Puglisi v Australian Fisheries Management Authority
[1997] FCA 846
•28 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
SEARCH WARRANTS - warrants issued under the Fisheries Management Act 1991 and the Crimes Act 1900 - validity - whether execution unlawful - whether goods in possession of police before execution of warrant and physically retained in police car later “seized” in execution of warrant - whether person assisting the execution of a warrant must be authorized in writing - whether goods seized under invalid warrant should be returned.
Fisheries Management Act 1991 (Cth), s 86
Crimes Act 1900 (Cth), ss 3C, 3E, 3H, 3K, 10, Part 1AA
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11
Judiciary Act 1903 (Cth), s 39B
George v Rocket (1990) 170 CLR 104, considered and applied.
Lego Australia Pty Limited v Paraggio (1994) 52 FCR 542, followed.
Commissioner of Taxation v De Vonk (1995) 61 FCR 564, distinguished.
Coward v Allan (1984) 52 ALR 320, considered and applied.
Ghani v Jones [1970] 1 QB 693, considered.
Parker v Churchill (1985) 63 ALR 326, followed.
Gollan v Nugent (1988) 166 CLR 18, followed.
JOSEPH PUGLISI & ANOR v THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY & ORS
NG 412 of 1996
Hill J
Sydney
28 August 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 412 of 1996
BETWEEN:
JOSEPH PUGLISI
First ApplicantALAN McCAMISH
Second ApplicantAND:
THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
First RespondentTHE COMMISSIONER, AUSTRALIAN FEDERAL POLICE
Second RespondentPETER LAWRENCE MATTHEW GIFFARD
Third RespondentMARK FLETCHER
Fourth RespondentSTEVEN CHURCH
Fifth RespondentERROL RICHARD RAISER
Sixth RespondentTERRENCE NORMAN ALLEN
Seventh RespondentGILLIAN McDONALD
Eighth RespondentJONATHON SAMUEL SELMES
Ninth RespondentJUDGE(S):
HILL J
DATE OF ORDER:
28 AUGUST 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The solicitors for the respondents file short minutes of order to give effect to these
reasons on or before a date to be fixed.
The matter is stood over until the date fixed to hear argument as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 412 of 1996
BETWEEN:
JOSEPH PUGLISI
First ApplicantALAN McCAMISH
Second ApplicantAND:
THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
First RespondentTHE COMMISSIONER, AUSTRALIAN FEDERAL POLICE
Second RespondentPETER LAWRENCE MATTHEW GIFFARD
Third RespondentMARK FLETCHER
Fourth RespondentSTEVEN CHURCH
Fifth RespondentERROL RICHARD RAISER
Sixth RespondentTERRENCE NORMAN ALLEN
Seventh RespondentGILLIAN McDONALD
Eighth RespondentJONATHON SAMUEL SELMES
Ninth Respondent
JUDGE(S):
HILL J
DATE:
28 AUGUST 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Murphy’s law is sometimes stated as requiring that everything which can go wrong will go wrong. It has a sub-law. That is that when something goes wrong everything else thereafter goes wrong too. The present case demonstrates this sub-rule.
Mr Puglisi, the first applicant, resides at premises 40 Parson Street Ulladulla. Mr McCamish, the second applicant resides at 20 Bungo Street Eden. Mr Puglisi holds a fishing permit from the Australian Fisheries Management Authority (“the Authority”) in respect of a vessel, “Mark M”, which entitles that vessel to carry out fishing in the south-east fishery area. Mr McCamish is the master of the vessel “Mark M”.
On or around 25 March 1996 Mr Giffard, the third Respondent, an officer of the Authority, obtained warrants issued by a magistrate (the “March warrants”) purportedly under the Fisheries Management Act 1991 (“the Fisheries Act”) to search and seize documents, inter alia, on board the “Mark M” and at the premises in Parson Street Ulladulla and Bungo Street Eden. The affidavit presented to the magistrate in support of the March warrants was not in fact sworn. Indeed, it was not even signed. It is common ground that the March warrants were thus invalid.
