t be so i n s i g n i f i c a n t t h a t t h e

f a i l u r e	to	t a k e	i t	i n t o	account	could	no t	have	m a t e r i a l l y
a f f e c t e d	t h e	d e c i s i o n : "	see	too	at	p.46	in	his	Honour's

judgment. In our view the failure to disclose that Coopers and Lybrand were the advisers of the appellants is, having regard to the material otherwise contained in the information, a matter so insignificant that the failure to take it into account could in our opinion not have materially affected the decision of the justice to issue the warrant.

Accordingly we are of the view that these

submissions must fail.

The second attack on the s.10 warrants concerned the alleged failure of the informant to provide sources for some of the information and what was said to be the presence of misleadingly sourced material. Counsel for the appellants conceded that the matters as to which it was said that no source at all was given were so trivial that on their own they would make no difference. With this we agree. The so called misleadingly sourced information was misleading only because of the failure to disclose that the documents and material referred to had been supplied by Coopers and Lybrand. In essence this is the same submission as that which we have already dealt with and must fail for the same reason.

The third submission of the appellants was that the

justice in issuing the s.10 warrant was satisfied as to one of

Crimes Act to be satisfied but not of another. S.10 (1)	the matters in respect of which he was required by s.10 of the
provides as follows:

1 0 . (1) I f a J u s t i c e of the Peace i s

s a t i s f i e d by information on oath that there i s

reasonable ground f o r suspect ing tha t there i s

i n o r upon any premises, a i r c r a f t , v e h i c l e ,

vesse l	o r place:
( a )	anything wi th respec t t o which any o f fence against any law o f the Commonwealth or o f a Territory has been, or i s suspected on
reasonable grounds t o have been, committed;

(b) anyth ing a s t o which there are

reasonable grounds for b e l i e v i n g

t h a t it w i l l a f f o r d ev idence a s
t o the commission o f any such

o f f e n c e ; or

(c ) anyth ing a s t o which there i s

reasonable ground f o r b e l i e v i n g

t h a t it i s in tended	t o be	used
f o r	the purpose	o f committ ing

any such o f f e n c e ,

o r t h a t a n y such t h i n g may, w i t h i n the next fo l lowing 72 hours , be brought i n t o or upon the premises, a i r c r a f t , v e h i c l e , vessel or place,

the J u s t i c e o f the Peace may grant a search

warrant a u t h o r i s i n g any cons table named i n the

warrant, w i t h such a s s i s t a n c e , and by such

force, a s i s necessary and reasonable, t o e n t e r

a t any t ime the premises, a i r c r a f t , vehicle, vessel o r p lace named or described i n the warrant, and t o s e i z e any such t h i n g which h e or she might f i nd there. "

It can be seen from the wording of the section that
the prerequisites to the issue of a warrant include

satisfaction by the justice that there is reasonable ground

anything of the kind referred to in paragraphs (a), (b) and	for suspecting that there is in or upon any premises etc
(c) of the subsection or that any such thing may within the succeeding 72 hours be brought in or upon the premises. The justice must also be satisfied that there is an offence against a law of the Commonwealth or of the Territory which has been or is suspected on reasonable grounds to have been committed.

!

i

t '-

L.:
f.

1:.

Fulfilment of both of these preconditions to the issue of a warrant is stated on the face of the warrants themselves. However, it was submitted that the first of these two matters was not in fact considered by the magistrate and that this was clear from what was described as the "judgment" of the magistrate to which we have already referred.

It was not disputed that in determining the validity of the issue of a warrant a court is entitled to go behind the warrant itself and look at the circumstances surrounding its issue: The Oueen v Sina: Ex parte Harrison (1979) 36 FLR 322, Parker v Churchill (1986) 9 FCR 334 and cf Georae v Rockett (supra) at p.387. However the respondent submitted that a careful reading of the transcript of what occurred before the magistrate made it clear that the magistrate was satisfied of both of the matters referred to in s.10 (1).

A perusal of the transcript makes it clear that from the outset the magistrate was concerned to ensure that the

facts and information gave rise to the suspicion that the

relevant offence had been or was suspected on reasonable grounds to have been committed. This was a matter which he pursued for some time and which he then acknowledged was a matter of which he was satisfied. He thereafter dealt with other matters which he was required to deal with. Whilst it is true that he made no express reference in the comments made by him prior to agreeing to issue the warrants to the matter of which the appellants complain, he finally expressed the view that he was satisfied that it was appropriate to issue the warrants. The information left no doubt that there was reasonable ground for suspecting the presence of items coming within the descriptions of (a), (b) and (c) of the subsection provided that the magistrate was satisfied as to the committing of the relevant offence. Nothing in the transcript suggests that the magistrate ignored the question. All that the transcript discloses is that he said nothing about it. It can not be supposed that the magistrate signed a warrant stating that he was satisfied when in truth he was not or when in truth he had failed to consider the matter.

In our opinion there is no substance in the

submission.

The final submission made specifically in respect of the s.10 warrants requires little attention.

In the information that is sworn in respect of the

s.71 warrants the informant said:

"the informant believes that the persons or

have derived a benefit by reason o f the commission o f the offences specified i n the	enti t ies named i n the second paragraph hereof
use of monies which, b u t for the commission of the said offences, would have been assessed and third paragraph hereof namely the retention and
payable a s income tax pursuant to the Income Tax Assessment Act 1936".

