Parker v Churchill

[1985] FCA 576

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 of police acting reasonably to remove files

reasonably believed to 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. 64

Re Alder et al. and The Oueen (1977) 37 C.C.C. (2dl 22 14

PARKER & ORS. -V- CHURCHILL & ORS.

No. G.311 of 1985

Burchett J.

Sydney

15 November 1985

i , . ,

6 - 1 p

IN THE FEDERAL COURT OF AUSTRALIA	1
1
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

m:

MARTIN ALAN CHURCHILL

First Respondent

m:

BRENDAN CLIFFORD

CONDIE

Second Respondent

THE COMMISSIONER OF

THE AUSTRALIAN FEDERAL

POLICE

Third Respondent

2.

MINUTE OF ORDER OF THE COURT

I

JUDGE MAKING ORDER: Burchett J.

!	MADE:	WHERE	Sydney
m:	15 November, 1985.
THE COURT ORDERS THAT:

(1)	The orders sought in the Further Amended Application to
set aside the decisions of the First and Second
Respondents and the warrants issued by them be refused.
( 2 )	The orders sought in the Further Amended Application in
respect of the decisions of the various police officers
to seize documents be refused but liberty be reserved to
the Applicants to apply for orders in respect of
particular documents seized upon seven days notice to the Third Respondent.
( 3 )	The Applicants to pay the costs of the Third Respondent and the costs, as of submitting parties, of the First and Second Respondents.
NOTE::	Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

i

!

I

I

IN THE FDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No.G 311 of 1985
)

DIVISION	GENERAL	)
BETWEEN :
RALPH EDWARD PARKER THERESE ISOBELL CARSON ABCONA PTY. LIMITED trading as UTILITY MANUFACTURING (NOWRA) ANEY HOLDIfiJGS 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. LIMITD trading ABACUS COLLECTION AGENCY ZANGA PTY. LIMITED

Applicants

m2 :

MARTIN ALAN CHURCHILL

First Respondent

B R W A N CLIFT'ORD CONDIE

Second Respondent

THE COMMISSIONER OF THE

AUSTRALIAN FEDERAL POLICE

Third Respondent

I

’ i - ,

2.

l REASONS FOR JUDGMENT

BURCHETT J.

The Applicants seek reviews under the Administrative

Decisions (Judicial Review) Act of decisions made by the first and second respondents, as Justices of the Peace, to issue a

number of search warrants. They also seek as against the third

respondent, pursuant to a representative order, reviews of

decisions made by members of the Australian Federal Police (being

Constables within the meaning of 5.10 of the Crimes Act 1914 -

see 5 . 3 of that Act and s.5(1) of the Australian Federal Police warrants, and to seize those documents. The warrants were in

similar form, and I set out one as an example:

“COMMONWEALTH OF AUSTRALIA

SEARCH WARRANT

CRIMES ACT 1914 SECTION 10

TO:

Terry Muir

Michael Richard Shannon

Lisa Iwan

Australian Federal Police Officers

WHEREAS I Martin Alan Churchill

a Justice of the Peace, within the meaning of

that expression in section 10 of the Crimes 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:-

A dwelling house located at 11 Salisbury

Drive, Nowra, in the said State, being a

brick veneer structure with a tile roof,

having a double garage attached, including

all rooms and other parts therein, the

surrounding grounds and any garage,

outbuildings, receptacles and motor vehicles

thereon;

Things being 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, quotations, sales journals,

purchase 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 -

(a) Taxation Administration Act 1953,

sub-section 8C(d) together with

sub-section 11(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-slxth day of October 1984 until the present time, fail to register for

sales tax purposes as manufacturers

and/or wholesale merchants;

(bl Section 15 of Sales Tax Assessment Act

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

and Therese Isobel Carson did, at

varlous times from the twenty-sixth day

of October 1984 until the present time,

falsely represent they are registered

persons or falsely quoted a certificate;

(c)	Section 29D of the Crimes Act 1914, 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, defraud the

Commonwealth in relation to the purchase

of raw materials free of sales tax and

by failing to account for sales tax.

(d) 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.

I

4.

YOU ARE m E B Y AUTHORISED with such

assistance as you may think necessary to

enter at any time the said place, if

necessary force, by and seize the

aforementioned things being:-

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 notes, order forms,

signed cheques, unsigned cheques, invoices,

names and addresses of customers, cheque

butts, customer order forms, quotations,

sales journal S , purchase 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 legislation named above, being described

as:-

Taxation Administration Act 1953,

sub-section 8C(d), together with

sub-section 11(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 day of October 1984 until the present time, fail to register for

sales tax purposes as manufacturers

andfor 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 Crimes Act 1914, 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, defraud the

Commonwealth in relation to the purchase of raw materials free of sales tax and

by failing to account for sales tax; and

Section 231 of the Income Tau Assessment

Act in that Ralph Edard (sic) Parker and

5 .

Therese Isobel Caroon did at various times since 30 June 1978 until the present time evade payment of income

tax.

and for so doing this shall be your

sufficient Warrant.

GIVEN under my hand and seal at 111 Elizabeth

Street. Sydney in the State of New South

Wales, this 30th day of September 1985

M. Churchill

Justice of the Peace in and for the State of

New South Wales".

The grounds set out in the Further Amended Application

are :

"1. Paragraphs (a), (c) and (d) of the

warrants do not disclose offences known to

I

the law upon which warrants may be issued;

1A. There was no	or no sufficient information
on	oath

before respondents at the time the first and second

they issued the

warrants capable and (sic. - scil. "of")

satisfying them of the matters of which they

were required to be satisfied by Section 10

of the Crimes Act.

1B. The first respondent erred in law in that

he did not direct himself to the matters

relevant to a proper exercise of the power

conferred by Section 10 of the Crimes Act.

2. Therefore the warrants ought not to have

been issued and were issued under an error of

law and beyond the jurisdiction of the first

named respondent.

3 . The officers of the third respondent

could not reasonably have been satisfied that

the documents seized fell within the balance

of the warrants nor within paragraphs (a),

(c) and (d) if those paragraphs are valid."

