Parker v Churchill

[1986] FCA 90

CATCHWORDS

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Administrative Law - Judicial review - Whether search warrants

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properly issued	-	Whether sufficient information on oath to	satisfy	!
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justice of matters specified in s.10 of Crimes Act - Whether warrants

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properly executed - Seizure of irrelevant material.

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Crimes Act 1914, 5.10, s.29D

Administrative Decisions (Judicial Review) Act 1977

Sales Tax Assessment Act (No. 1) 1930, s.ll(l)

Taxation Administration Act 1953, s.BC(d)

Income Tax Assessment Act 1936, 5.231

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I	RALPH EDWARD PARKER AND ORS. v. MARTIN ALAN CHURCHILL AND ORS.
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Bowen C.J., Lockhart and Jackson JJ.
26 Mar& \966
Sydney

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IN THE FEDERAL COURT O F AUSTRALIA	)
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NEK SOUTH WALES DISTXICT REGISTRY	) G337 of 1985
)
GENERAL DIVISION	)

ON APPEAL from H i s Honour

Mr Justice Eurchett-

S E n F E :-

Appellants

m:

MARTIN ALAN CXURCHILL

First Respondent

BRENDAN CLIFFORD CONDIE

Second Respondent

THE COMMISSIONER OF TdE AUSTRALIdN

FED= POLIaE

I Third Respondent

COMMISSiONER OF TAXATION

Fourth Respondent

MINUTE OF 04DER

JUDGES MAKING ORDER : Bowen C.J., Lockhart and Jackson JJ.

: 26 March 1986

PLACE .: Sydney

THE COURT ORDERS AND DECLARES AS FOLLOWS:

1. Declare that the first and second respondents in issuing the

warrants referred to in the further amended application acted

. beyond the powers conferred by s.10 of the Crimes Act 1914 in so

far as the warrants contained paragraph (d) and so much of

paragraph (b) as referred to a possible offence by Ralph Edward

Parker and Therese Isobel Carson of falsely representing that they

were registered persons under the Sales	Tax Assessment Act (No. 1)
1930.

2 . Declare that the said warrants were otherwise valid.

3. Order that the appeal be otherwise dismissed.

4. Order that the injunction against the Commissioner of Taxation be continued for 21 days from the date this order is pronounced.

5. Order that the appellants pay to the respondents two-thirds of

their *costs of the appeal.

Note:	Settlement and entry of orders is dealt	wi h in Order 36 of the
Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA

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NEW SOUTH WALES DISTRICT REGISTRY	1	G 337 of 1905
)

DIVISION	GENERAL	1
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN: RALPH EDWARD PARKER

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THEBESE ISOBEL CARSON

ABCONA PTY. LIMITED trading as UTILITY MANUFACTURING ( N O W ) ANEY HOLDINGS PTY. LIMITED

BELSIA PTY. LIMITED

BENCARRA PTY. LIMITED

BENDOL PTY. LIMITED BEZLOM PTY. LIMITED CHAMAN HOLDINGS PTY. LIMITED

DALWORTH PTY. LIMITED

E.A. PARKER CONSTRUCTION PTY.

LIMITED

MASOCA PTY. LIMITED trading as

ABACIS COLLECTION AGENCY

ZANGA PTY. LIMITED

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Appellants

AND: MARTIN ALAN CHURCHILL

First Respondent

BRENDAN CLIFFORD CONDIE

Second Respondent

THE COMMISSIONER OF THE

AUSTRALIAN FEDERAL POLICE

I Third Respondent

1 COMMISSIONER OF TAXATION

i Respondent Fourth

CORAM: B O m C.J., LOCXHART'and JACXSON JJ.

~ p ~ e : 26 twaw (qg6.

PLACE ' SYDNEY

REASONS FOR JUDGMENT

2.

B O W C.J. and LOCKHART J.

We have had the benefit of reading the reasons for judgment

of Jackson J.. We agree with them in all respects but one, namely,

whether the contents of the information before the Justice of the suspecting that the various companies with which Ralph Edward Parker

and Therese Isabel Carson were associated were being used as shams by

them so that they (Parker and Carson) were committing the offence of

failing to register for sales tax purposes as manufacturers andlor

wholesale merchants. Jackson J. deals with this matter in his

discussion on paragraph (a) of the warrant.

Paragraph (a) of the warrant describes the possible offence

in these terms:

"(a)- Taxation Administration Act 1953,

subsection 8C(d) together with subsection

11(1) of the Sales Tax Assessment Act (No. 1)

1930, in that Ralph Edward Parker and Therese

Isobel Carson did at various times from the

twenty-sixth day of October 1984 until the

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present time, fail to register for sales tax

purposes as manufacturers andfor wholesale

merchants. "

The warrant incorrectly referred to "sub-section 8C(d)" of

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the Tax Administration Act 1953. It should have been a reference to

section 13 of ' the Sales Tax Assessment Act (No. 1) 1930, We agree

with Jackson J. for the reasons he has given that the incorrect

statutory reference in the description of the offence does not of

itself invalidate the warrant. We also agree with him that the

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I	description of the possible offence in para. (a) is not appropriate to
I	describe an offence by any of the companies with which Parker and
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Carson are alleged to be associated; but must be read, as its language
requires, as referring to the possible offences committed by Parker
and Carson themselves through having failed to register for sales tax
purposes. F. I .

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The point of difference between	us is that in our opinion the	I '
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contents of	the information were sufficient to afford reasonable	!	A	:
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grounds for suspecting that the companies were being used as shams	by	i'
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Parker	and	Carson	and	that	they	were	committing	the	offence	i:
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personally.

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The relevant contents of the information are set out in the	I \
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reasons for judgment of Jackson J. so we need not repeat them. So far L .

i	as presently relevant those contents may be summarised as alleging	/,	:
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that between 26 October 1984 (the date of the winding up of Utility I -

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I	Brute Trailers Pty. Limited) and	30 September	1985 (the date of the	F
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warrant):- ;-	the	and	I	information
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i 1. Parker and Carson carried on the business of manufacturing

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and selling road trailers and related equipment through

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cprporate facades which they controlled and manipulated to i

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mask what were in truth their own business activities;

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2 . Parker and Carson should have been, but were not, registered

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!	under the relevant sales tax legislation and paid no sales
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tax;

4.

The business which they carried on included, so far as was

known at the stage of the issue of the warrant:-

(a)	the purchase of raw materials for the manufacture of
road trailers and related quipment from six
manufacturers -. of goods under quotation of the Sales Tax
Certificate of Registration formerly held by Utility
Brute Trailers Pty. Limited (In Liquidation), one of
the companies controlled by them until it was wound up

on 26 October 1984; and

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(b) the sale of road trailers and similar or related

equipment to three purchasers on various occasions;

4. The sales invoices and other documents in respect of the

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transactions mentioned in 3(b) showed sale prices for the i .'

trailers	equipment	and	i clusive	of sales tax.	t -
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In our opinion the material thus summarised was sufficient to ji

support the issue of the	warrant.	l
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We	would declare that the search warrants are outside the	1
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powers conferred by	S .	10 of	the Crimes Act 1914 insofar as they	C.,
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I	Gontain para. (d) and so much	of para. (b) as refers to the possible	, :	.
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~	qffence by Parker and Carson	of falsely representing that they are
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~ r'egistered persons. The warrants are otherwise valid. I ,

f A	y:
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Ne would otherwise dismiss the appeal.

I c e r t i f y t h a t thls and the precedmg four (4)

pages a r e a t r u e copy of the Reasons fo r Judgment

herern of their Honours t h e Chlef Judge, Sir Nlgel

Bowen, and Mr Jus t i ce Lockhart.

d Assoclate

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY G337 of 1985

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GENERAL DIVISION 1

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ON APPEAL from His Honour

Mr Justice Burchett

BETWEEN :

Appellants

AND :	-
MARTIN ALAN CHURCHILL

First Respondent

BRENDAN CLIFFORD CONDIE

Second Respondent

THE COMMISSIONER OF THE AUSTRALIAN

\ FEDERAL POLICE

Third Respondent

COMMISSIONER OF TAXATION

Fourth Respondent

CORAM :	Bowen C.J., Lockhart J. & Jackson J.
-	DATE :	26 March 1986 L
PLACE :	Sydney

REASONS FOR JUDGMENT - JACKSON J.

