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Parker v Churchill

Parker v Churchill

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Case Copied 15 November 1985 44 min read

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CATCHWORDS

- Search warrants

- Applications to set aside

warrants and the warrants and the decisions of seize documents - Reference in search warrant

- Statement of the offence referring

to wrong

statutory

provision,

the

offence

arising

under

a different

provision - Offence of defrauding the Commonwealth under s.29D of

the Crimes Act 1914

- Offence alleged "at various times" during

period exceeding the statutory life of the provision creating the

offence - Power to sever

an invalid portion of a warrant -

Unnecessary specification of an offender in a warrant

- Duty of

Justice of the Peace issuing warrant

Meaning of "reasonable

ground for suspecting" and "reasonable grounds for believing"

Reference to offence by accessory

Commission of principal

offence by accessory

- Meaning of "will afford evidence"

- Effect

of reliance by officers executing warrant upon operational orders

- Entitlement

police

acting

reasonably

remove

files

reasonably

believed

contain

evidence

- Whether

officers

exceeding powers under warrant become trespassers

- Common

law

extension of warrant to include a power of seizure of evidence found during the search authorised by the warrant relating to

offences not mentioned in it

- Whether order should be made for

return of illegally seized evidence.

Crimes Act 5.10.

Brewer v. Castles (1984) 1 F.C.R. 55

The Oueen v. Tillett

& Ors.;

Ex parte Newton & Ors. (1969) 14

F.L.R. 101

Crowley v. Murphv (1981) 52 F.L.R. 123

Quartermaine v. Netto & Ors., unreported, Toohey J., 14/12/84.

R. v. Trottier et al.; Ex parte McLauqhlin et al.	71,	(1966) 4 C.C.C.
J L I
Coward v. Allen (1984) 52 A.L.R. 320
Brewer v. Castles & Ors. (No. 3) (1984) 52 A.L.R.	581

Abou-Assale and Pollack v. Bourdon J.S.P.	& Ors. C19781 1 C.R.
(3dl 213

Canadian Pacific Wine Co. Ltd.

v. Tulev & Ors. C19213

2 A.C.

417

Chic Fashions (West Wales) Ltd. v. Jones C19683 2	Q.B.	299
Trimboli v. Onlev & Ors. (No. 3) (1981) 56 F.L.R.	321
Ghani v. Jones C19703 1 Q.B. 693

Marinko v. Rames, unreported, Hope J.,

13/8/71.

Bunninq v. Cross (1978)

141 C.L.R. 1

Kinq v. The Oueen C19693

1 A.C. 304

Re Purdv et al.

v. The Oueen (1972) 28

D.L.R. 3d 720

McFarlane v. Sharp C19723 N.Z.L.R.

Re Alder et al. and

The Oueen (1977) 37 C.C.C. (2dl 22

PARKER & ORS. -V- CHURCHILL & ORS.

No. G.311 of 1985

Burchett J.

Sydney

15 November 1985

i , . ,

6 - 1

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G.311 of 1985

)

GENERAL DIVISION

)

BETWEEN:

RALPH EDWARD PARKER

THERESE ISOBELL CARSON

ABCONA PTY. LIMITED

trading as UTILITY

MANUFACTURING (NOWRA)

Applicants

MARTIN ALAN CHURCHILL

First Respondent

BRENDAN CLIFFORD

CONDIE

Second Respondent

THE COMMISSIONER OF

THE AUSTRALIAN FEDERAL

POLICE

Third Respondent

MINUTE OF ORDER OF THE COURT

JUDGE

MAKING

ORDER:

Burchett J.

MADE:

WHERE

Sydney

15 November,

1985.

THE COURT ORDERS THAT:

(1)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 576
Decision Date: 15 Nov 1985

CaseChat Overview and Summary

The applicants, Ralph Edward Parker, Therese Isobel Carson, and several associated companies, sought a review of decisions made by Martin Alan Churchill and Brendan Clifford Condie, as Justices of the Peace, to issue search warrants. They also sought a review of decisions by members of the Australian Federal Police to seize documents under those warrants. The applicants contended that the warrants were invalid due to errors in the specification of the offences, insufficient information, and unnecessary specification of the individuals suspected of committing the offences. They further argued that the documents seized were not relevant to the offences mentioned in the warrants, and that the police officers acted improperly by relying on "operational orders" instead of the warrants themselves.

The court found that the warrants were valid, despite minor errors in the specification of the statutory provisions creating the offences. The court held that a wrong citation of a section did not invalidate a warrant if the substance of the offence was clear. The court also found that the Justices of the Peace had correctly applied the standard required by the Crimes Act, and that the warrants were issued based on reasonable suspicion and belief of the commission of the specified offences.

Regarding the seizure of documents, the court found that police officers were entitled to consider information beyond the warrants themselves, as long as they acted reasonably and in good faith. The court held that the wrongful taking of some items did not render the whole execution of the search warrant wrongful. The court also found that the common law extended the reach of a search warrant to include the seizure of evidence relating to offences not mentioned in the warrant.

The court refused to set aside the decisions of the Justices of the Peace and the warrants issued by them. It also refused to set aside the decisions of the police officers to seize documents but reserved to the applicants the right to apply for orders in respect of particular documents upon seven days' notice to the Australian Federal Police. The applicants were ordered to pay the costs of the Australian Federal Police and the costs of the first and second respondents as submitting parties.

Orders