Lemesk PL v Bernays, R.A
[1993] FCA 293
•10 MAY 1993
Re: LEMESK PTY. LTD.; RICHARD ALISTAIR BERNAYS; IAN ALEXANDER BROWN and
RICHARD ERNEST CLARKE
And: LESLIE GRAHAM EASTERBY; DONALD MAX BAILEY; DEON MICHAEL GATTY and OTHERS
No. G44 of 1992
FED No. 293
Number of pages - 18
Search Warrant
(1993) 66 A Crim R 337
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J(1)
CATCHWORDS
Search Warrant - validity - grant - requirements - reasonable grounds for suspicion or belief - facts to found reasonable suspicion or belief - information on oath - whether matters specified in warrant with sufficient particularity - degree of particularity required - locus standi - declaratory relief.
Crimes Act 1914 (Commonwealth) Sections 10, 29B and 29D
R V. Tillett; Ex parte Newton (1969) 14 FLR 101
Arno v. Forsyth (1986) 9 FCR 576
Parker v. Churchill (1986) 9 FCR 334
Ryder v. Morley (1986) 12 FCR 438
Australian Broadcasting Corporation v. Cloran (1984) 4 FCR 151
Beneficial Finance Corporation v. Commissioner of Australian Federal Police (1991) 31 FCR 523
Esso Australia Ltd. v. Curran (1989) 39 A Crim R 157
Crowley v. Murphy (1981) 34 ALR 496
Coghill v. McDermott (1983) VR 751
George v. Rockett (1990) 170 CLR 104
Bartlett v. Weir and Ors (Unreported: TG7 of 1992, Hobart, 17 February, 1993)
Freeman v. Roberts (Unreported, VG188 of 1990, Melbourne, 19 August, 1992)
Karina Enterprises Pty. Ltd. v. Mitson (1990) 26 FCR 473
El-Zarw v. Nikola Ex parte El-Zarw (1992) 1 QB R 145
Baker v. Campbell (1983) 153 CLR 52
Ainsworth v. Criminal Justice Commission (1992) 66 ALJR 271
HEARING
BRISBANE, 2, 22-23 April 1992
#DATE 10:5:1993
Counsel for the Applicant: Mr. R.A. Mulholland QC and
Mr. D.K. Boddice
Solicitors for the Applicant: Gilshenan and Luton
Counsel for the Respondents: Mr. P. Flanagan
Solicitors for the Respondents: Commonwealth Director of
Public Prosecutions
ORDER
The Court declares:
1. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter the premises of the first applicant situate at 40 William Street, Southport in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
2. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from the premises of the first applicant situated at 40 William Street, Southport in the State of Queensland, were unlawfully seized.
3. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter the premises at 66 Howard Street, Nambour in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondent, their servants or agents on 21 January, 1992.
4. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from premises situated at 66 Howard Street, Nambour in the State of Queensland were unlawfully seized.
5. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter premises situated at 18 Longboat Place, Bayview Anchorage in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
6. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from premises situated at 18 Longboat Place, Bayview Anchorage in the State of Queensland were unlawfully seized.
7. That a warrant issued on 20 January, 1992 directed to the respondents authorising them to enter premises situated at 288 Edward Street, Brisbane in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
8. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from the premises situated at 288 Edward Street, Brisbane in the State of Queensland were unlawfully seized.
The court orders:
1. That the respondents forthwith return to the first applicant:-
(a) All and any documents and things removed from the premises at 40 William Street, Southport in the State of Queensland by them, their servants or agents on 21 January, 1992.
(b) All and any copies of such documents and things since made by them as servants or agents.
2. The respondents forthwith return to the premises situate at 66 Howard Street, Nambour in the State of Queensland:-
(a) All and any documents and things removed therefrom by them, their servants or agents on 21 January, 1992;
(b) All and any copies of any such documents and things since made by them, their servants or agents.
3. That the respondents pay the first and second applicants costs of and incidental to the application, including reserved costs if any, to be taxed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
COOPER J Pursuant to section 10 of the Crimes Act 1914, on 20 January, 1992 Michael O'Driscoll, a Justice of the Peace, issued four search warrants to the respondents in respect of premises at 40 William Street, Southport, 18 Longboat Place, Bayview Anchorage Gold Coast, 66 Howard Street, Nambour and 288 Edward Street, Brisbane.
The premises at William Street, Southport are premises at which the first applicant conducted the "Gold Coast Nursing Home". The address in Longboat Place is the personal residence of Mr. and Mrs. Petterson, directors of the first applicant. The address at Nambour is the premises of QCare, a consultancy providing services to the nursing home industry and of which the first applicant is a client. The address in Edward Street is that of the second applicants, who are the first applicant's accountants.
