QUESTION of LAW RESERVED (NO.1 of 1998) No. SCCRM-98-17 Judgment No. S6634

[1998] SASC 6634

QUESTION OF LAW RESERVED (No.1 of 1998)

Court of Criminal Appeal:  Doyle CJ, Cox and Matheson JJ

DOYLE CJ

The case stated

A judge of this Court has reserved two questions for consideration and determination by the Full Court.

The questions are reserved under s350(1) of the Criminal Law Consolidation Act ("the Act"). They are reserved pursuant to an order made by the Full Court, acting under s350(2)(a) of the Act.

The questions reserved relate to a decision made by the judge to exclude certain evidence that the prosecution proposed to tender upon the trial of four persons upon 64 counts alleging abuse of public office. Some of the counts allege offences at common law, some allege offences under s251 of the Act.

The judge dealt with the admissibility of the relevant evidence before a jury was empanelled. Power to do that is given by s285A of the Act.

The judge heard evidence, made findings of fact, and ruled that a large body of documentary evidence would be excluded from evidence at the trial.  That ruling was made on 21 May 1997.

In a ruling delivered on 29 July 1997, the judge declined to state a case to the Full Court.

Since then, the Full Court has held that it has power to require the judge to state a case, the power being found in s350 of the Act: see Application for Reservation of Question of Law (unreported, Full Court, Judgment Number S6420). Subsequently, in another ruling, the Full Court held that the judge should be required to state a case: Application for Reservation of Questions of Law (No.2) (unreported, Full Court, Judgment Number S6496). It is that case that is now before the Court.

The questions reserved are as follows:

1. Is the Bunning v Cross discretion to exclude evidence on public policy grounds applicable to exclude evidence not on the basis that the evidence was improperly or unlawfully obtained, but on the basis of conduct by the police and/or civilian witnesses presenting a false story either in a declaration to the court or in giving evidence?

1. Can the seizure of documents pursuant to a search warrant, which documents are not the subject of legal professional privilege, be rendered unlawful because the police officer seizing the documents did not address the issue of whether legal professional privilege might exist?"

The facts and the judge’s findings

I propose to state the facts quite briefly.  I draw upon the reasons published by the judge.  The Court is not able to review the findings made by the judge.  The findings provide the setting in which the questions are to be considered.

The police were investigating the possible commission of the offence of abuse of public office.  The police suspected that three of the accused, who were police officers at the relevant time, had passed to the fourth accused, Mr Carbone, confidential information from police records.  At the time Mr Carbone was a private investigator.  The police suspected that Mr Carbone paid the other accused for this information.

In 1992, Mr Carbone had sold his business as a private investigator to Mr Renko.  As part of the sale, Mr Carbone gave Mr Renko possession of a large number of files containing documents relating to the business conducted by Mr Carbone.  The files contained documents used by Mr Carbone in the course of his business.  These are the files to which I will refer hereafter.

There was some conversation between various police officers and Mr Renko about the manner in which Mr Carbone had conducted the business, and some reference was made to files.

On 20 February 1995 Detective Tank and Detective Strange went with Mr Renko to Mr Renko’s father’s house.  The detectives took possession of 77 boxes of files.  On 24 February 1995 Detectives Peak and Strange went to Mr Renko’s office and, after some further discussion with him, took possession of a further 48 boxes of files.

Before the judge, there was a dispute as to whether the files were handed over voluntarily by Mr Renko, or whether they were seized under a general search warrant held by one of the detectives. As to general search warrants, see s67 of the Summary Offences Act. The warrant was not tendered in evidence. The form of a general search warrant must be that set out in a Schedule to the Summary Offences Act: s67(2). The form is as follows:

"You are hereby authorised at any time in the day or night, with such assistants as you think necessary, to inter into and search any house, building, premises or place where you have reasonable cause to suspect that-

(a)     an offence has been recently committed, or is about to be committed; or

(b)     there are any goods obtained by an offence; or

(c)     there is anything which may afford evidence as to the commission of an offence; or

(d)     there is anything which may be intended to be used for the purpose of committing an offence,

and to break open the house, building, premises or place and to break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which you have reasonable cause to suspect that-

(e)     there are any goods obtained by an offence; or

(f)     there is anything which may afford evidence as to the commission of an offence; or

(g)     there is anything which may be intended to be used for the purpose of committing an offence,

and to seize any such goods or things, to be dealt with according to law.  This warrant remains in force for six months from its date. [If for a shorter period state how long.]"

The judge found that Mr Renko was aware that Mr Carbone’s files contained material that clients of Mr Carbone would have regarded as confidential.  Those clients seem to have been, mainly, solicitors and insurance companies.  The judge found that Mr Carbone had expressed some concern about release of the information without the consent of the client: reasons p28.  The judge found that Mr Renko was concerned about the effect of a breach of confidentiality upon his business: reasons p29.  There had been some dispute between Mr Renko and Mr Carbone relating to the sale of the business, and a Deed of Compromise between them contained an undertaking by Mr Renko not to disclose confidential material contained in the files: reasons p27.  The judge also found that Mr Renko ".... was aware of the possibility of privilege attaching to some at least of these files": reasons p31.