Acting under the purported warrants officers of the Authority seized various items. The search took place on 20 March 1996. The items seized were taken to Batemans Bay at the office of the New South Wales Fisheries. By then it was realized that the warrants were of no effect. Mr Giffard sought to rectify the problem by obtaining a telephone search warrant under s 86 of the Fisheries Act. That warrant authorized a search at the premises in Ulladulla and Eden and on the “Mark M”. However the items in question by that time were at Batemans Bay so that the telephone warrant, so issued, was of no effect. Nevertheless, the items seized were then taken to the Authority’s premises in Canberra.
Those responsible realized that their two attempts to obtain authority for seizing the documents had been ineffective. They were reluctant to return the material seized, presumably because they were concerned that if the material was returned to Mr Puglisi or Mr McCamish it might not be later available in connection with a proposed prosecution.
The idea then occurred to obtain the issue of a third set of warrants, this time relying upon the Crimes Act 1900 (“the Crimes Act”). Accordingly, on or around 3 April 1997, application was made to a person entitled to issue warrants under the Crimes Act for the issue of further warrants. Three warrants accordingly issued, of which two only are presently relevant, these being warrants in respect of premises described in the warrants as respectively “premises located at 40 Parsons Street Ulladulla New South Wales, more fully described as ‘L’ shaped two storey house, brick construction, with brown tiled roof, double garage with brown coloured rollerdoors with a verandah at the front” and “premises located at 20 Bungo Street, Eden, New South Wales more fully described as a small cream/white coloured single storey cottage with a brown coloured cladding, tiled roof with a concrete driveway running from the street down to the lefthand side of the cottage leading to a zinc coloured garden shed”. These two warrants are referred to as the “April warrants”.The application for warrants, this time sworn, annexed the original unsworn affidavit of Mr Giffard. It was made by Sergeant Allen, the seventh respondent, a member of the Australian Federal Police. It recorded that Mr Giffard had requested the assistance of the Australian Federal Police in his investigation of a criminal allegation made against Mr Puglisi and Mr McCamish, the particulars of which were described in the application. It recorded also that, as a result of Mr Giffard obtaining search warrants in relation to the premises and vehicles, he had seized a large number of documents. The application says “these documents relate directly to the allegation and must be examined in detail to prove that allegation”. It is then noted that Mr Giffard had received advice from the office of the Commonwealth Director of Public Prosecutions that the warrants obtained so far were in fact invalid and that the material had not been obtained in accordance with law and should be returned to the owners as soon as possible. It said that Mr Giffard feared that by returning the material he would be losing evidence vital to a successful investigation of the allegations.
Paragraphs seven and eight of the application then said relevantly:
“By reason of the matter specified below there are reasonable grounds for suspecting that there will be within the next 72 hours at
(the two premises are then described)
Things which are: ...
(the items are then described) [and]
there are reasonable grounds for suspecting that the material specified in paragraph 7 above will afford evidence as to the commission of an offence ... .”
Offences are then specified.
Despite the reference to “matter specified below” in paragraph 7 there is no matter specified below which suggests any reason why the issuing magistrate should believe that the items in question would, within the next 72 hours, be at the relevant premises.
The April warrants were issued pursuant to the application. Two groups of police, one led by Mr Raiser, the sixth respondent, and the other by Sergeant Allen went to the two premises. At the premises at Bungo Street the goods which had been seized were brought into the house and then re-seized. However, at 40 Parson Street the seized goods remained in the police vehicle stationary in the driveway and Mr Puglisi’s wife was asked to come out to the vehicle and identify the material. The material was “re-seized” while it was still in the vehicle (purportedly under the April warrants) and driven away.
It should be noted that in the meantime proceedings had been commenced in this Court by Mr Puglisi against the Authority. These proceedings came before Tamberlin J on 10 and 11 April 1996. The result of the proceedings is reported as Puglisi v Australian Fisheries Management Authority (1996) 42 ALD 211. It appears from the report that the Authority had refused Mr Puglisi a fishing permit for the 1996 fishing year. It alleged that Mr Puglisi had over-caught various species of fish in excess of the quota allocated to him. Mr Puglisi’s answer was that he had not separated out fish caught in Commonwealth waters from fish caught in State waters and therefore the amount of the over-catch had itself been overstated. Ultimately Mr Puglisi was successful in having the decision to refuse him a permit set aside on the basis that he had been denied natural justice.