This paragraph was necessary to be stated having

regard to the provisions of 8.71 (2) of the Proceeds of Crime

&& set out later in this judgment. It is of no relevance at

all to the s.10 warrants. It is not essential to constitute the crime of conspiracy to defraud that in fact there be a benefit to the conspirators. As we have already said, the essence of conspiracy lies in the agreement. It does not lie in the success or otherwise of the common purpose.

No doubt the requirement of mens rea necessitates the finding of an intention that the conspirators would benefit from their act. However such an intention would ordinarily be found in circumstances where the wrongful act complained of is the failure to remit monies representing gross income to Australia and the non disclosure of those amounts in an income tax return. Accordingly the failure to include in the s.10 information a paragraph similar to that contained in the s.71 information does not invalidate the

warrants.

For these reasons therefore we are of the view that the learned trial judge was not in error in holding that the s.10 warrants were valid.

The 5.71 warrants

The principal objects of the Proceeds of Crime Act 1987 as enunciated in 8.3 (1) of that Act are:

" ( a ) t o deprive persons o f the proceeds o f , and

benef i t s derived from, the commission o f

offences against the l a w s o f the

Commonwealth or the Territories;

(b) t o provide for the forfei ture o f

property used i n or i n connection with the commission o f such offences; and

( c ) t o enable l a w enforcement

authorities e f f e c t i v e l y t o trace

such proceeds, benef i ts and

property. "

It is in aid of these objects that s.70 authorises police officers to enter upon land or upon or into premises, to search for any "property tracking documents" in relation to an indictable offence and to seize any documents found in the course of the search that the police officers believe on reasonable grounds to be "property tracking documents" in relation to an indictable offence.

The expression "property tracking documentw is defined in s.4 (1) of that Act in relation to an offence as

meaning: 

" ( a ) a document relevant to:

(i) identifying, locating or quantifying property o f a person who committed the offence; or

(ii) identi fying or locating any document

necessary for the transfer o f property o f a person who committed the offence; or

(b) a document relevant to:

(i) identifying, locating or quantifying tainted property i n relation t o the offence; or

(ii) identi fying or locating any document

necessary for the transfer o f tainted
property i n relation t o the offence."

The expression "tainted property" i n relation t o an

of fence i s t o be found i n the same subsection as meaning:

" ( a ) property used i n , or i n connection with,

the commission o f the offence; or

(b) proceeds of the offence;
and when used without reference t o a
particular offence means tainted property
i n relation t o an indictable offence;"

5.71 o f the same Act i n force a t the relevant time

provided:

"71. ( l ) Where:

(a) a person has been convicted of an

indictable offence and a police o f f i c e r has reasonable grounds for suspecting that there i s , or may be within the next following 72 hours, upon any land, or upon or i n any premises, i n a State or Territory, a property-tracking document i n relation t o the offence; or

(b) a police o f f i c e r has reasonable

grounds for suspecting that:

(i) a person has committed an

indictable offence; and

(ii) there i s , or m a y be within the

next following 72 hours, upon any land, or upon or i n any premises, i n a State or Territory, a property-tracking document i n relation t o the offence;

the police o f f i c e r may:

( c ) l a y before a Judge o f the Supreme

Court o f :

(i) the State or Territory in which the person was convicted o f the offence or i n which the offence i s believed t o have been committed; or

(ii) the State or Territory referred

t o i n paragraph ( a ) or (b);

an information on oath set t ing out

those grounds; and

(d)	apply to the Judge for a search
warrant under subsection ( 4 ) i n

respect o f the land or premises.

( 2 ) Where a police o f f i c e r applying for a

warrant under t h i s section i n respect o f an offence includes i n the information under subsection (1) information on oath that the o f f i c e r has reasonable grounds t o believe that:

( a ) the person who was convicted o f the

offence or who i s believed t o have	committed the offence derived a
bene f i t , d irect ly or indirectly, from the commission o f the offence; and
(b)	property specified in the information
i s subject t o the e f f ec t i ve control
o f the person;

the Judge m a y treat any document relevant t o identifying, locating or quantifying that property as a property-tracking document i n relation t o the offence for

the purposes o f t h i s section.

( 3 ) In determining whether t o treat a

document, under subsection ( Z ) , a s a

property-tracking document i n relation t o

an offence, the Judge may have regard t o	the	m a t t e r s	r e f e r r e d	t o	i n	s u b s e c t i o n	28
( 2 )

( 4 ) Where a n a p p l i c a t i o n i s made under

s u b s e c t i o n (1 ) for a s earch warrant i n

respect o f l a n d or premises , the Judge

may, s u b j e c t t o s u b s e c t i o n s ( 5 ) and (6).

i s s u e a s e a r c h warrant a u t h o r i s i n g a

p o l i c e	o f f icer (whe ther	o r n o t	named	i n
the warran t ) ,	w i t h such	a s s i s t a n c e ,	and	by

such f o r c e , a s i s n e c e s s a r y and

reasonable :

(a) to enter upon the land or upon or

i n t o the premises;

(b) t o search the l a n d o r premises for

documents o f the k i n d r e f e r r e d t o i n

s u b s e c t i o n (1); and

(c ) t o seize a n y document found i n the

cour se o f the search t h a t the p o l i c e

o f f i c e r	believes, on r easonab l e
grounds,	t o be a document o f t h a t
k i n d .

