Melasecca, R. v Macauley, P

No judgment structure available for this case.

B E T W E E N :

ROBERT MEIELASECCA and ZYQICRST ZAYLER

Applicants

- --

A N D :

PBTER MxAuLBY

Colmnissioner of the Australian Federal Police

First Respondent

- and -
MXCOLM GRAY

Acting Chairperson of the National Crime Authority

Second Respondent

- and -
KEVIN PATRICK CONSIDINE

Third Respondent

- and -
FRANK CRULCI

Fourth Respondent

- and -
BRIAN BARROW

Fifth Respondent

t n

- and -
CLIPPORD JOHN HOSB

Sixth Respondent

- and -

m y inLwTE

Seventh Respondent

ix!mN: Ryan J

m: Melbourne

-: 14 October 1994

RECEIVED
FEDERAL COURT OF
AUSTRALIA PRINCIPAL REGISTRY

1. That the issue directed by Heerey J on 3 September 1993
to be tried separately be determined by declaring that
the documents numbered 17-35 inclusive in Part 2 of
Schedule 1 in the list of documents sworn by Kevin
Patrick Considine on 23 August 1993 and which are still
the subject of an objection to their production are not
required to be produced for inspection by the applicants.
-.

2. That the costs of all parties of the trial of the said issue including the costs of the applicants' motion on notice dated 3 September 1993 be costs in the cause.
3. That the directions hearing be adjourned to 18 November 1994.

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

B E T W E E N :

ROBERT MELiSECCA and ZYQI[RYT ZAYLER

Applicants

PETER &mchULEY

Commissioner of the Australian Federal Police

First Respondent

- and -
WALCOLM GRAY

Acting Chairperson of the National Crime Authority

Second Respondent

- and -
KEVIN PATRICK CONSIDINE

Third Respondent

- and -
PRANK CRULCI

Fourth Respondent

- and -
BEUXN BARROW

Fifth Respondent

- and -

CLIFFORD JOHN HOSE

Sixth Respondent

- and -
WKNDY mLMoTE

Seventh Respondent

!x?EB: Ryan J
,&&X: Melbourne

.wx: 14 October 1994

Fvan 2: By application dated 19 July 1993, the applicants, who practise as solicitors in a finn of which they are the only two partners, seek a review of decisions of the fifth, sixth and seventh respondents to issue three search warrants. The fifth respondent is a magistrate who, on 17 May 1993, issued a warrant ("the State warrant") to the fourth respondent, an officer of the National Crime Authority ("the NCAn) and members of the Australian Federal Police ("the Federal Police"). The sixth respondent is a justice of the peace who, also on 17 May 1993, issued a warrant ("the first Federal warrant") to the third respondent who rs an officer of the Federal Police. The seventh respondent is also a magistrate who, on 15 July 1993 issued a further warrant ("the second Federal warrant") to the third respondent. By letter of 22 July 1993 addressed to the Registrar of this Court, the solicitor for the fifth and seventh respondent advised that his clients, in accordance with the principle indicated by the High Court in The Queen v Aus t ra l ian Broadcas t ing Tr ibunal , ex

p a r t e Hardiman (1980) 144 CLR 13 at 35, would submit to such

order as the Court might make. No appearance has been filed

by the sixth respondent. For the purposes of these reasons, "the respondents" refers to the first, second, third and fourth respondents only.

By notice of motion filed on 3 September 1993, the applicants sought and were granted an order that there be a trial within the proceeding of whether certain documents included in the respondents' list of documents sworn by the third respondent, Detective Sergeant Considine, on 23 August 1993, are privileged from production on the ground that their production would be contrary to the public interest. It is the trial of that-question which is currently before the Court.

On 18 May 1993, Detective Sergeant Considine and other officers of the Federal Police ("the Federal Police") attended at the premises of the applicants. The purpose of the attendance was to execute the first Federal warrant and the State warrant. Detective Sergeant Considine and the other officers seized documents and other items ("the applicants' documents") from the premises and placed them in five boxes which were then sealed.

Following the seizure of the applicants' documents, an agreement was reached between the applicants and the respondents that the applicants' documents should be returned to the applicants and a further search warrant obtained. This

was done and, on 15 July 1993, the second Federal warrant was issued to Detective Sergeant Considine. On that day the

applicants' documents were returned to the applicants' premises and immediately seized under the second Federal warrant. That warrant reads as follows:

W CO.OWWWTII OP AUSTRALIA

SEARCX WARRANT

section 10, Crimes Act 1914

TO:

Detective Sergeant K P Considine of the Aumtralian Federal Police
WHEREAS I, [handwritten] WENDY WILHOTH
a Magistrate in the State of Victoria within the meaning of the expresmion in section 10 of the Crimea Act 1914, am matimfied
by informatron on oath placed before me thzs day that there are
reamonable grounds for sumpacting that there will be within 72

hour. in or upon cmrtain pramisem, namely

the business pramraes of WELASECCA ZAYLER, barristerm and solicitors, mituated at let Floor, 257 Chapel Street, Prahran in the State of Victoria
certain thkrgm which aatrsfy all three of the following
condrtionm namely:
Firet Condition
things which are any one or more of the followmg:

(L)

Frles, workrng papers, records, reports, diary notes, frle notem, draries and minutes;

(ri)

Accountrng books and records including journals, ledgers, trust account ledgers, frnancral statements and ledger cards;

(iir)

Banking records rncluding bank statements, cheques, cheque books, cheque regrstera, cheque reqursitrons, cheque records, bank vouchers, deposit and wrthdrawal slips, applrcatione for telegraphic transfer and declaration forms;

Receipts, records of payment, invoices, cash books, deposit books, accounts for fees and brllm of costs;

Transcrrpte, tapes, computer or word
processor tapes or disks and prrntouts of data stored thereon and any computer hardware or software reasonably necessary for the purpose of reading, interpreting or analysing such taps, disks or printouts;
(vi) Telexes, telegrams, facsimile mesaages and other connnunrcations;
(vii) Correspondence;

(vrii) Passports;
(b) A metal cash box approxmately 14"x8'x6";
(X) Two Lockwood padlock keys to a storage locker
at 1 Wren's Road Moorabbin.

Things which relate to, derive from or are connected with any one or more of the followrng persons:

Gustav George HOFER
Nicole HOFER
Janice HOPER
Cuenter BRUNNER
Zaki -1
Harold John REICHEL
David Vernon CARTER ~~- ~~
wayne Ceof frey ELLIOTT
Don CARPENTER
Peter John STRIKE
Sandra STRIKE
Edward Rex HURST
Janice Hay ANDERSON
Hay ANDERSON
Hichael TAYLOR, also known as Hichael BARNARD
Israel KRASNOV
Peter PONIEWAZ
Euqene OSENKOWSKI

unless the things are;

A metal cash box approximately
1 4 " x 8 " ~ 6 " ;

b Two Lockwood padlock keys to a storage
locker at l Wren's Road Hoorabbin.