While it is unnecessary to set out here details of the matters agitated before Tamberlin J, it is necessary to note that the question of fish caught by Mr Puglisi in the period from 1993 to the end of 1995 was in dispute. The offences in respect of which the warrants were issued related to supplying false information about catches in the period between January and December 1995. In other words there was an overlap of issues between the subject matter of the warrants on the one hand, and the material that was before Tamberlin J on the other. It is, however, common ground that, save for the affidavit of an expert, all affidavit material put to Tamberlin J was sworn prior to documents having been seized under the March warrants. Nothing in the affidavit filed by the expert in any way related to the material seized under the warrants.
Among the items seized was a computer. This was taken away and the information on the disk in the computer downloaded. At the end of the present hearing counsel for the Authority undertook that the information downloaded from the computer and any copies thereof would be destroyed. That undertaking, together with the fact that the computer had in the meantime been returned to the applicants, renders irrelevant one of the claims the applicants have made in the present proceedings.
The present proceedings were commenced on 21 May 1996. The original application for review was somewhat vague but did at least name as parties the Australian Federal Police, Mr Giffard, Mr Raiser and Mr Allen among others. It was issued approximately six weeks after the purported execution of the April warrants. It was not until an amended application on 5 August 1996 that it was made completely clear that a challenge was made to the validity of the April warrants as well as the March warrants issued under the Fisheries Act.
An objection to competency was lodged by the respondents on two grounds. First, in relation to the validity of the March warrants, it is said that these were superseded by the April warrants, that nothing turned upon their invalidity and as a result, as a matter of discretion, relief should be refused. As has already been noted it was conceded that the March warrants were invalid.
Second, in relation to the validity of the April warrants it is said the application was commenced outside the time limits specified in s 11(3) of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”). After it was pointed out that the present case was one that fell within s 11(4) of that Act, rather than s 11(3), because at no time was any document notifying the decision to issue the warrants served, this ground for objecting to competency was no longer pressed.
The present proceedings therefore challenge the validity of the April warrants. In addition, the conduct involved in executing those warrants on 4 April 1996 is called into question. Reliance is placed on the ADJR Act as well as on s 39B of the Judiciary Act 1903. In addition to declarations that the March and April warrants are invalid the applicants seek an order that all items seized be returned to them including any copies and that the Australian Federal Police be restrained from using any material seized in prosecutions. It might be noted that prosecutions have been commenced against Mr Puglisi and perhaps Mr McCamish, in which at least some of the information obtained as a result of the execution of the warrants could be expected to be used.
APPLICANTS’ SUBMISSIONS - SUMMARY
Seven submissions were advanced on behalf of the applicants; four going to the validity of the warrants and the remaining three to the manner in which the warrants were executed. In summary, the submissions were as follows:
Having regard to the material in the application for warrants the issuing officer could not have been satisfied that there were reasonable grounds for suspecting that any of the items referred to in the application would, within 72 hours after the issue of the warrants, be at the premises of the applicants.
The application for warrants annexed the original unsworn affidavit of Mr Giffard. This was not on oath and was thus improperly before the magistrate.
Because the documents seized had been in the possession of the respondents, or some of them for some weeks before the warrant was issued, the use of the material in Mr Giffard’s unsworn affidavit was stale and irrelevant.
The issuing authority should have taken into account the fact that proceedings were pending before Justice Tamberlin and that the issue of the warrant could constitute a contempt of court. Alternatively the submission is put that the applicants to the warrant had failed to disclose relevant information to the issuing authority, being the proceedings before Justice Tamberlin and the fact that the subject matter of those proceedings overlapped with the alleged offences.
Mr Giffard and Ms Caddy accompanied the police named in the warrant in executing the warrant but were not authorized in writing so to do.
In the course of executing the warrant a computer was seized and taken away but no notification was given to the applicants so that they could be present when material on the computer was downloaded.
The warrant did not authorize items to be seized from the police car standing in the driveway so that the seizure of those items was invalid.
I turn now to consider each of these submissions.