( 5 ) A Judge s h a l l not i s s u e a search warrant

under s u b s e c t i o n ( 4 ) u n l e s s the Judge i s

s a t i s f i e d t h a t :

( a ) the document i n v o l v e d cannot be

i d e n t i f i e d	or	d e s c r i b e d	w i t h
s u f f i c i e n t	p a r t i c u l a r i t y	for	the

purpose o f o b t a i n i n g a produc t ion

o r d e r i n respect o f the document;

(b) a produc t ion o r d e r h a s been g i ven i n

r e s p e c t o f the document and h a s not

been compl ied w i t h ;

(c) a produc t ion o r d e r i n respect o f the

document	would	be	u n l i k e l y to be
e f f ec t i ve	b e c a u s e	there	a r e

r easonab l e	grounds	t o	s u s p e c t	t h a t
such	a	produc t ion	o r d e r would	n o t be

compl ied w i t h ; or

( d ) the i n v e s t i g a t i o n for the purposes o f

which	the	search	warrant	i s b e i n g
sought	m igh t	be	s e r i o u s l y	p re jud i ced
i f the	p o l i c e	o f f i c e r does	not	gain
immediate	a c c e s s	t o	the	document

w i t h o u t notice to a n y person.

( 6 ) A Judge s h a l l n o t i s s u e a s earch warrant

under t h i s section u n l e s s :

( a ) the in fo rman t o r some other person

h a s g i ven the Judge, either o r a l l y or

by a f f i d a v i t , a n y f u r t h e r i n f o r m a t i o n

t h a t the Judge r e q u i r e s concern ing the grounds on which the search

warrant i s sought ; and

(b) the Judge i s s a t i s f i e d t h a t there a r e r easonab l e grounds for i s s u i n g t h e s earch warrant .

( 7 ) There s h a l l be s t a t e d i n a s earch warrant

i s s u e d under this s e c t i o n :

( a ) a s t a t e m e n t o f the purpose f o r which

the	warrant	i s	i s s u e d ,	i n c l u d i n g	a
reference	t o	the	n a t u r e	o f	the
i n d i c t a b l e	offence	t h a t	h a s	been	or

i s b e l i e v e d t o have been committed;

(b) whether entry i s a u t h o r i s e d t o be

made a t a n y t i m e o f the d a y o r n i g h t

or	d u r i n g s p e c i f i e d	hour s	o f	the	d a y
or	n i g h t ;

( c ) a d e s c r i p t i o n o f the k i n d o f

documents	a u t h o r i s e d	t o	be	s e i z e d ;
and

( d ) a d a t e , not b e i n g l a t e r t han one

month a f t e r the d a y o f i s s u e o f the

warrant , upon which the warrant

c e a s e s t o have e f f ec t .

(8) I f , i n the c o u r s e o f s earch ing , under a

warrant i s s u e d under t h i s section, f o r a

p roper t y - t rack ing document i n r e l a t i o n t o

a p a r t i c u l a r offence, a p o l i c e o f f i c e r

f i n d s :

( a ) a n y document t h a t the p o l i c e o f f icer

believes, on reasonab l e grounds,	t o
be :

( i ) a p roper t y - t rack ing document i n

r e l a t i o n t o the offence,

a l t hough n o t o f a k i n d s p e c i f i e d

i n the warrant; or

(ii) a property-tracking document i n

relation to another indictable
offence; or

(b) any thing that the police o f f i cer

believes, on reasonable grounds, w i l l afford evidence as the conmission o f

a criminal offence;

and the police o f f i cer believes, on reasonable grounds, that it i s necessary to seize that document or thing i n order to prevent i t s concealment, loss or destruction, the warrant shall be deemed to authorise the police o f f icer to seize t h a t document or thing."

The learned primary judge held the 9.71 warrants invalid because his Honour found that in two respects the warrants failed to comply with the provisions of 9.71 (7) of the Act.

The appellants challenged the warrants additionally
upon a number of other grounds. Two of those grounds were

identical to grounds of challenge to the s.10 warrants, namely

that the police officer in the information had not disclosed	all material facts relevant to the issue before the magistrate
and that the material contained in the information was misleadingly sourced. If anything, the information on which the s.71 warrants were obtained was clearer in its reference to Coopers and Lybrand and would give rise readily to the inference that that firm was the adviser of the appellants. For the reasons already set out in respect of the s.10 warrants these submissions must fail.

The appellants further argued that the s.71 warrants were invalid in that the warrants did not disclose on their face that the learned judge issuing the warrants was satisfied about the preconditions to the issue of the warrants referred to in 9.71 (5) or s.71 (6)(b) of the Proceeds of Crime Act 1987. It was submitted on the authority of The Oueen v Tillett: Ex Darte Newton (1969) 14 FLR 101 that for that reason the warrants were invalid.