There was no challenge to my jurisdiction to entertain these grounds (see Brewer v Castles (1984) 1 F.C.R. 55) .

6 .

In order to appreciate the considerations relevant to

Ground 1, it is necessary to bear in mind the purpose of the

specification of an offence or offences in a search warrant under

S . 10. In the nature of things, that purpose is far removed from the purpose of an indictment or statement of particulars of an

offence charged. For the search warrant is a tool of

investigation or of evidence gathering, and may be obtained at a

time before any charge could be adequately framed, if indeed any

charge should ever eventuate. The function of the indication of

an offence in a search warrant is to "authorize seizure by

reference to that offence" (The Queen v.Tillett & Ors.; Ex parte

Newton & Ors. (1969) 14 F.L.R. 101 at 113; Crowlev v. Murphv

(1981) 52 F.L.R. 123 at 143; Australian Broadcastins Corporation

v Cloran (1984) 4 F.C.R. 151; puartermaine v. Netto & Ors,

unreported, Toohey, J. 14/12/84; Rosenberq v Jaine C19833

N.Z.L.R. 1 at 5). It establishes a nucleus for the search. It

enables both the officer executing the warrant, and the citizen

whose premises are subjected to it, to form some judgment whether

particular things are relevant or irrelevant, and particular

actions authorized or unauthorized. Of necessity the lines

cannot be precisely drawn, since the warrant is not concerned

with what is known, but with what "there is reasonable ground for

suspecting that there is". The warrant is a map, drawn upon

"reasonable grounds for believing", of a terra incognita. But the

outline of that which 1s so believed must be sufficiently

indicated to set the appropriate bounds to the search.

1

I ': . ' ,,

1 .

In the present case, the warrants refer, in paragraphs

lettered (a), (b), (c) and (d), to offences of four kinds, with respect to each indicating the nature of the offence, and also

citing a section or sections as its statutory source.

The Applicants' first contention arises out of paragraph

(a). It is pointed out that although there is an offence against

a law of the Commonwealth sufficiently indicated by the substance

of that paragraph, the offence is created, not by the specified

combination of the "Taxation Administration Act 1953, sub-section

8C(d) together with sub-section 11(1) of Sales Assessment Act

(No. 1) 1930". but by the latter sub-section in combination with

S. 13 of the same Sales Tax Assessment Act (as to that part of

the period in question beginning 14th December 1984 in its

present form, and as to that part which is earlier in its

previous form). It is submitted that s.8C (d) of the Taxation

Administration Act, which was not enacted until 14th December

1984, and therefore is inapplicable to the earliest part of the

period referred to in the warrant, creates an offence of refusal

or failure "when and as required under a taxation law to do- so

... to notify the Commissioner or another person of a matter or

thing." This seems inapt as the source of an offence of failure

to become registered as a manufacturer or a wholesale merchant as

required by S. 11 of the Sales Tax Assessment Act (No.l),

especially when s.13 of that Act is the source of just such an

offence .

But in my opinion, assuming the correctness of the

8.

argument, it would not be consonant with thc purpose served by

the reference in a warrant to an offence, to regard a wrong citation of a section as invalidating a warrant which clearly sets out in terms the substance of the offence. A reference to

I

the wrong section, as creating the offence specified in a

warrant, did not invalidate the warrant in the Canadian case,

v. Trottier et al. Ex parte McLauqhlin et al. (1966) 4 C.C.C.

321. (See also Re Alder et al. and the Oueen (19771 37 C.C.C.(2d)

234 at 247). Even an inaccurate statement of the general nature

i

of the offence was treated (though without objection) as

immaterial in Crowlev v Murphv. supra, at 126, 156. See also the remarks of Toohey, J. in Ouartermaine v Netto & Ors, supra. In the present case, there could be no doubt, so far as paragraph

(a) is concerned, that the seizure of documents would have

relation to an offence the gravamen of which was failure to

register for sales tax purposes as manufacturer or wholesale

merchant as required by s.11.

The sufficiency of paragraph (b), was not challenged.

As regards paragraph (c), it was argued that s.29D of

I	the Crimes Act, which came into force the day before the
beginning of 25th October 1984). could not produce the period specified in the warrant (i.e. on

a valid offence in relation

to the evasion of sales tax in the ways specified.	I do not
accept this proposition. S.29D provides:

“ A person who defrauds the Commonwealth or a

public authority under the Commonwealth is

I

9.

guilty of an indictable offence. Penalty:

$50,000 or imprisonment for 5 years, or

both. "

Counsel suggested something in the nature of

embezzlement rather than evasion is required by this section, but

the word "defraud" is a word of very wide meaning: see per Lord

Radcliffe in Welham v D.P.P. C19611 A.C. 103 at 123-124. In

Stephens v. Abrahams (1902) 27 V.L.R. 753 at 767, it is said:

"Was there evidence of an intent to defraud .

the revenue - that is, 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? That, I think, would be defrauding the

revenue. "

Then it is submitted that paragraph (d) is invalid since

it refers to S . 231 of the Income Tax Assessment Act as the

source of offences "at various times since 30 June 1978 until the

present time", and S . 231 was repealed from 14th December 1984.

For over 9 months of the period specified the offence did not

exist. It is to be noted that the warrant does not refer to the

offence as offences "at various times" within the period. Within that period, indeed during most of it, there was no legal impediment to the operation of s.231. But the Applicants' submission is that, by leaving open the possibility of a claim being made to subsisting throughout the period; it indicates

seize documents on the basis of facts being evidenced which G70Uld

fall within the terms of s.231 but occurred after 14th December

1984, the whole paragraph is bad. It is further submitted that.

if the paragraph is bad, the whole warrant is tainted by

illegality, and should be set aside.

10.