On 30th September 1985 the first respondent, a justice the peace for the State of New South of

Wales, granted search

warrants authorizing the officers of the Australian Federal

Police named therein, with such assistance as they thought

necessary, to enter the premises named in the warrants, and to -

sei.ze any of the things named in the warrants, which they might

there find. The places named in the warrants were factory	! '
premises at Nowra, two dwelling houses at Nowra, dwelling houses

at Leppington, Shoalhaven Heads and Warwick Farm, the premises	of
three banks at Nowra, the premises of two banks at Sydney, solicitors' premises at Nowra and office premises at Nowra.

The warrants were granted by the second respondent in the

exercise - or, as the appellants would have it, purported

exercise - of the powers conferred by s.10 of the Crimes Act 1914

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which provides that:-

"10. If a Justice of the Peace is satisfied by

information on oath that there is reasonable ground for

suspecting that there is in any house, vessel, or place -

(a)

anything with respect to which any offence against been, or 1 s suspected on reasonable grounds to have

been, committed; 'L
(b)	anything as to which there are reasonable grounds
for believing that it will afford evidence as to ,: ::

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r the commission of any such offence; or ! . ..

I	(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,

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he may grant a search warrant authorizing any

constable named therein, with such assistance as he

thinks necessary, to enter at any time any house,

vessel, or place named or described in the warrant,

if necessary by force, and to seize any such thing	-	--
whlch he may find in the house, vesse1,or place."

AS is apparent from its, terms, s.10 requires that before

granting such a search warrant, a'justice be satisfied by

information on oath that there is reasonable ground for

suspecting that there is, in the place in respect of which the , '

search warrant is sought, something which falls within the

description contained in one or more of the paragraphs of the . .

section. The "information" which in this case led to the first

respondent having the requislte satisfaction was provided in writing by Kenneth Alan Moore, a Senior Investigation Officer of the Sales Tax Branch of the Australian Taxation Office and

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Mr Moore ("the informant") swore to the contents of each such

document before the first respondent. It may be noted in passing

that it is clear from the evidence of the first respondent that

the material before him at the time when determined to grant

the warrants was, and was only, the matter contained in the

informations to which e referred.

Before the primaryLJudge the appellants sought reviews under the Administrative Decisions (Judicial Review) Act 1977 of

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the decisions made by the first respondent in grantlng the search

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Warrants, and of the declsions made by officers of the Australian

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Federal Police in the execution of those warrants. The primary

Judge refused the appllcations but reserved to the appellants -

liberty to apply in respect of particular documents upon seven i

days notice in writing to the third respondent. -

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Before the Court both-aspects of the case remained in

issue, and it is convenient at thls point to indicate in more

detail the nature of the-attack made upon the grant of the

warrants on the one hand and upon their execution on the other.

The	grant of the	search	warrants	was	attacked	on three	8 .
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bases. First it was said that in some respects the offences referred to in the warrants were not offences known to law. Next

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I it was put that the matter contained in the informations was not

capable of satisfying the first respondent of the matters of .. .I

which he was required to be satisfied pursuant to s.10. Finally,

it was contended that the first respondent applied the wrong test

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in determinlng whether to grant the search warrants.

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The lawfulness of the execution of the search warrants was

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also put in issue in two ways. First it was contended that the

searches	were	carried	out "indiscriminately", i.e. without	regard	L ;
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to the question of relevance of documents. Second it was	! I
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contended that tacause the warrants were	not valldly	granted,	!.
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either In whole or in part, the items e ized (or some of them)

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were illegally obtained, and that in consequence an order	for
their return should be made.

I shall deal with these contentions in the order in which

I have just mentioned them but since so much turns on the

warrants it is helpful to set out their terms . The warrant in -

respect of the factory premises (which were situated at Lot 14,

Norfolk Avenue, Nowra) is a sufficient example	and it was as
follows:-

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"COMMONWEALTH OF AUSTRALIA

SEARCH WARRANT	l r '
CRIMES ACT 1914 SECTION 10

TO :

Danny Johnson

Christopher Bentley

Officers	Polic	Federal	Australian	-	r. .
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WHEREAS I Martin Alan Churchill . (

a Justice of the Peace, within the meaning of that expression in

section 10 of the Crimes Act 1914 of the Commonwealth of

Australia, in and for the State of New South Wales, being

satisfied by information on oath placed before me this day that

there are reasonable grounds for suspecting that there are at or

in the following place:-

Factory premises situated at Lot 14 Norfolk Avenue, Nowra, in the

said State, being a metal clad building with a metal roof, having

a double storey brick office accommodation with a sign styled

"Utility" on the side, attached, including all rooms, safes and

other parts therein, the surrounding grounds and any

outbuildings, receptacles and motor vehicles thereon.

Things being trailers, rubber stamps, typewriters, computer

software and documents including, but not llmited to, originals

or copi'es of presented cheques, specimen signature cards, deposit

slips, applications to open accounts, withdrawal forms, diaries,

diary notes, order forms, signed cheques, unsigned cheques,

invoices, names and addresses of customers, cheque butts,

customer order forms, quotations, sales journals, purchase

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journals, certificates of conditional exemption and records of

receipts and payments and other business records as to which

there are reasonable grounds for believing that the same will

afford evidence as to the commission of offences against

provisions of the following legislation -

Taxation Administration Act 1953, sub-section 8C(d)

together with sub-section ll(1) of Sales Tax Assessment

Act (No.1) 1930, in that Ralph Edward Parker and Therese

Isobel Carson did at various times from the twenty-sixth

7 day of October 1984 until thepresent time, fail to

register for sales tax purposes.-as	manufacturers and/or
wholesale merchants;

Section 15 of Sales Tax Assessment Act (No.1) 1930, in

that Ralph Edward Parker and Therese Isobel Carson did, at

various times from the twenty-sixth day of October 1984

until the present time, falsely represent they are

registered persons or falsely quoted a certificate;

Section 29D of the Crlmes Act 1914, in that Ralph Edward

Parker and Therese Isobel Carson did, at various times

from the twenty-slxth day of October 1984 until the

present time, defraud the Commonwealth in relation to the

purchase of raw materials free	of sales tax and by failing
to account for sales tax;

Section 231 of the Income Tax Assessment Act in that Ralph

Edward Parker and Therese Isobel Carson dId at various

times since 30 June 1978 until the present time evade

payment of income tax.

YOU ARE HEREBY AUTHORISED with such assistance as you may think

necessary to enter at anv time th said Dlace. if necessarv bv A <

force, and seize the afopementioned things being:-

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trailers, rubber stamps, typewriters, computer software and , *

documents including, but not limited to, originals or copies of

presented cheques, specimen signature cards, deposit slips, ;:

applications to open accounts, withdrawal forms, diaries, diary I

notes, order forms, signed cheques, unsigned cheques, invoices, I _

names and addresses of customers, cheque butts, customer order	:
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forms, quotations, sales journals, purchase journals,	. b .
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certificates of conditional exemption and records of receipts and	i t

payments and other buslness records as	to which there are	I ,
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reasonable grounds for believing that the same will afford : 1 ;

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[L	evidence as to the commission of offences against provisions	of	I
the legislation named above, being described as:-	l m.
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(a) Taxation	Administration	1953,	Act	sub-section	8C(d),	t ' i
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t o g e t h e r w i t h s u b - s e c t i o n 11(1) of Sales Tax Assessment

Act ( ~ 0 . 1 ) 1930, i n t ha t Ra lph Edward P a r k e r and T h e r e s e

I s o b e l C a r s o n d i d , a t v a r i o u s t i m e s f r o m t h e t w e n t y - s i x t h

day of October 1984 u n t i l t h e p r e s e n t tlme, f a i l t o

regis ter f o r s a l e s t a x p u r p o s e s a s m a n u f a c t u r e r s a n d / o r

wholesa le merchants ;

S e c t i o n 1 5 o f S a l e s Tax Assessment Act (No.1) 1 9 3 0 , i n

t h a t R a l p h Edward P a r k e r a n d T h e r e s e I s o b e l C a r s o n d i d , a t

v a r i o u s times f rom the twenty-s ix th day of October 1984

u n t i l t h e p r e s e n t time, f a l s e l y r e p r e s e n t t h e y are

I r e g i s t e r e d p e r s o n s o r f a l s e l y q u o t e d a c e r t i f i c a t e ;

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S e c t i o n 29D o f t h e Crimes A c t 1 9 1 4 , i n t h a t R a l p h Edward

P a r k e r a n d T h e r e s e I s o b e l C a r s o n d i d , a t v a r i o u s times

f rom the twen ty - s ix th day o f Oc tobe r 1984 un t i l t he

p r e s e n t time, d e f r a u d t h e Commonwealth I n r e l a t i o n t o t h e

pu rchase o f raw m a t e r i a l s free o f s a l e s t a x a n d by f a i l i n g

t o account f o r s a l e s t a x ; and

S e c t i o n 231 o f t h e Income Tax Assessment A c t i n t h a t R a l p h

Edward Pa rke r and Therese I sobe l Ca r son d id a t va r ious

times s ince 30 J u n e 1978 u n t i l t h e p r e s e n t time evade

payment of income tax.

a n d f o r so d o i n g t h i s s h a l l b e y o u r s u f f i c i e n t W a r r a n t .

