Pressler, C.R. v Holzberger, L.M.
[1989] FCA 446
•04 AUGUST 1989
Re: CRAIG ROBERT PRESSLER; JOHN FREDERICK PRESSLER; PAMELA DEANNA PRESSLER;
C.R. PRESSLER PTY. LTD; ENGREEN PTY. LTD.; PRESSLER PROPERTIES PTY. LTD.; 2PH
IRRIGATIONS PTY. LTD. and TOTAL IRRIGATION SYSTEM PTY. LTD.
And: LANCE MICHAEL HOLZBERGER; LEANNE OLGA CARNEY; DESMOND JOHN LEWIS;
GEOFFREY LEONARD GREENSLADE; GARY EDWARD DONALD WYNCH; KERRY ARTHUR JONES and
PAUL GERARD MURRAY
No. QLD G53 of 1989
FED No. 446
Criminal Law and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Criminal Law and Procedure - validity of search warrants - whether informations provided reasonable grounds for belief that offences committed - whether warrants sufficiently particularized offences to reveal object of the searches.
Criminal Law and Procedure - Documents unlawfully seized - discretion whether to order return of documents - relevant considerations - doctrine of due process.
Crimes Act (Cth.) - s. 10
Judiciary Act (Cth.) - s. 39B(1)
Federal Court of Australia Act 1976 (Cth.) - s. 22
HEARING
BRISBANE
#DATE 4:8:1989
Counsel for applicant: Ms. S. Kiefel Q.C. with Mr. M. Taylor instructed by: McRea Jones as town agents for Boreham, Hancock & Andrews
Counsel for respondent: Mr. G. Rice instructed by: The Director of Public Prosecutions
ORDER
The warrants executed by the first six respondents are invalid.
All searches conducted in pursuance of those warrants were unlawful.
Each of the first six respondents deliver forthwith to the applicants all documents, and all copies thereof, seized as a result of the searches conducted pursuant to the warrants.
The first six respondents pay the applicants' costs of and incidental to this application, to be taxed if not agreed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an amended application for, inter alia, a declaration that warrants executed by the first six respondents on 5 April 1989 which had been issued shortly prior to that date are invalid and the searches conducted under the said warrants were unlawful. The applicants also seek an injunction requiring the respondents to forthwith deliver up to the applicants all documents and any copies thereof that were seized pursuant to the warrants.
On the hearing of the application I made orders granting that relief and ordered the first six respondents to pay the costs of the proceedings, to be taxed if not agreed. I indicated that I would later give my reasons for those orders. These are those reasons.
There are a number of search warrants in question which differ only in relation to the location of the property to be searched.
Section 10 of the Crimes Act 1914 (Cth.) provides:-
"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 any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence,
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 which he may find in the house, vessel, or place."
The Federal Court has power to make the declaration sought as to the validity of the warrants, under its accrued jurisdiction or under s.32(1) or s.21 of the Federal Court of Australia Act 1976.
Pincus J. said in Optical Prescription Spectacle Makers Pty. Ltd. v. Withers (1987) 13 FCR 594 at 595:-
"The application is brought under s. 39B(1) of the Judiciary Act 1903 (Cth.) which reads as follows: 'The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.' The provision does not mention declarations. However, since the declarations are sought on precisely the same basis as the injunctions, there would seem to be no reason to doubt that the Court has jurisdiction in respect of the claims for declaratory relief under the accrued jurisdiction, and also because those claims are 'associated with matters in which the jurisdiction of the Court is invoked' - s. 32(1) of the Federal Court of Australia Act 1976 (Cth.); cf. Philip Morris Inc. v. Adam P Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457 at 494. There is express power to grant declaratory relief under s. 21 of the Act in relation to matters in which the Court has original jurisdiction. The warrants in question purported to be issued under a Federal statute, namely the Crimes Act 1914 (Cth.), s. 10."
Section 39B(1) of the Judiciary Act 1903 confers jurisdiction on the court to grant injunctions for delivery up of documents unlawfully obtained by officers of the Commonwealth and s. 22 of the Federal Court of Australia Act 1976 provides:-
"The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."
In addition, the court has power to review the decision of the Justice of the Peace to grant the warrants on the information placed before him: Brewer v. Castles (1984) 1 FCR 55.