The Applicants' submissions challenge both the

correctness and the applicability of the decisions of Northrop,

J. in Coward v. Allen (1984) 52 A.L.R. 320 and Beaumont, J. in

Brewer v. Castles & Ors. (Mo.3)(1984) 52 A.L.R. 581. In both

those cases invalid portions of a warrant were severed, leaving

the warrant otherwise valid. In Coward v. Allen Northrop, J. ,

holding that "a motor vehicle described merely by its

registration number and the place at which it is usually garaged

is not a vessel, or place' contained in 'place' within the meaning of the words 'any house,

5.10 of the Crimes Act", declared

invalid, but severed, so much of a warrant as authorized entry

and search of such a vehicle. In Brewer v. Castles & Ors. (No.3)

Beaumont, J. cited Coward v. Allen and severed opinions of

counsel from the documents mentioned in a warrant.

A line of Canadian cases has established a doctrine of

severance. In Abou-Assale and Pollack v. Bourdon J.S.P. & Ors

C19783 1 C.R.(3d)	213 at 231 Greenberg,	J. of the Quebec Superior
Court said:

"It is now settled jurisprudence that where a

search warrant is reviewed by the court and

only part of the warrant is ruled to be void

and invalid, the offending part may be

severed by the court, rather than the entire

warrant being quashed."

The Canadian cases by which this rule became settled started with

a decision of the British Columbia Court of Appeal, Resina v.

Johnson & Franklin Wholesale Distributors Ltd C19711 3 C.C.C. 2d

11.

484 in which Short and Mellor, The Practice of the Crown Office,

2nd ed. p. 62 was cited for the proposition: “An order of

justices, whether made in sessions or out of sessions, may be

divisible, and where good in part and bad in part, the good may

be divided from the bad, and the good affirmed and the bad

quashed.“ Resina v. Green and Ors. (1851) 20 L.J.M.C. 168 was

I also referred to. That was a case where Erle, J. held a

maintenance order made by justices to be good in part, though

expressed to cover a period partly exceeding,as well as	partly
within, the jurisdiction.

In a

proceeding in this Court, challenging under the Administrative Decisions (Judicial Review) Act the decision to issue a warrant, s.l6(l)(a) of that Act expressly empowers the

Court, in its discretion, to set aside “a part of the decision“.

This is what the Court did in respect of the warrants of

commitment involved in Commonwealth v Rilev (1984) 57 A.L.R. 249.

I

The search warrant in question in Baker v. Campbell

(1983) 153 C.L.R. 52 authorized seizure, from premises of

solicitors, of documents including documents produced for the

plaintiff as a client, being opinions of counsel, notes and other

documents. It did not exclude privileged documents (Brennan, J,

99). The majority of the High Court held, upon a case stated,

that the answer to the question: “In the event that legal

professional privilege attaches to and is maintained in respect

of the documents held by the firm can those documents be properly

12.

made the subject of a search warrant issued under s.10 of the

Crimes Act?" was "no". But the language of Murphy, J. at p.84

and Wilson, J. at pp. 91-92 does not suggest that the warrant

could therefore be wholly bad. And Mason, J. (dissenting) drew

attention to the practical difficulty of determining claims to

privilege, but did not suggest an even greater problem of

invalidation of the whole warrant.

There is nothing about the nature of a warrant to make

it inseverable. It authorizes seizure of different descriptions

of documents, and one or more categories may be severed from what

it authorizes. I respectfully agree with the decisions of

Northrop, J. and Beaumont, J. to which I have referred.

In my opinion, if the Applicants' argument as to the

effect of paragraph (d) is right, the paragraph is severable and

the warrant is not thereby invalidated. However, I do not think

it is necessary to sever the paragraph, since I think it should

be read as authorizing seizure only of any document "as to which

I

there are reasonable grounds for believing that it will afford

evidence as to the commission" of the offence described occurring

within the period specified, and this would not include an

offence which could not have occurred.

It is then submitted that the informations were

insufficient in law to justify the issue of the warrants. In

respect of this ground, the Applicants contend that the

informations pointed to suspicion that the offences in paragraphs

(a), (b) and (c) had been committed by the companies referred to

in the informations, not by the persons named in the warrants. It

i

is conceded the warrants need only to refer to particular

offences suspected on reasonable grounds to have been committed,

not to state who (if any one) was suspected of being the

perpetrator (see Newton's case, (1969) 14 F.L.R. 101 at 114). But

it was argued that if the Justice of the Peace chooses to specify

perpetrators, and the evidence gives no countenance to his

choice, the warrant is thereby invalidated.	I do	not think	I
should accept this argument.

In Justice of the Peace to issue the warrant is his satisfaction, by the first place, the ground of the power of the

information on oath, of the matters set out in s.10. These do not

include the identity of a perpetrator. Nor, as I have said, need

the warrant contain any assertion of that identity. If, then, the

requisite satisfaction is achieved, and the warrant contains an

appropriate reference to an offence, it seems far from

self-evident that an incorrect statement, unnecessarily made, of

an additional matter such as the identity of the suspected

criminal, should invalidate the warrant. It may of course

inappropriately circumscribe the search authorized by the

warrant, but that is another problem. However, I need not pursue this aspect of the argument for reasons which will appear,

The duty, which the Justice of the Peace must perform in

respect of an information, is not some quaint ritual of the law,

14.

requiring a perfunctory scanning of the right formal phrases,

perceived but inevitable signature. What is required by the law not considered, and followed by simply an

is that the

Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion

they desire to make into the privacy of the citizen and the

inviolate security of his personal and business affairs. The

standard he is to apply is set out in 5.10. He is, when he

performs his function, the first practical embodiment, under the

present day statute, of the common law concern so eloquently

expressed in the famous speech of Pltt the elder (cited by

Lockhart, J. in Crowlev v Murphv ((1981) 52 F.L.R. 123 at 140)in

which he unbidden the poorest cottage in his kingdom. asserted that the King of England could not enter

Of course, the very

fact that the police are required to set out in an information,

to be put before an independent person, the basis for the issue

of a warrant, is in itself a kind of guarantee that they

themselves will consider with care whether they are in a position

to justify proceeding as they propose, and that homes will not be

invaded and possessions ransacked without cause. or to harrass,

or upon a "hunch". (Cf. article by D.A. Thomas in C19673 Crim.

L.R. 3 at 6-7.) But the known exercise of an independent scrutiny

is the best check upon arbitrary action by those in authority.