GIVEN under my hand and seal a t 111 E l i z a b e t h S t r ee t ,

Sydney i n t h e S t a t e of New S o u t h W a l e s , t h i s 3 0 t h d a y o f

September 1985.

........ ........ ........ ........

J u s t i c e o f t h e P e a c e I n and for

t h e S t a t e of New South Wales

( M . C h u r c h i l l )

ATTACK ON THE GRANT OF THE WARRANTS

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l	Paragraph (a) of the warrants
l	!	Paragraph (a) of each warrant refers to a potentlal offence of failing to register for sales tax purposes as'
manufacturers and/or wholesale merchants. It identifles the
relevant statutory provisions as being s.8C(d) of the Taxation
Administration Act 1953 and s.ll(l) of the Sales Tax Assessment

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Act (NO. 1) 1930. - - -

In dealing with the contention that paragraph (a) does not

refer to an offence known to law, it should first be noted that

it is correct to say that at all material tlmes there has been an

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offence of the nature described in the text of paragraph (a),

1.e. failing to register as a manufacturer or wholesale merchant

for the purposes of the Sales Tax Assessment Act (No.1). In thrs

regard, until 30 May 1985 s.ll(l) of the Sales Tax Assessment Act

(No.1) provided that:-

!	"(1) A person who becomes a manufacturer or
I	wholesale merchant shall, within 28 days after he
becomes a manufacturer or wholesale merchant, as
the case may be, become registered as prescrlbed"

I and since that date it has provided that:-

"(1) Subject to this section, a person who is a

manufacturer or a wholesale merchant, is requlred

I to be registered".

At all times failure to comply with the requirements of s.ll(1)

has been an offence by virtue of s.13 of the same Act.

The point which is made, however, is that paragraph (a)

of the warrants does not refer to s.13 but refers instead to

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s.8C(d) of the Taxation Administration Act 1953, which s as 8 ,

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follows:- .. ..

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"8C. A person who refuses or fails, when and as required !..

under or pursuant to a taxation law to	do so -	:
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(d) to notify the Commissioner	or another person	of	i .
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a matter or thing; $.,

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to the extent that the person	is capable of doing	!
so 1s guilty of an offence."	t I,

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The obligation to become registered provided for by

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s.ll(l), in both its earlier and its later	form, is not in my	I .I
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view an obligation to "notify" the Commissioner in terms of !

s.8C(d) and I thus (a) of the warrants as incorrect. Further regard the reference to s.8C(d) in paragraph !

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s.8C(d) dld not come

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into force until 14th December 1984 and thus could have	no	'	.	:	c
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application-to so much to the period referred to in paragraph	(a)	L . L -.
as occurred prior to that date.
As the primary Judge observed, a reference in a search warrant to an Incorrect section was	, I ~

held not to invalidate a	l..'
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search warrant in Reg - v. Trottier et al, Ex parte McLaughlin et

F.

-	a1 (1966) C.C.C.	321, and there seems no particular reason why it	i l
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I should. A search warrant, Insofar as it is based on s.lO(b) of ;;

the Crimes Act authorizes a constable named in it to enter and , .

seize "any such thing", i.e. any thing as to which there are

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reasonable grounds for believing that i will afford evidence as

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to the commission of an offence against a law of the Commonwealth

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or of a Territory. The warrant must specify the offence, or

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, . . ,_ - .-'..,c->,"'.: -.. _ _ . 2-. -=-..--2 ..-. .- - P. ~ -.- ,~,, I - -.,,- <.% ". ~ _. 7 . - -.,:.!.,.%-.'W . .r ,.-* \:>:-:: e.. ,.~. :---.h-*---.,,.!,._ _ _ _ _ _ I : :::e>.?wLi{

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offences, in question (Reg. - v Tillett; Ex parte Newton (1969) 14

F.L.R. 101 at 113, Crowley v. Murphy (1981) 52 F.L.R. 123 at 143,

Australian Broadcasting Commission v. Cloran (1984) 4 F.C.R. 1 5 1

at 153), but unless it be that the reference to an incorrect section has the result that the warrant does not specify	3
offence, or makes the warrant ambiguous o that it is not

ppsible- to tell what offence is referred to, I think that the

reference to an incorrect section in the description f an

offence does not of itself invalidate a warrant which, as is

conceded in the present case, does state in otherwlse

intelligible terms an offence In relation to which s.10 is

capable of operating. Compare the remarks of Moshansky J. in

Alder v. Attorney-General of Alberta (1977) 5 W.W.R. 132 at 147.

I turn then to consider the second basis on which the

grant of the warrants, Insofar as they relate to the offence

referred to in paragraph (a), was sought to be impugned.

As I have sald the material before the first respondent at

the time of the grant of the warrants consisted entirely of the

material contained in the infonatlons.	In the informatlons the
informant stated in paragraph 1 that:-

"1 For several months he has been engaged on enquiries

concerning the evasion of sales tax, by persons known as Ralph Edward Parker of 11 Salisbury Drlve, Nowra

and Therese Isobel Carson of 8 Dwyer Road,

Lepplngton, both of whom are either directors and/or

public officers of the following companies:-

E A Parker Constructions Pty Ltd

Utility Brute Trailers Pty Ltd (in Liquidation)

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Bendol Pty Ltd

Abcona Pty Ltd T/A Utility Manufacturing (Nowra)

Dalworth Pty Ltd

I	Bencarra Pty Ltd.
Bezlom Pty Ltd
Masoca Pty Ltd
Chaman Holdlngs Pty Ltd
by the device of:-
(a) Failing to register, for sales tax purposes,

as manufacturers and/or wholesale merchants.

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(b)

Purchasing goods, being parts and machinery for the manufacture of taxable goods, from registered sales taxpayers under the

quotation of the sales tax certificate of

registration held by Utility Brute Trailers

Pty Ltd."

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and, after referring in paragraph 2 to the terms of ss.ll(l) and

15 of the Sales Tax Assessment Act (No.1) 1930 and s.8Y of the

Taxation Administration Act 1953, continued:-

" 3	By appllcation dated 18 November 1981, Ralph Edward
Parker and Therese Isobel Carson, as directors,
sought registration for sales tax purposes of the
entity, Utility Brute Trailers Pty Ltd, as a
manufacturer and wholesale merchant of highway
trailers. Certificate of registration, numbered 2
456 453, was issued to this entity on 2 6 November
1981. By order of the Supreme Court of New South
Wales, Equity Division, a windlng up order, in
relatlon to Utility Brute Trallers Pty Ltd, was

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made on 26 October 1984 and Mr D E W Blackwell of A

W Butterell Porter and Company, 109 Pltt Street,

Sydney, was appointed official liquidator.

4 liquidator and was informed that the company has

The informant made enquiries of the official has been advised the company cannot trade now that it is in liquidation and further, that no authority

has been given by-the liquldator for any other

person or entlty to act or carry on business on

behalf of Utility Brute Trailers Pty Ltd.

5 The informant has established that subsequent to

the commencement of his enquiries into the

- 1 2 -	i - 4
!.
r;

a c t i v i t i e s of	U t i l i t y	B r u t e	T ra i l e r s	L td ,	P ty	Ralph	I
I ."

Edward Pa rke r pe r sona l ly and th rough so l i c i to r s W R

L

Goodman	and	Associates,	S u i t e 3 ,	50 B e r r y S t r e e t ,	I
L . 1

Nowra and Weiss and Company of C h a l l i s House,

Mart in Place, Sydney and t h r o u g h a c c o u n t a n t s , L '

C l i f t o n , Atlee and Associates, S u i t e 2 0 7 , I

24	B e r r y S t r e e t ,	Nowra,	p u r c h a s e d , a number	of	s h e l f	, -
..

companies	from	A u s t r a l i a n F o r m a t i o n S e r v i c e s , 3 r d	l '
! ,

F l o o r , 1 1 0 E a t h u r s t S t r e e t , S y d n e y a n d Company 3 ,'

i I _

P l a n n e r s , 6 t h F l o o r , 55 Hunter .S t ree t , Sydney . I I .