It was common ground that at some stage, before the files were handed over, a general search warrant was produced by one of the detectives: reasons p33.  Detective Tank gave evidence to the judge that this related to any problems that Mr Renko might have with Mr Carbone.  The warrant was not produced to get possession of the files, but so that Mr Renko could tell Mr Carbone that the files were taken under the warrant.  Detective Strange gave a similar explanation: reasons p18.  Later findings by the judge indicate that this evidence was rejected.

In accordance with the usual practice, sworn declarations in the name of Detective Tank, Detective Strange and Mr Renko, were filed before the trial of the four accused began.  It appears that Detective Tank prepared the declarations: reasons p33.  The judge found that the declarations were expressed in a manner that suggested that the warrant had been used to seize the files.  If the files had in fact been handed over voluntarily, then, the judge appeared to find (reasons p33) that:

"The inference to be drawn from the declarations is that they [the detectives and Mr Renko] collaborated in their declarations to present an untrue statement to the Court with the intention of concealing what occurred when they took possession of the files."

However, the judge found that "probably what occurred" (reasons p34) was that the files were seized under the warrant.

The judge rejected evidence given on the voir dire by the detectives to the effect that the warrant was not executed in order to obtain possession of the files.  Evidence to that effect was given by Detective Tank and by Detective Strange.  It is relevant to mention that the judge was "left with considerable doubts about the reliability of each of them": reasons p32.  Some of their evidence was rejected in terms.

As the judge saw it, the prosecution case faced something of a dilemma.  One possibility was that the warrant was not used to obtain the files, but then the declarations suggested a "joint agreement to present a false statement to the Court": reasons p34.  Alternatively, the warrant was used, in which event the judge had found to be false the evidence that it was not used.  The judge said (reasons p34):

"On either scenario I am confronted by a situation in which I am forced to conclude that senior police officers have sought to mislead the Court as to the circumstances in which they obtained these files, which, in my opinion, is conduct of the most serious kind."

There was another aspect to the voir dire hearing before the judge.

I have already referred to the finding that Mr Renko was aware that Mr Carbone’s files contained confidential material, and that some of the files might be subject to a claim of legal professional privilege.

The judge went no further than to allude to the possibility of such a claim.  Moreover, there is a specific finding (reasons p30) that:

"Neither Renko nor anyone else has ever claimed privilege with respect to these files."

The judge found that Mr Renko should have made a claim of privilege "... attaching to some at least of these files": reasons p31.

The judge found that Detectives Tank and Strange were aware of their obligations, in executing a search warrant, in relation to a possible claim of legal professional privilege: reasons p34.  The judge also appears to have found that the detectives knew that the files were in the name of solicitors and insurance companies, and knew enough about them to be aware of the possibility of a claim of legal professional privilege: reasons p31.

The judge seems to have taken the view that it did not matter whether the failure to advert to a possible claim of privilege, and the failure by the detectives to take some steps to ascertain whether a claim was to be made and could be supported, was deliberate or not.  The judge said (reasons p34):

"The execution of a general search warrant is however a serious matter.  It requires those who use it to behave in a conscientious and trustworthy manner.  Tank and Strange were clearly aware of their obligations thereunder.  Perhaps in their enthusiasm to be obtaining ‘real evidence’ at last, they inadvertently, or deliberately, failed to have regard to their obligations under the warrant.  It is, however, inappropriate to speculate about that matter.  If they executed the warrant and failed to comply with their obligations thereunder, then the seizure of the files was unlawful."

The judge did not say just what the detectives should have done, but did not do.

The judge considered the exercise of the discretion which is identified with the principles established by the High Court in Bunning v Cross (1978) 141 CLR 54. As I said earlier, on the judge’s approach the prosecution was in something of a dilemma. Either the declarations were deliberately prepared to create a false impression that the files were seized in execution of the warrant, or the evidence of the detectives and Mr Renko before the judge that the warrants were not used was deliberately false. In that context, having referred to the decided cases, the judge said (reasons p41):

"... I am confronted with a situation in which senior police officers attached to the very section of the police which is required to protect the community from corruption, have joined together with Renko, a civilian witness, to present a false story to the Court.  To overlook such serious conduct on the part of the investigating authorities would be to bring the Court into disrepute."

The judge went on to rule that the evidence should be excluded.

The decision to exclude the evidence was based upon the improper conduct of the detectives in agreeing with Mr Renko to give false evidence.  It was not based upon the failure to allow a proper opportunity for legal professional privilege to be claimed.  Earlier in the judgment (reasons p30) the judge said that it was unnecessary and inappropriate to decide if the files were privileged.  The judge then said:

"On the facts, the question of legal professional privilege only arises in this case as a matter incidental to the principal issue for determination, that is, the circumstances in which the files came into the possession of the police.  Although the evidence of Mr Hastings establishes that a large number of the files (at least those admitted in evidence) were in the names of solicitors, there has not been any analysis of them such as occurred in Police & Ors v Carbone (Full Court, 26 March 1997, judgment number S6088, unreported)."

I can find no indication that the judge found that, before the files were taken, the detectives and Mr Renko agreed to give false evidence.  Clearly enough, on their own evidence, the detectives suggested that Renko tell a lie to Mr Carbone if Mr Carbone complained about the fact that the police had got the files from Mr Renko.  But, on the version of events that the judge regarded as the most probable one, the warrant had been used to seize the files.  It makes no sense at all to suggest that, before using the warrant to seize the files, the detectives would have agreed with Renko that should the issue ever arise they would all deny that the warrant had been used.