Because the role of the Justice of the Peace is so

v i t a l , the Court must not shirk the duty of ensuring that it is

I

15.

actually perfurllled. This does not mean there should	be a pedantic
insistence upon arcane technicalities of the law	- Parliament

decreed that laymen should be empowered tu issue warrants, and

s.10 should not be interpreted inconsistently with that

fundamental feature of its intended working. One of the

consequences is that the section should not be construed as

requiring a legally exact statement. as in a pleading, of the

suspected offence. But the Court should demand uncompromisingly

the due performance of the whole substance of the trust reposed

in the Justice of the Peace. (Cf. The Oueen v Sinq (1979) 36

F.L.R. 322; and see generally as to the duty of the Justice of the Peace, Attorney-General of Nova Scotia et al. v MacIntyre

(1982) 132 D.L.R. (3d) 385 at 397-398 per Dickson, J.; Descoteaux

v Mierzwinski (1982) 141 D.L.R. (3d) 590 at 614-616; Meates v

Attorney-General (Customs Department) C19811 2 N.Z.L.R. 335 at

342; Crowlev v Murphv, supra and Polyviou, Search and Seizure

(1982) 269 et seq.)

In the present case I am satisfied each of the Justices

of the Peace conscientiously carried out his task. I think it was

plainly open to them to be satisfied upon the informations of the

matters required by s.10. What was required was satisfaction that

there were, in each place referred to in a warrant, things as to

which there were reasonable grounds for believing that they would

afford evidence as to the commission of an offence against a law

of the Commonwealth, which had been or was suspected on

reasonable grounds to have been committed.

16.

Suspicion and belief are not of course dependent upon

proof. In Hussien v Chonq Fook Kam E19703 A.C. 942 at 948 the

Privy Council, referring to the "reasonable suspicion" required

for arrest by a police officer, said: "Suspicion in its ordinary

meaning is a state of conjecture or surmise where proof is

lacking: 'I suspect but I cannot prove."' Kitto, J. in Oueensland Bacon Ptv. Limited v Rees (1966) 115 C.L.R. 266 at 303 described

a suspicion as a "slight opinion, but without sufficient

evidence". In an information to obtain a search warrant. it is

clear there is no legal objection to the use of hearsay (Auckland

Medical Aid Trust v Taylor 6 Ors. E19753 1 N.Z.L.R. 728 at 735;

and see the comments of Marks, J. in Coqhill v McDermott (1982)

48 A.L.R. 351 at 357). For an information that was clearly

insufficient, as it alleged suspicion without providing any

foundation, see Bridqeman v Macalister (1898) 8 Q.L.J.R. 151.

The Applicants contended that, however strongly the

informations suggested the relevant offences, there was no basis

for a suspicion or belief that the sales tax offences

were committed by the individuals named in the warrants. There

are I think two answers to this argument. In the first place, the

informations assert evasion of sales tax by the named persons (to

whom I shall refer a5 Parker and Carson) by the devices of

failing to register, and purchasing goods without authority under

the quotation of the sales tax certificate of registration of a

company which was in liquidation and not trading. During the same

period Parker purchased a number of "shelf" companies of which he

17.

and Carson were to be the only directors, and transactions which

would involve sales tax were entered into in the names of those

companies, and raw materials for the manufacture of taxable goods

were acquired in their names upon quotation of the sales tax

certificate of registration of the previously mentioned company

I	in liquidation. No sales tax had been paid by Parker, Carson or
any of the "shelf" companies, and none of those companies had
applied for registration. Parker had refused the informant, a
senior investigation officer of the Sales Tax Branch of the
Australian Taxation Office, access to books and records of the companies, and both Parker and Carson had refused to answer his questions, though Parker through his agent Peter Clyne had given
notice that he was a director or public officer of a number of
the companies. There was a considerable amount of circumstantial
evidence suggesting evasion of sales tax in transactions
involving the companies, Parker and Carson.
In suggestion that there were not reasonable grounds to suspect the these circumstances, I am unable to accept the
commission by Parker and Carson of the offences referred to. The
fact that the sales tax registration certificate of the company in liquidation was quoted in respect of transactions which could
not have appertained to it, together with the other
circumstances, supported the informant's oath that the evasions were by Parker and Carson by the use of devices, since it
demonstrated that the involvement of a company in these
transactions could be merely a fraudulent fiction.

18.

But in the second place, if it should have been inferred

that the evasions were associated with genuine transactions by the companies concerned, not transactions of Parker and Carson carried out behind a camouflage of company names, the roles of Parker and Carson were sufficient to make them persons suspected

on reasonable grounds of having been knowingly concerned in the

offences of the companies, within the meaning of the law

applicable to aiders and abettors. It would then have been

clearly correct to

conclude reasonable grounds of having committed the offences in question. that they were suspected on

For an aider and abettor does not commit a different offence, he

commits that offence the commission of which he aids and abets.

The joint judgment of the High Court in Yorke v Lucas C19853

A.T.P.R.	47052 at 47059 contains the statement:
"In the criminal law, provisions which extend

l

liability €or statutory offences to such

persons as are defined by sec. 75B" - which

refers to aiders and abettors - "are not

understood as creating separate offences, but

as making persons falling within the

provision liable for the principal offence

once it is committed: per Isaacs J in bJalsh v

Sainsbury (1925) 36 C.L.R. 464 at p.477."

See also R v Crosslev (1948) 48 S.R.lN.S.W.1 494. In

Commonwealth v Riley (1984) 57 A.L.R. 249, a request for the

extradition of Mr Riley to the United States was based (inter

alia) on allegations that he had "caused to be imported" and "did

unlawfully possess with intent to distribute" (see p. 259)

quantities of marijuana or hashish. With respect to a particular

quantity of marijuana, the evidence submitted by the United

19.