Advice from r e p r e s e n t a t i v e s of t h e s e e n t i t i e s

i n d i c a t e s t h a t t h e names, ln tended registered

o f f i c e s and i n t e n d e d d i r c t o r s of s t h e s e l f .-

companies

a re a s follows:-

i '

!	,.
i,	.

COMPANY	REGISTERED OFFICE DIRECTORS	ADDRESSES	- 1
I
! .

Bendol P ty L td Sui te 3 , i

50 Berry S t . Ra lph Edward PaGker 4 2 K a l e n d e r S t . ;

Nowra Nowra I - .., 1 -

The rese I	Car son	104	Br inge l ly	Rd,	,, ,
-.

Br inge l ly	-
I .
I

Abcona P t y L t d S u i t e 3 , Ralph Edward 88 Yurunga D r . ,

T/A U t i l i t y 50 Berry S t Nowra

Manufactur ing Nowra , L.

(Nowra) Therese I Car son 104 Br inge l ly Rd,

B r i n g e l l y	;
:

I

I Rencarra Pty Ltd

S u i t e 3 , Yurunga 88 Parker Tuyet D r . , 0.-

50 B e r r y S t Nowra 2; . .

I _.

I Nowra

I a n H	Young	188 McKay	S t r e e t ,
Nowra

* ,

Masoca Pty Ltd

Kalender 42 Ralph St , E P a r k e r 42 K a l e n d e r S t ,

Nowra	Nowra	L i
,.

Gayle Bedot	6 5 L a v i n i a S t	r.
Merrylands	:

Tuyet	B	P a r k e r	42 Kalender S t ,	r .
, I
Nowra	; ".

Chaman Holdings, ,~

L td	P ty	1 4 Norfolk	Ralph	Ave.	E	P a r k e r	14 Norfolk Ave.	!,
.L
Nowra	Nowra
. c
L:
L..

- 13 -

appointed as Directors of Chaman Holdings PtY Ltd:-

Geoffrey Thomas Lyon

Shoalhaven Wlllows Caravan Park

Riverview Road

Nowra

William Patrick Franklin

3 McIntosh Street

Shoalhaven Heads)

COMPANY REGISTERED OFFICE DIRECTORS ADDRESSES

Bezlom Pty Ltd Suite 3 Parker Tuyet 88 Yurunga Drive

Nowra Street Berry 50

Wright G Edwin Nowra 16 Lawrence

Hargreave Dr.

- Farm Warwick

Aney Holdings Weiss & Co. Thi Bach Tuyet Tran 8/3 Acacia St.

Cabramatta Flr 5th Ltd Pty

Challis House Martin Place,

White Edward Sydney 74 Lawrence

Hargreave Dr.

Warwick Farm

5(a) Tuyet Parker named above is the wife of the said

Ralph Edward Parker.

6 On 4 February 1985, the informant visited factory

premises at Lot 14, Norfolk Avenue, Nowra, which had
a sign styled "Utility" on the side, and sighted a
number of road trailers in various stages of manufacture.
.7	The informant has established from invoices, Corporate Affairs
Commission records and enqulries of local government bodies
that the address for Bendol Pty Ltd, Abcona Pty Ltd trading as
Utility Manufacturing (Nowra), E.A. Parker Constructions Pty

Ltd, Chaman Holdings Pty Ltd and Aney Holdings Pty Ltd is Lot

1 4 Norfolk Avenue, Nowra. Further,bank records show that the

current postal address for Masoca Pty Ltd, Bezlom Pty Ltd and

Abcona Pty Ltd trading as Utility Manufacturing (Nowra) is PO
Box 7 0 4 , Nowra,-the previous postal address of Utillty Brute
Trailers Pty Ltd and the current postal address of E.A. Parker
Constructions Pty Ltd and Bendol Pty Ltd. Enquiries of the
postmaster at Nowra Post Office have established that P.O. Box
7 0 4 is allocated to an entity named Utility Trailers.
0	On 26 February 1985 Peter Clyne, purporting to be the agent of
the said Mr Parker, in response to a number of notices to
attend with books and records, hand delivered, in the presence

of the said Mr Parker, notification that the said Ralph Edward

Parker was either a Director and or Public Officer of Dalworth

- 14 -

l

Pty Ltd, Bendol Pty Ltd, Abcona Pty Ltd, E A Parker I-.

Constructions Pty Ltd, Bezlom Pty Ltd, Masoca Pty Ltd and	I .
5

Bencarra Pty Ltd.	Further, a statement	of financial position	. .
I.

signed by Ralph Edward Parker and Tuyet Bach Parker, presented !. .

to AN2 Bank, 100 Junction Street, Nowra, discloses assets Of

both to include equity in Bendol Pty Ltd, Bencarra Pty Ltd and	I.
I ./

Masoca Pty Ltd Trading as Abacus COlb-2CtiOnS. -

i

9 Records held by the Australian Taxation Office show that none t ..

of the shelf companies purchased.by Ralph Edward Parker (refer

paragraph 5) has applied for registration and that no sales tax

has been paid by any person or entity named Ralph Edward ! -

Parker, Therese Isobel Carson, Dalworth Pty Ltd, Bendol Pty ! -

Ltd, Abcona Pty Ltd Trading as Utility Manufacturing (Nowra), -1 I

Aney Holdings Pty Ltd or Chaman Holdings Pty Ltd. Further, no ; c

record could be found of either Ralph Edward Parker or Therese

Isobel Carson having-lodged income tax returns	for the years	!
ended 30 June 1978 to-date.	~
!.
!

10 The informant made enquiries at the Department of Motor P ,

Transport Offices, Junction Street, Nowra, and established , . I .

that Bendol Pty Ltd, Lot 14, Norfolk Avenue, Nowra, had ! .

registered a number	of new road trailers prior to delivery to	!. 1
I
various customers.	L
r

11 Officers of the Taxation Office made enquiries at the premises #...

of C Swadling and Sons Pty	Ltd, Lonsdale Street, Leichhardt,	I
L -
L
I /

and were inform$d that this company had purchased a new tandem

axle skeletal trailer, serial number BD 1555. A copy of Bendol

Pty Ltd invoice number 001531 was sighted, showing the purchase 1'-

price of $12,000 for the trailer was inclusive of sales tax. I .

Payment in respect of this invoice ,which was undated, was made	r -
1
on 6 March 1985.	i
l!

12 Officers of the Taxation Office made enquirles at the premises ; L

of Jack Seatons Transport Pty Ltd, Grand Avenue, Camellia and 1,1

were informed that this company had ordered a tri-axle utility I,

drop deck trailer from Peter Carson f Rent-a-Skel. A copy of 1 :.

Bendol Pty Ltd invoice number 001054, dated 1 March 1985, was I =

sighted, showing	the purchase price	of $25,800 for	_q tri-axle	I.
I ,

utility drop deck trailer was incluslve of sales tax. I.

13 The informant made enquiries at the premises of SPD Transport

Pty Ltd, 56 Anzac Street, Chullora, and discovered that during G i

the months August 1982, May 1983, September 1983, November _ . . .

1983, December 1983, October 1984, and March 1985, the company 1 ~ ,

purchased road trailers and transi-flats to the value of 1 .

$1,491,236. All these purchases were made from companies of	i (?
which Ralph Edward Parker is either a director and/or public	1 :

- - 3 , I *

officer and he (Parker) had requested that SPD Transport Pty

I L~

Ltd make orders and payments variously to Utility Brute :-

Trailers Pty Ltd, Utility Trailers, Bendol Pty Ltd, Abcona Pty

Ltd, Utillty Manufacturing (Nowra) and Chaman Holdings Pty	i.<
Ltd.	1 :-

, l; r i

! F :

- 15 -,

Invoices from the various companies of which Ralph Edward

parker is either director and/or public officer that have had

dealings with SPD Transport Pty Ltd show all sales prices are

inclusive of sales tax.

15 A search of the records at the ANZ Bank, 100 Junction Street,

Nowra, reveal deposits of funds to the account of Bendol Pty

Ltd emanating from the sale of trailers. Further, deposits to

the account of Bendol Pty Ltd from Therese Isobel Carson

personally and other companies of which Ralph Edward Parker

and Therese Isobel Carson are either directors and/or public

officers are suspected to emanate from the sale of trailers.

In this regard, some cheques made payable to Chaman Holdings

Pty Ltd by SPD Transport Pty Ltd were negotiated through the _- -

Anchor House Branch of Westpac, George Street, Sydney, and

some bank cheques purchased from the proceeds were made

payable to Bendol Pty Ltd.