The first applicant seeks in respect of each search warrant a declaration that the warrant was invalid and that the warrants were unlawfully executed by the respondents. The first applicant seeks further orders that the respondents return to each of the respective premises documents seized therefrom, including any copies of such materials. The second applicants seek such relief in relation to the warrant directed to their professional offices.
On 9 April, 1992 the Commonwealth Director of Public Prosecutions wrote to the solicitors for the applicants a letter which included, inter alia:-
"Without in any way admitting that the warrants directed to the respondents authorising them to enter premises situated at 18 Longboat Place, Bayview Anchorage and Level 26, 288 Edward Street Brisbane are invalid or were unlawfully executed, the respondents voluntarily agree to forthwith return to the first applicant and the second applicant all and any documents and things removed from the two premises mentioned above and all and any copies of any such documents and things since made by them, their servants or agents".
The documentation referred to in the letter was subsequently returned.
The respondents do not challenge the jurisdiction of the Court to grant the relief claimed. However, the respondents submit that insofar as the warrants relating to the premises at Longboat Place and Edward Street are concerned, the documents having been returned, no declaratory or other relief ought to be granted in the event that the Court was otherwise satisfied that the warrants were invalid. As to the warrant which relates to the premises at Nambour, the respondents contend that the first applicant does not have the locus standi to seek the relief sought.
Save for the identity and address of the premises in respect of which each warrant issued, the warrants were in identical form. The warrants relevantly provided:-
"WHEREAS I, Michael O'Driscoll a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914, being satisfied by information on Oath placed before me this day that there is reasonable grounds for suspecting that there are in a place, Known as Gold Coast Nursing Home, located at 40 William Street, Southport, in the State of Queensland,
things being:
Duplicate NH19 and NH20 forms, NH19 Working papers, NH20 Working Papers, ledgers whether manual or computerised, journals whether manual or computerised, journals, cash books, cheque butts, bank statements, payroll analysis whether manual or computerised, Group Certificates, cash receipt books, personnel files, invoices and statements relating to Pharmaceutical/Medical, residents invoices or duplicates relating to personal laundry and accounts rendered, contract laundry invoices, electricity accounts, rate accounts, insurance premium notices, travel and entertainment accounts and receipts, state payroll tax documentation including notification of finds, invoices, in relation to building supplies, building services, refrigeration repairs and maintenance, circulars, letters of correspondence, administration records whether manual or computerised, minute books, note books, diaries, other documentation in relation to Gold Coast Nursing Home, Lemesk Pty Ltd, Balsamina Pty Ltd, QCARE, Dicewick Pty Ltd, Donald Frank PETTERSON, Marianne PETTERSON, or anything as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against Section 29B and 29D of the Crimes Act 1914, a law of the Commonwealth, namely the offences of Imposition and Defraud the Commonwealth.
YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place more fully described above, if necessary by force, and to seize the said things more fully herein before described and for so doing this shall be your sufficient warrant. FURTHER MORE YOU MAY pursuant to subsection (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.
GIVEN under my hand at Coolangatta in the State of Queensland this 20th day of January, 1992.
A Justice of the Peace in and for the State of Queensland."
The sections of the Crimes Act 1914 referred to in the warrants are:-
"S29B. Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence. Penalty: Imprisonment for 2 years"
and
"29D. A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence. Penalty: 1,000 penalty units or imprisonment for 10 years, or both."
The applicants provided the following grounds in support of the declarations for invalidity:-
"1. The warrants are too wide and uncertain in their terms.
PARTICULARS
(a) There is insufficient specification of the articles the object of the search;
(b) There is insufficient particularity of the wrongdoing constituting the suspected offences in respect of which the warrants are issued;
(c) There is no identification of the persons suspected of having committed offences;
(d) The operative parts of the warrants do not describe the offences in respect of which the seizure is authorised and do not state with sufficient precision the articles authorised to be seized.
2. That there was insufficient material stated in the information grounding the warrants from which it could have appeared to the justice that there were reasonable grounds for suspicion and belief in the terms of s.10 of the Crimes Act 1914 (Cth)."
Section 10(1) of the Crimes Act 1914, under which the warrants issued provides:-
"10(1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place:
(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence; or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there".
(1A) A constable named in a warrant may, where it is necessary and reasonable to do so for the purposes of executing the warrant, break open such doors and receptacles as are in or upon the premises, aircraft, vehicle, vessel or place named or described in the warrant and may do so with such assistance, and by such force, as is necessary and reasonable.