States suggested that the importation was by another man named

Frank, but that Riley requested his own radio operator to assist

Frank, whom he described as "a friend of his ... who was also in

the smuggling business." The Full Court	in its joint judgment at
p.275 said:

"Mr Riley is not shown to have been a

principal in respect of this load but he is

I

shown to have been an accessory before the

fact. "

:

The Full Court held that the Magistrate had been right

insofar as he had based his warrant of committal to await

extradition upon the alleged offences expressed in the terms

which I have quoted. It seems to me that if, in the present case,

the Justices of the Peace were unable to reach the relevant

conclusion in principal offenders, but were able to reach it in respect of them respect of Parker and Carson, as suspected

as accessories to offences suspected to have been committed by

the companies, the search warrants were,	so far as concerns the
present point, correctly issued.

But counsel raises a further point in respect of the

warrants issued by Mr Churchill. Mr Churchill gave evidence

concerning the basis on which he proceeded. (I note that such

evidence was also received in Montaque v Ah Shen & Ors. C19073

V.L.R. 458). Mr Churchill's evidence shows clearly that he took serious view (as was his duty) of the importance of his function a

in deciding whether to grant the warrants requested of him , and

considered the informations with great care, and over a

20.

considerable period of time. But counsel says he applied the

wrong test. Counsel relied on a number of answers given by Mr

Churchill in evidence, such as the following:

“Before you questions did you ask yourself? signed that document what

- Had an

offence been committed and was there evidence

relating to that offence on the premises

specified. ” .....

“Were the offences - what did you answer to

the question had an offence been committed? -

Well, from reading the information I formed

the opinion that offences had been committed

and . . .

The offences on page 6? - The offences on

page 6 to defraud the Commonwealth and the

sales tax offences.

That is the (c) and (d) ones, is it, or what

it? is - And (a) and (b) .I‘

It was submitted these and similar passages showed Mr

I

Churchill tested the information according to an impossibly high

standard, that he went well beyond suspicion on reasonable

grounds, and reasonable grounds for believing, and considered

whether the offences had in fact occurred. I do not think this is

a fair understanding of the evidence as I heard it given. The

witness was not directing his mind, in these answers,to any

standard of persuasion, but to the question upon which he was

required to reach a conclusion according to the statutory

standard. He gave evidence that he “had a familiarity with

section 10 of the Crimes Act“, and he referred to its terms

without appearing to me to be making as he read them any new

discovery of them.

21 *

!

In the ordinary affairs of life, pcoplc speak of

something as having occurred, or of their knowing of it, when

they mean it probably, or possibly occurred, according to their

information. Judges refer to the facts of a case, though found

upon a bare probability. Even

permit himself a similar use of language. In Bertrand Russell's

History of Western Philosophy, 1946, p.689, there is mention of

a world-famous philosopher may

"uncertain knowledge, such as is obtained from empirical data by

inferences that are not demonstrative." This is knowledge after a

fashion, accepted upon less than complete persuasion. The

informations, in the present case, called for inferences that were not demonstrative, but were, I have held, capable of achieving the statutory standard of satisfaction. My conclusion

is that Mr Churchill, who gave acceptable evidence concerning his careful reading of the documents, and signed the warrants which

recited the language of s.10, did apply the standard that

!

language expressed. But if in any respect he went beyond the

statutory standard of persuasion, he applied a more stringent

test,and was nevertheless satisfied. I do not think that, if I

had accepted the submission, I should on that account have been

persuaded to set aside the warrants.

As against the third respondent, the Applicants submit

that Mr Parker's evidence shows various items were seized which

could on no possible view "afford evidence of any such offence",

that is, any offence against any law of the Commonwealth or of a

Territory. The expression "will afford evidence" does not import

22.

d requirement that the documents must be necessarily Sufficient

to achieve a conviction; it is sufficient that they have

relevance to or probative connection with, an issue arising upon an allegation of the offence alleged, or that they "will in some way implicate the persons named in the warrant,or, if no person

is named, someone in the commission of the offence" (Crowlev v

Murphv (1981) 52 F.L.R. 123 at 143, 151; Baker v Campbell (1983)

153 C.L.R. 52 at 83, per Mason, J.). Even so, the Applicants rely

on evidence that certain innocuous items were taken, and also

that the police acted upon what were described as "operational

orders", and not merely the warrants themselves. They submit too

that documents may have been taken because of their relevance to

offences which did not exist at the appropriate time, or

otherwise pursuant to portions of the warrant which the

Applicants contend were bad. If any documents were taken

illegally through any of these causes, the Applicants submit the

whole execution of the warrants became illegal.

The reference in the submission to "operational orders"

arises out of the fact that the police officers were given a

document so described when they were briefed, beforehand, about

the allegations upon the basis of which the search warrants had

been obtained. Counsel for the Applicants laid emphasis on

evidence that documents, which were seized, would not have been

seized had the police officers been without the instructions so

1 conveyed. But s.10 of the Crimes Act requires the constable to be authorised by a warrant - it does not require him to be given,

I

1 , I , I 4 ,.

23.

nor was it suggested the police in thls case were given, a copy

of the information. That, in the statutory scheme, is for the

justice of the peace. How then is the constable to perform his

task? For he has to decide whether there are grounds for

believing particular documents will afford evidence, which would

be impossible without some knowledge of the issues likely to

arise. In Baker v Campbell, supra, at p.102 Brennan, J. said of

s.lO(b):

"The provision refers to grounds for believing

(and the belief must be held by both the

issuing justice and the constable executing

the warrant) that the thing to be seized

afford evidence, not that it does afford

evidence, as to the commission of an offence.

The thing to be seized in execution of a

warrant is a thing in respect of which the

relevant belief is held. One of the purposes

of s.lO(b) is to authorize the search for and

seizure of a thing which can become evidence

as to the commission of an offence when it is

tendered at a trial occurring after the

execution of the warrant, and the belief that

the thing seized will afford evidence is to

be held in reference to such a trial."

The reference by Mason, J. in the same case at p.82 to

the judgment of McCarthy, P. in Auckland Medical Aid Trust v

Taylor & Ors. C19753 1 N.Z.L.R. 728 at 738 suggests that he

contemplated the constable might exercise his judgment upon the

basis of material which was not available at the time the

information was put before the justice of the peace and the

warrant issued but, being known by some means to the constable at

the time of execution of the warrant, Fould then provide grounds

for the requisite

belief. expressed at the page cited, and the comments of Mason, That was the view McCarthy, P.