His Honour rejected this argument holding that there was a presumption of regularity in respect of warrants issued by judges, a presumption inapplicable to warrants issued by justices of the peace and that in the absence of any evidence to the contrary, the learned judge issuing the warrants must be taken to have directed his mind to the relevant preconditions for the issue of the warrants and that accordingly they must be presumed to be valid. In so holding, his Honour referred to the views expressed by the majority in

&g v IRC: Ex Darte Rossminster [l9801 AC 990 where it was

held that the failure of the warrant to state that the

requirements of its issue had been complied with did not invalidate the warrant, although it would be desirable to state on its face that these matters had been complied with.

As we are of the view that his Honour was correct in holding that the warrants should be set aside for failure to comply with 9.71 (7) of the Proceeds of Crime Act it is unnecessary to decide the point here. Rossminster's case may well depend on the particular context of the legislation there in question. The application of Rossminster's case in Australia has been questioned in O~tical Prescri~tion

S~ectacle Makers Ptv Ltd v Withers (1987) 13 FCR 594 and Pressler v Holzberaer (unreported; Spender J, 4 August 1989). It may well be that the particular statutory context explains the view of the majority in Rossminster's case.

It is, however, preferable to leave to another day the question whether there is a presumption of regularity with respect to a warrant that is issued by a Supreme Court judge pursuant to s.71 of the Proceeds of Crime Act but not with respect to warrants issued by a justice under provisions, such as S. 10 of the Grimes Act. Attention may need to be directed to the fact that the issue of a warrant is an administrative act and in the case of a warrant issued by a judge of the

albeit that the exercise of the power involves that person in	Supreme Court, performed by that judge as a persona designata,
acting judicially; cf	v Attornev-General (NSW1 (1990) 64

ALJR 175. To the extent that the basis of there being no presumption of regularity where the warrant is issued by a justice depends upon the historical fact that justices issuing warrants were traditionally persons not necessarily having legal training, the question may require reconsideration having regard to the situation now prevailing in at least most States of the Commonwealth where magistrates are required to be legal practitioners: see in New South Wales S. 12(2) Local courts Act (NSW1 1982; and in South Australia s.5(5) Maaistrates Act (S.A.1 1983.

There is in the present case a short answer to the appellants' submission. S.71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s.71(5) or s.71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. While as has been often said, that rule is to be applied with caution cf State of Tasmania v Commonwealth of Australia & State of Victoria (1904) 1 CLR 329 at p.343; Rvlands Brothers (Aust) Ltd v Moraan [l9271 27 SR (NSW) 161 at pp.168-9 and other cases referred to in D C Pearce & R S Geddies, Statutorv Inter~retation in Australia 3rd ed at pp.79-82, para 4.22, it seems to us that the

matters that were required to be stated in a search warrant to legislative intention in s.71(7) was to provide a code of the

the exclusion of matters that would otherwise be required by
the application of common law principles.

We should say however that while not a matter going to validity, it is extremely desirable that the warrant express in terms that the relevant satisfaction is held so that it is clear on its face to all to whom the warrant may be

shown that the judge issuing it has given attention to the matters which he is required to consider under the provisions of s.71.

S.71 (7) requires specifically that the warrant state " t h e purpose f o r which the warrant i s i s s u e d " . It is

obvious from the words that thereafter follow in the subsection that the statement of purpose must at least refer to the nature of the indictable offence in respect of which it is issued.

OrLoughlin J held in the present case that the 9.71 warrants failed to state the purpose for which they were issued. In testing whether or not the purpose was stated his Honour expressed the view that this was best tested by viewing the matter through the eyes of a stranger such as a banker or a professional adviser. His Honour said:

" T h e y would know from r e a d i n g the warrant t h a t

it had been i s s u e d under the Proceeds o f Crime m; they would a l s o know o f the i d e n t i t y o f the p a r t i e s who a r e su spec t ed o f h a v i n g

committed c e r t a i n nominated o f f e n c e s ; they

would know the n a t u r e o f the documents t h a t

m igh t be the s u b j e c t o f s earch and s e i z u r e and

the premises t h a t can be e n t e r e d . But would

they know the 'purpose' f o r which the warrant

was i s s u e d . The f i r s t d e f i n i t i o n o f t h e word

' purposen i n the M a c w u y i s ' the

o b j e c t f o r which a n y t h i n g exists o r i s done,

made, used , etc. '. In the m t e r Oxford

Ena l i sh D i c t i o n a r v the f i r s t meaning a t t r i b u t e d

t o the word i s 'The o b j e c t which one h a s i n

v iew' . Bo th a u t h o r i t i e s a l s o r e f e r t o

'intention' a s w e l l . I t seems t o me t h a t a n y

stranger affected by such a warrant (and its application to documents in his premises) is entitled to ask 'what is intended by the issue of this warrant?: what is its object?: what is its purpose?' and the answer to these questions must be apparent from a reading of the warrant. . . . I have concluded that I do not know the purpose for which this warrant issued. Assumptions could perhaps be made but it is not sufficient to make assumptions ... the short answer to this problem is that only the infonnant, his colleagues and advisers knew what was the object of the warrant. This should have been stated in the information so that, in turn, the purpose could be set out in the warrant. The absence of a statement of the purpose for which the warrant was issued means that the warrant was thereby deficient."