I am unable to accept the submission, advanced by counsel for the accused before us, that the judge so found, or that such a conclusion is consistent with what the judge so found.  Nor does it make sense to suggest that, if the files were to be taken without reliance upon the warrant, an agreement was made before doing so to give false evidence later on that the warrant was used.  Nor, as I read the findings did the judge find that before the files were seized the detectives and Mr Renko agreed to give whatever false evidence might be required to deal with any problems that might arise later.

In my opinion, the judge’s findings suggest strongly that the judge concluded that, after the declarations were filed, there was an attempt by the police and Renko to deny the use of the warrant.

The issues

The questions are set out above.

On the judge’s findings, the first issue is whether the giving of deliberately false evidence about the use of the general search warrant, by the two detectives directly involved in taking possession of the files, gave rise to a discretion to exclude the evidence gained by the taking of the files.  In my opinion this question is to be considered on the basis that any arrangement to give false evidence was made after possession was taken of the files.

The matter is to be considered on the basis that while it was probably the oral evidence before the judge that was false, if that was not false then the declarations filed in advance of the hearing were false.

The second issue, on the judge’s findings, is whether the failure by the detectives to advert to the possibility of a claim to legal professional privilege, and the failure to take any action to facilitate the making of such a claim before the files were inspected, means that the seizure was unlawful.  This issue has to be considered bearing in mind that no claim of legal professional privilege has been made in respect of any of the documents.

Question One

A Court conducting a criminal trial has a discretion to exclude evidence, tendered by the prosecution, on grounds based upon a consideration of public policy. The existence of that discretion has been recognised for some time. It is often traced back to the High Court decision in R v Ireland (1970) 126 CLR 321 especially at 334-5. The judgment of Stephen J and Aickin J in Bunning v Cross (1978) 141 CLR 54 has been regarded as stating the relevant principles authoritatively.

The nature and scope of the discretion has been considered in some detail by the High Court in recent times. I refer to Ridgeway v The Queen (1995) 184 CLR 19, The Queen v Swaffield (1998) 72 ALJR 339; 151 ALR 98; and Nicholas v The Queen (1998) 72 ALJR 456; 151 ALR 312.

There is no doubt that, in the exercise of that discretion, a court can exclude evidence other than confessional evidence.

It is equally clear, in my opinion, that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct.  The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining "curial advantage" by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case.  When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrong doing, and would give the appearance of approving of the relevant illegality or impropriety.  Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences.

Authority for what I have said is to be found in the manner in which the discretion is described, and the explanation given for its existence and exercise. I refer in particular to Bunning v Cross (1978) 141 CLR 54 at 74-75 and 77-78, Stephen and Aickin JJ; to Ridgeway v The Queen (1995) 184 CLR 19 at 30-32 Mason CJ, Deane and Dawson JJ, 48-49 Brennan J, 56 Toohey J, 74 Gaudron J and 82-83 McHugh J; Nicholas v The Queen (supra) at [32]-[35] Brennan CJ.

If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise.  It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence.

The discretion is a broad one.  It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: Ridgeway (supra) at 30-32 Mason CJ, Deane and Dawson JJ.  An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities; Ridgeway (supra) at 32, The Queen v Swaffield (supra) at [22] Brennan CJ.

But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law.  The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct.  To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law.  That is not the responsibility of the courts.  Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:

"A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it.  As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged."

In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.

As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration.  It arises then because allowing the use of the evidence, obtained in this fashion, may appear to condone illegal or improper conduct, and may compromise the court’s commitment to the upholding of the law.

If the evidence in question in the present case, the files seized from Mr Renko, was not obtained by unlawful or improper means, the fact that Detectives Tank and Strange and Mr Renko later gave deliberately false evidence about the circumstances in which the files were seized, gives no occasion for the exercise of this discretion.  If that is what happened, the deliberately false evidence was given after the evidence was obtained.  In saying that I am assuming, for present purposes, that the files were not seized under an arrangement which involved the later giving of deliberately false evidence.  In the circumstances now under consideration, the exposure of the false evidence given later is sufficient.  By allowing the use of the seized material the court does not condone the giving of the false evidence, nor allow any advantage to be gained by it, because the files were not obtained as a result of the giving of false evidence, nor as the result of an agreement made before the files were seized for the giving of such evidence.  The exposure of the false evidence is all that need be done.

For that brief but fundamental reason, lies told in evidence by Detective Tank, Detective Strange and Mr Renko cannot, of themselves, give rise to a discretion to exclude evidence obtained from the files seized from Mr Renko.

The position might be different if the false evidence referred to exposed an agreement or arrangement, as a result of which the files were seized, and the agreement or arrangement involved the later giving of false evidence about the circumstances under which the files were seized.

However, in my opinion that can be put to one side.  It can be put to one side because, as I observed earlier, in my opinion the findings of the judge do not suggest that when the files were seized an arrangement had already been made for the giving of false evidence.  Granted, the judge found that if the files were seized under the warrant, Detectives Tank and Strange and Mr Renko had "together concocted a false story to present to the court": reasons p34.  But there is nothing in the judge’s reasons to suggest that that concoction took place before the files were seized.  Likewise, on the alternative hypothesis that the warrant was not used, the finding (reasons p34) that there had "been joint agreement to present a false statement to the court" appears to relate to an agreement made after the files were seized, and probably when the declarations were being prepared.