In Hedges v. Grundmann, ex parte Grundmann (1985) 2 Qd R 263, Moynihan J., in dealing with a warrant which purported to be founded on the provisions of s. 679 of The Criminal Code (Qld.), said at 268:-
"It is to be appreciated that the occupier of the premises, or the owner of the property seized and taken away, does not necessarily have any connexion with the criminal activity which has led to the warrant being sought. Moreover although the section requires that the warrant be issued by a justice and founded on a complaint made on oath, the person or persons who are likely to be most directly affected by the execution of the warrant are, inevitably and necessarily, not before the justice or heard by him when the warrant issues. A warrant issued pursuant to s. 679 is authority to the police officers to whom it is directed to do what is otherwise unlawful - to enter peacefully occupied premises and seize and take away the property of people who in either case may have no connexion with any criminal activity. Consideration of the kind I have mentioned, and not any concern for technicalities, found the well established insistence of the courts that the issue of the warrant and the warrants which are issued authorizing such activities conform to the conditions the Parliament has expressed in the words of the statute providing for the issue of the warrants."
If documents or other items of property are taken without authority they are liable to be returned: Parker v. Churchill (1985) 9 FCR 316, per Jackson J. at 351.
A search warrant being an authority to interfere with a person's privacy, it is necessary that the warrant define with reasonable particularity the premises to be searched, the things liable to be seized and the offences which were committed or suspected to have been committed. In Australian Broadcasting Corporation v. Cloran (1984) 4 FCR 151, Lockhart J. pointed out at 154:-
"I am conscious of the fact that the administration of the criminal law requires that search warrants be issued for the purpose of obtaining evidence for legitimate use in criminal proceedings. But that consideration must be weighed against the interference with privacy that is the inevitable consequence of the execution of a search warrant. It must be remembered that the entry, search and seizure authorised by s. 10 of the Crimes Act 1914
(Cth.) is not confined to the premises of a person suspected of committing a crime. The owner or occupier of the premises may be quite unconnected with the commission of any crime. This illustrates the necessity for search warrants, which are intrusions into the sanctity of a person's domain and, concomitantly an interference with his privacy, to define with reasonable particularity all relevant matters: the premises, the things liable to be seized and the offences which were committed or suspected to have been committed."
The offence or offences said to have been committed or suspected of being committed must be defined with sufficient particularity to enable the searching officer and the person whose premises are searched to know the exact object of the search. In R. v. Tillett; Ex parte Newton (1969) 14 FLR 101, Fox J. said at 112-3:-
"What s. 10 authorizes to be seized is therefore any 'thing' which is, in the way required by the section, related to a particular offence. The warrant cannot authorize the seizure of things in general or things which are related to offences in general. In my opinion the warrant should refer to a particular offence and authorize seizure by reference to that offence."
In Australian Broadcasting Corporation v. Cloran (supra), at 153 Lockhart J. held that the warrants in that case were bad because they failed to describe the particular offences in relation to which the seizure was authorised "so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search."
Beaumont J. in Brewer v. Castles (supra) at 61 said:-
"The question is thus one of construction of the warrant.
...
...each case must depend upon its own facts and the question is one of impression, looked at from the standpoint of the ordinary person reading the warrant."
There is a degree of variance in the authorities as to the degree of particularity required. This appears from the analysis of the authorities by Pincus J. in Optical Prescription Spectacle Makers Pty. Ltd. v. Withers (supra) at 598-9, where he summarized the position as follows:-
"It is settled that a warrant must, to be valid, set out the possible offence in respect of which it is issued, but there is some variance in the authorities as to the degree of particularity necessary. There must be put on one side the decision of the House of Lords in R. v. Inland Revenue Commissioners; ex parte Rossminster Ltd.