J. which

I

I 24.

follow his implications of the constable's consideration of the documents. citation of it are directed to the practical

l i

l	It	seems	to	me	it	must	follow	that	the	police	officers
I

will in practice receive a briefing, at least in any complex

case, about the issues. Counsel for the Respondents pointed out

that the English practice is similar, though under legislation to

which a different construction has been given: Inland Revenue

Commissioners v Rossminster Ltd. C19803 A.C. 952 at 1005. Unless

the constable abdicates his responsibility to consider and

exercise judgment upon the documents, there can be no valid

objection to his receiving information which will bear upon his

discharge of his task. "Reasonable grounds for believing" may

include what he has been told by other police or by investigators

of the Taxation Department. A line of cases dealing with the

basis upon "reasonable cause to suspect'' to justify the administration of an which a police officer can have the necessary

alcohol breath test exemplifies this proposition: McNicol v

Peters C1969J S.L.T. 261; Copeland v McPherson C19703 S.L.T. 87;

R V Evans C19747 R.T.R. 232. See also Reqistrar of Restrictive

Tradinq Aqreements v W.H. Smith & Son Ltd. C19693 1 W.L.R.	1460
at 1468, per Lord Denning, M.R.

Having regard to the nature of the allegations, I think

it was appropriate that the police officers should have been

informed concerning the companies said to have been utilized by

the persons named in the warrants, and that the view should have

25.

I

been taken that it was necessary the search should cover the

business documents of those companies. I do not think on the

evidence the officers who executed the warrants were so

subservient to the instructions they received from their

superiors that they failed themselves to perform their statutory

task.

I

Interlocutory undertakings were sought and given,

pursuant to which the detailed examination of the documents

seized, which would ordinarily have occurred, has not taken

place. I infer from the evidence that it is likely some

Irrelevant items (any inventory of which or valid assessment of

the quantity of which cannot be made without proceeding to an

examination of the documents) were included in cartons of

documents which were removed, particularly from Mr Parker's

garage. Those cartons of documents were removed after some

examination the extent of which the evidence, restricted by the

undertakings I have mentioned, does not enable me to determine.

In Revnolds v Commissioner of Police of the Metropolis

C19851 2 W.L.R. 93, a case involving an alleged offence of

forgery, Slade, L.J., after referring to the practical

difficulties of search and seizure where large numbers of

documents relate to complex questions, said at p.106 that he

thought the following propositions were broadly correct and

!

accorded with the judgments of the other members of the Court of

Appeal, Waller, and Purchas, L.JJ.:

26.

"(l) No matter how convenient this course may

seem to be, a police officer acting under a

search warrant issued under the Forgery Act

1913 is not entitled, without the consent of

the owner, indiscriminately to remove from

the premises each and every file, book,

l	bundle or document he can lay his hands on,
even if only for the purpose of temporary
sorting. Before doing so, he must have regard
to the nature and contents of the item in question.
( 2 ) However, provided that he acts reasonably
in doing so, he is entitled to remove from
the premises files, books, bundles or
documents which at the time of removal he
reasonably believes contain ( i )forged
material, or (ii) material which night be of evidential value, as showing that the owner is implicated in some other crime.
(3) Any necessary sorting process in relation
to all items removed (e.g. those contained in
files and bundles) should be carried out with reasonable expedition and those of them which are not found to fall within either of the
relevant categories should be returned
reasonably promptly to the owner.''

What is "reasonably necessary", and the practical

problems of search and seizure, are also emphasized in Crowlev v

Murphy, supra at 129,132,137.150,and 155-158; in Baker v Campbell

supra at 83, and in Towse v Bradley (1985) 60 A.C.T.R. 1 at 5.

In Reynolds' case, the Court of Appeal concluded that

there had been some documents taken without consideration of

"whether or not they might be relevant". Damages of fifty pounds

were awarded for trespass to goods, but without costs.1 think, in

the circumstances of this case, I should give liberty to apply,

after there has been some disposition of the items seized, should

the Applicants then deslre to pursue a claim that	a trespass to
goods has been committed.

27.

But f o r present purposes it is important to note that

the case provides no support for the proposition that the

wrongful taking of some items would render the whole execution of

a search warrant wrongful, and the officers trespassers upon the

lands of the Applicants. Purchas, L.J. refers at p.112 to

"trespass to those particular documents",	a precise and limited
finding.

The Applicants' contention echoes an ancient

controversy: see The Six Carpenters' Case (1609) 8 Co. Rep. 146a;

77 E.R. 695, where the six carpenters were held, by abuse of a legal right of entry into a tavern, to have become trespassers ab

initio, they having entered initially to purchase and pay for a

quantity of wine, but later after obtaining a further quantity of

wine (and perhaps having drunk too much of it!), refused to make payment. But as early as Cooper v Boot (1785) 4 Dougl. 339 at

348; 99 E.R. 911 at 916, Lord Mansfield did not apply. such a rule

to the execution of a warrant. He said:

"We think the Excise officer cannot be guilty

of a trespass, either in procuring or

executing the warrant ... It is a solecism to

say that the regular execution of a legal

warrant shall be a trespass. If improperly

executed, an action on the case will lie."

The Privy Council, in Canadian Pacific Wine Co. Ltd. v Tulev& Ors

C1921J 2 A.C. 417 expressly declined to apply The Six Carpenters'

Case to an excess of a statutory authority to seize property from

premises. Lord Denning., M.R. in Chic Fashions (West Wales) Ltd. v

Jones C19687 2 Q.B. 299 at 313 said that The Six Carpenters' Case

"can be interred", and the judgment of Sugerman, J. in Inqlis

28.

Electrix Pty. Ltd. v Healins Pty. Ltd. (1967) 69 S.R.(N.S.W.) 311

at 329-331 is contrary to the Applicants' submission. On appeal

(121 C.L.R. 584 at 598-91, Barwick, C.J. and Menzies, J. agreed

with Sugerman, J. on the relevant point, though Kitto, J. took a

different view, which however also conflicts with the Applicants'

submission. I do not accept the submission, which was described

by Holland, J. in Trimboli v Onley & Ors (No. 3) (1981) 56 F.L.R.