Thixd Condition -
things as to which there are reasonable grounds for believing that the same will afford evidence as to the ccnuaission of the following offence agaanst the laws of the Commonwealth:
that in and between 1st January 1990 and the 17th May 1993 ZYGHUNT ZAXLER engaged in money laundering contrary to the provasions of section 81 of the Proceeds of Crime Act 1987, such money laundering concernmg:

(a)

the proceeds of the sale of narcotrc substances and drugs of dependence; and

(b)

monaes derived from or to be paid to some one or more of the following persons, namely:
Gustav Ceorge HOFER
Nicole HOFER
Janice IiOFER
Cuenter BRUNXER
Zaki BAKRI
Harold John REICHEL
David Vernon CARTER
Wayne Ceoffrey ELLIOTT
Don CARPENTER
Peter John STRIKE
Sandra STRIW
Edward Rex HURST
Janrce May ANDERSON
Hay ANDERSON
Hichael TAYLOR, also known as Hrchael BARNAFlD
Israel KRASNOV
Peter PoNIEWAZ
Eugene OSENKOWSKI

m IOU ARE HEYUSBY AUTEORISH) with such assistance and by such force as is necessary and reasonable to enter at M y time the said pramises and to serze any thing which satisfies all of the above tbrao condition. which you may find in or upon the said premises, and for so doing this shall be your sufficient warrant.
lucD YOU MAY pursuant to section lO(1A) of the
Crimes Act 1914 where it is necessary and reasonable to do SO for the purpone of executing the warrant, break open such doors and receptacle8 as are in or upon the said prmises and may do so with such assistance and by such force as rs necessary and reasonable.
Legal Professional Privilege
NOTE: Thin warrant is issued on the basis that, as claims m y be made for legal professional privilege in respect of the things named above, the Informant will follow the course of action set out rn the document entitled "General Guidelines between the Australian Federal Police and the Law Councrl of Australia as to the Execution of Search Warrants on Lawyers' Premzses, Law Societres and Like Institutions, m CArcumstances Where a Claim for Legal Professional Privilege is Made" dated 7 June 1990, a copy of which is attached to thzs warrant.
GIVEN under my hand at
Melbourne in the State of
Victoria this 15th day

of July 1993 .
Wendy Wilmoth [signed]
A Magistrate in and for the
state of Victoria "

By order of this Court on 23 July 1993, the five boxes were removed from the custody of the Magistrates' Court where they

had been held and placed in the custody of the Registrar of this Court. Various other orders were also made for the

disposition of the matter, including one for "mutual discovery on or before 23rd August 1993". The respondents filed a list of documents on 24 August 1993 in the form of an affidavit sworn on 23 August 1993 by Detective Sergeant Considine. The applicants filed their list on 3 September 1993.

On 18 November 1993, a further affidavit was sworn by Detective Sergeant Considine containing an amended list of documents. For present purposes the affidavit dated 18 November 1993 is the relevant one and it reads in part:

2. The documents enumerated in Part 2 of Schedule 1 hre privileged from production on the ground:

(a) . . .

(b)

as to the documents numbered 17-35 inclusive, that their disclo8ure would be contrary to the public interest becauae their diocloaure:

(i)

would disc1080 lawful methods by which investigations are undertaken into breaches or po8sible breaches of the law;

(ii)

would be likely to severely diminish the abilrty of the National Crime Authority and the Acstralian Federal Police to investigate breaches or posmrblo breaches of the law;

(ili)

would reveal the exrstence or rdentrty of a pollce znformant; or

(iv)

would leopardiee a continuing invewtrgation into serrou8 crrminal offences.

SCHEDULE 1

Part 2

Draft of second Federal warrant and information (prepared by counsel).
Document8 marked "Al" and "AZ" and initialled by me.

Documents marked "Bl", "B2" and 'B3" and initialled by
me.

Documents marked "Cl' to "C10" ("CB" being 2 page.) and
initialled by me.
Document r m r M "D" and initialled by me.
Reference to the NCA from the Commonwealth Attorney-
General.
Document marked "E" and rnitialled by me.
ninute dated 6 Aprrl 1993.
26. Plastic sleeve contarnlng 16 pages.
Deleted.
Video.
Deleted.
Program detailing future course of investigation.
Handwritten plan re offences.
Piles numbered HX38420, HX38382 and XX382.83.
Document marked "P" and initialled by me.
Tapes muked "G" and "H" and initialled by m.
Information for search warrant issued on 15 July 1993.
"

It is in respect of documents 17 to 35 ("the respondents' documents") that the question of public interest immunity first arose. Following the hearing of the matter on 22 November 1993, the parties mentioned the case before the Court on 16 December 1993. The purpose of that mention was to advise the Court that one of the applicants, Mr Zayler, had been charged with a number of offences, including charges of receiving, possessing and disposing of "moneys reasonably

--suspected of being proceeds of crime contrary to section 82(1)

of the Proceeds of Crime Act 1987".

On the mention the respondents contended that, although the laying of charges may affect the status of some of the

respondents' documents which had been the subject of a claim for privilege, the substantive issues remained unaffected. That was, it was further submitted, because additional investigations were taking place and the charges which had been laid related to only some of the matters set out in the information on which the second Federal warrant had been issued ("the information"). It was agreed that an affidavit be filed by the respondents setting out the effect of the charges on this matter. The applicants were granted liberty to apply to make further submissions after considering that affidavit. To date no further affidavit has been filed by the respondents. Nor have the applicants exercised their liberty to apply. However, a letter dated 23 December 1993 from the respondents' solicitor has been filed with the Court. That letter recites that documents 18, 21 and 34 and paragraphs 4, 12, 13, 23, 35, 36, 37, 39 and 40 of document 35 (from the list of the respondents' documents) are no longer the subject of a claim for public interest immunity.