Counsel for the accused submitted that the false evidence given by Detectives Tank and Strange, and by Mr Renko, was given to support the prosecution case in support of the admissibility of the evidence contained in the seized files.  Counsel then submitted that this was an attempt to gain a forensic advantage by improper means, and that unless the court excluded the evidence it would allow an advantage to be gained by improper means, or would allow its processes to be demeaned.

I do not accept that submission.  I have already explained my reasons for not accepting it.

An alternative submission was that it was possible that the files had been obtained by illegality or impropriety, that the false evidence made it difficult for the court to determine the truth of the matter, and that the court should exclude the relevant evidence because the concocted evidence made it impossible to determine that the files were not obtained by illegality or impropriety.  In my opinion there are two answers to that submission.  First, that the judge’s findings indicate an agreement, to give false evidence, made at some time after the seizing of the documents.  Secondly, that evidence is to be excluded only if the court is satisfied that it was obtained by illegality or impropriety.  A possibility of that having happened is not enough.

I would answer question one as follows:

If documentary evidence is obtained by members of the police force, by voluntary surrender or using powers of seizure conferred by a general search warrant under the Summary Offences Act, for use in connection with a prosecution, and that documentary evidence is later tendered as part of the case for the prosecution on a trial of criminal charges, a discretion to exclude the evidence in accordance with the principles enunciated in Bunning v Cross does not arise merely because, after obtaining possession of the documentary evidence, the police officers who obtained the documentary evidence make an arrangement for giving, and do give, false evidence about the circumstances under which they obtained possession of the documents.

Question Two

It was not suggested that a general search warrant authorises the seizure of documents the subject of a valid claim to legal professional privilege.  The seizure of such a document would be beyond the power conferred by the warrant.

I accept, having regard to the findings made by the judge, that it is possible that a valid claim to legal professional privilege could have been made in respect of some of the files seized by the detectives.

If such a claim had been made, and had not been accepted by the detectives, it would have been necessary for steps to be taken for the dispute to be brought before a court to be resolved.  Proceedings by way of judicial review, or seeking a declaration or injunction, are a convenient way to do that.  I would have expected the police to so exercise their powers as to permit the matter to be brought before the court.

I accept that a police officer, executing a general search warrant, should allow the person in possession of the objects the subject of search and seizure a reasonable opportunity to make a claim to legal professional privilege: see Arno v Forsyth (1986) 65 ALR 125 at 129 Fox J: Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588 at 598-599 Bowen CJ and Fisher J, at 618-619 French J. I will return to the meaning of "should" in that proposition.

There are, as is obvious, a number of practical problems that surround what I have just said.  It is not for this Court in this case to resolve them.

I also accept that a police officer should allow an adequate opportunity to make a claim to privilege when the circumstances of the search and intended seizure are such that the police officer exercising the relevant powers should reasonably anticipate that a claim might be made.  In other words, the obligation is to allow an adequate opportunity for the claim to be made, and not just to respond reasonably to a claim when made.  An obvious illustration is a search of a solicitor’s office, the solicitor being absent.  Another illustration is a seizure of documents, not from a solicitor, the documents on their face suggesting that they might well be subject to legal professional privilege.  It would not be sufficient for the police officers to say that in such a case no claim to privilege was made, and to argue that accordingly they were free to act as if no claim could be made.

Once again, precisely what should be done in a case like this does not fall to be decided here.

The seizure of a document the subject of legal professional privilege is beyond the power conferred by a general search warrant.  That necessarily follows from the fact that a general search warrant does not authorise the seizure of such a document.

A person to whom a document the subject of legal professional privilege is disclosed, is not precluded from giving evidence of the contents of the communication, despite the legal professional privilege attaching to the document.  This is so, even though the disclosure of the communication may have been due to inadvertence or to a wrongful act.  I consider that this is the law of Australia, although equitable or other relief might be granted in particular circumstances to prevent the use of information protected by legal professional privilege: see Cross on Evidence (Austn Ed), par[25025].

However, if the prosecution tenders a privileged document that was wrongfully obtained, and objection is taken to its tender, the court has power to exclude the document from evidence in the exercise of the discretion referred to by me in answering question 1.  The court has power, on the same basis, to prevent the use of information derived from a privileged document that has been wrongfully seized.  The basis for the exercise of the discretion lies in the fact that the evidence was obtained unlawfully and improperly.

In my view, exclusion of the document from evidence would not follow as a matter of course.  The wrongful seizure of a privileged document gives rise to a discretion, and in exercising that discretion the court must weigh up the competing public interests.

If the privileged document was seized under a general search warrant, and the person who seized the document failed to allow a proper opportunity for a claim of legal professional privilege to be made, that would be a matter to be taken into account in the exercise of the discretion.  So would the disregard, by the person seizing a document, of indications, from the nature of the document or from the place in which it was seized, that the document might be privileged and that enquiry should be directed to a person other than the person from whom the document is seized.  Each of these matters, if established, would be matters supporting the exclusion of the document from evidence.  They would do so because they would indicate an indifference to or disregard of important legal rights, and that is relevant to the exercise of the discretion.  On the other hand, the fact that all reasonable precautions were taken, but that nevertheless it later turned out that a document that was privileged had been seized, might support a decision to admit the document into evidence notwithstanding its privileged nature.  The discretion which a court exercises is capable of taking account of all relevant circumstances.