(1980) AC 952. In that case, for reasons similar to those which have produced the recent decisions of this Court referred to below, the Court of Appeal had held that particularisation of the suspected offences was necessary, but the House of Lords disagreed: see at 999, 1005, 1010 and 1023. In Trimboli v. Onley (No. 1) (1981) 56 FLR 304 at 314, Powell J. suggested that some of the observations in the Rossminster case 'have attenuated to some degree the rigidity of the tests' set out in other cases. However, the weight of authority in this Court is in favour of the view that particularity is necessary, thus inhibiting invasions of citizens' premises in pursuit of unstated or vaguely-stated suspicions. In Brewer v. Castles (No. 2) (1984) 1 FCR 55, the offences were specified fairly generally, one being 's. 86(1)(e) of the Crimes Act, to wit, conspiracy to defraud the Commonwealth' (at 56); that was held to be enough, at 61 and 62. In Australian Broadcasting Corporation v. Cloran
(1984) 4 FCR 151, the warrant mentioned 'commission of offences against s. 70 of the Crimes Act 1914'. That seems to me to have been fairly comparable with the allegation in the case just mentioned, but Lockhart J., at 154, held it to be insufficient in that it did not 'define with reasonable particularity' suspected offences. In Arno v. Forsyth (1986) 9 FCR 576 Lockhart J. in the Full Court referred to the Rossminster case at 591 and to the 'dangers of too readily striking down warrants on the ground of generality in cases of this kind' (at 591) - that is, cases of tax fraud. Jackson J., however, in the same case adopted (at 595) a view expressed by Lockhart J. in Australian Broadcasting Corporation v. Cloran
(supra) that it is necessary that the warrant 'describe the particular offences in relation to which the seizure is authorised so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search.' Lastly, in Parker v. Churchill (1986) 9 FCR 334, the 'exact object' test just mentioned was accepted by the Full Court; see the reasons of Jackson J. at 348. The other members of the Court (Bowen C.J. and Lockhart J.) agreed with the reasons of Jackson J. (at 334) except in a respect not material to the question under discussion."
The offence or offences must be stated in the operative part of the warrant, or in the recital and be clearly incorporated in the operative part of the warrant by reference. Section 10 of the Crimes Act 1914 requires the Justice of the Peace to be "satisfied" that there is "reasonable ground for suspecting" that there is anything which will afford evidence of the commission of particular offences and the information is required to support the warrant in its terms. As Pincus J. noted in Optical Prescription Spectacle Makers Pty. Ltd. v. Withers (supra) at 602:-
"Leaving aside the necessity of defining the object of the search, if the justice is to have any opportunity of determining whether there is ground for suspicion of fraud or of falsity in a material particular, the nature of the fraud or falsity suspected must be made clear."
Since the issues that fall to be determined in this case are essentially ones of construction of the information and of the warrants, it is necessary to set out both the information and one of the warrants in full. The information was in these terms:-
"COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 INFORMATION (SEARCH WARRANT) I, Gary Edward Donald WYNCH of corner Marie and Graham Streets, Milton in the State of Queensland, a Constable of the Australian Federal Police make oath and say:
1. I am a Constable of the Australian Federal Police attached to the Bureau of Criminal Intelligence, stationed at Regional Headquarters, Milton, Brisbane.
2. Mr. Bruce Bowland, Special Inspections Officer from the Australian Taxation Office advised members of the Australian Federal Police that a company by the name of 2PH Pty Ltd submitted to their department approximately 200 Income Tax Instalment Declaration forms.
3. The Australian Taxation Office further advised the Australian Federal Police that after examination of these Income Tax Instalment Declaration forms it was disclosed that approximately 90% of forms submitted contained false and misleading information.
4. On the 6th day of March, 1989 Australian Federal Police received information from Mr T M Newton, Deputy Commissioner of Taxation, that after an examination of the Income Tax Instalment Declaration forms submitted to his department by 2PH Pty Ltd the following was disclosed.
(a) Income Tax Instalment Declaration forms in the names Arthur Smith of 14 Sims Road, Bundaberg and Ruby Smith of 140 George Street, Bundaberg were completed by one and the same person and dated the same date being 19 January 1989.
(b) Income Tax Instalment Declaration forms in the names Alex Lumus Kenny of 96 Walker Street, Bundaberg and Alec Morris of 96 Walker Street, Bundaberg were completed by one and the same person and dated the same date being 18 January 1989.
(c) Income Tax Instalment Declaration forms in the names Lucinda Ann Leslie of 96 Walker Street, Bundaberg and Vicky Louise Sawyer of 96 Walker Street, Bundaberg were completed by one and the same person and dated the same date being 18 January 1989.
5. After the discovery of the false and misleading information provided on the Australian Taxation Office Income Tax Instalment Declaration forms provided by 2PH Pty Ltd to the Australian Taxation Office Mr T M Newton, Deputy Commissioner of Taxation, requested the assistance of the Australian Federal Police to investigate the extent of the imposition and fraud on the Australian Taxation Office.