THE WARRANTS IN QUESTION WERE ISSUED UNDER PART 1AA OF THE CRIMES ACT
The relevant statutory provisions are summarized in the judgment of the Full Court of this Court in Harts Australia Limited v Commissioner of Australian Federal Police (23 May 1997, unreported). It is a precondition to the issue of a warrant under the Crimes Act that the issuing officer be “satisfied by information on oath that there are reasonable grounds for suspecting that there is, or that there will be within the next 72 hours, any evidential material at the premises”: s 3E of the Crimes Act. It follows from George v Rocket (1990) 170 CLR 104, a case decided under the now repealed provisions of s 10 of the Crimes Act, but nevertheless relevant to Part 1AA of the Crimes Act which replaced s 10, that the issuing officer must in fact form the satisfaction required and that the warrant express the satisfaction. If the application for a warrant was such that the issuing officer could not be satisfied of the relevant matter then the warrant would be invalid and would thus be set aside. To paraphrase what was said by all members of the High Court in George v Rocket at 114: the requirement is that the sworn complaint should contain sufficient facts to show that there are reasonable grounds for the suspicion to which s 3E of the Crimes Act refers. Further, as George v Rocket makes clear, there is a distinction between suspicion and belief. The former is “a state of conjecture or surmise where proof is lacking.” As is said at 115 of the report “the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.”
It is put here that there is no factual basis for the statement in the application for the April warrants that there would be items at the relevant premises within the 72 hours from the issue of the warrant. If regard is had to paragraph 7 of the application, to which reference has already been made, it is clear that no reasonable grounds for suspicion are given. Although it is said that the reasonable grounds appear in the matter specified below paragraph 7 nothing is so specified. To say the least the drafting is sloppy.
However, I have formed the view that the submission should not succeed. Although it is true that if one considered only paragraph 7 and the writing that follows it there is nothing to ground a suspicion that the items in question would be on the premises within the 72 hour period, the facts earlier recited in the warrant are sufficient to raise an inference that the items being searched for had been seized and were to be returned “as soon as possible”, that is since the person who had possession of the documents was the person seeking a warrant and asserting that the items in question were to be at the premises within the next 72 hours the magistrate could reasonably form the suspicion that the items would be within that 72 hours period on the relevant premises and would have had reasonable grounds for so suspecting.
THAT THE ANNEXED UNSWORN AFFIDAVIT BY MR GIFFARD IS NOT ON OATH
The Crimes Act requires the issuing officer to be satisfied by “information on oath”. It does not require every document attached to the application for warrant to be on oath.
Here Mr Allen swore an application. The application annexes Mr Giffard’s unsworn affidavit and refers to it in various ways so as to incorporate at least parts of it by reference. There is nothing in s 3E that requires any document annexed to an application to be on oath. All that needs to be on oath is the information providing the “reasonable grounds for suspicion” to which s 3E refers. In any case, paragraph 8 of Mr Allen’s application states on oath that Mr Allen believes the correctness of Mr Giffard’s affidavit. In other words, Mr Allen, in applying for the warrant, adopted on oath the totality of the unsworn affidavit. This being the case the magistrate was entitled to take the affidavit into account and the submission is without substance.
THE STALENESS OF THE MATERIAL IN MR GIFFARD’S UNSWORN AFFIDAVIT
The submission in essence is that since thirteen days elapsed from the time the material was initially seized under the March warrants until the date Mr Allen sought the April warrants there was time for Mr Giffard and others to examine the material seized. So it is said that circumstances had changed materially since the Authority had had access to the material for that thirteen days, it could be assumed to have examined it and formed views about the relevance of the material to the offences specified.
The submission thus presupposes that Mr Allen or Mr Giffard in fact spent time inspecting the material which they had seized illegally. In the application for the April warrants they could, if they had carried out such an examination, have stated directly whether the items seized did or did not afford evidence relating to the offences alleged to have been committed.
The submission asked the Court to infer that there has been an examination of the items illegally seized in addition to a mere listing of them for the purposes of preparing a receipt. There is not a skerrick of evidence to suggest that this in fact happened. The burden of showing that it did would be on the applicants. In the absence of such evidence, there can be no ground for the submission which must fail.