But in the present case the submission for the accused went further than that.

It was submitted that the failure, by a person seizing a document under a general search warrant, to allow an adequate opportunity for the making of a claim of legal professional privilege in respect of the document, means that the seizure is unlawful, whether or not the document seized is the subject of legal professional privilege.  In other words, the submission was that not only does a general search warrant not authorise the seizure of a privileged document, but that the power conferred by a general search warrant is a power which is validly exercised only if it is exercised in a manner that allows a reasonable or realistic opportunity for the assertion and testing of claims of legal professional privilege.  On that basis it was argued that, in the present case, the judge’s finding that the detectives failed to have regard to their obligations under the warrant meant that the seizure of documents was unlawful, even if none of the documents seized were the subject of legal professional privilege.

Put this way it can be seen that allowing the person in possession of documents a reasonable opportunity to make a claim to legal professional privilege is not merely a matter of sound practice or prudence, but a limitation upon the power to search and seize which, if not observed, means that the power is not validly exercised.  Failure to allow a reasonable opportunity to make a claim to legal professional privilege is no longer just a matter to take into account, in the exercise of the Bunning v Cross discretion, if a privileged document is seized.  It is a matter that renders the seizure of any document unlawful, and a matter that itself enlivens the discretion to exclude the document from evidence.

The proposition appears to me to be a far reaching one.  I can think of no reason why it should be limited to the seizure of documents which might be the subject of legal professional privilege.  It is not necessary to decide that, but the possibility must be admitted.  If the submission is correct, it means that whatever the context of the search, be it in relation to a drug offence, or in relation to stolen property or in relation to a fraudulent conspiracy, on every occasion consideration must be given in advance to the possibility that any documents to be seized might be the subject of legal professional privilege.  While the approach to be taken to a search of a solicitor’s office on the one hand, and some other place on the other hand, would of course differ, in each case it would still be necessary to give appropriate consideration to the possibility that privileged documents will be encountered.

Support for the proposition advanced by counsel for the accused is to be found in the decision of the Full Court of the Federal Court in Federal Commissioner of Taxation v Citibank (1989) 85 ALR 588. In that case officers of the Taxation Office entered the premises of Citibank, a large bank with offices in Sydney, and searched for documents that were relevant to an investigation of tax avoidance arrangements. It was thought that documents held by Citibank, relating to the taxation affairs of various companies involved in the tax avoidance arrangements, were relevant to the investigation being undertaken. The entry and search was made in the exercise of powers conferred by s263 of the Income Tax Assessment Act. That section confers a power to have access to buildings and places and to make extracts from or copies of documents. It is a power which authorises search and seizure.

Citibank challenged the search and seizure under the Administrative Decisions (Judicial Review) Act, 1977(Cth). A judge of the Federal Court declared that the relevant authorisations under s263 were invalid for want of adequate particularity as to the places to be entered, as to the documents to be searched for and copied, and because of certain other matters. That decision was overturned on appeal.

However, the court upheld a declaration made by the judge that the decision to enter upon the premises of Citibank and to remain thereon was an improper exercise of the powers conferred by s263.  The court also upheld a declaration that the decision to make extracts from or take copies of documents was an improper exercise of the same powers, and upheld an order that all of the seized material be returned to Citibank.  Thus, the court held that the power to enter and search and to take copies was not validly exercised.

The single judge made a finding of fact, that was not overturned on appeal, that the manner in which the search was conducted, and the actual conduct of the search, was such that it effectively denied to Citibank the opportunity to make adequate claims for legal professional privilege in relation to documents of its clients: see Citibank v Federal Commissioner of Taxation (1988) 83 ALR 144 at 166-167 Lockhart J; FCT v Citibank at 595 Bowen CJ and Fisher J. It is not necessary to go into the facts upon which that finding is based.

The Full Court proceeded upon the basis that s263 did not authorise the seizure of documents the subject of legal professional privilege.  Both the single judge and the Full Court also proceeded upon the basis that, while it was likely that some documents in the possession of Citibank would be the subject of legal professional privilege, no documents had in fact been determined to be the subject of such privilege.  The Full Court rejected a submission that the officer responsible for the search made adequate arrangements for claims of privilege to be considered, Bowen CJ and Fisher J said (at 598):

"It was not sufficient for him [the officer] to give consideration only to the question whether a claim made for privilege was justified.  He was obliged to ensure that Citibank and in particular its staff had, in the circumstances, an adequate opportunity to make claims of privilege."

They went on to say that the manner in which the search was conducted did not allow that adequate opportunity. On that basis, while setting aside declarations that the relevant authorities were invalid, they upheld the declarations and orders referred to above. The precise basis upon which that reasoning rests is not clear to me. In the judgment under appeal (83 ALR 144 at 154-155) Lockhart J appears to have proceeded upon the basis that:

"All statutory powers must, in the absence of specific statutory provision to the contrary, be exercised reasonably and for the purpose for which they are given."