The respondents submit that his Honour fell into error in reaching this conclusion. It was submitted that it is not necessary that the warrant itself use the words "the purpose of this warrant is" or similar words. I t is sufficient if the purpose be stated in the warrant itself. It was further submitted that the purpose of the warrant was to be found in the concluding words of the warrant which

premises, to search and seize documents. It is said that this	authorise the person to whom the warrant is addressed to enter
must be the purpose of the warrant.
Reference was made both before us and before his Honour to the provisions of the National Crime Authority Act
and to the regulations made thereunder. S . 2 2 ( 5 ) of that Act .m --- - -a--

__- .-: - _ . " -

also requires that a warrant issued under that section include a statement of the purpose for which the warrant is issued.

i .

The regulations contain a prescribed form of warrant but that 1.

form does not contain expressly a statement of purpose. It I

was said that the prescribed form of warrant, like the

i.

warrants presently before us, did however comply with the	, -
required statement of purpose having regard to the last part of the form which was in the following terms:
L

"YOU ARE HEREBY AUTHORISED, w i t h such

a s s i s t a n c e a s you think n e c e s s a r y and i f I .

n e c e s s a r y by force I,

( c ) t o enter * upon/* i n t o / the

above-mentioned * between the hour s o f

and *

a t a n y t i m e o f the d a y o r n i g h t : /

( d ) t o s earch the f o r

connected	w i t h	the m a t t e r s p e c i f i e d i n the	I
Schedu le :	and

( e )	t o seize	a n y	connected	w i t h the m a t t e r	i
i

s p e c i f i e d i n the Schedu le found * upon/* i n /

the	and	d e l i v e r	them	t o the	i
A u t h o r i t y " .	i
i
I

We do not obtain much assistance in the interpretation of the provisions of s.71(7) of the Proceeds of	1
l
Crime Act from regulations prescribed under another enactment.

The concept of "purpose" in the present context is one of some difficulty. In Maana Allovs and Research Ptv Ltd v Federal Commissioner of Taxation (1980) 33 ALR 213 at 215 Brennan J (when a judge of this Court) referred with approval to what Lord Wright had said in Crofter Hand Woven Harris Tweed CO Limited v Veitch [l9421 AC 435 at 469: "the words

' m o t i v e ' , ' o b j e c t ' , ' pu rpose8 a r e i n a p p l i c a t i o n t o p r a c t i c a l

matters difficult strictly to define or distinguish". As his Honour there points out, purpose may in a particular context be subjective or objective. Subjective purpose is a state of mind whereas objective purpose is an attribute of a transaction.

S.71 (7) directs attention not to the purpose of a person but to the purpose of the warrant itself. To this extent it is objective purpose rather than subjective purpose to which the section refers. The general purpose of a warrant will ordinarily be the identification of documents that are in respect of the offence stated and the seizure of such documents. As a search warrant cannot issue unless the judge is satisfied of the matters referred to in s.71 ( 5 ) it would not be inaccurate to describe the purpose of a warrant as being to obtain documents which for one or more of the reasons specified in that subsection can not be obtained by a production order. However it does not seem that s.71 ( 5 )	provides on its own the relevant purpose. Rather it provides	a reason why a search warrant is required rather than a
production order.
To treat the words of authorisation, which described the ambit of the permitted invasion of privacy under the warrant as the purpose, is in our view to confuse the effect of the warrant with the purpose for which it is issued. This is not to say that there is no relationship between the two.
Where the legislature has required that the warrant state the purpose for which it is issued, it has done so in order that a person whose premises are to be entered and searched can see from the face of the warrant itself that the legislative requirement has been complied with. A warrant issued for a purpose foreign to the Act would be issued in excess of power and would be invalid. The legislative purpose is to enable such persons to determine on the face of the warrant itself whether the warrant has in this respect been validly issued and is being validly executed. Thus, although 9.71 (8) authorises an officer conducting a search to seize anything which he believes on reasonable grounds to afford evidence as to the commission of a criminal offence, a warrant issued for that purpose would be issued for a purpose foreign to the Proceeds of Crime Act and would be for that reason invalid.
It may well be that if the present warrants had merely stated that the purpose of the warrants was to authorise entry of the relevant premises or to authorise
search of those premises for tracking documents as specified and to seize them, that the warrants would have been valid on their face. It may be said that the view we take prefers form at the expense of substance. But s.71(7) is a provision inserted by Parliament for the protection of the citizen. It must in our view be construed strictly and failure to comply with it will lead as in the present case to the warrants being declared invalid.
O'Loughlin J found the warrants invalid for a second reason. His Honour held that s.71(7) required the statement of purpose to contain a reference to the belief of the judge issuing the warrant that the specified indictable offence has been committed. The warrants actually issued merely stated that there were reasonable grounds to "suspect" that the named persons or entities had committed the four indictable offences that were set out in the warrants.
His Honour quite correctly refers to the difference well known to the law between belief and suspicion. That distinction was recently again pointed to in the decision of the High Court in Georae v Rockett (supra) at pp.388-9.
The structure of s.71 is curious. Subsection (1) refers to the police officer having "reasonable grounds for
suspecting" the matters there set out. Subsection ( 2 ) , which
may not always be relevant, refers to the information containing information on oath that the officer has "reasonable grounds to believe" the matters referred to in that subsection. Subsection (7) on the other hand refers to belief that the relevant offence has been committed and appears to be somewhat in conflict with the requirement that the information refer to susuicion contained in subsection (1). Subsection (8) also refers to belief on reasonable grounds.
~lthough the matter is arguable, we do not think that the reference in the warrant to suspicion can be put to one side by the simple expedient of saying that in the language of s.71 the words "belief" and "suspicion" mean the same thing. If it is a requirement of subsection (7) that the warrant state that the indictable offence is one that "has been or is believed to have been committed", then in our view it would not be a compliance with the subsection to refer to "suspicion" with a result that a warrant would for this reason too be invalid.
However with respect to the learned primary judge we are of the view that all subsection (7) requires is reference to the relevant indictable offence. We do not read subsection
(7) as requiring a further statement in the warrant that there
is a belief that that offence has been committed. But it is
clearly desirable that those framing warrants use the words of the section so that those to whom the warrants come can see on
the face of the warrants that the terms of the section have been observed.
It follows in our view from what we have said above that his Honour was correct in holding that the 6.71 warrants were invalid. The orders which we propose to make are as
follows :
In respect of the a~~ellants' appeal:
(1) Appeal dismissed.
(2) The appellants to pay the respondentsr costs of the