16 On various dates subsequent o 26 October 1984, officers of

the Taxation Office made enquiries at:-

Francis Auto Electrical, Corner North	and Berry
Streets, Nowra

Patons Brake Replacements, 9 Wordie Place, Padstow

M S McLeod Limited, Corner Carolyn and Fariola

Streets, Silverwater

Fruehauf Distributors Pty	Ltd, 100 Cosgrove Road,
Enfield

D M S Colrain Wholesalers Pty Ltd, Rear 39

Fairfield Street, Villawood

Transpec, 180 Silverwater Road, Auburn

and established that raw materials for the manufacture of

taxable goods have been sold variously to Utility, Utility

Trailers, Utility Trailers Pty Ltd, Abcona Pty Ltd Trading as

Utility Manufacturing (Nowra) and Bendol Pty Ltd Tradlng as

Utility Trailers, under quotation of sales tax certificate of

registration numbered 2456453, which is the registration of

Utility Brute Trailers Pty Ltd.

17	The informant made enquiries at Shoalhaven Business	..
Equipment, 25 Meroo Road, Bomaderry and established that Ralph Edward Parker had purchased a computer valued at $2295. Payment was made by cheque drawn

I

by Utility Manufacturing (Nowra) on its account

with Westpac Banking Corporation, 88 Junction

Street , Nowra.

18	All attempts to obtain the books and records of the	-
relevant companies have proved unsuccessful, as	l
have attempts to obtain lnformation in relation t the activities of these companies. In this regard, the informant has been refused access to books and
records by Ralph Edward Parker and both Ralph

- 16 -

Edward Parker and Therese Isobel Carson have refused, on oath, to answer questions put to them by the informant."

Taken at face value the contents of the informations were

clearly sufficient to enable the first respondent to form the

view required by s.lO(b) of the Crimes Act in respect of Bendol

Pty Limited, Abcona Pty Limited and Chaman Holdings Pty Limited

in relation to conduct falling within s.ll(1) of the Sales Tax

-- - I

Assessment Act (No.1). See particularly paragraphs 13, 15 and 16 of the informations.

The point which is made, however, is that the terms of

paragraph (a) of the warrant refer to an offence which the -

appellants, Parker and Carson, are suspected of having committed,

namely that they failed to register pursuant to s.ll(1). Such a

description of the offence would not be appropriate to describe

an offence by Bendol Pty Limited, or by any of the companies, and

it would-not be appropriate to descrlbe an offence committed by

either Parker or Carson as a secondary party because in such a

case s.5 of the Crimes Act provides that the offence committed by

the aider, abettor, etc., is the offence committed by the

-_

principal offender. __

That is not the end of the matter, however, because the

question which arises is whether the contents of the information

might be regarded as showing that there was reasonable around for

suspecting that the companies were being used as "shams" by

Parker and Carson, with the result hat Parker and Carson were

- 17 -

c o m m i t t i n g t h e o f f e n c e p e r s o n a l l y .

I n t h i s r e g a r d , t h e material which might be so r e l i e d o n

s t a r t s w i t h t h a t p a r t of t h e i n f o r m a t i o n w h i c h s t a t e s t h a t P a r k e r

h a d r e q u e s t e d o n e p u r c h a s e r o f t r a i l e r s t o make o rde r s and

p a y m e n t s " v a r i o u s l y t o U t i l i t y B r u t e T r a i l e r s P t y L i m i t e d ,

U t i l i t y T r a i l e r s , B e n d o l P t y L i m i t e d ,	Abcona	P t y L i m i t e d , U t i l i t y
-- -

Manufacturing (Nowra) and Chaman Hold ings P ty L imi ted" , bu t it

seems a p p a r e n t e n o u g h f r o m t h e d a t e s r e f e r r e d t o i n p a r a g r a p h 13

OF t h e p r i n c i p a l l y i n f o r m a t i o n t h a t t h e t r a n s a c t i o n s i n q u e s t i o n r e l a t e d

t o t h e p e r i o d b e f o r e U t i l i t y B r u t e T r a i l e r s P t y

Limited w e n t i n t o l i q u i d a t i o n , and t h a t t h e o n l y t r a n s a c t i o n s

w h i c h m i g h t p o s s i b l y b e r e l e v a n t a r e t h o s e r e f e r r e d t o i n March

1985, and possibly October 1984.

Second ly , t he information i n d i c a t e d t h a t m a t e r i a l s fo r t h e

manufac ture of goods had been sold t o " U t i l i t y " , " U t i l i t y

T r a i l e r s " , " U t i l i t y Trailers P ty L imi t ed" , "Abcona Pty L imi ted

Trading as Ut i l i ty Manufac tur ing (Nowra)" and "Bendol P ty L lmi ted

T r a d i n g a s U t i l i t y T r a i l e r s " u n d e r t h e q u o t a t i o n o f t h e s a l e s t ax

c e r t i f i c a t e f o r m e r l y h e l d b y U t i - i i t y B r u t e T r a l l e r a - P t y L i m i t e d .

The times r e f e r r e d t o d o n o t a p p e a r c l e a r l y .

T h i r d l y , P a r k e r a n d C a r s o n h a v e r e f u s e d t o p r o v i d e a c c e s s

t o books and records and t o answer ques t ions pu t - to them by t h e

informant .

I - 18 -

i Do t h e s e m a t t e r s t h e n p r o v i d e a s u f f i c i e n t b a s i s f o r t h e

v i e w t h a t t h e u s e o f t h e c o m p a n i e s may have been a sham and t h a t

I I

i n	t ru th Pa rke r and Car son	were	t h e m s e l v e s c a r r y i n g	on	b u s i n e s s
as	manufac tu re r s?

I

Although the i s sue is one of some d i f f i c u l t y , I am, i n t h e

e n d , o f t h e view t h a t t h e y d o n o t . I am c o n s c i o u s t h a t i t 1s n o t

-- -

e s s e n t i a l t o t h e v a l i d i t y o f a s e a r c h w a r r a n t u n d e r s .10 t h a t i t

c o n t a i n t h e name of t h e a l l e g e d o f f e n d e r (Reg. - v. T i l l e t t , Ex .

p a r t e Newton ( s u p r a ) a t 1 1 4 ) . Indeed i n p a r t i c u l a r c a s e s it may

I

well b e t h a t one o f t h e p u r p o s e s o f o b t a i n i n g t h e s e a r c h w a r r a n t

is t o o b t a i n e v i d e n c e t o i d e n t i f y t h e p e r p e t r a t o r o f t h e o f f e n c e

i n q u e s t i o n . I f , h o w e v e r , t h e s e a r c h w a r r a n t ( a s h e r e ) - does

i d e n t i f y th'e s u s p e c t e d p e r p e t r a t o r of t h e o f f e n c e , it seems t o me

I

t h a t t h e i n f o r m a t i o n b e f o r e t h e J u s t i c e m u s t b e c a p a b l e o f

I

s a t i s f y i n g him t h a t t h e p a r t i c u l a r o f f e n c e c o n t e n d e d for is one

I

i n r e l a t i o n t o , w h i c h t h e r e is r e a s o n a b l e g r o u n d f o r t h e b e l i e f

t h a t it will a f f o r d e v i d e n c e of the commiss ion o f t he o f f ence by

t h e p e r s o n named.

I

T u r n i n g t h e n t o t h e u l t i m a t e q u e s t i g n o n t h i s i s s u e a n d

r e c o g n i z l n g t h a t i t is one on which d i f fe ren t minds may t a k e

d i f f e r e n t v i e w s , I do n o t t h i n k t h a t t h e m a t e r i a l b e f o r e t h e

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

I	t o p a r a g r a p h	( a ) o f	t h e s e a r c h	warrant_-in r e s p e c t o f	t h e f a c t o r y
I

p r e m i s e s , o r i n r e l a t i o n t o a n y o f t h e o t h e r p r e m i s e s t h e s u b j e c t

i	o f	t h e w a r r a n t s .
I
i
I

I - 19 -

I t is t h u s u n n e c e s s a r y i n r e l a t ion to p a r a g r a p h ( a ) , t o

l

I d e a l w i t h t h e c o n t e n t i o n t h a t t h e f i r s t r e s p o n d e n t a p p l i e d t h e

i n c o r r e c t t es t i n de te rmining whether t o g ran t t h e s e a r c h

w a r r a n t s . \

P a r a g r a p h ( b ) o f t h e w a r r a n t s

P a r a g r a p h ( b ) o f t h e warrants a l l e g e s t h e r e l e v a n t

__ -

o f f e n c e s as b e i n g t h a t i n b reach o f s.15 o f t h e S a l e s Tax

Assessment Act (No.1) 1930 Pa rke r and Ca r son , a t va r ious - - t imes

from 26th r e p r e s e n t e d t h a t October 1984 u n t i l t h e d a t e of t h e w a r r a n t , " f a l s e l y

t h e y were r e g i s t e r e d p e r s o n s o r f a l s e l y q u o t e d a

c e r t i f i c a t e . " It is n o t c o n t e n d e d t h a t p a r a g r a p h ( b ) d e a l s w i t h

an o f f ence n o t know,n t o l a w b u t it is c o n t e n d e d t h a t t h e o t h e r

r.