He appears to have reasoned that, because of the substantial intrusion upon private rights involved in the exercise of powers under s263, the construction of the power required that it be read as authorising only a search in the course of which adequate opportunity was given for the making of claims of legal professional privilege. My impression is that, in the Full Court, Bowen CJ and Fisher J took the same approach: see, for example, 85 ALR 588 at 594. French J, in a separate judgment, agreed with the majority. His reasoning appears from the following passage (85 ALR 588 at 618):

"The rights or powers conferred by s263 are therefore limited to the extent that they will not authorise access to or copying of books, documents or papers which attract the common law privilege.  Where no practical or realistic opportunity is provided for the assertion and testing of claims of legal professional privilege, then the purported exercise of the right of access travels beyond that limit and is beyond power.  What arrangements will answer the minimum requirement for a practical and realistic opportunity to assert claims of privilege will depend upon the circumstances of the particular case."

As I understand the decision of the Full Court, and indeed of the single judge, they do not rest upon a finding that the powers conferred by s263 were exercised for the purpose of defeating a possible claim of privilege, or with the intention of defeating such a claim.  An exercise of the power with such an ulterior object can, without much difficulty, be seen as going beyond the power conferred.  But, as I understand the decision in Citibank, it rests upon a conclusion that the failure to allow an adequate opportunity for the making of claims of privilege invalidated the exercise of the power.

And, as I have already mentioned, the consequence was that the entry upon the premises was beyond power and so was the seizure of documents.  The orders of the court were not confined to documents the subject of legal professional privilege.  Nor, indeed, was there a finding that any documents seized were in fact subject to legal professional privilege.

I accept, of course, that a statutory power must be exercised for the purpose for which the power is conferred, and that an exercise for an extraneous purpose will take the exercise beyond power.  I have already indicated that.  I also accept, as is well established by the cases, that an exercise of a power of search will fail if a statutory condition, such as reasonable cause to suspect some matter, is absent.  I also accept that the exercise of a statutory power can be reviewed on the ground of its unreasonableness, in certain circumstances: see Aronson & Dyer, Judicial Review of Administrative Action (LBC Information Services 1996) p361 and following.  In that context, "unreasonableness" is encountered in two different senses.  The first sense embraces matters such as having regard to extraneous considerations, or acting upon an improper purpose.  The second sense refers to decisions that are, to put it loosely, decisions that no reasonable person could have reached.  But, as far as I am aware, whatever scope there might be for judicial review on the grounds of unreasonableness in that latter sense, the Courts of Australia have not yet taken the view that a statutory power is invalid unless exercised in a manner that is objectively reasonable, having regard to the limits upon the power being exercised.

To require, as a condition of validity, that a statutory power be exercised in a manner that the court regards as reasonable, having regard to the scope of the power, is a far reaching proposition.  It may be that the point has not attracted much attention to date because powers of search and seizure are usually expressed in terms of the existence of a reasonable cause on the part of the searching officer to suspect some state of affairs.  The problem arises because the exclusion of privileged documents from the power to search and seize is absolute.  It is unconditional.

The approach taken by the Full Court in Citibank is consistent with the approach taken in earlier decisions by the Full Court of that Court.

Crowley v Murphy (1981) 52 FLR 123 was decided before Baker v Campbell (1983) 153 CLR 52. The Full Court held that legal professional privilege did not provide a ground to refuse access to documents seized under the search warrant issued under s10 of the Crimes Act (Cth). On that point, the decision is no longer good law.

Perhaps influenced by its conclusion that privileged documents could be seized, the court considered the extent of the search authorised by the warrant.  The search in question was conducted at a solicitor’s office.  The issue was whether those exercising the power to search were entitled to inspect any and all of the documents at the office in the search for relevant documents.  As to that, Franki J said (at 129):

"The section authorizes entry ‘if necessary by force’ but, although the use of force is mentioned specifically, the section must be strictly construed because it interferes with a previously existing common law right. I need only refer to Maxwell on The Interpretation of Statutes (12 ed., 1969), where it is said at p.116: ‘Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question.’

As an illustration, if it is reasonable to gain access to a house when all the doors are locked, a warrant issued under the section would not appear ordinarily to justify blowing up a part of the house with an explosive or destroying a part of it with a bulldozer although it would usually justify the use of such force as is reasonably necessary to break open a door to gain access to the premises.  Since the nature of the search is not dealt with by the words of the section but arises by implication, I am clearly of the opinion that the only search which could be made pursuant to the warrant in this case is a search which is reasonable in the circumstances.  I regard this conclusion as the critical factor in the determination of this appeal.

The search authorized under the warrant therefore does not extend beyond that which is reasonably necessary to ascertain what ‘books, records, cheque butts, deposit slips and other documents in relation to the said transactions’ were upon the premises."

Later (at 132) he said:

"The task of a person seeking to show that more than a reasonable search is being sought will never be easy.  I reiterate that what is a reasonable search depends on the particular circumstances existing at the moment when objection is taken to the search being made."

The first of these passages, in particular, demonstrates the origin of the concept of a reasonable search.  Northrop J (at 137) said:

"The searcher is authorised to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances he has whatever documents are necessary to answer the terms of the warrant."

Lockhart J, after considering the obligations imposed upon a person who issues a search warrant, then considered the obligations of the searcher.  He said (at 144):

"The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant.  Plainly this must vary from case to case.  What is permissible on one occasion is impermissible on another.  Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched.  Limits on the search may be imposed by the justice issuing the warrant; but, in the end, it is for the courts to supervise the exercise of the power, subject to any relevant legislation."