6. Information was received from a reliable unregistered informant in the Bundaberg area that he himself has been employed by Mr. John Pressler of 2PH Pty Ltd under a false name and address when in fact his correct name and address were known to 2PH Pty Ltd staff.
7. The informant further stated that upon commencement of employment he was handed an application for a Wide Bay Capricorn Building Society account to facilitate the deposit of his wages from 2PH Pty Ltd. This application was completed in the false name that he then commenced employment under.
8. To the knowledge of the informant there was no forms of identity required from him, by the employer or the Wide Bay Capricorn Building Society to substantiate the identity of the account applicant.
9. The informant was also required by 2PH Pty Ltd to complete and sign an Australian Taxation Office Income Tax Instalment Declaration form providing the false name and address which he was to be working under.
10. The reason the informant gave for working under a false name was that he and his wife were in receipt of a Department of Social Security Invalid Pension.
11. The informant also stated that to his knowledge all employees of 2PH Pty Ltd were permitted to follow the same course of conduct as himself.
12. Enquiries conducted by members of the Australian Federal Police have revealed that Mr. John Frederick Pressler, Mrs Pamela Deanna Pressler and Mr Neville William Pressler are Directors of the registered company 2PH Pty Ltd and Mr John Frederick Pressler is the principal executive officer.
13. Enquiries conducted by members of the Australian Federal Police also reveal that 2PH Pty Ltd (Directors being Mr John Frederick Pressler, Mrs Pamela Deanna Pressler and Mr Neville William Pressler) have a financial investment and conduct business from the following addresses:
(a) Mail Service 108, Pressler Road, Sub 1, Portion 22, Lot 3, Registered plan 166595, Kalkie, Bundaberg in the State of Queensland
(b) Rocky Point Road, Portion 66, Parish of Tottenham, County of Flinders
(c) Rocky Point Road, Sub 2, Portion 126, Portion 128, Parish of Tottenham, County of Flinders.
By reason of the matters aforesaid it is suspected that there is in a house, farm building, packing shed, awning, caravan, annexe, vehicle or any outbuilding situated at Rocky Point Road, Portion 66, Parish of Tottenham, County of Flinders Things being:
Department of Social Security documents, Australian Taxation Office documents, Stamp Duty documents, Worker's daily time records, payroll books, banking notes, financial records, wage, salary or business records in the name of 2PH Pty Ltd, Mr. John Frederick Pressler, Mrs Pamela Deanna Pressler and Mr Neville William Pressler or anything as to which there are reasonable grounds for believing that the same would afford evidence as to the commission of offences against Section 5 (1) and Section 29B of the Crimes Act, 1914 as amended, namely the offence of:
That between 1st July 1988 and 3rd April 1989 at Bundaberg in the state of Queensland you did aid and abet others to impose upon the Commonwealth by means of untrue representations to wit, that certain details on Australian Taxation Office Income Tax Instalment Deduction forms were true and correct which said representations you knew to be untrue with a view to obtaining a benefit. I request that a warrant be granted pursuant to Section 10 of the Crimes Act 1914 to enter the said place more fully herein before described and to seize the said things more fully herein before described.
Sworn by the abovenamed )
Informant at Bundaberg in ) (Sgd.) G.E. Wynch the State of Queensland ) Informant before me the 4th )
day of April 1989. )
(Sgd.) Paul Murray J.P.
Justice of the Peace
CERTIFICATE
On the 4TH day of APRIL 1989, GARY EDWARD DONALD WYNCH, A CONSTABLE of the Australian Federal Police, appeared before me, a Justice of the Peace within the meaning of Section 10 of the Crimes Act 1914, placed before me information on oath, and requested the grant of a warrant pursuant to the said section.
(Sgd.) Paul Murray Justice of the Peace"
It is to be noted that paragraphs 2, 3, 4, 5 and 9 universally refer to Income Tax Instalment Declaration forms. The offences outlined towards the end of the information refer to Income Tax Instalment Deduction forms, as does the warrant issued on that information.