Although the issue to be tried concerns all of the respondents' documents not thereby excepted from the claim for public interest immunity, the argument was largely confined to the remaining paragraphs of document 35, the information.
At the end of the hearing on 22 November 1993, the respondents

agreed that a copy of the information (with those paragraphs for which public immunity privilege had originally been

claimed sealed up or deleted) would be provided to the applicants and to the Court. It is of little assistance to reproduce the copy of the information which has been edited in that way. However, it is appropriate to set out the following passages from an affidavit in support of the claim for public interest imrnunity sworn by Mr M A Keehn, the Regional Manager, Operations, of the NCA on 24 September 1993:

I have permonally formed the opinion that on the groundm of public interest each of the public interest document8 (save for part of document number 35) should not be disclosed because they contarn:
(i)  matters which would disclome lawful methods by which investigations are undertaken into breachem or possible breaches of the law;
(ii)  matters which would be lrkely to severely diminrmh the ability of the National Crime Authority or the Australian Federal Police to investrgate breaches or pomslble breachem of the law;
(iii)matters which would reveal the existence or identity of a police informer; and/or
(iv)  matters which would jeopardise a continuing investigation into serrous criminal offences.

:a1 Policy Considerations
The Authority and other law enforcement agencies receive a srgnifrcant degree of assistance m therr rnvestrgatron of serrous crimrnal offences from rnformatron supplred by registered informants and other memSers of the publrc.
Disclosure of the rdentity of informants re likely to expose the informants, their families, their friends and therr property to consrderable rrak. In some cases, that risk can include the pOS9rblllt~ of death or serious injury.
The disclosure of the identity of rnformants is also l~kely to deter other rnformants and members of the public from provrdrng vital informatron to the Authorrty and other law enforcement agencres, to the detriment of the publrc rnterest, as the provrsion of such mformatron depends on the anonymity of persons provrding it berng assured.
The standards of confrdentiality required in rempect of regimtered rnformants and other members of the public

providing rnformatron in relation to serious criminal offences are common to all Commonwealth, State and

Terrrtory law enforcement agencies rncluding the Authorrty. If any agency were to far1 to protect diligently the identrty of informants, then there would be adverse consequences for other agencies relrant on informatron supplied by informants.

For reamons set out above, I believe it im against the public interest to disclose information that tend. to reveal the rdentity of confidential informants.

The Authorrty is heavily reliant upon rnformat~on from other law enforcement agencies. If the Authorrty failed rigorously to protect the rdentity of informants, or the confrdentrality of other information prov~ded, or details as to methods of operation used rn the detection of crane, or the mtegrrty of rnvestigatrons launched by any such rnformatron provrded, then rt is lrkely that the flow of rnformatron from those sources would raprdly declrne or even cease, to the severe detriment of the effectiveness of the Authority in fulfilling its functions.
15.   The Authority and other law enforcement bodies use certain lawful methods of eurverllance and Of investigation and detection of crime. Release of information as to such methods would be likely to prejudice ongorng and future criminal investrgations, both in Australia and overseas, and whether involving the Authority or other investigatron agencies, and would thus be likely to have a serious effect on future criminal detectron operations.
16.    Info-mation as to the state of an ongoing investigation must be protected if the integrity of the investrgation itself is to be protected. Suspected persons, armed with knowledge of the state of the mvestigation, are able to discern the relevance of other material, and can then take steps to destroy valuable evidence. In addition, witnesses and potentral witnesses may be the sub1ect of interference including threats of violence and violence.
17.    Disclosure of any material of the type referred to in paragraphs 9 to 16 hereof would be likely to severely dimrnrsh the abilrty of the Authority and other investrgatron agencres to investrgate breaches or possible breaches of the law.

Confidential Affidavit of Reasons
18. It is not possible for me to set out in the necessary detail the reasons fcr makrng the c l a m in respect of the public interest documents without disclosing the material for which the clam 18 made. Accordingly I have sworn a separate affrdavrt ("the confidential affrdavrt of
reasons") settsng out my reasons rn detarl and referring
to the contents of the public rnterest documents in detarl, but whrch affrdavrt wrll not be served on the applicants, and whrch affrdavit re rtself the subject of a claim for publrc rnterest immunrty.
19. Now produced and shown to me in an envelope marked "HAK-
1" is the conf~dentral affidavit of reasons sworn by me
this day."

at least until I had resolved whether or not to inspect the I declined to receive the confidential affidavit of reasons,
respondents' documents, including the information, for myself.
In the result, I have not referred at all to the confidential
affidavit exhibited to Mr Keehn's affidavit.

In order to identify the applicants' interest in the production of the respondents' documents, and most importantly

the information, it is necessary to consider some of the grounds of the application dated 19 July 1993. As this trial has been primarily concerned with the second Federal warrant, only the grounds of the claim for relief in respect of that warrant have been set out. The grounds of the applicants' claims in respect of the first Federal warrant and the State warrant are substantially the same.

10. Contrary t o ..l0 of t h e Crunen A c t 1914 (Cth) a t t h e t ime
of i s su ing t h e second Federal warrant t h e Seventh Respond~nt warn not o r ought not have been satisfied by t h e information on oa th before her t h a t t h e offence. a l leged i n t h e second Federal warrant had been committed, o r t h a t t h e r e were reasonable ground. f o r suspect ing t h a t such of fences had been committed.
12. Further o r i n t h e a l t e r n a t i v e , t he terms of t h e second Federal warrant were so general i n t h e i r terms and operat ion t h a t t h e second Federal warrant d id no t s r t r a f y

8.10 of t h e Crimes A c t 1914 (Cth) on l t a face.
14.

Further or i n t h e a l t e rna t rve , t he appl icants f o r

t h e second Federal warrant did not make f u l l

d i sc losu re t o t h e Seventh Respondent i n obtainrng
t h e aecond Federal warrant.

17.

By reason of t h e matters re fer red t o i n preceding

paragraphs hereof i n r e l a t i o n t o t h e second Federal
warrant :

( a ) t h e procedure required by 8.10 of t h e Crime# A c t
1914 (Cth) t o be observed i n connection with t h e
making of t h e decision was not observed wi thrn t h e meanrng of 8.5 (l) (b) of t h e A d m i n i e t r a t i v e

D e c i s i o n 8 ( J u d i c i a l R e v i e w ) A c t 1977 ("MJR");
(b)

t h e Seventh Respondent d i d no t have t h e

jur imdic t ion under 0.10 of t h e Crimes A c t 1914
(Cth) t o make t h e deciaion within t h e meaning of

a . 5 ( l ) ( c ) of t h e MJR;
( C ) t h e decrs ion wan not authorised by 8.10 of t h e
Crimes A c t 1914 (Cth) wrthin t h e meaning of

s . 5 ( l ) ( d ) of t h e ADJR;
( d )

t h e making of t h e decislon was an lmproper e x e r c i s e

of t h e p e r conferred by 8.10 of t h e Crimerr A c t

1914 (Cth) ;
(e)

t h e dec ls ron lnvolved an e r r o r of law wi th in t h e
meaning of s.S(l)(f) of the ADJR;

(f) there war no evidence or other material to justify the making of the decision within the meansng of s.S(l) (h) of the ADJR; and/or
(g) the decision was otherwise contrary to law within

the meaning of s.S(l)(i) of the ADJR.
19. Further or in the alternative, the said documents did not satisfy the conditrons of the second Federal warrant and accordingly did not fall within its termr.
20. Further or in the alternative, certain of the said documents constitute commmications which are the subject of 1aga1 professional privilege and thereby are not capable of being made the subject of a search warrant or being seLsed pursuant to a search warrant.