THE PROCEEDINGS BEFORE TAMBERLIN J
The applicants submit that the existence of the proceedings before Tamberlin J was a matter of such central importance that failure to take it into account when issuing the April warrants must invalidate the warrants. It is not suggested that the issuing authority was in any way aware of the proceedings and there is certainly nothing in the application for the warrant which refers to them.
So far as the submission is put that there was an obligation on the part of those seeking the warrant to make the issuing authority aware of the proceeding, the submission is foreclosed by the judgment of the Full Court of this Court in Lego Australia Pty Limited v Paraggio (1994) 52 FCR 542. Prior to that case the law as stated by a Full Court of this Court in Karina Fisheries Pty Limited v Mitson (1990) 26 FCR 473 was that there was an obligation upon those seeking a warrant to make to the issuing officer a full disclosure of all material facts which might be relevant to issuing that warrant. That view was dispelled in Lego. Following Lego it is now clear that failure to disclose a particular fact would not invalidate a warrant unless the failure was such as to warrant a conclusion that the decision to grant the warrant was induced by fraud: see per Beaumont and Whitlam JJ at 555. In a separate judgment which differs from the majority only in emphasis rather than principle I put the matter in terms of good faith. The subsequent decision in Dunesky v Elder (1994) 54 FCR 540 did not find it necessary to consider whether there was any significant difference between the majority view and the view which I had expressed. So far as it matters I can say that I did not intend there to be any real difference. It suffices to say here that neither fraud nor bad faith are alleged. Hence a submission based upon the failure to advise the magistrate of the existence of the proceedings before Tamberlin J could not succeed.
It was no doubt for that reason that counsel for the applicants raised the question of contempt of court. It was submitted that there was an obligation to disclose the existence of the proceedings before Tamberlin J so that the issuing authority could make such provisions as might be necessary to avoid material seized under the warrant being used for an improper purpose so as to constitute contempt of court.
The short answer to the submission is that the mere fact that the execution of a warrant may discover information that could be used in pending legal proceedings will not of itself make the search warrants invalid. More would be necessary. It is not suggested that any material in the present case was used in the proceedings before Tamberlin J or that the warrant that was applied for was applied for for the purpose of obtaining material for use in those proceedings. If that had been the case, different considerations might arise: cf Commissioner of Taxation v De Vonc (1995) 61 FCR 564 at 589, although the remedy may lie rather in injunctive relief to restrain the use of material seized rather than in setting aside the warrant itself.
In my view the mere fact that there was a risk that material obtained under the warrant could be improperly used for the purposes of civil proceedings was not of itself sufficient to invalidate the warrant. It must always be remembered that it is the decision of the issuing officer to issue the warrant that has to be shown to be vitiated. While no doubt a minister of the Crown will be taken to know material facts which his or her department may have failed to bring to his or her attention, the same cannot be said of the issuing officer. The issuing officer makes a decision based upon the application for a warrant. He or she is not to be imputed with knowledge held by those seeking the warrant. Provided that those seeking the warrant do not seek to obtain the warrant by fraud or act in bad faith the warrant will stand. The applicants’ submission is accordingly misconceived.
THE AUTHORIZATION OF MR GIFFARD AND MS CADDY
It is common ground that Mr Giffard and Ms Caddy, two officers of the Authority accompanied members of the Australian Federal Police in executing the April warrants. It is submitted that unless they were authorized in writing so to do the execution of the warrants was unlawful.
The submission proceeds upon the basis that each of Mr Giffard or Ms Caddy were “constables assisting” within the meaning of that expression in s 3C of the Crimes Act. Paragraph (b) of that section defines “constable assisting” as including “a person who is not a constable and who has been authorized by the relevant executing officer to assist in executing the warrant.”
It is not disputed that each of Ms Caddy or Mr Giffard were authorized by the relevant executing officer to participate in executing the warrants. The argument is whether there was a need for this authorization to be in writing. Nothing in the Crimes Act requires the authorization to be in writing. Nevertheless it is submitted that the requirement of writing should be implied. The implication arises, so it is said, because a person on the premises in respect of which the search warrant is issued must be able to satisfy himself or herself that any person attending in connection with the execution of the warrant is authorized to attend on the premises and assist in the search.