In purported reliance on that information, a search warrant was issued in the following terms:-
"COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT TO: Lance Michael HOLZBERGER
Leanne Olga CARNEY
Desmond John LEWIS
Geoffrey Leonard GREENSLADE
Gary Edward Donald WYNCH
Kerry Arthur JONES
AUSTRALIAN FEDERAL POLICE OFFICERS. WHEREAS I PAUL GERARD MURRAY a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914, being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there are in a place Being a house, farm building, packing shed, awning, caravan, annexe, vehicle or any outbuilding situated at Rocky Point Road, Portion 66, Parish of Tottenham, County of Flinders Things being:
Department of Social Security documents, computer hardware and software, Australian Taxation Office documents, Stamp Duty documents, Worker's daily time records, payroll books, banking notes, financial records, wage, salary or business records in the name of 2PH Pty Ltd, Mr. John Frederick Pressler, Mrs Pamela Deanna Pressler and Mr Neville William Pressler or anything
as to which there are reasonable grounds for believing that the same would afford evidence as to the commission of offences against Section 5 (1) and Section 29B of the Crimes Act, 1914 as amended, namely the offence of:
That between 1st July 1988 and 3rd April 1989 at Bundaberg in the state of Queensland you did aid and abet others to impose upon the Commonwealth by means of untrue representations to wit, that certain details on Australian Taxation Office Income Tax Instalment Deduction forms were true and correct which said representations you knew to be untrue with a view to obtaining a benefit. YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place more fully herein before described, if necessary by force, and to seize the said things more fully herein before described and for so doing this shall be your sufficient warrant.
Dated at BUNDABERG this 4TH day of APRIL 1989
(Sgd.) Paul Murray J.P. A Justice of the Peace for and in the State of Queensland"
"Computer hardware and software", referred to in the list of "things" in the warrant, is written in handwriting and initialled "P.M." but there is no reference to any such things in the information. The warrants on their face do not extend to documents of the applicant Craig Robert Pressler, nor to documents of the five corporate applicants.
Further, it was submitted that the warrants on their face did not extend to documents beyond the dates specified in the warrant. I do not accept this submission. What is necessary is that there be a connexion between the things and the specified offences, that connexion being that there are reasonable grounds for believing that the things will afford evidence as to the commission of those offences. Where offences are identified as having been committed between specified dates, it may be that documents outside that period might have the necessary connexion, as affording evidence of the commission of those offences.
Notwithstanding the contents of the information, it appears that there is no company 2PH Pty. Ltd.. There is a 2 PH partnership, the partners of which are Pamela Deanna Pressler and her husband John Frederick Pressler and their son Craig Robert Pressler. Neville William Pressler had been a partner until 31 December 1988, when he retired from that partnership, selling his share to his nephew, Craig Robert Pressler.
The factual correctness of the matters in the information do not determine the validity of a search warrant based on that information. I have to say, however, that the circumstance that the information swore to incorrect facts gave no ground for confidence that what was sworn to in the information could support the warrants. And so it proved.
Constable Wynch swears that members of the Australian Federal Police were informed by a special investigation officer that 2PH Pty. Ltd. submitted to the Taxation Department 200 Income Tax Instalment Declaration forms. It was said that, on inspection, approximately 90% of those forms contained false and misleading information.
In paragraph 4 of the information, he instances three occasions when Income Tax Instalment Declaration forms in different names, dated the same date, were completed by one and the same person . The information further asserts that information from a reliable unregistered informant was to the effect that that informant had been employed by Mr. John Pressler of 2PH Pty. Ltd. under a false name and address, when his correct name and address were known to 2PH staff and the informant said that he gave as the reason for working under a false name the fact that he and his wife were in receipt of a Department of Social Security invalid pension.
Paragraph 12 of the information deposes that John Frederick Pressler, Pamela Deanna Pressler and Neville William Pressler are directors of the registered company, 2PH Pty. Ltd.
The offences specified are that, between named dates:- "you did aid and abet others to impose on the Commonwealth by means of untrue representations, to wit, that certain details on Australian Taxation Office income tax instalment deduction forms were true and correct which said representations you knew to be untrue with a view to obtaining a benefit."