Particulars

21. The documents which are the subject of legal professional privilege are contained in a number of boxes and were lodged for safe keeping with the Registrar of the Magistrates Court.
22. By reason of the matters referred to in preceding paragraphs hereof:

(a) the State warrant and the first and second Federal warrants were invalid, void and of no effect; and/or
(b) the documents were wrongfully and unlawfully seized. "

The applicants then claim various declarations and injunctions in respect of the applicants' documents and their use by the

Federal Police and the NCA.

The grounds of the application in respect of the second
Federal warrant may conveniently be summarised as follows:

(i) The Magistrate could not have been satisfied that the specified offence of money laundering had been committed, or was reasonably suspected of having been committed, by Mr Zayler;
(ii) That the terns of the warrant were excessively general;

(iij.1 Pull disclosure was not made to the seventh
respondent at the time when she issued the warrant;
( iv) The decision to issue the warrant is reviewable
under the ADJR Act;
(V) The applicants' documents seized under the second Federal warrant were not within the terms of the
warrant ;
Some of the applicants' documents are protected from seizure by legal professional privilege.

In order to make out some of those grounds, the applicants clearly need to have available to them the full text of the information on which the search warrant was issued. That

observation applies specifically to the grounds summarised above numbered (i) , (iii) and, in an indirect way, (iv) . The

matters of which a Magistrate or Justice of the Peace must be satisfied before he or she can issue a warrant are stipulated as follows in s.lO(1) of the Crimes Act (1914) Cth ("the
Act") :

"10. (1) If a Magistrate or Justlce 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 wlth respect to whlch any offence against
any law of the Cornonwealth or Territory has been, or is suspected on reasonable grounds to have been, comnitted;

(b) anything as to which there are reasonable groundm for believing that zt wrll 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 comitting 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 n& in the warrant, with much asmistance, and by such force, as is necessary and reasonsble, to enter at any time the premises, aircraft, vehicle, vessel or place named or descrrbed zn the warrant, and

to seize any such t h ~ n g which he or mhe might find there."

Whilst it is a matter for the Magistrate or Justice of the Peace to decide whether he or she is satisfied that the information is sufficient to justify the issue of a warrant at the date of issue, the reports abound with instances of the propriety of issuing a warrant being reviewed by a superior

court. See eg Beneficial Finance Corporation v Commissioner

of Australian Federal Police (1991) 31 FCR 523; where many of

the other authorities in this area are discussed.

warrant on the ground that full disclosure was not made to the

An example of an application for review of the issue of a

issuing Magistrate by the investigating authorities is provided by Karina Fisheries Pty Ltd v Mitson (1990) 26 PCR
473 where a Full Court of this Court observed, at 481:

"So too, to require a strzct duty of full dzsclosure of material
facts by the informant seeking a warrant is but to reflect the traditional polzcy of the common law to protect the privacy of individuals against the arbitrary use of the power of entry and search.
The oblzgatzon arzses also from the fact that of necessity, the zssue of a aearch warrant rs an ex parte procedure. In granting ex parte relref, the courts of equrty have always required the applicant for

much relief t o br ing t o t h e no t i ce of t h e cour t a l l f ac t* mater ia l t o
t h e determination of t h e r rght t o t h a t r e l i e f . In much camem, an t h e High Court pointed out i n Thanan A Edison Ltd v Bullock (1912) 15 CLR 679 a t 682:

"UberrLna fidem i s required, and t h e pa r ty inducing t h e Court

t o a c t i n t h e abnence of t h e o t h e r party, f a i l . i n h i s

obl iga t ion unlern he nuppliea t h e p lace of t h e abrent pa r ty t o
t h e ex ten t of bringing forward a l l t h e mater ia l factm which t h a t pa r ty would prenumably have brought forward in him defence t o t h a t application.'"

Obviously, a reviewing superior Court can only test whether full disclosure has been made by examining, in the light of facts actually or constructively known to the investigating authorities, the information and other material laid before the issuing Magistrate. It is equally obvious that, to participate adequately in that process of review, an applicant and his legal advisors must have available to them the text of the information and other material which was before the Magistrate.

The Beneficial Finance case (supra) also affords an example of a review under the ADJR Act of a decision to issue a warrant. In that context, the learned primary Judge and the Full Court each examined the information for themselves before upholding

the respondent's claim of public interest immunity. There are

high policy considerations in favour of affording to a citizen

a full and effective opportunity to review the issue of a search warrant. Those considerations were recognized by the
High Court in George v Rockett ( 1990) 170 CLR 104 where it was
observed, at 110:

"A search warrant thus authorizes an invasron of premises
wrthout t h e consent of persons zn lawful posseearon o r
occuption thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of aearch warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of him privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction Of, those who have broken the criminal law. In enacting 8.679 [of
The Criminal Cod. of Queensland], the legislature has given
primacy to the public interest m the effective administration of criminal justice over thm private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and posmessionsx see Holdsworth, A History of English Law, vol. 10 (1938). pp.668-672...
State and Commonwealth statutes have made many exceptions to the common law position, and S. 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mrnd that they authorize the invasion of interests which the colnmon law has always valued highly and which, through the writ of trespasm, it went to great length. to protect."

The High Court's words suggest that there is an interest in protecting individuals from the invasion of their privacy and property by ensuring that provisions like s.10 of the Act are strictly complied with. Inherent in the application in this case is the contention that s.10 has not been properly applied by the seventh respondent.

However, the interest of an applicant in being able to

participate fully in proceedings by way of review of the issue of the warrant may have to yield to the countervailing public

interest embodied in the privilege asserted by the present respondents. As already noted, that occurred in the
Beneficial Finance case (supra). Nevertheless, the mere

invocation by the investigating authority of public interest immunity is not enough. Thus, in Sankey v Whitlam (1978) 142
CLR 1 it was said, at 38:

-It is in all cameo the duty of the court, and not the privilege of the executive governrant, to decide whether a documant will be produced or may be withheld. Ths court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outmighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In som. cases, therefore, the court must wergh the one competing aspect of the public Lnterest against the other, and decide where the balance lies."