Although no doubt it would be desirable that any person assisting the execution of a warrant be authorized so to do in writing, in my view no writing is necessary for a valid authority. The provisions of Part 1AA of the Crimes Act are most detailed. Had the legislature intended the authority of an executing officer to be in writing it would have said so. The executing officer must be present at the time of execution of the warrant and must make available to any person on the premises a copy of the warrant which will specifically identify that person as the addressee of the warrant: s 3H(1). He or she must identify himself or herself at the time the premises are being searched. That being the case the addressee of the warrant can, if necessary, confirm the authorization of the constable assisting. There is no reason therefore in principle why the authority to assist need be in writing. In my view the submission does not succeed.
THE COMPUTER
Having regard to the provisions of s 3K of the Crimes Act it was strongly arguable that the executing officers were required to inform the applicants where the computer was taken and where the downloading would be carried out so as to ensure that the applicants could be present when the downloading took place.
Having regard however to the fact that the computer has been returned and that the respondents have undertaken to destroy any information received as a result of the downloading of the computer there is no need for me to pursue this submission further.
WHETHER THE WARRANT AUTHORIZED THE SEIZURE OF ITEMS IN THE VEHICLE
This submission relates solely to the execution of the warrant at Parson Street, Ulladulla.
To appreciate the argument it is necessary to look further at the relevant facts. It will be recalled that after the April warrants were obtained the items which had been seized under those warrants were taken back to the premises from whence they had originally been taken. Ms Caddy, an investigation support officer of the Authority, had in her possession the items which had been seized from Parson Street. She went to the Parson Street premises in the company of two federal agents, Mr Bowyer and Mr Allen. They arrived at the premises and parked the car in which the seized items were in the driveway. They then went to the door and spoke to Mrs Puglisi. Ms Caddy and the federal agents went with Mrs Puglisi to the rear of the Federal Police vehicle where the seized items were and showed them to her. They did not return the items to her. Mrs Puglisi declined to view each piece of property separately. Whereupon in Ms Caddy’s words “Federal Agent Allen then formally executed the s 3E search warrant and myself and Federal Agents Allen and Bowyer left the premises at about 10.40.”
From Ms Caddy’s evidence therefore it is clear that at all times the seized items remained in the Federal Police car and in the custody of the Federal Police. At no time were they ever returned to Mrs Puglisi. All that happened was that Ms Caddy brought the items onto the Parson Street premises and then drove away with them.
The question raised on these facts is whether the warrant was in these circumstances really executed. There is a subsidiary question whether the warrant permitted seizure of items in a car which was parked on the driveway at the home. I shall deal with the second of these questions first.
The warrant in question as has already been indicated authorized search at premises “located at: 40 Parson Street, Ulladulla, New South Wales, more fully described as ‘L’ shaped two-storey house, brick construction, with brown tile roof, double garage with brown coloured roller doors, with a verandah at the front.” No reference is made in the description of the premises either to a car or to there being a driveway on the premises. The submission is made that the warrant thus did not authorize a search for the relevant items in a car parked at the driveway of the Parson Street, Ulladulla home.
The Crimes Act authorizes warrants to search “premises”. Premises are defined as including “a place and a conveyance”. No doubt the reason for defining premises as including “a conveyance” is to be found in the decision of Northrop J in Coward v Allan (1984) 52 ALR 320. In that case a question arose as to whether s 10 of the Crimes Act authorized search of a motor vehicle. A warrant had been issued specifically in respect of a car. It was held that the warrant so issued was invalid. Section 10 of the Crimes Act authorized search of a “house vessel or place”. It was held that a car was not a “place” for the word “place” contemplated a space of definite location, whereas a car of its nature moved from place to place.
There is no doubt now that a warrant could be issued under the Crimes Act authorizing search of a motor vehicle. However even under the previous law a search of a motor vehicle was possible if the motor vehicle was parked at the premises described in a search warrant. That was the view taken by Northrop J in Coward v Allan where at 333 his Honour said “if a motor vehicle happened to be on those premises at the time of entry and search, presumably the search could extend to and include the seizure of things as described found inside that motor vehicle.” In my view, his Honour was correct in the view he expressed.