' !

two grounds t o which I have r e fe r r ed above app ly .

I .

S.15 o f t h e Sales Tax Assessment A c t (No.1) p r o v i d e s ; -'

t h a t : -

"15 Any p e r s o n who, i n r e l a t l o n t o a n y t r a n s a c t l o n , a c t

or o p e r a t i o n i n r e s p e c t o f g o o d s , f a l s e l y

r e p r e s e n t s t h a t h e is a r e g i s t e r e d p e r s o n or

f a l s e l y q u o t e s a c e r t i f i c a t e , s h a l l b e g u i l t y o f a n

o f f e n c e . "

I n v i e w - o f t h e a p p a r e n t cannection between Parker and

Carson and the companies , and in view of t h e terms o f pa rag raph

1

1 6 o f t h e i n f o r m a t i o n I am s a t i s f i e d t h a t t h e r e was s u f f i c i e n t

ma te r i a l be fo re the Jus t i ce on wh ich he migh t fo rm the v iew

I r e q u i r e d by t h e s e c t i o n i n s o f a _ r = a s p a r a g r a p h ( b ) a l l e g e d a

l

I

p o s s i b l e o f f e n c e - o f f a l s e l y q u o t i n g a c e r t i f i c a t e . T h e r e seems

to me, however, t o have been no m a t e r i a l b e f o r e him which went t o

- 20 -

show t h a t P a r k e r a n d C a r s o n f a l s e l y r e p r e s e n t e d t h a t they were

r e g i s t e r e d p e r s o n s .

The p o s i t i o n is n o t a l t e r e d b y s.EY(1) of t h e Taxation

A d m i n i s t r a t i o n Act 1953 wh ich p rovrdes tha t : -

"(1) Where a c o r p o r a t i o n d o e s or o m i t s t o d o a n

act o r t h i n g t h e d o i n g o r o m i s s i o n o f w h i c h

c o n s t i t u t e s a t a x a t l o n o f f e n c e , a pe r son (by

whatexer name ca l led and whether or n o t t h e p e r s o n

is a n - o f f i c e r of t h e c o r p o r a t i o n ) who is concerned

i n , or t a k e s p a r t i n , t h e management of t h e

c o r p o r a t i o n s h a l l be deemed t o hgve commit ted the

taxa t ion o f f e n c e and is p u n i s h a b l e a c c o r d i n g l y . "

The o p e r a t i o n o f s.EY(1) is t h a t it deems t h e person who

1s concerned i n or who takes p a r t i n t h e management of t h e

c o r p o r a t i o n t o h a v e c o m m i t t e d t h e t a x a t i o n o f f e n c e , t h e t a x a t i o n

o f f e n c e n e c e s s a r i l y b e i n g t h a t w h i c h was commit ted by the

c o r p o r a t i o n . The c o n t e n t i o n I n t h e warran t , however , is t h a t

P a r k e r a n d C a r s o n f a i s e l y r e p r e s e n t e d t h a t	they	were	r e g i s t e r e d
pe r sons .

I n t h e l i g h t o f t h a t v i e w , it is n e c e s s a r y t o t u r n t o t h e

t h i r d b a s i s o n w h i c h t h e w a r r a n t is a t t a c k e d , namely whether the

f i r s t _ _ r e s p o n d e n t a p p l i e d t h e c o r r e c t t e s t i n d e c l d l n g t o i s s u e

t h e w a r r a n t s . The s u b m i s s i o n f o u n d s i t s e l f o n t h e f a c t t h a t when

g i v i n g e v i d e n c e t h e f lrst respondent gave an answer as fo l lows: -

"Q. Before you s igned tha t document what ques t ions d id

you _ a s k _ y o u r s e l f ?

A. Had an offence been commit ted and was t h e r e

e v i d e n c e r e l a t i n g t o t h a t o f f e n c e	on	t h e p r e m i s e s
s p e c i f i e d ? "

- 2 1 -

and o the r answers which o n o n e r e a d i n g of them might lead to t h e

i m p r e s s i o n t h a t t h e q u e s t i o n w h i c h h e was c o n s i d e r i n g ' w a s n o t

whether i n terms of s.10 t h e r e was r e a s o n a b l e g r o u n d f o r

s u s p i c i o n etc. , b u t r a t h e r w h e t h e r t h e r e was e v i d e n c e a t t h e I

-_

relevant place and whether an offence had been commit ted. I t is .- -

n o t e w o r t h y t h a t a q u e s t i o n r a i s i n g d i r e c t l y t h e d i f f e r e n c e

between the two tests was n e v e r p u t t o t h e f i r s t r e s p o n d e n t and I

doub t whe the r t he wi tnes s was i n t e n d i n g t o convey the meaning now

sough t t o be d rawn f rom h i s ev idence . In t h i s r ega rd I t h i n k it

is s i g n i f i c a n t t h a t t h e p r i m a r y J u d g e , who h a d t h e o p p o r t u n i t y ,

which w e do n o t have, of s e e i n g a n d h e a r i n g t h e e v i d e n c e b e i n g

g i v e n ,	s a i d : - " I t was	r
L~

submi t t ed these and similar p a s s a g e s showed Mr !

C h u r c h i l l t e s t e d t h e i n f o r m a t i o n a c c o r d i n g t o a n

i m p o s s i b l y h i g h s t a n d a r d , t h a t h e w e n t well beyond

s u s p i c i o n on r easonab le g rounds , and r easonab le g rounds

f o r b e l i e v i n g , a n d c o n s i d e r e d w h e t h e r t h e o f f e n c e s h a d i n

f a c t o c c u r r e d . I do n o t t h i n k t h i s is a f a i r

u n d e r s t a n d i n g o f t h e e v i d e n c e a s I hea rd it g i v e n . The

witness was n o t d i r e c t i n g h i s m i n d , i n t h e s e a n s w e r s , t o

any s t a n d a r d of p e r s u a s i o n , b u t t o t h e q u e s t i o n upon which

he was r e q u i r e d t o r e a c h a c o n c l u s i o n a c c o r d i n g t o t h e

s t a t u t o r y s t a n d a r d . H e g a v e e v i d e n c e t h a t h e "had a

f a m i l l a r i t y w i t h s e c t i o n 10 of t h e C r i m e s Act", and he

r e f e r r e d t o i t s terms wi thou t appea r ing t o m e t o be making.

a s h e r e a d them any new discovery of them."

For these r easons I d o n o t a c c e p t t h e submission t h a t t h e

p r i m a r y J u d g e s h o u l d h a v e f o u n d t h a t t h e J u s t i c e a p p l i e d t h e

wrong tes t i n g r a n t i n g t h e warrants.

i

, --

._.

Paragraph ( c ) of t h e s e a r c h w a r r a n t s

T h e r e a r e two l l m b s t o p a r a g r a p h ( c ) o f t h e s e a r c h

-

w a r r a n t s namely:-

- 22 -

(a)	an allegation of defrauding the Commonwealth in
relation to the purchase of raG materials free of

sales tax; and

(b)	an allegation of defrauding the Commonwealth by
failing account to sales for tax. -

The offence of defrauding the Commonwealth was created by

s.29D of the Crimes Act which came into force on 25th October

1984, the day before the commencing date of the period referred

to in paragraph (c) of the warrants.

The argument that the first limb of paragraph (c) does not

disclose an offence is based on the contention that the offence

',.

is not stated	with sufficient particularity and that in essence	* ,
"only a topic	is suggested".
_ .

A warrant should state the description of the offence question with a particularity sufficient to enable the person i

whose premises are being searched to know the exact object of the

search (The Queen v. Tillett, Ex parte Newton (supra) at 113,

Crowley v . Murphy (1981) 34 A.L.R. 496 at 519, Brewer v. Castles

(No. 2)(1984) 1 F.C.R. 55 and Australian Broadcasting Commission

v . Cloran (supra) at 153.