The two competing public interests which have to be balanced were succinctly identified in slightly different terms by Lord Reid in Conway v Rimmer [l9681 AC 910 where his Lordship observed, at 940:

"There is the public interest that harm shall not be done to the nataon or the public servrce by dimclosure of certarn documents, and there is the public interest that the abminrstratron of justice shall not be frustrated by the withholding of documents which must be produced rf justice rs to be done."

It has been noted by a Full Court of this Court in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1, at 31, that:

"When a claim for public interest immunity is raised, there may be a threshold question to be resolved by the court. That ra whether the documents m question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve therr inspection, of balancing the public interemt in wrthholding the- production agaznst the

publrc interest in the administration of justice."

Here the respondents contend that no balancing exercise is necessary because there is no demonstrable countervailing interest which would outweigh the public interest in withholding production of the information. In the respondents' submissions, the applicants should be required to wait until the trial commences before being able to challenge the sufficiency of the evidence relied on for the issue of the

second Federal warrant and that at the trial ". . . there will

be ample opportunity afforded in the context of a prosecution

for the defendants ... to deal with it with the full rigour of

the administration of justice...".

Since I have accepted that three of the six broad grounds on which decisions in relation to the second Federal warrant are challenged required for their effective prosecution, access to the information and other respondents' documents which have not been produced, it follows that the applicants have an interest which falls within the "public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done"; Conuay v Rimmer [supra]. The interest of the applicants in the protection of thelr individual right to privacy identified above must also be taken into account.

The existence of the applicants' interests which I have just identified is not diminished by the fact that the failure by

may be challenged in other proceedings. As the facility the respondents to produce some of the respondents' documents selected by the applicants is available for the challenge of

the validity of search warrants irrespective of whether proceedings have been instituted elsewhere, it may frustrate the administration of justice if the failure to disclose the respondents' documents were to have the effect of preventing the applicants from not only putting their case to the Court in accordance with their rights under the ADJR Act, but also from properly formulating it.

In assessing a claim of public interest immunity, the principles to be applied are those stated by Gibbs ACJ in
Sankey v Whitlam [supra] at 43:

"The fundamental and governing p r i n c i p l e is t h a t documents i n t h e c l a s s may h withheld from production only when t h i s is necessary i n t h e public rnteremt. I n a p a r t i c u l a r case t h e cour t must balance the general d e s i r a b i l i t y t h a t documents of t h a t kind should not be drsclosed aga ins t t h e need t o produce them i n t h e i n t e r e s t s of l u s t r c e . The cour t w i l l of courme

exunine t h e questron with e s p e c i a l c a r e , g i v m g f u l l weight t o

t h e reasons f o r preservzng t h e secrecy of documents of t h i s

c l a s s , but it w i l l not t r e a t a l l such documents a s e n t i t l e d t o

thm m a m o measure of pro tec t ion - t h e ex ten t of pro tec t ion

requi red w i l l d e p n d t o some e x t e n t on t h e general subjec t

mat ter with which the documents a r e concerned. I f a s trong

case has been made out f o r t h e production of t h e documents, and

t h e cour t conclude8 t h a t t h e i r d i s c l o s u r e would not r e a l l y be

de t runenta l t o the public r n t e r e s t , an order f o r productron

w i l l be made. I n vsew of t h e danger t o whrch t h e

indiscruninate drsclosure of documents of t h i s c l a s s might give

r r s e , r t ss dessrable t h a t t h e government concerned,

Commonwealth o r S ta te , should have an opportunity t o intervene
and be heard before any order f o r d i s c l o s u r e rs made."

The Full Court in Commonwealth of Australia v Northern Land Council [supra] examined in detail, at 22-39, the Australian and English authorities canvassing the matters to be considered in conducting the balancing exercise. Although that case dealt with a claim of public interest immunity in respect

of documents which recorded Cabinet discussions, the conclusions reached are applicable in several significant ways
to the present case.

There, as in this case, the documents sought were clearly relevant to the issues between the parties and were likely to advance the Council's case or damage that of the Commonwealth. The Full Court concluded that the application should not be characterized as a "fishlng expedition". Nor am I persuaded
to characterize the present application in that way.

The Full Court went on, at 38, to indicate six factors which will be included in those relevant to deciding a public interest immunity claim and continued:

"Inspection by the judge can be undertaken as an aid to the court in assemsmg whether or not documents for which public interest immunity is claimed mhould be produced. It may enable the judge to rdentify and weigh with greater confidence than might be possible in the absence of such inspection, the factors to which reference has already been made. The decrmion whether or not to rnspect itself involves a kind of anticipatory balancing exercise. It im certainly in the nature of a screening process but comes well within the province of the courts. It rm multr-factorial and does not require the application of some rule of thumb which may distract the judicial mind from the demands of the partrcular case."

The leading High Court authority on the circumstances in which a court should inspect the disputed documents for itself is

Alister v The Queen ( 1 9 8 4 ) 154 CLR 404 . In that case Gibbs CJ said, at 414:

"Both Bunnah Of1 Co. Ltd. v Bank of England [l9801 A.C. 1090

and Air Canada v Secretary of Stata for Trade [l9831 2 A.C. 394
support the view that where the Crown objects to the productron of a class of documents on the ground of public rnterest immunrty, the judge should not look at the documents unless he is persuaded that rnspectron would be likely to satisfy him that he ought to order product-on; m the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [l9831 2 A.C. at p.439, he must have "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition". In

whether, before rnspectron is ordered, the documents should the latter case the House of Lords divided on the quemtion appear likely to support the came of the party seeking

discovery, or whether at is enough that they should appear likely to assist any of the partree to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swlng in favour of discovery if the documcntm are necessary to support the defence of an accused person whome liberty is at stake in a criminal trial (see Sankey v Whftlam), so in considerug whether to inspect documents for the purpose of decidang whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person
m crlminal proceedings."

In Commonwealth of Australia v Northern Land Council [supra],

the Pull Court examined the decision in Alister v The Queen and particularly the use there made of the Air Canada case and concluded at 37 that:

he ~ i g h court in Allater's case did not lay down any rule of
law to bind the judges of thin Court rn determining whether in a civil caae, where dracovery has been given and a claim of public interest immunity is made on propr grounds. the documents in question should be inspected and whether they should ba disclosed to the parties. Given ths provisions of 0 15, rr 14 and 15 of the Federal Court Rule#, which are learn confined than thome in RSC 0 24 r 13, under which the Engllah cames were decrded, thrs Court is free to take a nomewhat broader approach bearmg in mind neverthelee. that under 0 15, r 15 production of a document must be 'necessary at the time when the order is made'".

The Court went on to make the observations quoted at p.21 of these reasons. The propositions to be extracted from those passages have been referred to with approval in Beneficial

Finance (at 552), and Zarro v Australian Securities Commission

(1992) 10 ACLC 831 at 845.