He went on to reject a submission that the searcher was entitled to search every file, even those relating to the affairs of clients not mentioned in the warrant, in case a file might contain a relevant document.  He concluded (at 158):

"It is therefore not surprising that search warrants are frequently framed in rather general and wide terms.  But that very generality in width calls for particular care on the part of the policeman executing the warrant to ensure that the liberty of the subject and inviolability of his premises are interfered with only so far as is necessary to give effect to the warrant.  It calls also for vigilance from the courts to firmly restrain abuses of the exercise of the powers of entry, search and seizure.  The courts must balance the necessity, in appropriate cases, for entry into a person’s premises against the freedom he enjoys there."

Arno v Forsyth (1986) 65 ALR 125 was decided after Baker v Campbell (supra). The warrant in question was held to be void for uncertainty, but the court considered the nature of the search that was authorised. Fox J held that a warrant was not invalid because, on its face, it authorised the seizure of documents that might turn out to be privileged. He said that questions of privilege fell to be decided when a warrant is executed. As to the scope of the search, he said (at 129):

"There is an existing requirement that the execution of a warrant be carried out ‘reasonably’.  This requirement should take full account of the factors concerning the possibility of documents being the subject of legal professional privilege."

Lockhart J took the view that the justice who issues a warrant must address the procedures to be adopted to protect privilege documents.  That view has not been accepted in later cases.  He did not have to deal with the exercise of the power to search, but early in his judgment (at 136) he said:

"Sometimes the privilege question will be raised at the stage of execution of a search warrant rather than at the time of its issue.  A search must be conducted reasonably in order to be lawful and the requirement of reasonableness has infinitely variable application."

Jackson J did not find it necessary to comment upon the exercise of the power to search.

In the judgments in each of these cases can be found the notion that a statutory power to search and seize, expressed in general terms, authorises only such a search as is reasonable in all of the circumstances.  The cases illustrate the difficulty that the courts have had in deciding what is reasonable.

I agree that the statutory powers of search and seizure are to be construed narrowly, because they involve an intrusion upon common law rights that are regarded as basic or fundamental individual rights.  To be more specific, they are to be construed as not authorising an interference with those rights beyond what is stated expressly, or beyond what follows by necessary implication.  I respectfully agree with what Franki J said on this in Crowley v Murphy (supra).

The warrant in question authorises entry, search, and seizure.  In each case, the use of force is authorised expressly or by necessary implication.  Parliament has not said, expressly or by implication, how the entry, search, or seizure are to be effected.  It could not have intended that the person executing the warrant be free to act as he or she sees fit. The illustration given by Franki J (supra) is a telling one.

I agree that the power to enter is to be read as a power to enter using such force as could reasonably be considered to be necessary.  The same applies to the power to search and to seize.  I agree also that the extent of the search and seizure that can be effected is subject to a limitation.  The search that is authorised is a search to the extent that could reasonably be regarded as necessary to locate the items searched for.  The power of seizure is similarly limited.  It follows that I agree in substance with what was said by the Full Court in Crowley v Murphy.

But, in my respectful opinion, it does not follow that every aspect of the entry, search and seizure is subject to a requirement, limiting the validity of the search, that the power be exercised reasonably.  The principle of statutory interpretation, to which Franki J referred, limits the scope of the relevant intrusion upon a common law right.  The intrusion is entry, search and seizure, using force if necessary.  Other aspects of the exercise of the power, such as the time chosen for the exercise of the power, the demeanour of the searchers, and so on, are not for the courts to control.

In other words, the relevant principle is not, in my respectful opinion, that the powers conferred by a general search warrant must be exercised reasonably because they interfere with common law rights.  The principle is that the force used to effect the authorised entry and search and seizure must be reasonable, as must the extent of the search and of the seizure.

It follows, in my respectful opinion, that there is no principle that powers under a general search warrant are exercised unlawfully and ineffectively merely because they are not exercised reasonably.  It follows that such a principle cannot be used to support a conclusion that failure to allow a reasonable opportunity for legal professional privilege to be claimed means that the power is exercised invalidly.  To that extent I respectfully disagree with what was said in Citibank.

I would not decline to follow and to apply the reasoning in Citibank were it merely a matter of differing views on the point being open. The interests of consistency of approach, and the respect due to a decision of the Federal Court, require that a decision of the Full Court ordinarily be followed: see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Fraser v Deputy Commissioner of Taxation (1996) 138 ALR 689 at 691; Gye v Davies (1995) 137 ALR 723.

But, in my opinion, there are sound reasons of policy for not limiting in this way the powers conferred by a general search warrant.

An approach that conditions the validity of a search upon the reasonableness of the manner in which the power is exercised will engage the courts in lengthy retrospective scrutiny of the conduct of searches. If validity depends upon the reasonableness of the manner in which the power is exercised, it is not easy to see why matters such as the time of day at which entry is made, the number of persons used to effect entry, the manner in which the search is conducted and so on would not become relevant. It is necessary to bear in mind that search warrants are executed under a wide variety of circumstances. The exercise of powers of search and seizure would, or could, become a legal minefield. As it is, the entitlement to challenge the validity of a search warrant by a collateral attack in the course of a criminal trial can disrupt the orderly management of a trial: see Ousley v The Queen (1997) 71 ALJR 1548 at 1566; 148 ALR 510 at 534 McHugh J. If validity were to depend upon a judicial assessment of the reasonableness of the manner of exercise of the powers, the scope for disruption of trials would be all the greater.