In my view a warrant for search of premises described by reference to a street address carries with it permission to search any car parked at, that is to say within the boundary of, the premises named. It is not necessary for the warrant to specify that the premises have a driveway or to refer specifically to a search of any vehicle on the premises.
However that is not the end of the present problem. A warrant issued under Part 1AA of the Crimes Act authorizes search and “seizure”. The seizure in question is seizure of items being “evidential material” that are “found at the premises in the course of the search”.
In my view the items that were in the Federal Police car were never “found” at the Parson Street premises in the course of a search. Nor were they ever then “seized”. The items were always in the possession of the Australian Federal Police and in the car. In my view it would be a misuse of language to speak of items always in the possession of the Australian Federal Police as being “found” at premises merely because they are in a car owned by the Federal Police parked in the premises. Nor can items held by the Australian Federal Police be seized by the Federal Police from the Federal Police.
It follows in my view that the items originally seized from the Parson Street premises under the March warrants were not obtained by the Australian Federal Police by virtue of executing the warrant obtained to permit search of the Parson Street Ulladulla premises and that these items are thus held by the Australian Federal Police without authority. The question is then whether, in the circumstances, I should order that the goods be returned.
DISCRETION - SHOULD THE ITEMS BE RETURNED?
Prima facie the applicants are entitled to have the items seized pursuant to an invalid warrant returned to them. Prima facie they are entitled to an order against the Commissioner of Police directing that the goods seized under the invalid March warrant from the Parson Street premises be returned. However the question arises whether, having regard to Ghani v Jones [1970] 1 QB 693 or other relevant authority, I should refuse to make such a declaration. In that case Lord Denning said at 706:
“I take it to be settled law, without citing cases, that the officers [referring to officers who inter alia entered a man’s house by virtue of a warrant] are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC, in Pringle v Bremner and Stirling (1867) 5 Macph., H.L. 55, 60 and Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299.”
A similar view has been taken in Australia in a number of cases, see G H Photography Pty Limited v McGarrigle [1974] 2 NSWLR 635 at 644-5 and Esso Australia Limited v Curran (1989) 39 A Crim R 157 at 169 and see Bartlett v Weir (1994) 72 A Crim R 511 at 519. Ghani v Jones in fact involved the search of premises and the seizure of items without a warrant at all. Lord Denning set forth in his Lordship’s judgment five propositions at 708-9. Those propositions are as follows:
“First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police officers must have reasonable ground to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”
Ghani v Jones, however, actually held that the officers were not entitled to retain the items that had been seized for they had not shown reasonable grounds for believing that the items were material evidence to prove the commission of a murder which was alleged to have been committed. It is possible thus to confine the case to permitting the police to retain items seized without a warrant only where the items are either “the fruit of the tree” (ie part of the crime itself) or “material evidence to prove the commission of the crime”. The case is not direct authority for permitting retention of items invalidly seized.
Ghani v Jones was considered by Heerey J in this Court in Challenge Plastics Pty Limited v Collector of Customs (1991) 42 FCR 397. In that case the Collector of Customs had seized a quantity of documents pursuant to a customs warrant which was found not to have been valid. His Honour criticised Ghani v Jones as involving a major departure from the law. His Honour said that it was inconsistent with the Victorian decision of Levine v O’Keefe (1929) VLR 302 (Couzin J); (1930) VLR 70 where it had been held that there are only two ways in which seizure of goods could be justified. The first was pursuant to a search warrant lawfully issued and the second was where items were seized in the possession of a person at the time of that person’s arrest either for felony or misdemeanour. There being no arrest, the Court ordered the goods to be returned. Heerey J determined to follow Levine in preference to the wider view of Ghani v Jones.
The question of whether items seized under invalid search warrants should be returned where criminal proceedings are pending in which the items seized may be used as evidence has, however, been the subject of some discussion in other cases, not referred to by Heerey J. In R v Tillett; Ex parte Newton (1969) 14 FLR 101 Fox J allowed documents obtained under an invalid warrant to be used for the purpose of a prosecution then pending. However, there was no opposition to that course and his Honour gave no consideration to the strict rights of the parties in permitting it.