In the present case, it is appropriate to apply the principles to be distilled from the cases just discussed, governing the preliminary question of whether to inspect the information for myself, in the context of the reasons advanced by the

respondents for according public interest immunity to the information. Those reasons rest on two distinct objections.

The first is that disclosure of some of the respondents' documents including parts of the information would reveal, in a way detrimental to the public interest, aspects of police investigative techniques in general or of the particular investigation into the applicants. Secondly, it is objected that disclosure would, or might, reveal the identity of an informer . It is convenient to examine each of these
objections separately.
In Conway v Rimmer 119681 AC 910, Lord Reid Observed, at 953:

"The police are carrying on an unending war with criminals many of whom are highly mtelligent. So it is essential that there ahould be no disclosure of anything which might give any useful information to those who organise crimrnal actrvitiea. And it would generally be wrong to require disclosure in a civil case of anything which might
h material an a pending prosecutzonr but after a verdict haa been
given oe it has been decided to take no proceedings there is not the
same need for secrecy."

See also per Lord Upjohn at 995,
The concept of investigative intelligence was more

specifically considered by the High Court in National

Companies and Securl ties Commission v News Corporation Ltd

(1984) 156 CLR 296 where it was pointed out in the joint
judgment of Mason, Wilson and Dawson JJ at 323 that:

"It 1s of the very nature of an investigation that the rnvestrgator proceeds to gather relevant informatron from as wide a range of sources as posszble without the suspect lookrng over hrs shoulder all the tune to see how the rnquiry ia going. For an rnvestrgator to disclose his hand prematurely will not only alert the suspect to the progress of the znvestrgatron but may well close off other sources of mquiry. Of course, there comes a time in the usual run of cases when the investigator wzll seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment."

See also Spargos Mining NL v Standard Chartered Australia Ltd

(1990) 8 ACLC 87 where McLelland J observed, at 87-8:

"In my opinion, documents within the possession of the Coarmission of a confidential nature recording information received by the Conrmiesion relatxng to possible offences or irregularities, or recordmg information received in the course of the invemtigatzon of possible offences or rrreaularitres, rncludinq the rdentity of inf ormante , and conf rdentril documents recordLg the actuai or posslble course of such mvestigatrone or partrculars of available or potentially avarlable evrdence; are in the publrc interest prima facie h n e from compulsory disclosure, on the basis that such disclosure would be lzkely to seriously mpede the abrlity of the Conunrssion to fulfzl its functron of effectively investigating posslble offences under (inter alza) the Companies (New South Wales)
Code, and zn appropriate cases instztuting and prosecutzng cruninal
or civil proceedings in the public interest.
I see no difference in substance for the present purpose0 between such an investigation by the Commission on the one hand and the investigation by the police of possible criminal offances in other areas on the other."

In Quartermains v Netto (unreported 14 December 1984 WA G99 of

1984) Toohey J referred to the view expressed by Lord

Wilberforce in Inland Revenue Commissioners v Rossminster Ltd

[l9801 AC 952 at 999 that "at this stage" the occupier has no right to be told of the information laid before the board and the judge issuing the warrant or of the "reasonable groundsn of which the judge was satisfied as:

"all this rnformatron rs clearly protected by the public interest iuununrty whrch covers mvestrgatrons rnto possible crrmrnal offences".

However, Toohey J did not regard information laid before an authority empowered to issue a warrant as automatically or necessarily attracting public interest immunity. He concluded, at p.11:

"I do not think that the informat~on itself necessarily enjoys m rnrmunity for production. It may be largely formal in its language.

But it may !X, on examinatron, that it details rnvestigations being conducted, material which is protected by the public interest
smmunrty of whrch Lord Wilberforce spoke. In the circumstances I propose to accept the respondents' rnvitation to make the information available to the Court. If it appears that there is nothing m the document, the disclosure of whrch would offend the notion of public interest inrmunity, I shall direct that it be made available to the applicant's counsel. If the document contains material of such a nature and it is not possible to isolate rt from the remt of the document, I propose to return the informatron to the respondents' counsel and to make no further order in respect of that material."

I am prepared to accept the assertion sworn to by Mr Xeehn, the NCA Regional Manager, that in part of the suppressed paragraphs of the information there are "matters which would

disclose lawful methods by which investigations are undertaken into breaches or possible breaches of the law". Mr Keehn is a duly qualified legal practitioner and has deposed that he has inspected the information for himself. It has not been suggested that he had any motive for misleading the Court about the contents of the suppressed paragraphs. Nor has it been suggested that he had been mistaken about the effect which he has attributed to those paragraphs. The conclusion which I have quoted from his affidavit is one which the nature of the information and the purpose which it was intended to serve suggest is a natural inference to be drawn in respect of the contents of the suppressed paragraphs. In these circumstances, I do not think, on balance, that it is appropriate to myself inspect those paragraphs merely to reassure the applicants of Mx Keehn's veracity. In the words used in Alister v The Queen [supra] at 414, I am not persuaded that inspection would be likely to satisfy me that I ought to order production.

On behalf of the applicants it was contended that, in so far

which were well-known to the public, like the use of telephone as the suppressed paragraphs revealed investigative techniques

interceptions and listening devices, no public interest could be served by their non-disclosure. I do not accept this submission. The fact that one of several well-known investigative techniques has been used in a particular context may be an important piece of information, the disclosure of which could alert persons the subjects of the investigation to

the course which it was taking or might take in the future, and to the information which had been massed in the course of it and the sources of that information. In that sense, disclosure would run counter to the policy applied by Lockhart J in Zarro v Australian Securities Commission (supra) at 839 when his Honour upheld the non-disclosure of "documents that showed the extent of information gathered and the direction the investigation is or may be taking".
Mr Keehn has also deposed that the suppressed paragraphs of

the information contained matters which would reveal, or help to reveal, the existence or identity of a police informer. I have no reason to doubt that assertion which brings those parts of the information within the long-established principle traceable back to Hardy's Case (1794) 24 How St Tr 199 where Eyre CJ said, at 808:

"There is a rule which ham unrversally obtarned on account of rte mportance to the public for the detectron of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarrly drsclosed."

See also R v Rankine [l9861 2 All ER 566, Signorotto v

Nicholson [l9821 VR 413 and Cain v Glass [No 21 (1985) 3 NSWLR

230 where McHugh JA observed, at 248:

"...I think that the courts in this State cihould continue to apply the rule that no questxon of weighing competing public interests arises when a clam is made that the name of a police informer should be dlaclosed. The rule is absolute and 1s relaxed only 'where upon the trral of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence'. I have stated the exce*ion in the lanauaae of Lord - - Diplock in D v Natzonal Society ?or the Prevention of Cruelty

to Ch~ldren [l9781 AC 171 at 218."