I

In my view the terms in which t e first limb of paragraph

(c) of the warrant are stated are sufficient to satisfy the

-

requirement of particularity. They deal with a stated offence,

i - 23 -

and give some particulars of it, i.e. "in relation to the

purchase of raw materials free of siles tax", the particulars

covering a relatively short period.

i

I It also seems to me that the second basis of ._attack -- - on

i this part of the warrant should fail. It is clear from paragraph

l

16 of the information that it is asserted that raw materials for

the manufacturer of taxable goods have been sold to companies

with which Parker and Carson are associated in consequence of the

quotation of a sales tax certificate of registration the use of

which was unauthorized. I see no reason why conduct of that

kind, if engaged in by Parker and Carson, might not amount to

defrauding the Commonwealth in terms of s.29D.

The third basis of attack fails for the reasons earlier

expressed.

!

I I turn then to consider the second limb of paragraph (c)

of the warrant.

1

Although it is here contended that the second limb of

paragraph (c) does not constitute an offence, the basis of the

I

I

I	contention is that it is the manufacturer of goods, rather than a
purchaser of goods from the manufacturer, who is liable to pay
I	sales tax in respect of goods manufactured in Australia (see s.19
I
of the Sales Tax Assessment Act (No.1)) and that it could not

,I	-
I

amount to defrauding the Commonwealth in terms of s.29D for a

I

I

I

- 24 -

manufacturer not to pay to the Commonwealth sales tax, despite

the fact that the price wiiich he had charged, and had received

from, the purchaser of goods was expressed to Include Sales tax-

The case under this head, comes down-to the question

whether failing to pay sales tax is capable of amountlng to

"defrauding the Commonwealth" in terms of s.29D.

In Welham v. Director of Public Prosecutions (1961) A.C.

103 at 124 Lord Radcliffe said that "to defraud" may ean to

deprive someone by deceit of something which, though not

belonging to him, "is regarded as due to hlm or his right".

Again in Stephens v. Abrahams (1902WV.L.R. 753 at 767 Hodges J.

described an intent to defraud the revenue as an intent:-

"to get out of the revenue something that was already in It, or to prevent something from getting into the revenue which the revenue was entitled to get".

In Scott v. Metropolitan Police Commlssioner (1975) A.C.

819 at 838, Viscount Dilhorne, wlth whom the other members of the

House of Lords agreed, expressed the view that the observations

of Lord Radcliffe in Welham v. Director of Public Prosecutions

(supra) should be treated as of general application in relation

to the meanlng of "defraud". and went on to say that :-

""to defraud" ordinarilv means. in mv ooinion. to

A

deprlve a person dishonestly of something which s

his or of something to which he is or would

or might but for the perpetratlon of the fraud be

entitled".

- 2 5 -

S c o t t V. Met ropol i tan Pol ice Commiss iorer ( supra) also decided that

d e c e i t o f e s s e n t i a l e l e m e n t o f c o n s p i r a c y t h e pe;son in t ended t o be de f r auded was no t an .

t o d e f r a u d .

I t seems t o me t h a t w h i l s t it-is t r u e t o s a y t h a t mere -

non-payment of sales t a x , t o u s e t h e p h r a s e p u t t o u s in--

argument , may n o t amount t o d e f r a u d i n g t h e Commonwealth, i t does

n o t f o l l o w t h a t non-payment of s a l e s t a x c a n n o t o c c u r i n

circumstances whlch amount t o d e f r a u d i n g t h e Commonwealth. I n

t h e p r e s e n t case I t h i n k t h a t t h e m a t e r i a l b e f o r e t h e J u s t i c e was

such as to e n t i t l e hlm t o g r a n t t h e w a r r a n t i n r e l a t i o n t o t h e

second l imb of paragraph ( c ) .

For the r easons expres sed ea r l i e r t h e t h i r d b a s i s o f

a t t a c k on t h i s l i m b a l s o f a i l s .

Paragraph ( d ) o f t h e s e a r c h w a r r a n t s

P a r a g r a p h ( d ) r e l a t e s t o matters whlch are e n t i r e l y

d i f f e r e n t i n n a t u r e f r o m t h o s e r e f e r r e d t o i n p a r a g r a p h s ( a ) , ( b )

and ( c ) , a l l e g l n g s i m p l y t h a t P a r k e r and Carson were i n breach of

s . 2 3 1 o f t h e Income Tax Assessmen t A c t 1936 I n t h a t t h e y " d i d a t

v a r i o u s times s i n c e 3 0 t h J u n e 1 9 7 8 u n t i l t h e p r e s e n t time evade

payment of Income -tax."

5.231 of the Income Tax Assessment Act was r e p e a l e d a s

f rom 14th December 1984 b u t i t had otherwise been i n f o r c e d u r l n g

the whole of t h e p e r i o d r e f e r r e d t o I n p a r a g r a p h ( d ) of t h e

I I . = * - 26 -

I warrant. It did not provide in terms for an offence of "evading

payment'of income tax" but rather was as follows:l-

"(1) Any person who .._by any wilful act, default

or neglect, or by any fraud, art or contrivance

whatever, avoids or attempts to avoid assessment or	i
taxation shall be guilty of an offence."

. _. -

The use in association of the words "assessment or

- -

taxation" suggests that one of the means of avoiding "taxation"

would be to evade paying it, and I am not satisfied that in

respect of the perlod until 14th December 1984 paragraph (d) of

the warrant does not refer to an offence. I should add that I do

not think that the fact that reference in paragraph ( d ) to a

period after the time when s.231 created an offence has the

result that the whole of paragraph (d) is bad. Whilst different

considerations might apply if a warrant purported to refer to a

lengthy period In respect of only a very small part of whlch

particular conduct had constituted an offence, it seems to me

that the reference in paragraph (d) to "varlous times" is

sufficient to leave the paragraph such that	it does refer to an
offence known to law.

_.

I	.	-.
l.,,

The more serlous objection to paragraph (d), however, is

that the paragraph is entirely bereft of any particularity. It

simply alleges in the broadest terms that "at various times" over

a period of more than six years Parker and Carson had evaded

payment of income tax and it is impossible in these

circumstances, in my view, to regard paragraph (d) as stating with sufficient particularity the offences. See the cases on

1 .

- 27 -

t h i s q u e s t i o n t o which reference h a s ea r l i e r been made.

I t is t h u s u n n e c e s s a r y t o d e a l w i t h t h e o t h e r b a s e s o f

a t t a c k upon pa rag raph ( a ) . A s I have sa ld above , however , the

t h i r d b a s i s of a t t a c k would f a i l .

I

Summary

The s i t u a t i o n wh ich thus ob ta ins i n r e l a t ion t o t h e

w a r r a n t s is t h a t i n my v i e w t h e y a r e v a l i d : -

( a ) a s t o p a r a g r a p h ( b ) i n s o f a r as i t r e f e r s t o a n

o f f e n c e o f f a l s e l y q u o t i n g a c e r t i f i c a t e ; and

( b ) as t o p a r a g r a p h ( c ) ;

but a r e o t h e r w i s e i n v a l i d .

SEVERANCE

I t was t h e n s u b m i t t e d t h a t i f a p a r t o f t h e w a r r a n t was

" b a d " , i n t h e sense t h a t i t was u l t r a v i r e s t h e J u s t i c e f o r o n e

o f t h e who l ly reasons t o which I h a v e r e f e r r e d , i t s h o u l d b e t r e a t e d a s

bad . A l t e rna t ive ly , it was p u t t h a t i n t h e p a r t i c u l a r

case t h e d e f e c t s i n t h e w a r r a n t s t o w h i c h I h a v e j u s t r e f e r r e d

were so d e a l t w i t h s e p a r a t e l y f r o m t h e b a d , a n d s e r i o u s t h a t t h e good p a r t s o f t h e w a r r a n t c o u l d n o t b e

t h a t t h e w a r r a n t as a

whole should be quzshed-.

I d o n o t a g r e e w i t h e i t h e r p r o p o s i t i o n . T h e r e is no

e

- 28 -

r eason why a s e a r c h w a r r a n t g r a n t e d u n d e r s.10 may n o t i n c l u d e i n

r e s p e c t of t h e same p l a c e a number of q u i t e d i f f e r e n t m a t t e r s and

t h e r e is n o t h i n g i n t h e s e c t i o n i t s e l f t o s u g g e s t t h a t i f one of

t h e matters so inc luded exceeds the powers confe r r ed by s.10, t h e

w a r r a n t n e c e s s a r i l y f a i l s a s t o t h e o t h e r matters. I t is

p o s s i b l e , o f c o u r s e , t h a t t h G - g o o d a n d b a d p a r t s o f t h e w a r r a n t s

may be so i n t e r l i n k e d t h a t one c a n n o t s t a n d w i t h o u t t h e o t h e r b u t

t h a t would u s u a l l y mean no more t h a n t h a t t h e p a r t s , as a matter

of c o n s t r u c t i o n of t h e w a r r a n t , were n o t t r u l y s e p a r a t e .