(2) Subsection (1) is not intended, and shall be deemed never to have been intended, to limit or exclude the operation of a law of a Territory relating to the search of premises, aircraft, vehicles, vessels, places or persons in connection with offences against any law of that Territory".
The warrants on their face identify in the recital that the justice was satisfied by information on oath that there were reasonable grounds for suspecting that there was at each place "things" and that there were reasonable grounds for believing that such things would afford evidence as to the commission of offences against sections 29B and 29D of the Crimes Act. The justice was therefore purporting to exercise the power granted under section 10(1)(b) of the Crimes Act 1914.
The challenge made by the applicants involves two discreet areas of attack. The first is as to the form of the warrants on their face. The second is as to whether the circumstances existed to satisfy the necessary preconditions to the issue of the warrants by the justice.
The Objections as to Form
12. A search warrant must disclose jurisdiction on its face (R v. Tillett Ex parte Newton (1969) 14 FLR 101 at 107 ff.; Arno v. Forsyth (1986) 9 FCR 576 at 585). Further, the warrant must contain information in relation to a specific offence, describe the offence with sufficient clarity and contain a sufficient description of the documents or things the subject of the warrant to enable the persons whose premises are to be searched and the persons to whom the warrants are directed to know the object of the search (Arno v. Forsyth at 581-582, 591, 595; Parker v. Churchill (1986) 9 FCR 334 at 341, 348; Ryder v. Morley (1986) 12 FCR 438 at 443; Australian Broadcasting Corporation v. Cloran (1984) 4 FCR 151 at 153-154; Tillett at 113).
Whether or not the information in the warrant has been described with sufficient particularity is to be determined by looking at the warrant in its entirety (Ryder v. Morley at 443; Beneficial Finance Corporation v. Commissioner of Australian Federal Police (1991) 31 FCR 523 at 543).
In Beneficial Finance Corporation, Burchett J (with whom Sheppard J agreed), after a review of the authorities as to the degree of particularity required as to the description of the offence concluded (at 543):-
"I have discussed the authorities dealing with the true test, for the sufficiency of the statement of the offence in a search warrant, at considerable length, because of the importance of the principle, and the difficulty which has arisen from the conflicting statements of it. In my opinion, the conclusion emerges clearly that there is no justification for an "exact object" test. The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals".
The "exact object" test is a reference to the judgment of Jackson J in Parker v. Churchill (1986) 9 FCR 334 at 348 where his Honour said:-
"A warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search".
Although it is not necessary that the warrant name the suspected offender on its face (Tillett at 114; Parker v. Churchill at 346; Beneficial Finance Corporation at 539), the naming of the offender may operate to give the warrant some precision (Beneficial Finance Corporation at 539).
It was submitted by Counsel for the respondents that there was a different and lesser standard of particularity applicable to warrants addressed to persons suspected of committing the offence as opposed to an innocent third party. In support of this submission, he referred to Esso Australia Ltd. v. Curran (1989) 39 A Crim R 157 at 164; Crowley v. Murphy (1981) 34 ALR 496 at 523-524, and, Coghill v. McDermott (1983) VR 751 at 756. In Esso Australia Ltd., Hill J raised the question but found it unnecessary to decide it. In Crowley v. Murphy, Lockhart J, after reviewing the Canadian authorities said (at 524):-
"Where the premises to be searched are owned or occupied by an innocent third party or where the person is in lawful possession of the goods to be searched for, a higher standard is required, both of satisfaction by the justice before he issues the warrant and of fairness by the policeman executing it. The justice should not be easily satisfied. The information before him must clearly show the nature of the things to be searched for and how they will afford evidence of the commission of the offence. The policeman executing the warrant must restrict his search to things pertaining to the offence alone, and must not search and seize at large in the hope of eventually finding something of evidentiary value. But he is entitled to search to ascertain what documents answer the description of those described in the warrant. Sometimes an inspection of an index or register will suffice. Sometimes not. What is appropriate varies from case to case. Plainly, he does not have carte blanche to search and seize at will".
So too in Coghill v. McDermott, Marks J was concerned with the level of satisfaction of the justice in the issuing of the warrant. Nothing in the observations of Lockhart J and Marks J touches on the question of particularity and nothing which they said in their judgments is authority for the submission now contended for by Counsel for the respondents.
In consequence of the view I have formed as to the sufficiency of the form of the warrants in issue, it is unnecessary to determine the question. As the question raises serious issues, it is inappropriate that I make any unnecessary observations on them at this time.