appeal.

(3) Liberty to either party to apply on 7 days' notice.

In respect of the respondents' appeal:

(1) Appeal dismissed.

(2) The respondents to pay the appellants' costs of the

appeal.

(3) Liberty to either party to apply on 7 days' notice.

APPENDIX NO. 1

COMMONWEALTH OF AUSTFUGIA

CRIMES ACT 1914 SEARCH WARRANT

m Anthonie Louis CmFERMAN

Robert Royle FISHER

each of whom are Australian Federal Police Officers

WHEREAS I. FREDERICK ROBERT FIELD

a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914, of the Commonwealth of Australia, being satisfied by information on oath placed before me this date that there are reasonable grounds for suspecting that there is in or upon premises situated at

1.        Unit 1, 6 Edward Street, PLYMPTON in the State of South Australia.

certain things being originals or copies of:

1. Agreements and Contracts relating to the sale and/or supply of seafood, (which for the purpose of this search warrant and wheresoever appearing in this search warrant shall include seafood, seafood products, and/or seafood extracts) to persons or entities outside the Commonwealth of Australia, correspondence or notes referring to such agreements and contracts.

2. Catch recozds or returns.

3. Documents relating to the tender, supply, lease or purchase of equipment used in connection with the catching of seafood by any means, the preserving or freezing of seafood or the transporting of seafood to any place outside the Commonwealth of Australia.

5 .        Design drawings or sketches relating to the construction, modification, refitting, refurbishing, maintenance or operation of fishing vessels owned, leased, chartered or otherwise operated by those persons or entities more fully described in paragraph 21 but by excluding those vessels named:-

(the names of six vessels were then set out)

6.        Documents relating to the construction, modification, refitting, refurbishing or maintenance of fishing vessels owned, leased, chartered or operated by those persons or entities more fully

described in paragraph 21.

7.        Correspondence or other documents relating to the supplying, selling, storing, transporting, handling or otherwise dealing with seafood or the proceeds of the sale of the same, for or on behalf of any one or more of the persons or entities more fully described in paragraph 7. (sic)

1. Documents relating to the purchasing, chartering, leasing or otherwise operating of a vessel known variously as "DAITO MARU No. 18": or "D-THREE".

2. Documents relating to the purchasing, chartering, leasing or otherwise operating of a vessel known variously as "NORTHERN L" or "NORTHERN TIDE".

3. Documents relating to the purchasing, chartering, leasing or otherwise operating of a vessel known variously as "LADY GAY" or "LADY L".

11.       Documents relating to the companies in the Republic of Honduras, Japan, Hong Kong or the Republic of Singapore with which those persons or entities more fully described in paragraph 21 are or have been associated.

12.       Banking records; statements of account; company, organisation or private bank passbooks; cash sheets; cash payment records; invoices; deposit books; deposit records; cheque books; cheque butts; books of account; cash books; ledgers; journals; balance sheets, profit and loss accounts

papers ; taxation files and working papers; and other accounting records; accountants' working

taxation returns; loan records ; share

certificates; records of investments made, terminated or matured outside the Commonwealth of Australia and including any income arising from such investments; correspondence relating to the opening, maintaining, operating or closing of accounts with banks or other financial institutions, whether within the Commonwealth of Australia or

elsewhere.
Passports or travel documents; diaries ; diary
notes ; business cards; facsimile addressee
numbers; telephone numbers and addresses.
And in the event that there are electronic data
processing facilities installed in the premises,
things being:-
computer hardware including central processor units
and all associated peripheral equipment including
solid state memory storage, expansion boards,
keyboards, visual display units, disk drive units,
printers, tape stream units, networking equipment,
encryption equipment, modems and other date
communication equipment, mouse devices, protocol
devices, all other input or output devices and
equipment, all cables connection wiring and
connectors, storage media for computer generated or

access data including hard discs, floppy diskettes,

magnetic tapes, solid state memory storage devices	and all data recorded on such media, computer
software including Read Only Memory operating system software, source codes, object codes applications software, utilities software,
documents including manuals, operating instructions correspondence and notes relating to the computer hardware, storage media or computer software,
documents relating to sign on codes, transaction

codes, passwords, network and terminal addresses,
access procedures and encryption keys,

18.       documents relating to work practices and procedures in respect of computer and allied operations

19.       documents relating to software systems, applications and/or database development or construction

20.       and all other business and/or accounting records, documents or things of, or which pertain to, arise out of, are connected with or relate to the affairs of one or more of the following persons or entities:-

21.       (the names of 26 persons and entities were then set

out )

22.       AND 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, and in respect to which are reasonable grounds for suspecting that the

FISHERIES PTY LTD., Dinko LUKIN, Ann LUKIN, Dean following offences have been committed by KARINA

LUKIN, David Franc LUKIN.