In Co-ordination Co-operative Limited v Patterson (1976) 4 Petty Sessions Review 1683 cited by Young J in Rowell v Larter (1986) 6 NSWLR 21 at 30 Yeldham J quashed a warrant but made no order for the return of items then being used for the purpose of a prosecution. Young J himself in Rowell v Larter refused to order return of goods invalidly seized relying, inter alia, on the judgment of Burchett J at first instance in Parker v Churchill (1985) 63 ALR 326. In that case Burchett J was of the view that Ghani v Jones was authority for the proposition that the police were justified in holding articles for the purposes of a prosecution notwithstanding that they had been illegally obtained. It is not clear whether his Honour reached this conclusion as a matter of discretion as Hope J had done in Marinko v Rames, (unreported SCNSW, Hope J, 13 August 1971) cited by Burchett J at 342, or on the basis of a legal principle that there was no right of recovery of illegally seized articles until the conclusion of criminal proceedings, a view taken in Canada, see Re Purdy v R (1972) 28 DLR (3d) 720. The Full Court on appeal (Parker v Churchill (1986) 9 FCR 334) left the matter open.
In Gollan v Nugent (1988) 166 CLR 18 the joint judgment of Deane, Dawson, Toohey and Gaudron JJ at 44-5 indicated that the need for articles seized to be used in evidence in a prospective trial provided a legitimate ground for retention of the goods by the police and thus a defence to an action in detinue for the recovery of them. In support of this proposition their Honours cite Malone v Metropolitan Police Commissioner [1980] 1 QB 49.
In Malone the police, acting under a search warrant, had seized bank notes in various currencies and the movement of a clock subsequently identified as having been stolen. The plaintiff claimed the return of these items alleging that they were wrongly in the possession of the police who had refused to return them. The police defended the claim on the ground that the items were to be used as evidence in a prosecution. Roskill LJ, with whose views Stephenson LJ on this point agreed, was of the view that the police were entitled to retain the money until the conclusion of the criminal proceedings. It might be noted, however, that the original seizure was valid although, a reasonable time having passed since the seizure, the police would, but for the prosecution, have been ordered to return the money.
Challenge Plastics was not followed by Studdert J of the Supreme Court of New South Wales in Tye v The Commissioner of Police (1995) 84 A Crim R 147. Finally, it may be remarked that Nathan J in Ozzie Discount Software (Aust) Pty Ltd v Muling (1996) 86 A Crim R 397 at 397, in passing, expressed the view that subsisting criminal proceedings, or the certainty that such proceedings would be initiated, would provide justification for refusing to order the return of goods illegally seized.
I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice. Should the Court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated.
Of course, the question whether the items in the present case, if otherwise admissible, should be admitted in evidence in the pending prosecution, despite the fact that they were obtained without lawful authority, will be a matter for the judicial officer hearing the prosecution: Bunning v Cross (1978) 141 CLR 54. The existence of this discretion suggests to me that I should not interfere with the pending prosecution by requiring the documents seized to be returned but leave instead to the judicial officer presiding on that prosecution the question whether the material illegally obtained should be admitted into evidence in the prosecution.
I will make declarations that each of the March warrants was invalid and that the April warrants were valid. I will further declare that no items were seized at the Parson Street premises pursuant to the April warrant relating to those premises. I will make no order for the return of any item at this stage. However it should be clear to the respondents that all items not required for the prosecution should be returned and those required for the prosecution should be returned in a reasonable time after the prosecution is completed. I will not, for the reasons given, grant injunctive relief as sought by the applicants. I direct the Australian Government Solicitor to prepare and file short minutes of order to give effect to these reasons and will list the matter on a date convenient to the parties to hear any argument as to the form of declarations to be made. I will then hear short argument as to costs.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill
Associate:
Dated: 28 August 1997
Counsel for the Applicant: D H Godwin Solicitor for the Applicant: A P Sparke & Broad Counsel for the Respondent: G T Johnson and R J Bromwich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 - 19 August 1997 Date of Judgment: 27 August 1997
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