It was further submitted by Counsel for the respondents that, in the light of the decision of the High Court in George v. Rockett (1990) 170 CLR 104, in determining the width of the documents identified in the warrant and the adequacy of the particulars of the offences named, regard may be had to the sworn information or complaint. It was further submitted that the adequacy of the form of the warrant from a consideration of what appears from the face of the document alone as a test of validity of the warrant was no longer a correct approach. In support of this contention reliance was placed on the judgment of the Court at 117 where their Honours said:-
"A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint".
Two things must be said in relation to the observation of the High Court relied upon; firstly, is that there was no issue before the High Court in George v. Rockett as to the sufficiency of the warrants in suit in terms of their form; secondly, is that the observation was made in that part of the judgment headed "3. The facts to be established" dealing with the "sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s.679 refers..." (at 115). In context, the passage relied upon relates to the identification of the subject matter of the suspicion and belief and the identification of it in the complaint. The Court said (at 116-117):-
"It is necessary to identify the subject matter of suspicion and the subject matter of belief. At first reading, it may appear that the subject matter of suspicion is merely the location of the thing to which par. (b) relates, while par.
(b) prescribes the subject matter of belief to be the nature of the thing ("will...afford evidence"). So to read the section is to omit the existence of the thing from the subject matter of either suspicion or belief. It is arguable that the requirement of reasonable grounds for believing that a thing "will afford evidence" imports a belief that a thing exists which has that capacity. Construed in isolation, that phrase does not suggest that the requirement is satisfied by reasonable grounds for believing that a thing will have that capacity if it exists. These considerations favour construing s.679 so that the existence of the thing is the subject not of suspicion but of belief. The protection of property and privacy would be advanced by a construction of s.679 that makes the existence of the thing the subject of belief rather than the subject of suspicion. On the other hand, the subject of suspicion as stated in the text is "that there is in any house, vessel, vehicle, aircraft or place - Anything" answering the description contained in one or other of the lettered paragraphs. If one substitutes "exists" for "is" in this clause - a substitution which seems legitimate - it is clear that the existence of the thing is the subject of suspicion. Moreover, it is unlikely that the legislature would have intended to require as a condition of a search warrant for a thing described in par.
(c) - that is, a thing which might be intended to be used for the purpose of committing an arrestable offence - reasonable grounds for more than mere suspicion of the existence of such a thing. Thus it seems that the better construction of s.679 is that the existence of the thing is the subject of suspicion. So to hold does not deprive the requirement of "reasonable grounds for believing" in par. (b) of significance. That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search. A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location".
The section of the judgment emphasised above is the extract relied upon by the respondents in the context which it appears.
The High Court recognised that identification of the object of the search was a matter which arose in relation to the complaint and the warrant itself when it said (at 117):-
"That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search".
Similarly, Northrop J in Bartlett v. Weir and Ors. (Unreported: TG7 of 1992, Hobart, 17 February, 1993) recognised that a lack of particularity in the form of the warrant as to the identity of the object of the search would also be relevant to the question as to the sufficiency of the material to ground the requisite suspicion and belief on the part of the justice, but the questions none-the-less remained distinct. His Honour said (at page 2 of his reasons):-
"Counsel for the applicant contended that the three search warrants were invalid on the ground there was insufficient material before the Justice of the Peace to justify the granting of the warrants. In developing this contention counsel relied upon two broad grounds, namely:
1. That the warrants were bad on their face in that they were too broad and vague and 2. That the material before the Justice of the Peace was not sufficient to satisfy the conditions precedent to the granting of the warrants. In reality, ground 1 merges into ground 2 but the distinction can be of assistance".
The policy considerations underlying the requirements as to satisfaction of the preconditions contained in section 10 of the Crimes Act and as to form were stated by Ryan J in Freeman v. Roberts (Unreported, VG188 of 1990, Melbourne, 19 August, 1992). I agree with his Honour's analysis. His Honour said (at pages 6-7 of his reasons):-
"Against the weight thus given to individual liberty is to be balanced the legitimate interests of the Executive in investigating and prosecuting crime. The relative importance of these interests has been brought into sharper focus by social and legal changes in the latter part of this century. In particular, the proliferation of statutory offences and the concomitant increase in the frequency with which offences are committed, has sharpened the ingenuity of offenders that, in turn, has demanded faster responses by police forces and more broadly defined police powers. In the context of s.10, the possible conflict between the policy considerations which I have just identified is subject to two checks and balances: the requirement that a search warrant be issued only by a Justice of the Peace who is satisfied by information on oath that there is reasonable ground to suspect the actual or imminent commission of an offence, and the requirement which courts have declared to be inherent in s.10 that a warrant describe specifically enough the persons, things and offences to which it relates: see Tillett; ex parte Newton (1969) 14 FLR 101 at 112-113; Trimboli v. Onley (No 1) (1981) 56 FLR 304 at 314-315; Brewer v. Castles (1984) 1 FCR 55 at 61-62; Australian Broadcasting Corporation v. Cloran (supra) at 744-745; Ryder v. Morley
(1986) 12 FCR 438 at 442-443; Arno v. Forsyth
(1986) 65 ALR 125 at 139-140 and 144; OPSM Pty. Ltd. v. Withers (1987) 13 FCR 594 at 598-600; Esso Australia Ltd. v. Curran (supra) at 162-164. The liberty of the individual and the inviolability of his or her private domain may, in other words, only be infringed on good grounds and where the individual can ascertain from the form of the warrant the purpose of the invasion of his or her privacy and the basis for the belief that the invasion is warranted in the interests of the investigation and prosecution of crime".