As well, there is the difficulty, illustrated by the cases referred to, of deciding what is a reasonable manner of exercising powers of entry, search and seizure.

The courts must be, and are, careful to protect the rights of individuals.  But they must be careful not to assume powers that they are ill-equipped to exercise.  They must also find a firm basis for a limit placed upon powers apparently conferred by Parliament.  Concern over the scope of a power, and recognition of the desirability of a limit, are not, of themselves, a principled basis for a limitation.

I should say, however, that I do not regard the existing state of the law as satisfactory.  A general search warrant confers a wide power, the availability of which does not depend upon any external scrutiny of the type that occurs when a specific warrant is issued.  The power is wide, as I have said.  The need for law enforcement authorities to have effective powers to deal with crime has not been seen to require such wide powers in other places.

Quite apart from these considerations of policy, there is another reason why the approach taken in  Citibank should not be adopted.  The fact that the relevant statutory power is construed as not authorising the seizure of a document the subject of legal professional privilege itself illustrates the operation of the principle of statutory interpretation referred to by Franki J in Crowley v Murphy.  The common law right to protect a privileged document from disclosure is preserved.  It would be going a step further to hold that a statutory power to search is subject to such limits as might be appropriate to uphold that common law right, or to make its assertion more effective.  The High Court has held that Parliament is not to be taken as intending to authorise the seizure of a privileged document, by conferring a generally expressed power of search and seizure.  That, as I understand the relevant principle of interpretation, exhausts its operation.

Nor, as it seems to me, is it necessary to take the approach taken in Citibank to protect adequately the interests of those who might be entitled to claim legal professional privilege in respect of documents the subject of search and seizure.  The fact that a privileged document may not be lawfully seized under a search warrant means that, in any event, the seizure of such a document gives rise to a discretionary power to exclude the document from evidence in the course of a later trial.  And, as I have already said, in the exercise of that discretion the court can take into account any failure on the part of the authorities to make proper allowance for the possibility of a claim of legal professional privilege.  (I mention, so that it is not overlooked, the power to apply to a court for an injunction or declaration when seizure is threatened or has been effected.)  It might be said that this is not enough.  It might be said that on this approach law enforcement authorities are encouraged to act precipitately, knowing that only if it is in fact established that privileged documents were seized will they run the risk of being deprived of the fruits of their seizure.  The merit of the approach taken in Citibank is that it puts the validity of the search at risk whether or not privileged documents are seized.  In this way it acts as a more effective deterrent to a disregard of the limits upon the scope of a search warrant and a disregard of the rights and interests of those who might be entitled to claim privilege.  I acknowledge the force of that point.  But, as against that, there are the difficulties of the court reviewing the exercise of powers of search and seizure by reference to the reasonableness of the manner of exercise, and there is the incongruity of a court setting aside a seizure when, for all that the court knows, privileged documents may not have been seized.

Of course, these considerations of policy are not determinative.  The ultimate question is whether, as a matter of law, the power in question is limited to a search and seizure that allows a reasonable opportunity for the making of a claim for legal professional privilege.  In my respectful opinion the conclusion to that effect in Citibank is wrong.  I do not consider that there is a general principle that the validity of the exercise of a statutory power depends upon that power being exercised in a manner that a court considers to be reasonable.  Nor am I aware of any general principle that a power of search and seizure, which does not extend to certain items or premises (such as, privileged documents) is validly exercised only if appropriate precautions are taken to ensure that the power is not exercised in relation to an object beyond power.  My view is that the power is exceeded only if the power is in fact exercised so as to enter premises outside the power or to seize an object outside the power.  The policy considerations to which I have referred are relevant only to the question of whether I should follow Citibank, even though I disagree with the reasoning that supports it.

For the reasons indicated, having given careful consideration to the reasoning in Citibank, I am satisfied that this Court should not apply the reasoning in that case.  I respectfully disagree with the reasoning, and consider that the approach in Citibank gives rise to real difficulties in its practical application.  If the decision in Citibank is to be understood as to be resting upon a conclusion that the power to enter and search was exercised with the object of preventing Citibank from claiming legal professional privilege, or from approaching the courts for protection, then I would accept that the exercise of the power is invalid because it is exercised for an improper purpose: cf French J at 606.40 and 619.25.

I would answer question two as follows:

No.  If the documents seized under a search warrant are not in fact protected by legal professional privilege at the time of seizure, a failure, by a police officer who seizes the documents under a warrant, to allow an adequate opportunity for a claim of privilege to be made, will not make the seizure unlawful.  The seizure will be unlawful if the police officer obtains possession of documents that are the subject of privilege at the time at which possession of them is obtained.  If that occurs, the court should, in considering whether to exclude the documents from evidence, take into account the adequacy of the procedures adopted by the police officer to allow a claim of privilege to be made.  In so doing, the court should have regard to the circumstances under which the seizure was made.

COX J

I agree with the answers proposed by the Chief Justice and with his reasons. 

MATHESON J

I agree with the answers proposed by Doyle CJ and with his reasons.