His Honour continued on the same page to note that references in other authorities to the exception to the principle:

'were made in civrl proceedings. They were concerned to show that the exception to the general paramountcy of the informer principle does not apply in civil proceedings in any cxrcumstmces whatever."

Mr Slade, who appeared for the applicants, did not deny that

the informer principal is still good law and applies without exception to preclude disclosure in civil proceedings of the identity of informers. However, he contended that in the present case there has been exstrinsic identification of the informers because of the allegation pleaded as follows in paragraph 30 of the respondents' defence:

"30. Insofar a8 the applicants contend that the documents were the subject of legal profescrional przvrlege, then insofar as the prrvilege rnheres in:
(a) Gustav George HOFER;
(b) Nicole HOFER; or
(C) Janrce HOFER;
then the prrvrlege has been waived."

persons named in the second Federal warrant continue to claim It was said to be a legitimate inference that all of the other

privilege. From that premise, it was contended to be reasonable to infer that the Hofers are the informers whose identity is disclosed by the information. Accordingly, so the argument went, the case falls within the category discussed by Tadgell J in Muratti v Murnane (unreported, Supreme Court of Victoria 5 March 1992) at p.13 where his Honour observed:

"The ratronale of the rule appears to be that secret informers should
not be identified. Once they are identified and become witne#Beii
giving evidence in a court it seems to me that the rationale for the
rule in relation to them cease# to exist. I refer to the deciaion of the Supreme Court of Canada in Biaaillon v Reable & Or# (1983) 2 Dominion Law Reprts (4th series) 193, and in particular to p.221 of the report. "

However, it by no means follows that the informers who identity would be disclosed by the suppressed paragraphs of the inf~~mation are any of the persons named in the third condition of the warrant as providers or recipients of the allegedly laundered money. The informers may be, or include, persons with some knowledge of the impugned transactions who derived no benefit at all from them. Accordingly, for reasons similar to those already indicated in respect of the paragraphs which deal with broader aspects of the investigation, I have declined to inspect for myself those parts of the information which presumptively reveal the identity of an informer or informers.

In the light of all these considerations I have concluded that

the public interest in non-disclosure of investigative techniques, the progress of an investigation and the evidence

related interest in maintaining the informer rule, require so far collected in the course of it, together with the

that the preliminary issue be determined adversely to the applicants. I am reinforced in this conclusion by the recollection that the present proceedings are civil in nature and the applicants will have an unrestricted opportunity to challenge at a committal hearing or in the course of a subsequent criminal trial (if they are committed), the issue of the warrant or to object to the adducing in evidence of documents or other things seized pursuant to it.

Accordingly, there must be a declaration that the suppressed paragraphs of the information and the other disputed documents are not required to be produced for inspection by the applicants. I shall order that the costs of all parties of the trial of that issue including the costs of the motion on notice dated 3 September 1993 be costs in the cause.

I certify that this and the preceding twenty eight (28) pages are a true copy of the reasons for judgment of his Honour Justice Ryan
Associate:
Date:

16 U&+ 1F'lCf

Counsel for Applicant: Mr P Slade

Solicitor for Applicant: Melasecca Zayler
Counsel for Respondent: Mr H Jolson
with Mr B Walters
Solicitor for Respondent: Australian Government
Solicitor

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Citations

Melasecca, R. v Macauley, P [1994] FCA 739

Cases Citing This Decision

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Cases Cited

8

Statutory Material Cited

0

R v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13

R v Behroz Khajehnoori [2005] ACTSC 130

Thomas A Edison Ltd v Bullock [1912] HCA 72

hour.	in or upon cmrtain pramisem, namely
the business pramraes of WELASECCA ZAYLER, barristerm and solicitors, mituated at let Floor, 257 Chapel Street, Prahran in the State of Victoria

(L)	Frles, workrng papers, records, reports, diary notes, frle notem, draries and minutes;
(ri)	Accountrng books and records including journals, ledgers, trust account ledgers, frnancral statements and ledger cards;
(iir)	Banking records rncluding bank statements, cheques, cheque books, cheque regrstera, cheque reqursitrons, cheque records, bank vouchers, deposit and wrthdrawal slips, applrcatione for telegraphic transfer and declaration forms;
Receipts, records of payment, invoices, cash books, deposit books, accounts for fees and brllm of costs;

(vrii)	Passports;
(b)	A metal cash box approxmately 14"x8'x6";
(X)	Two Lockwood padlock keys to a storage locker at 1 Wren's Road Moorabbin.

A metal	cash box approximately
1 4 " x 8 " ~ 6 " ;

(a)	the proceeds of the sale of narcotrc substances and drugs of dependence; and
(b)	monaes derived from or to be paid to some one or more of the following persons, namely:

had been held and placed in the custody of the Registrar of	this Court. Various other orders were also made for the
disposition of the matter, including one for "mutual discovery on or before 23rd August 1993". The respondents filed a list of documents on 24 August 1993 in the form of an affidavit sworn on 23 August 1993 by Detective Sergeant Considine. The applicants filed their list on 3 September 1993.
On 18 November 1993, a further affidavit was sworn by Detective Sergeant Considine containing an amended list of documents. For present purposes the affidavit dated 18 November 1993 is the relevant one and it reads in part:

Documents marked "Bl", "B2" and 'B3" and initialled by
me.
Documents marked "Cl' to "C10" ("CB" being 2 page.)	and
initialled by me.
Document r m r M "D" and initialled by me.

providing rnformatron in relation to serious criminal	offences are common to all Commonwealth, State and
Terrrtory law enforcement agencies rncluding the Authorrty. If any agency were to far1 to protect diligently the identrty of informants, then there would be adverse consequences for other agencies relrant on informatron supplied by informants.
For reamons set out above, I believe it im against the public interest to disclose information that tend. to reveal the rdentity of confidential informants.
The Authorrty is heavily reliant upon rnformat~on from other law enforcement agencies. If the Authorrty failed rigorously to protect the rdentity of informants, or the confrdentrality of other information prov~ded, or details as to methods of operation used rn the detection of crane, or the mtegrrty of rnvestigatrons launched by any such rnformatron provrded, then rt is lrkely that the flow of rnformatron from those sources would raprdly declrne or even cease, to the severe detriment of the effectiveness of the Authority in fulfilling its functions.

at least until I had resolved whether or not to inspect the	I declined to receive the confidential affidavit of reasons,
respondents' documents, including the information, for myself.
In the result, I have not referred at all to the confidential
affidavit exhibited to Mr Keehn's affidavit.
In order to identify the applicants' interest in the production of the respondents' documents, and most importantly
the information, it is necessary to consider some of the grounds of the application dated 19 July 1993. As this trial has been primarily concerned with the second Federal warrant, only the grounds of the claim for relief in respect of that warrant have been set out. The grounds of the applicants' claims in respect of the first Federal warrant and the State warrant are substantially the same.