It is perfectly reasonable to envisage a situation where the information may identify the subject matter of the search with sufficient particularity to ground the necessary state of mind of the justice and yet the warrant in its terms be wider than the specificity contained in the information. In that circumstance, the protection afforded the individual by the requirement that the individual "can ascertain from the form of the warrant the purpose of the invasion of his or her privacy..." will be lost if the sufficiency of the warrant is not to be determined from a consideration of the form and contents of the warrant standing alone. Of course an examination of the warrant against the contents of the information may also show that the width and lack of particularity evident in the warrant is unsupported by the facts established in the information. In such a case the justice would not have had the requisite power to issue the warrant in the terms in which the justice did, because in that case the justice could not have had the requisite suspicion and belief. However, recourse cannot be had to the information to explain or attempt to give to a warrant a particularity in form which it, in fact, does not have.
Applying the principles to the warrants in suit, I am satisfied that the description of "things" specified is too wide. There is no time limit or period specified as to which what are essentially business records are to relate. Similarly, the records are not identified as relating to a particular business or any one or more of the parties specified in the preamble to the warrants. As a matter of construction any documents of any party specified for an unspecified period which answer the descriptions are the object of the search. Because there is in the specification of the offences no named offenders or potential offenders and no circumstances specified as giving rise to the possible offences and dates or periods in which they were or may have been committed, there is nothing in the operative part of the warrants to delineate with sufficient particularity the "things" the object of the search. (For example, contrast the form of the warrant with the warrants in Beneficial Finance Corporation at 529-530; Arno v. Forsyth at 578-579).
The form of the warrant falls within the example given by the High Court in George v. Rockett of an impermissible search because of the width of the description of the object of the search. Their Honours said (at 118-119):-
"Suppose the sworn complaint placed before a justice establishes reasonable grounds for suspecting that the books and records of a listed public company in respect of a particular financial year contain an entry which will afford evidence that an executive of the company has appropriated a sum of money to the credit of his personal account with a particular bank and the complaint shows that there is evidence that the executive had no authority so to apply the money. In such a case, the complaint would establish reasonable grounds for suspecting that the particular entry existed and reasonable grounds for believing that, if it did exist, it would (i.e. "will") afford evidence of the commission of an offence. The complaint before the justice would, in those circumstances, be adequate to justify the issue of a warrant to search for and seize any written entry to the designated effect in the company's books and records for the relevant year. It would, of course, be necessary that the suspected entry be identified with sufficient precision. On the other hand, the material before the justice could not justify the issue of a warrant authorizing search for or seizure of all the books and records of the company for the particular year. First, if the object of the authorized search and seizure were described in terms of "all those books and records", the material before the justice would not establish that the object so described would afford evidence of the commission of an offence. That material would only have established reasonable grounds for suspecting that the object (i.e. the books and records for the relevant year) contained an entry that would afford such evidence. Secondly, even if the material before the magistrate had gone so far as to establish reasonable grounds for believing that such an entry existed somewhere in those books and records, the description of the object of the authorized search and seizure would be unjustifiably wide. It would extend to authorising search for, and seizure of, records which were unrelated to the particular entry and which were not suggested to afford evidence of the relevant kind".
It was also submitted by the applicants that the words in the warrant "or anything as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against section 29B and 29D of the Crimes Act 1914" appearing after the categories of documents described in the preambles are in the context of these warrants so wide as to authorise a general power of search for any offence against the specified sections by any unspecified person at any unspecified time arising out of any unspecified circumstances. I agree with this submission. In coming to this view, I have borne in mind the observation of the High Court in George v. Rockett (at 119-120):-
"The power to issue a search warrant is in aid of criminal investigation as well as in aid of proof at the trial, though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to. An object will answer the description in par. (b) if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters".