F u r t h e r , a s t h e p r i m a r y J u d g e s a i d , t h e a u t h o r i t i e s s u g g e s t t h a t

a s e a r c h w a r r a n t , b e i n g a n o r d e r o f a J u s t i c e is d i v i s i b l e a n d

when good i n p a r t and bad i n p a r t , t h e good may b e d i v i d e d from

the	bad	,	and	the good a f f i rmed and	the bad quashed	(Reg	v .
-

Johnson & F r a n k l i n W h o l e s a l e D i s t r i b u t o r s L t d ( 1 9 7 1 ) 3 C.C.C.

(2d) 484 , Adler v . At torney-Genera l o f Alber ta supra a t 139-140,

Abou-Assale V. Bourden J .S.P. (1978) 1 C.R. ( 3 d ) 213 a t 231,

Coward V . A l l e n (1984) 52 A.L.R. 320 and Brewer v . C a s t l e s ( ~ 0 . 3 )

(1984) 52 A.L.R. 581.

When one comes t o t h e p r e s e n t warrants the a r rangement

o f t h e m p a r t s o f t e x t u a l l y c r e a t e s no d i f f i c u l t y i n t r e a t i n g t h e i n v a l i d

t h e warrants a s s eve red f rom the r ema inde r .

THE EXECUTION OF THE WARRANTS

The s e a r c h c o n d u c t e d b y t h e p o l i c e o f f i c e r s was a t t a c k e d

o n t h e b a s i s t h a t i t was c a r r i e d o u t i n d i s c r i m i n a t e l y a n d t h a t

documents n o t cove red by the warrant were i l l e g a l l y o b t a i n e d .

i L ' - 29 -

. ,

The c o n t e n t i o n t h a t t h e s e a r c h was c a r r i e d o u t

I

I i n d i s c r i m i n a t e l y , a n d w i t h o u t r e g a r d t o t h e q u e s t i o n o f r e l e v a n c e

of documents, was s u p p o r t e d b y r e l i a n c e upon pa rag raphs 4 and 7

o f P a r k e r ' s a f f i d a v i t w h i c h showed t h a t a number of personal

.- - items a n d o t h e r items which cou ld no t i n any way be connec ted

w i t h t h e t h e f a c t o r y p r e m i s e s a n d a t matters r e f e r r e d t o i n t h e warrants, had been se ized a t

Parker 's home a t 11 S a l i s b u r y D r i v e , _-

Nowra. R e l i a n c e was a l s o p l a c e d o n e v i d e n c e t h a t t h e r e h a d b e e n

a b r i e f i n g session o f t h e o f f i c e r s i n v o l v e d i n t h e s e a r c h p r i o r

t o t h e w a r r a n t s b e i n g e x e c u t e d a n d t h a t a t t h e b r i e f i n g t h e

p o l i c e - o f f i c e r s were i s sued wi th "Opera t iona l Orde r s " wh ich they

f o l l o w e d i n c a r r y i n g o u t t h e s e a r c h , t h e O p e r a t i o n a l O r d e r s

r e q u i r i n g t h e s e i z u r e o f " a l l documentat ion i n r e l a t i o n t o t h e

b u s i n e s s a c t i v i t i e s of the va r ious compan ies" and t hus , it is

contended , go ing beyond the ambi t o f the warran ts .

The q u e s t i o n w h e t h e r t h e o f f i c e r s e x e c u t i n g t h e w a r r a n t s

d i d so s o l e l y b y r e f e r e n c e t o t h e O p e r a t i o n a l O r d e r s t o t h e

e x c l u s l o n o f c o n s i d e r a t i o n o f t h e terms o f t h e w a r r a n t s was t h e

s u b j e c t o f o r a l e v i d e n c e b e f o r e t h e p r i m a r y J u d g e a n d a f t e r

h e a r i n g t h a t e v i d e n c e t h e p r i m a r y J u d g e d e c l i n e d t o f i n d t h a t t h e

o f f i c e r s e x e c u t i n g t h e w a r r a n t s so ac t ed . Tha t v i ew was one

I	which,	i n t h e l i g h t o f t h e	n a t u r e	o f	t h e o r a l e v i d e n c e ,	was
I

I i n e v i t a b l y b a s e d t o some d e g r e e o n h i s a s s e s s m e n t o f t h e

I	witnesses,	and	I	d o n o t	t h i n k	t h a t	it	s h o u l d b e d i s t u r b e d .
I

I shou ld a lso add t h a t t h e e v i d e n c e r e l a t i n g t o t h e

I

seizure deals essentially with events which occurred at the

I i

I factory premises and at Parker's home. There was some brief

.d

!	evidence from Mr Donelly, a solicitor, as to the search at	188	I::
!- :

McKay Street, Nowra but it would not have justified the making of ~- I,..

a finding that the search had not been carried out in accordance

I -

I .

with the warrant. The Court is yet invited to assume that in	1. ~
L ;

respect of all the premises other than the factory premises and 8 -

__	t .
; 'l

Parker's home, the Operational Orders were observed to the	. .
i

exclusion of a consideration of the term of the warrants.	I do	! ..
r
' ,.

not think that the maklng	of such an assumption	is justifled and	;	'A
i _'

I decline to make	it.	c ;
3 I '
!

Returning to the items which were seized at Parker's home	! :
-

and at the factory and which could not possibly be covered by the

warrants, (e.g. "child's colouring-in books") there is no I .

explanation appearing in the evidence-for the seizure of those . *

items. It	may well be, as the primary Judge said, that they were	>~ i
i ,

included in cartons of documents which were removed during the	i.
-.
search, particularly from the garage at Parker's home. It is

impossible, however, to say that the seizure of those items

demonstrates that the execution of the warrants as a whole was

.,

carried out "indiscriminately" or "unreasonably". The primary :

I	I.._.
I

!	Judge did not so find, and I am not persuaded that we should take	L ,
,-
a different view.
I
i	I ,I

COURSE WHICH SHOULD BE FOLLOWED

The position which emerges is thus that:-

! .

l I C I - @

V

I

I - 31 -

<

I I

(a) there are items seized under the search warrants

which could have no relationship to any of the

l I

I offences referred to in the warrants;

(b) there are items seized, the seizure which may or may

not be within the powers conferred by the warrants,

- _-	construed as valid to the extent to which	I have
referred above.

In respect of the first of these classes, it is clear that

they should be ordered to be returned to the relevant applicant,

but some difficulty arises in relation to the precise

identification of them and it is not possible to say slmply that

all the items listed in paragraphs 4 and 7 of Parker's affidavit

should be ordered to be returned. Thus whilst it seems clear that an item such as a "child's colouring-in book" should be

ordered to be returned, it is by no means clear that the same

course should be adopted in relation to company books f account.

A similar situation exists in relation to the items

referred to in (b) above.

i

I

~ As matters stand it is not possible, without examining the

-

i	documents themselves, to determine whether the documents	do or do
I I

I	not fall within the terms	of the warrants. Further, as the
I

primary Judge noted, it has been accepted by the Court of Appeal

I

in England in Reynolds v. Commissioner of Pollce of the

Metropolis (1985) 1 Q.B. 881 that a police officer executing a

l

I

\

0

- 32 -

search warrant (in that case under the Forgery Act 1913) was

entitled provided he acted reasonably in so doing, to seize not

merely material covered by the warrant, but also materlal which

might be of evidential value, as showing that the owner was

implicated in some other crime. See at 896.

The question whether _ _ the prlnciple to which I have

referred should be applied in relation to warrants under s.10 has

not been determined by the Court. The Court was invited to enter

upon the issue but until it is clear that the issue arises, it

seems to me undesirable to do s o .

In the result my view is that it has not been established

that the seizure of material has gone beyond the terms of the

warrants, save in respect of some of the items referred to in

paragraphs 4 and 7.of Parker's affidavit. The primary Judge gave

the appellants liberty to apply in respect of particular

documents upon seven days notice	to the respondents, and I agree
with that course.

I would declare that the search warrants were outside the

powers conferred by s.10 of the Crimes Act insofar as they

contained paragraphs (a) and (d), and so much of paragraph (b) as

referred to a possible offence by Parker and Carson of falsely

representing that they were registered persons, but were

otherwise valid.

I would otherwise dlsmiss the appeal.

I