(iij.1	Pull disclosure was not made to the seventh respondent at the time when she issued the warrant;
( iv)	The decision to issue the warrant is reviewable under the ADJR Act;
(V)	The applicants' documents seized under the second Federal warrant were not within the terms of the
warrant ;
Some of the applicants' documents are protected from seizure by legal professional privilege.

observation applies specifically to the grounds summarised	above numbered (i) , (iii) and, in an indirect way, (iv) . The
matters of which a Magistrate or Justice of the Peace must be satisfied before he or she can issue a warrant are stipulated as follows in s.lO(1) of the Crimes Act (1914) Cth ("the
Act") :

(b)	anything as to which there are reasonable groundm for believing that zt wrll 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 comitting any such offence;

warrant on the ground that full disclosure was not made to the	An example of an application for review of the issue of a	issuing Magistrate by the investigating authorities is provided by *Karina Fisheries Pty Ltd v Mitson* (1990) 26 PCR
473 where a Full Court of this Court observed, at 481:

The Beneficial Finance case (supra) also affords an example of a review under the ADJR Act of a decision to issue a warrant. In that context, the learned primary Judge and the Full Court each examined the information for themselves before upholding	the respondent's claim of public interest immunity. There are	high policy considerations in favour of affording to a citizen
a full and effective opportunity to review the issue of a search warrant. Those considerations were recognized by the
High Court in George v Rockett ( 1990) 170 CLR 104 where it was
observed, at 110:

participate fully in proceedings by way of review of the issue	of the warrant may have to yield to the countervailing public
interest embodied in the privilege asserted by the present respondents. As already noted, that occurred in the
*Beneficial Finance case* (supra). Nevertheless, the mere
invocation by the investigating authority of public interest immunity is not enough. Thus, in *Sankey v Whitlam* (1978) 142
*CLR* 1 it was said, at 38:

may be challenged in other proceedings. As the facility the respondents to produce some of the respondents' documents	selected by the applicants is available for the challenge of
the validity of search warrants irrespective of whether proceedings have been instituted elsewhere, it may frustrate the administration of justice if the failure to disclose the respondents' documents were to have the effect of preventing the applicants from not only putting their case to the Court in accordance with their rights under the ADJR Act, but also from properly formulating it.
In assessing a claim of public interest immunity, the principles to be applied are those stated by Gibbs ACJ in
*Sankey* v Whitlam [supra] at 43:

t h e cour t	conclude8	t h a t	t h e i r	d i s c l o s u r e would	not	r e a l l y	be
de t runenta l	t o the	public	r n t e r e s t ,	an	order	f o r	productron

of documents which recorded Cabinet discussions, the	conclusions reached are applicable in several significant ways
to the present case.
There, as in this case, the documents sought were clearly relevant to the issues between the parties and were likely to advance the Council's case or damage that of the Commonwealth. The Full Court concluded that the application should not be characterized as a "fishlng expedition". Nor am I persuaded
*to characterize the present application in that way.*
*The Full Court went on, at 38, to indicate six factors which will be included in those relevant to deciding a public interest immunity claim and continued:*

whether, before rnspectron is ordered, the documents should	the latter case the House of Lords divided on the quemtion	appear likely to support the came of the party seeking
discovery, or whether at is enough that they should appear likely to assist any of the partree to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swlng in favour of discovery if the documcntm are necessary to support the defence of an accused person whome liberty is at stake in a criminal trial (see Sankey v Whftlam), so in considerug whether to inspect documents for the purpose of decidang whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person
m crlminal proceedings."

respondents for according public interest immunity to the	information. Those reasons rest on two distinct objections.
The first is that disclosure of some of the respondents' documents including parts of the information would reveal, in a way detrimental to the public interest, aspects of police investigative techniques in general or of the particular investigation into the applicants. Secondly, it is objected that disclosure would, or might, reveal the identity of an informer . It is convenient to examine each of these
objections separately.
In Conway v Rimmer 119681 AC 910, Lord Reid Observed, at 953:

[1994] FCA 739

14 Oct 1994

which were well-known to the public, like the use of telephone	as the suppressed paragraphs revealed investigative techniques
interceptions and listening devices, no public interest could be served by their non-disclosure. I do not accept this submission. The fact that one of several well-known investigative techniques has been used in a particular context may be an important piece of information, the disclosure of which could alert persons the subjects of the investigation to
the course which it was taking or might take in the future, and to the information which had been massed in the course of it and the sources of that information. In that sense, disclosure would run counter to the policy applied by Lockhart J in Zarro v Australian Securities Commission (supra) at 839 when his Honour upheld the non-disclosure of "documents that showed the extent of information gathered and the direction the investigation is or may be taking".
Mr Keehn has also deposed that the suppressed paragraphs of
the information contained matters which would reveal, or help to reveal, the existence or identity of a police informer. I have no reason to doubt that assertion which brings those parts of the information within the long-established principle traceable back to Hardy's Case (1794) 24 How St Tr 199 where Eyre CJ said, at 808:

persons named in the second Federal warrant continue to claim	It was said to be a legitimate inference that all of the other
privilege. From that premise, it was contended to be reasonable to infer that the Hofers are the informers whose identity is disclosed by the information. Accordingly, so the argument went, the case falls within the category discussed by Tadgell J in *Muratti v Murnane* (unreported, Supreme Court of Victoria 5 March 1992) at p.13 where his Honour observed:

related interest in maintaining the informer rule, require	so far collected in the course of it, together with the
that the preliminary issue be determined adversely to the applicants. I am reinforced in this conclusion by the recollection that the present proceedings are civil in nature and the applicants will have an unrestricted opportunity to challenge at a committal hearing or in the course of a subsequent criminal trial (if they are committed), the issue of the warrant or to object to the adducing in evidence of documents or other things seized pursuant to it.
Accordingly, there must be a declaration that the suppressed paragraphs of the information and the other disputed documents are not required to be produced for inspection by the applicants. I shall order that the costs of all parties of the trial of that issue including the costs of the motion on notice dated 3 September 1993 be costs in the cause.

Solicitor for Applicant:	Melasecca Zayler
Counsel for Respondent:	Mr H Jolson with Mr B Walters
Solicitor for Respondent:	Australian Government Solicitor