However, as the High Court has held in the passage cited above the power to issue a search warrant is not unqualified and the investigation must have reached the stage where the necessary grounds can be sworn to. It is those grounds which set the limits and give the particularity to the object of the search. It is not a sufficient answer to say, as was submitted, that the words in the warrants merely pick up the language of section 110 of the Crimes Act. The requirement of particularity imposed by the Courts has been imposed on the general words as they appear in the statute.
The other objections made by the applicants as to the form of the warrants may be dealt with briefly. It may be said that, standing alone, the description of the offences is sufficient and also it is not necessary that possible offenders be identified (Beneficial Finance Corporation at 539) and thus the additional grounds of objection are not made out. However, the failure to give such particularity denies to the warrants as a whole that degree of particularity which they require when the circumstances of this case are taken into account, particularly, where the classes of documents described in the preamble are themselves unjustifiably wide (see Beneficial Finance Corporation at 543 cited above).
Severance
31. It was submitted by Counsel for the respondents that the Court ought by reference to the sworn information to sever out so much of the preamble and command as is necessary to limit the things described sufficiently to give the warrant validity. Although in a proper case offending parts may be severed, this is not such a case. What is required in this case is the insertion of additional material to supply the particularity which is lacking. That would require the Court to re-write the warrants and the information.
The Sufficiency of the Evidence to Support the Warrants
32. The justice spent approximately 1.5 hours questioning the informant as to statements contained in the sworn information. It is to be commended that the justice seriously applied himself to the discharge of his duty. A justice may question a complainant if the justice wishes to obtain some confirmation of what appears in the complaint or information (George v. Rockett at 114). However, it is the sworn complaint or information which must itself contain sufficient facts to found the reasonable suspicion and reasonable belief and information otherwise conveyed to the justice is immaterial. If the sworn information does not contain sufficient information to satisfy the justice as to the requisite matters, the justice has no power to issue the warrant (George v. Rockett at 114).
For the purposes of this application the sufficiency of the sworn information is to be determined on the basis of the facts contained in it and without recourse to the oral evidence of the justice as to any additional material or material by way of explanation given to him by the informant.
It follows, in my view, that having regard to the width of the description of the things specified in the warrants the justice could not have held a reasonable belief that the things would afford evidence of the offences specified (George v. Rockett at 119).
There were a number of matters raised in the cross-examinations of Mr. O'Driscoll, the justice, and Mr. Easterby, the informant, and in submissions by counsel for the applicants which it was alleged demonstrated that the information was insufficient to support the requisite suspicion and belief on behalf of the justice. I do not propose to go through each of the matters. However, lest an attempt be made to obtain a fresh warrant on the same information, I intend to identify some of the areas where the information is plainly deficient. In doing so, I do not suggest that the information is in other respects satisfactory.
The swearing of the information arises out of an audit by officers of the Department of Health, Housing and Community Services of claims made on the department under the National Health Act 1953 in the conduct of the Gold Coast Nursing Home. The audit covered the financial years 1986/1987, 1987/1988 and 1989/1990. The informant alleges that overclaims were made in those years under the regime which operated from time to time.
Some of the claims, eg. motor vehicle expenses and travel and entertainment, were claimed on a particular basis, namely on a cents per kilometre for the use of private vehicles to transport patients for various purposes, as being the proper cost to the claimant. In the information the informant swears:-
"22. Item 3.19, Motor Vehicle Expenses and Item 3.26, Travel and Entertainment, an overclaim estimated to be in the vicinity of $4 311. The NH19 form claims $4 854 for Motor Vehicle Expenses and $4 311 for Travel and Entertainment. A review of the Ledger combines both Items as an amount of $6,110. Review of the Ledger shows Motor Vehicle costs of $6,110 were recorded which included significant personal expenditure. No Travel and Entertainment costs were recorded. It is alleged that the claim for these items has been compiled in such a manner as to obscure the claiming between the two items of non-eligible private motor vehicle costs".
The first applicant did not claim on the basis of the book entries. Rather it claimed on the particular basis I have referred to for consideration and acceptance or rejection by the Department.