321 at 340 as the "rotten apple argument". and was not accepted

by him. In Crowlev v Murphy (1981) 52 F.L.R. 123, the police

claimed the right to a "negative search" in circumstances where the Court held it was not permissible to make a search of that

i

kind, but there was no suggestion that such an excessive search

would have the drastic consequences contended for in the present

case.

If the police officers relied, in seizing certain

documents, upon paragraphs of the warrant which were challenged,

and if those paragraphs were ultimately held to be bad, it is

also contended that a similar problem would arise of excess of

the lawful authority of the police officers. It is again

submitted the whole execution would be bad.	I	reject that
submission for the same reasons.

The last mentioned submission raises a further problem.

If,for example, I am wrong in holding that an incorrect reference to the statutory basis of the offence mentioned in the paragraphs lettered (a) of the warrants does not vitiate those paragraphs,

29.

!	it may nevertheless be that the police havc seizcd	documen	Its
I
i
I

I	which are evidence, within s.lO(b) of the Crimes Act, as to the
I
commission of the offence which ought to have been (but on this
hypothesis was not) referred to in the warrant. The Applicants
l
say that would be unauthorized. In Crowlev v Murphv, supra, at
144 Lockhart, J. said:

"Whether the police officer executing a

warrant under 5.10 can seize only things that

afford evidence as to the commission of the

offence specified in the warrant or may seize

other things that he finds in the course of

his search that can afford evidence of the

commission of other offences, is not a

question that directly arises in the present case and thus does not fall for decision."

In Baker v Campbell (1983) 153 C.L.R. 52 at 59 Gibbs,

C.J. said:

"The words of 5.10 are expressed quite

generally; a warrant, when granted,

authorizes the constable named therein to

enter "any . . . place" named or described in	the warrant, and to seize "any such thing",
i.e. "anything" of the kind described in
pars. (a)-(c)."

But it is contended the police officer is nevertheless

limited to such things as have one of the required relations to

an offence which is referred to in the warrant.

Whether or not 5.10 should be construed as going no

further than this, there is a strong current of authority in

favour of the view that the common law extends the reach which

the warrant would have of itself to include a power of seizure of

i

evidence, found during the search authorized by the warrant,

30.

I

I

relating to offences not mentioned in it. This common law

extension of the reach of a search warrant has now been expressly

i l

confirmed by the decision of the Court of Appeal in Revnolds v

Commissioner of Police of the Metropolis, (supra). The decision

accepts what was said in Ghani v Jones C19703 1 Q.B. 693 at 706

and Chic Fashions (West Wales) Pty. Ltd. v Jones C1968J 2 Q.B.

299 at 313 and 316. Slade, L.J. at C19853 2 W.L.R. 105 endorses

the propositions:

"...that under the search warrant the police

were entitled: (a) to search at Bardwell Hall

€or and seize any documents which on

reasonable grounds at the time of seizure

they believed to be forgeries; and (b), by a

common law extension, if they came upon any

documents which on reasonable grounds they

believed to show the first plaintiff to be

implicated in some other criminal offence, to

seize them also. I'

In Australia, the decision in Ghani v Jones has been

followed on a number of occasions (Marinko v Rames, Hope, J.

unreported, 13/8/71; Dixon v Stephens, Street, J., unreported,

2/9/71; G.H. Photosraphv Pty. Ltd. v McGarriqle C19743 2

N.S.W.L.R. 635 at 645). As interpreted in Revnolds' case, it

provides a further answer to the Applicants' contentions in

respect of documents evidencing any crime which may not(if I am

wrong in views expressed earlier in this judgment) be covered by

the terms of the warrants.That answer is in accordance with

recommendations for reform of the law made before Revnolds' case

was decided - see Polyviou, op.cit. 314; and the 1983 Working

Paper of the Law Reform Commission of Canada entitled Police

Powers - Search and Seizure in Criminal	Law Enforcement pp. 213,
225.

31.

Insofar as the Applicants scck ordcrs restoring the

documents to them, a further question would remain, even if the

documents or some of them were held to have been illegally

seized. It is a well known principle that illegally obtained

evidence is not on that account inadmissible. Whether it will be

admitted at a criminal trial is, in Australia, dependent upon the

exercise of a judicial discretion. The principles upon which this

discretion must be exercised are laid down in a trilogy of High

i Court decisions: Reqina v Ireland (1970) 126 C.L.R. 321; Bunninq

v Cross (1978) 141 C.L.R. 1;and Cleland v The Oueen (1982) 151

C.L.R. 1. In England, leaving aside the special rules firstly

about confessional material, and secondly about prejudicial

material, there is no general discretion to refuse to admit

evidence simply because of its unfair, improper, or illegal procurement: Reqina v Sanq C19803 A.C. 402. Under the Australian rule, the discretion requires the judge to balance the public

interest in laying the truth before the Court in order to convict

the guilty, and the public interest in insisting “that those who

enforce the law themselves respect it“. Pursuant to such a

principle, in Bunninq v Cross the fact that an illegality had

resulted from a mistake rather than any deliberate or reckless

disregard of the law, and the fact that the illegality stood

apart from any question affecting the cogency of the evidence,

were together dominating considerations which led to the view that the evidence must be admitted. with the nature of the offence itself, the

32.

Assuming there was illegality affecting thc instant

search and seizure, which did not occur designedly or by gross

neglect, but through error, a judge could think it consonant with

the principle to which I have referred to admit into evidence the

documents so seized, being evidence of a nature not in itself

likely to be sullied by this acquisition. In Kins v The Oueen

C19691 1 A.C. 304, a Privy Council appeal from Jamaica decided when it was still held in England that there was a discretion to

exclude illegally obtained evidence, just such an approach was

endorsed. If Kins's case is right, there would be a jarring

inconsistency in holding that the prosecution's right to tender the evidence could be simply abrogated by proceedings such as the present.