The only particulars given are "you", "others", "between 1.7.88 and 3.4.89" and "certain details" on (A.T.O.) forms. There is no identification of what benefit or benefits or type of benefit or types of benefits is reasonably suspected of having been obtained. The unspecified "you" is especially obfuscating. Jackson J. in Parker v. Churchill (supra) said at 347:-
"I am conscious that it is not essential to the validity of a search warrant under s. 10 that it contain the name of the alleged offender: see R. v. Tillett; Ex parte Newton (supra) at 114. Indeed in particular cases it may well be that one of the purposes of obtaining the search warrant is to obtain evidence to identify the perpetrator of the offence in question. If, however, the search warrant (as here) does identify the suspected perpetrator of the offence, it seems to me that the information before the justice must be capable of satisfying him that the particular offence contended for is one in relation to which there is reasonable ground for the belief that it will afford evidence of the commission of the offence by the person named."
Even accepting that the Justice of the Peace before whom the information was made was aware of what an Income Tax Instalment Declaration form was and the effect of such a form, and whether there is a difference between an Income Tax Instalment Declaration form and an Income Tax Instalment Deduction form, the conclusion implicit in the issue of the warrant, that there are reasonable grounds for believing that in some way, by use of those forms, a benefit would thereby be obtained seems to me to be speculation. Submission by counsel on behalf of the first six respondents that there is a sufficient basis for concluding that in some way an advantage was being taken of the tax threshold amounts do not seem in my view to have a sufficient basis in the material contained in the information.
In my opinion, the "offences" in relation to which the seizure is authorised are so unparticularised and inexact that it is quite impossible for any person whose premises were to be searched to know the exact object of the search. Even if the requirement be much less precise than that test, these warrants would fail because of the vagueness and ambiguity of the formulation of the offences, in connexion with which the warrants are said to authorise seizure. Indeed the evidence suggests that the purpose of the search was to secure all documents which might relate to offences having a taxation or social security aspect, so as to enable an audit to be carried out by officers of the Department of Taxation. The officers of the Australian Federal Police seem to have delivered from their custody the documents seized pursuant to the warrants to officers of the Department of Taxation for the purpose of conducting such an audit.
The warrants fail the fundamental requirement that they disclose offences with sufficient particularity so as to enable the person whose premises are to be searched to know what documents are authorised by the warrants to be seized.
The warrants are invalid. Each is too general.
In addition, insofar as the warrants extend to any documents of Pamela Deanna Pressler and Neville William Pressler, the information does not support the warrants. The only basis disclosed by the information for a reasonable belief that any of their documents would afford evidence of the commission of any offence, is the mere assertion that they are directors of 2PH Pty. Ltd..
The evidence in this case clearly excited deep suspicion that there was unlawful conduct in the conduct of the business or businesses of some members of the Pressler family. In my opinion, the purpose in obtaining the search warrants was to make general inquiries to see whether those broad suspicions could be refined. A search warrant is not properly to be used for that purpose. There are powers under the Income Tax Assessment Act 1936 available in that investigatory process.
Finally, it was submitted on behalf of the first six respondents that, if I was of the view that the warrants were invalid, in the exercise of my discretion I ought not order that the documents be returned to their owners. Reliance was placed on the observations of Burchett J. at first instance in Parker v. Churchill (1985) 63 ALR 326 at 341 et seq, where his Honour said:-
"In so far as the applicants seek orders 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."
I am not here concerned with questions of whether, in the exercise of a judicial discretion, the documents ought to be admitted in a criminal proceeding. Here there is no criminal proceeding on foot. What is submitted is that the documents should not be ordered to be returned, until they have been inquired into to see whether they do provide evidence of the commission of criminal offences. The documents have been obtained in breach of the provisions of the statute whose purpose is, in defined circumstances, to permit the invasion of people's privacy.
To permit police officers and others whose duty is to vindicate the law to be able to retain documents seized in contravention of the law is seriously to undermine the protection which s. 10 of the Crimes Act gives. To condone unlawful conduct may subtly, or not so subtly, encourage it. The words of Sir Garfield Barwick in The Queen v. Ireland (1970) 126 CLR 321 at 334-5 have a present and pressing relevance:-
"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."
The observation that "it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion...", in my respectful view, goes some part of the way towards establishing a doctrine of due process in Australia. Where the legislature has defined the circumstances in which a person's liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation is to be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens.
For these reasons I decline to exercise any discretion against ordering the return of the documents unlawfully obtained. It is, of course, open for documents which may lawfully be obtained to be lawfully obtained.
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