The informant does not swear that the claimant did not travel the kilometres claimed for purposes associated with patient travel or entertainment or that the claim as made contains any element of falsity or misrepresentation. If the facts giving rise to the claim and the basis of its formulation and computation are exposed to the Department at the time of its making for acceptance or rejection by it, I cannot see that the recording of costs in the ledger on a different basis provides factual support for the belief that the alleged offences of imposition or defrauding the Commonwealth have been committed by the first applicant in making the claim on the basis which it did. More importantly, it is contended that the informant in failing to disclose the basis on which the first applicant made the claim, has failed to disclose to the justice all the facts material to the decision to be made by the justice in breach of the informant's duty to do so (Karina Enterprises Pty. Ltd. v. Mitson (1990) 26 FCR 473 at 480-481). In my view it was material for the justice to know the factual basis upon which the claim was made and the facts represented which were false or the facts which it is alleged constituted the elements necessary to support a reasonable suspicion that the claim constituted or may constitute an imposition or defrauding of the Commonwealth. There are other examples where the basis of the claim was exposed and minds might differ as to the entitlement to recover depending upon the terms of the statutory scheme for payment and the operational exigencies of running a nursing home. The occasions on which this occurred were not fully or adequately disclosed in the information, eg. the rates attributable to the residence property attached to the grounds of the nursing home. The information in dealing with these claims is predicated upon the basis that a particular interpretation of the scheme held by the informant excluded the payment and that the first applicant inferentially made the claim knowing that it was not properly recoverable under the scheme.
In other instances the informant drew conclusions that explanations given were misleading and made and repeated allegations of the purposes that motivated the first applicant in doing or saying particular things. It was submitted by the applicants that to make allegations or state conclusions without stating the factual basis for the conclusion or allegation, was insufficient (El-Zarw v. Nikola Ex parte El-Zarw (1992) 1 QB R 145 at 148-149). However, as was also said in El-Zarw (at 149), "an assessment of the material placed before the issuing justice should be approached in a commonsense, not hypertechnical manner". It is true that in certain respects the informant in the information in this case has made bare allegations and assertions without exposing to any great extent the facts which lead him to that belief; that is not however universally the case and in a number of areas the underlying facts have been exposed. In his evidence Mr. Easterby was clearly of the view that it was sufficient that he personally had the relevant suspicion and belief and that it was sufficient if the issuing justice was satisfied that Mr. Easterby had such a suspicion and belief. This view of the law is clearly incorrect (George v. Rockett at 111-112). Nevertheless, it may explain the approach taken by Mr. Easterby in the way the material in the information was disclosed to the justice. It may also explain why there was a failure to disclose other relevant material or documentation which factually disclosed the basis of the claims made by the first applicant and the reasons or explanations given by it for claiming on that basis.
The applicants have established, in my view, that the pre-conditions to the issue of the warrants were not satisfied and that in consequence the justice was not empowered to issue them.
The standing of the first applicant to seek relief in relation to the premises at 18 Longboat Place, 66 Howard Street, Nambour and 288 Edward Street, Nambour
42. It was submitted by the respondents that the first applicant had not established by admissible evidence, as opposed to hearsay, which was objected to, that any of its property had been taken or that any of its rights had been interfered with by the execution of the warrants at other than the William Street premises. It was further contended that the first applicant had no legal right to privacy and that in consequence, no legal right of the first applicant was infringed by execution of the warrants at the Longboat Place, Howard Street or Edward Street premises. Thus, it was submitted, the first applicant had no standing to seek the relief claimed in relation to the execution of the warrants at those other premises.
The submission, in my view, fails to recognise the common law right of all members of the public to remain silent and to retain information unless compelled by law to make disclosure. The position was stated by Deane J in Baker v. Campbell (1983) 153 CLR 52 at 111:-
"A person is obliged to disclose or yield his information or property only to the extent that he is compelled so to do by some applicable common law principle or statutory provision. Where no such compulsion exists, there is no need for any special privilege protecting particular types of information or property from disclosure or seizure. The ordinary entitlement to remain silent and to retain one's information or property only constitutes a special privilege where it is preserved as an exception in circumstances where disclosure or cession would otherwise be compelled. In the absence of any such general compulsion, that entitlement represents no more than the ordinary position of the ordinary citizen under the common law".
See also George v. Rockett at 110 and Televantos v. The Commonwealth of Australia (Unreported: ACT661 of 1992; Full Court 28.4.93 at page 3) where the modern justification for limits on the power of entry and search is based on the protection of privacy.
When a search warrant is executed against premises the privacy of the occupier of the premises is invaded in two ways. Firstly, the privacy which goes with the occupation of premises is lost by entry and search. Secondly, the privacy to the information contained in materials found in the premises is lost by search and seizure. Privacy in both of its aspects is not to be lost in the absence of compulsion of law. Privacy in its second aspect is not to be lost simply because the information is contained in documents or material on the premises of a third party, irrespective of who owns or holds a beneficial interest in the documents or materials. All that has changed is that the first aspect of privacy to be considered is that of the third party in occupation of the premises.
The respondents had no authority to enter and search any premises to obtain documentation and information as to the conduct and affairs of the first applicant unless authorised by law to do so. The authorisation relied upon in the present proceeding was the issue of search warrants in relation to premises owned or occupied by persons other than the first applicant. In my view, the first applicant had a sufficient interest to bring and maintain the present proceedings in order to prevent disclosure of information of its private affairs and dealings unless such disclosure was authorised by law.