The logical conclusion has been boldly drawn, in Canada, that there is no right of recovery of illegally seized articles

until the conclusion of the criminal proceedings. In Re Purdv et

al. v The Queen (1972) 28 D.L.R. 3d 720 Limerick, J.A. delivering

the ~udgment of the Court said:

'I I know of no procedure whereby the owner

or any other person can obtain the release or

delivery from a peace officer or the Court of

anything in possession of that officer or

Court which is evidence of the commission of

a crime and which is required as evidence in

I

a pending or proposed prosecution: See

1 statement of Lord Denning,M.R., in Ghani et

al. v Jones, C19693 3 All E.R. 1700 at p.

1705. Proceedings may be instituted to prevent

police from illegally obtaining evidence, but

when obtained by whatever means, if it is

admissible as evidence in an intended

prosecution, it cannot be recovered by legal

process until the final disposition of the

33.

criminal proceedings including appeals, if at

all. I'

In Re MacKenzie v The Oueen (1973) 10 C.C.C. (2d) 193 at

199 Disbery, J. cited this passage and commented:

"Whenever things are illegally seized a

conflict of interests must of necessity arise

between, on the one hand, the right of the

individual entitled thefeto t u ~055e55 and

enjoy the seized articles, subject only to

such being lawfully seized; and, on the other

hand, the interest of the country's justice

in locating and obtaining evidence for use at

the trial of a person accused-of a crime. The

interest of the whole community in the

administration of justice and in the

conviction of perpetrators of crime takes priority over the matter of the temporary

loss by an individual of the enjoyment of the

possession of the seized articles while they

are required by Her Malesty's Courts."

He quashed the search warrant involved, but dismissed the

application for return of the articles seized under it, citing

other Canadian cases where such applications had also been

refused. The same view was taken in the New Zealand case

i

McFarlane v Sharp C19721 N.Z.L.R. 64 .

A similar approach was taken by Hope, J., as he then

was, in Marinko v Rames (unreported, 13/8/71), a case in which a

doctor charged challenged seizure of his operating table and other items under with having committed unlawful abortions,

a

search warrant. Hope, J. said:

As it seems to me, in the present case.

there are the competing interests of the

police to investigate and prosecute crime,

and of the individual to have his freedom

34.

from interference, his privacy, and his right

to retain his property. In balancing those

interests, sometimes established rights are

either ignored or not given effect to, that

is rights of property, privacy and so on. In

many respects, the matter must be dealt with

on the basis of a legal right, but in many

respects, it seems to me, it must be dealt

with on a basis of common sense and what is

the just and proper thing to do in the light

of all the circumstances.

In general terms, and certainly I do not

suggest that this is a rule of inevitable

application, it seems to me that when the

police have instituted a prosecution, and

claim to be holding an article to be used as

evidence in would not exercise its discretion upon an investigation of the justification by the police of that retention until after those proceedings had been determined. Of course it that prosecution, this Court

may be that the relevant goods are of such	a
character that the Court in its discretion

would think that it should interfere. Again,

it may be that the article in question is of

such importance to its owner, the person

charged, in the conduct of his business or

otherwise that despite the interests of the

police, the matter should be investigated. It

is difficult indeed, if possible, to lay down

general rules for the exercise of the

discretion, and I merely indicate the type of

circumstance, which it seems to me may be

material. In the present case, it could well

be that the articles or documents ... could,

if other evidence were obtained, be tendered

in evidence as going to prove, not in

themselves but with that other evidence,

similar acts. I think it more than likely

that the police at the time of the seizure of

those articles did not have those other facts

firmly established, but either believed that

they would be established and hence that the

documents would be required in evidence, or

alternatively, thought that the documents

should be retained and the facts investigated

to see whether those other necessary facts

could be established. Mr St.John submits that

the latter circumstances would not justify

the seizure of the articles.

As it seems to me, Lord Denning in the

I

passage which I have referred to in Ghani v

Jones assumes that the holding of articles

for a reasonable time may be justified in

such a case. Thus in the fourth of his requirements he refers not only to the case

where a charge I s laid, but also to the case

where the articles are being kept during the

time which is reasonably necessary for the

police to complete their investigations and

to decide whether or not to go on with the

charge. It is submitted that this dichotomy is

not justified, and that the second category	I
line of decisions which previously existed.

have referred to does not conform with the and the other members of the Court of Appeal when they said that the police are justified in holding articles for that purpose."

On the other hand, in Re Alder et al. and The Oueen

(1977) 37 C.C.C. (2d) 234 at 249-252 Moshansky, J. strongly

asserted that the Court should be "extremely loath" to condone

retention by the police of illegally seized items. But in

Butler (1981) 61 C.C.C. 2d the power was clearly recognised to

withhold items where "the articles constitute material evidence".

There is a fairly full discussion of the differing approaches in

Abou-Assale and Pollack	v	Bourdon J.S.P. and Ors. E19781 1 C.R.
(3d) 213 at 234-236.

In Trlmboli v Onlev & Ors. (No. 3) (1981) 56 F.L.R. 321

at 337 Holland, J. emphasized the distinction between justifying

retention of seized goods "under the warrant" and otherwise, for

example, at common law. If I had held that illegal seizure of

documents occurred under these warrants, by reason of matters not

Involving deliberate or reckless disregard of the law, I would

have been disposed to take a course corresponding to that taken

36.

by Holland, J., that is to say, to permlt inspecLion of the documents to enable more detailed argument to be advanced upon any claims that particular documents ought to be retained in any

case as evidence.

I refuse the orders sought to set aside the decisions of the first and second respondents and the warrants issued by them.

I refuse the orders sought in respect of the decisions of the

various police officers to seize documents, but I reserve to the

Applicants liberty to apply for orders in respect of particular

documents upon seven days notice to the third Respondent. I order the Applicants to pay the costs of the third Respondent and the

costs, as of	submitting	parties,	of	the	first	and	second
Respondents.

I

I certify that this and the

preceding 35 pages are a true copy of the Reasons for Judgment herein of his Honour

Mr.-Justice Burchett.

c

Associate

Dated: 15th NoyemW, /995