(a)	committed between the 1st day of July 1984 and the 13th day of April 1989, namely conspiracy to defraud the Commonwealth by failing to include income derived from the sale of seafood in Japan, in the taxation returns submitted for or on behalf of KARINA FISHERIES PTY. LTD; from 1st July 1984 to the 24th of October 1984, contrary to Section 86 ( l) (e) of the Crimes Act 1914 and thereafter contrary to Section 86A of the Crimes Act 1914.
(b)	committed between 1st day of July 1984 and the 13th day of April 1989 against Section 86(l)(b) of the Crimes Act 1914, namely conspiring with another person to prevent the enforcement of a law of the Commonwealth namely Section 17 of the Income Tax Assessment Act 1936 by failing to declare the income derived from sales of seafood in Japan in taxation returns submitted for or on behalf of KARINA FISHERIES PTY. LTD.
(c)	committed between 1st day of July 1984 and the 13th day of April 1989 against Section 8T(d) and (i) of the Taxation Administration Act 1953, namely by omitting to record in the accounting records of KARINA FISHERIES PTY.

LTD. the full income derived from the sale of	seafood in Japan with the intention of
defeating the purposes of a taxation law.

(d) committed between 25th day of October 1984 and the 13th day of April 1989 against Section 29D of the Crimes Act 1914 namely defrauding the Commonwealth by failing to include income derived from the sale of seafood in Japan in taxation returns submitted for or on behalf of KARINA FISHERIES PTY. LTD.

YOU ARE HEREBY AUTHORISED with such assistance, and by such force as is necessary and reasonable, to enter at any time the said premises and to seize the said things more fully described above which you may find in the said premises as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and for so doing this shall be your sufficient warrant.

FURTHERMORE YOU MAY, pursuant to Sub-Section (1A) of Section

10 of the Crimes Act 1914, where it is necessary and

reasonable to do so for the purpose of executing the warrant, break open such doors and receptacles as are in or upon the said premises and may do so with such assistance, and by such force, as is necessary and reasonable.

LEGAL PROFESSIONAL PRIVILEGE

1. If a claim for legal professional privilege is, or

could be made in respect of any document or item and
the claim is disputed

(a)	The document or item will be placed in an envelope or container or otherwise sealed by the police officer.
(b)	A list of the documents and/or items shall be

prepared by the police officer on which is shown general information as to the nature of the documents or items

(c) The list and envelope, container or item shall be endorsed to the effect that the warrant has	, -
L .

not been executed in respect of the documents	L - .
or items set out in the list but that those
. ,
documents or items are to remain sealed.	I

(d) The list and envelope, container or item	L '
I-:

containing the documents or items are to be	I I _!
delivered by the police officer to the	I
Magistrate who issued the warrant or some other	:
I
independent third party who shall hold the same
I ,
pending resolution of the disputed claim or	I '
l
claims.	I

(e) If within 3 clear working days (or such longer period as may be agreed by the parties) of the I

delivery of the documents or items into the

possession of the third party, the party from	I .
whom the documents have been seized or his
servant or agent has notified the Officer in	1 -
I .
.,
Charge of the Australian Federal Police in the	..,
State of South Australia, and the third party	, ..
of his agent that instructions to issue
! .
proceedings to establish the privilege claimed	I i :
have been given or received, then no further	- .

i

steps shall be taken in relation to the	1
, .
execution of the warrant until either:
i
(i) a further period of 1 clear working day	. .
I -'  I ..
! i

(or such further period as may be agreed	I
by the parties) elapses without such proceedings having been issued; or

(ii)proceedings to establish the privilege have failed; or

(iii)an agreement is reached between the parties as to the disclosure of some or all of the documents or items subject to the claim of legal professional privilege

(f)	Where proceedings to establish the privilege claimed have been instituted, arrangements shall forthwith be made to deliver the documents held by the third party into the possession of the Registrar of the Court in which the said proceedings have been commenced. The documents shall be held by the Registrar pending the order of the Court.
(g)	Where proceedings to establish the privilege
working days (or such further period as may claimed are not instituted within 3 clear

have been agreed) of the delivery of the

documents or items into the possession of the

third party, or where an agreement is reached

between the parties as to the disclosure of

some or all of the documents, then the parties

shall attend upon the third party and advise i rl C

1 . .

1

him as to the happening of those matters and

i -
I..

shall request him, by consent, to release into the possession of the police officer all of the documents or items being held by the third party or, where the parties have agreed that only some of the documents or items held by him should be released, those documents or items.