If, contrary to my view, the first applicant had no common law right to prevent disclosure of information as to its affairs and dealings held by third parties, the first applicant nonetheless had a special interest in the subject matter of the warrants addressed to the premises of the third parties. This was because the information obtained may be used to the prejudice of the first applicant in any future criminal proceedings. The first applicant had a special interest to ensure that such information as was obtained by search and seizure was lawfully obtained (as to the general principle of special interest see Onus v. Alcoa of Australia Ltd. (1981) 149 CLR 27 at 36-37, 43, 44, 62, 71). The special interest of the first applicant was sufficient to give to it the locus standi to bring the proceedings in relation to the warrants concerning the third party premises.
Relief
47. The respondents submit that insofar as the documents taken from 18 Longboat Place, Bayview Anchorage and 288 Edward Street, Brisbane have been returned, no declaratory relief ought to be granted to the first applicant in respect of those warrants or their execution as nothing would flow from the declarations with the consequence that the declarations would be of little or no practical benefit.
The power of the Court to grant declaratory relief was re-stated by the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth v. Criminal Justice Commission (1992) 66 ALJR 271 at 278:-
"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter...by laying down rules as to the manner of its exercise". (Forster v. Jododex Aust Pty Ltd (1972) 127 CLR 421, per Gibbs J, at 437). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. (See In re Judiciary and Navigation Acts (1921) 29 CLR 257). The person seeking relief must have "a real interest" (Forster (1972) 127 CLR, per Gibbs J, at 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd (1921) 2 AC 438, per Lord Dunedin, at 448) and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that
(have) not occurred and might never happen" (University of New South Wales v. Moorhouse
(1975) 133 CLR 1, per Gibbs J, at 10) or if "the Court's declaration will produce no foreseeable consequences for the parties". (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, per Mason J, at 188; see also per Aickin J, at 189)".
(See Brennan J at 284 to like effect).
In the instant case all of the essential pre-requisites for declaratory relief exist. Although the documents have been returned, there is an ongoing criminal investigation. I am unaware as to what information the respondents obtained from the execution and possession of the documents before their return. In my view the first applicant has a real interest that it now be declared that such information, if any, as was obtained was not obtained lawfully. This may enable the first applicant to argue in the future that the information, if any, cannot be used to the prejudice of the first applicant.
The first applicant is entitled to the declarations sought in respect of all warrants and for the consequential orders sought in relation to the documents and things seized from 40 William Street, Southport and 66 Howard Street, Nambour.
The second applicants, the first applicant's accountants, now have no particular interest in obtaining declaratory or other relief and their position is sufficiently met by an order for costs.
The Court declares:-
1. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter the premises of the first applicant situate at 40 William Street, Southport in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
2. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from the premises of the first applicant situated at 40 William Street, Southport in the State of Queensland, were unlawfully seized.
3. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter the premises at 66 Howard Street, Nambour in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondent, their servants or agents on 21 January, 1992.
4. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from premises situated at 66 Howard Street, Nambour in the State of Queensland were unlawfully seized.
5. That the warrant issued on 20 January, 1992 directed to the respondents authorising them to enter premises situated at 18 Longboat Place, Bayview Anchorage in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
6. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from premises situated at 18 Longboat Place, Bayview Anchorage in the State of Queensland were unlawfully seized.
7. That a warrant issued on 20 January, 1992 directed to the respondents authorising them to enter premises situated at 288 Edward Street, Brisbane in the State of Queensland and to seize documents and things therein referred to:-
(a) was invalid;
(b) was unlawfully executed by the respondents, their servants or agents on 21 January, 1992.
8. That the documents and things seized by the respondents, their servants or agents on or about 21 January, 1992 from the premises situated at 288 Edward Street, Brisbane in the State of Queensland were unlawfully seized.
The Court orders:
1. That the respondents forthwith return to the first applicant:-
(a) All and any documents and things removed from the premises at 40 William Street, Southport in the State of Queensland by them, their servants or agents on 21 January, 1992.
(b) All and any copies of such documents and things since made by them as servants or agents.
2. The respondents forthwith return to the premises situate at 66 Howard Street, Nambour in the State of Queensland:-
(a) All and any documents and things removed therefrom by them, their servants or agents on 21 January, 1992;
(b) All and any copies of any such documents and things since made by them, their servants or agents.
3. That the respondents pay the first and second applicants costs of and incidental to the application, including reserved costs if any, to be taxed.
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