GIVEN under my hand at Adelaide in the said State, this 9th day of February 1990

( Signed)

A Justice of the Peace in and

for the State of South Australia

APPENDIX NO. 2

COMMONWEALTH OF AUSTRALIA PROCEEDS OF CRIME ACT 1987 SECTION 71 SEARCH WARRANT

TQ:  GRAHAM ALFRED JAMES EDMONDS, DARLENE KAREN GRECH, THOMAS RICHARD IRVINE, RAYMOND GERARD PETER BECHARA, STEPHEN KENDALL TRAYNOR, MICHAEL WHITEHEAD, FREDERICK JOHN MITSON and GRAEME CANE, all of whom are members of the Australian Federal Police; and all members of the Australian Federal Police whether named above or not.

WHEREAS, I, DEREK WILLOUGHBY BOLLEN
a Judge of the Supreme Court of South Australia being
satisfied by an Information on Oath sworn by FREDERICK JOHN

MITSON placed before me this day that:-

1. There are reasonable grounds to suspect that the following persons or entities namely:-

   (a) Dinko Lukin, (b) Ann Lukin, (c) Dean Lukin, (d) David Franc Lukin all of 5 Bonanza Road, Port Lincoln in the State of South Australia and (e) Karina Fisheries Pty. Ltd., a company whose registered office is situate at care "Lukin & Sons: Proper Bay Road, Port Lincoln in the said State

   have committed indictable offences against the laws
   of the Commonwealth namely:-

   (the four offences were then set out in terms substantially the same as those contained in the s.10 warrant - appendix No. 1).

2. There are reasonable grounds for suspecting that there are "property tracking documents" as defined in Section 4(1) of the Proceeds of Crime Act 1987 ("the Act") in relation to the said offences namely originals, duplicates or copies of the following documents which relate to the affairs of any one or more of the persons or entities named in the first paragraph hereof or to property of or under the effective control, within the meaning of Section 9A of the Act, of any one or more of the said persons or entities, namely: -

(a) Certificates of Title to real property, mortgage or charge documents, title deeds, memoranda of transfer of land, leases of land, contracts for the sale and purchase of real

property, encumbrances and any other documents relating to the ownership of, or the exercise of effective control of, interest in real property;

(b)	Share certificates, bills of sale, chattel mortgages, certificates of registration of motor vehicles, insurance documents, certificates of registration of vessels, licences, permits, quotas or any other documents relating to the ownership of, or the exercise of effective control of, interests in personal property;
(c)	Bank signature authority cards, bank indemnity
f o m s

, statements of account, passbooks, account deposit and withdrawal forms, cheque butts, cheque books or cheques or any other documents relating to transactions or dealings between any one or more of the persons or entities named in the first paragraph hereof and any "financial institution", as defined in Section 4(1) of the Act, whether any such financial institution is located within the Commonwealth of Australia or elsewhere;

(d)

Income tax returns, notice of income tax assessments, taxation files and working papers,

financial statements, accounts records, balance sheets, profit and loss accounts, cash books,

ledgers, journals, receipts, invoices and/or
statements of account;

(e)

Minutes of Directors' meetings, minute books, Companies Code notices or returns or any other document relating to the affairs of any body corporate of which any one or more of the persons or entities named in the first

paragraph hereof is or has been a Director
and/or shareholder;

(f)

Trust Deeds, deeds of trust, deeds of settlement, notices of appointment of change of trustees or any other documents relating to the affairs of any trust of which any one or more of the persons or entities named in the first paragraph hereof is or has been a trustee or beneficiary or potential beneficiary or unitholder;

(g)

and any other document relevant to:-

(i)	identifying, locating or quantifying property of, or under the effective control of, any one or more of the persons or entities named in the first paragraph hereof;
(ii)	identifying or locating any document necessary for the transfer of any property

of, or under the effective control of, any

one or more of the persons or entities
named in the first paragraph hereof;

(iii)identifying, locating or quantifying

tainted property in relation to the
offences specified above; or

(iv)identifying or locating any document necessary for the transfer of tainted property in relation to the offences

specified above.

upon the following lands or upon or in the following premises,

namely: -

(the five relevant addresses were then set out)

YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable:-

(a)	to enter at any time of the day or night upon the land or upon or into the premises specified above
(b)	to search such land or premises for any property tracking documents specified above in relation to the offences;
(c)	to seize any document found in the course of such search that you believe on reasonable grounds to be a property tracking document in
relation to the offences.

AND for so doing this shall be your sufficient warrant.

THIS warrant shall cease to have effect on the 28th day of

February 1990 being not later than one month after the date issue hereof.

GIVEN under my hand )

at Adelaide in the )

said State this 13th )

day of February 1990 ) l ? '

(Signed)	1 ~
C I

A Judge of the Supreme Court	L
i
1 I.

of South Australia

I certify that this and the
preceding (56) pages
are a true copy of the Reasons
for Judgment herein of the

Court

Associate: L 3 L h L . L

Date:  / 4 OCT@XR /990

Counsel for the Appellants:	Mr. M.G. Nicholls
Solicitors for the Appellants:	Nicolls Gervasi & Co. of Adelaide
Counsel for the Respondents:	Mr. M Rozenes, Q.C. and Mr. G.C. Nicholson

Solicitors for the Respondents: Director of Public

Prosecutions, Adelaide

Dates of Hearing:	24 and 25 September 1990
Place of Hearing:	Sydney