R v Petroulias (No. 5)

[2006] NSWSC 1155

Reported Decision: 217 FLR 334

New South Wales

Supreme Court

CITATION:	R (Cth) v Petroulias (No. 5) [2006] NSWSC 1155
HEARING DATE(S):	27 October 2006
JUDGMENT DATE :	6 November 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Challenge by Accused to validity of warrant dated 27 July 1999 under the Telecommunications (Interception)Act 1979 (Cth) is rejected.
CATCHWORDS:	CRIMINAL LAW - indictment alleging offences under ss.29D, 70 and 73 Crimes Act 1914 (Cth) - Crown seeks to adduce evidence of conversations obtained by warrant under Telecommunications (Interception) Act 1979 (Cth)- Accused contends that warrant is bad on its face - warrant to contain short particulars of offence - whether short particulars disclosed on warrant - meaning of "serious fraud" - held warrant good on its face and valid
LEGISLATION CITED:	Telecommunications (Interception) Act 1979 (Cth) Crimes Act 1914 (Cth)
CASES CITED:	R v Petroulias (No. 1) [2006] NSWSC 788 Ousley v The Queen (1997) 192 CLR 69 NSW Crime Commission v Vuletic (2005) 64 NSWLR 301 Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 R v NZ (2005) 63 NSWLR 628 Meyer v Bright (1993) 110 DLR (4th) 354 Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 Lake v Dobson (Court of Appeal, 19 December 1980) 5 Petty Sessions Review 2221
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr C Hoy (Crown) Mr L Lasry QC; Mr T Wraight (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

6 November 2006

2002/93 Regina v Nikytas Nicholas Petroulias (No. 5)

JUDGMENT (on challenge to validity of warrant dated 27 July 1999 under the Telecommunications (Interception) Act 1979 (Cth) )

1 JOHNSON J: The Crown proposes to adduce evidence of conversations obtained pursuant to warrants issued under the Telecommunications (Interception) Act 1979 (Cth) (“TI Act”) at the trial of the Accused, Nikytas Nicholas Petroulias. In advance of the trial, the Accused contends that one of the warrants under the TI Act is bad on its face and is invalid.

2 The Accused is to stand trial upon an indictment containing the following counts:

(a) Count 1 - Between about 1 September 1997 and 27 February 1999, Nikytas Nicholas Petroulias did defraud the Commonwealth, in that while an officer of the Australian Taxation Office, he did put the revenue of the Commonwealth at risk by causing Private Binding Rulings and Advance Opinions to issue to taxpayers, by dishonest means (s.29D Crimes Act 1914 (Cth) - maximum penalty - 10 years’ imprisonment);

(b) Count 2 - Between about October 1997 and February 1999 at Sydney, New South Wales and elsewhere, Nikytas Nicholas Petroulias, then a Commonwealth officer with the Australian Taxation Office, did agree to receive a benefit for himself, namely money, on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected (s.73 Crimes Act 1914 (Cth) - maximum penalty - two years’ imprisonment);

(c) Count 3 - Between about June 1998 and April 1999 at Sydney, New South Wales, Nikytas Nicholas Petroulias, then being a Commonwealth officer with the Australian Taxation Office, did publish to Richard Llewellyn Morgan, a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer, and which it was his duty not to disclose (s.70 Crimes Act 1914 (Cth) - maximum penalty - two years’ imprisonment).

3 The history of these proceedings appears in my judgment of 8 August 2006: R v Petroulias (No. 1) [2006] NSWSC 788 at paragraphs 3-16. An application in similar terms to the present one was made to Sully J on 4 March 2005 and was rejected by his Honour in a judgment delivered that day.

4 In support of the present application, Mr Lasry QC and Mr Wraight, for the Accused, have adopted the submissions made by counsel appearing for the Accused before Sully J on 4 March 2005 and have developed further oral submissions in support of the application.

The Telephone Intercept Warrants

5 Warrants under the TI Act were obtained with respect to the investigation of the Accused on 27 July 1999, 8 October 1999, 24 December 1999 and 21 March 2000. The present challenge relates to the first of these warrants only, namely that issued on 27 July 1999 (“the subject warrant”).

6 The subject warrant was issued by, Dr Duncan Chappell, a member of the Administrative Appeals Tribunal (“AAT”).

7 The warrant contained the following recitals, with emphasis being given to the part of the warrant which is significant to the present application:

“AND WHEREAS I, Duncan Chappell a nominated AAT member, (within the meaning of the Telecommunications (Interception) Act 1979), am satisfied, on the basis of the information given to me under Part VI of the Telecommunications (Interception) Act 1979 in connection with the application that:

(a) Division 3 of that Part has been complied with in relation to the application;

(b) there are reasonable grounds for suspecting that a particular person, namely Nick PETROULIAS, born 21 November 1967, of 18 Middleborough Road, Burwood, Victoria, is using, or is likely to use, the service:

(c) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency that applied for this warrant of the following class 2 offences, in which that person is involved, namely conspiracy to defraud the Commonwealth contrary to section 86(2) of the Crimes Act 1914 and defraud the Commonwealth contrary to section 29D of the Crimes Act 1914 , and

(d) having regard to:

(i) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from that service;

(ii) the gravity of the conduct constituting the offences being investigated;

(iii) how much the information referred to in paragraph (c) would be likely to assist in connection with the investigation by that agency of the offences;

(iv) to what extent methods of investigating the offences that do not involve intercepting communications have been used by, or are available to, that agency;

(v) how much the use of such methods would be likely to assist in connection with the investigation by that agency of the offences; and
(vi) how much the use of such methods would be likely to prejudice the investigation by that agency of the offences, whether because of delay or for any other reason;
and to no other maters;
I should issue a warrant authorising such communications to be intercepted.”

8 The Accused submits that the warrant is bad on its face in that the underlined portion of paragraph (c) fails to reveal the existence of a condition precedent for the issue of a valid warrant.

Relevant Provisions of TI Act

9 Section 7 TI Act prohibits the interception of communications over a telecommunications system, subject to certain exceptions. The exception relevant to this proceeding is s.7(2)(b), which concerns interception under a warrant.

10 Section 63 prevents, subject to Part VII TI Act, the giving of evidence in any proceeding of both lawfully obtained information (s.6E) and information obtained in breach of s.7 TI Act.

11 Section 74(1) permits the giving of evidence of “lawfully obtained material” in an “exempt proceeding”. Section 5B(a) includes in the definition of “exempt proceedings”, a proceeding by way of prosecution for a “prescribed offence”. Section 5 defines “prescribed offence” as including an offence punishable by imprisonment for at least three years. Count 1 of the indictment in the present case is a prescribed offence, but Counts 2 and 3 are not.

12 As at 27 July 1999, the TI Act permitted the issue of telephone intercept warrants with respect to “class 1 offences” and “class 2 offences”. Section 5(1) TI Act provided that the term “class 2 offence” had the meaning given by s.5D of the Act. Section 5D(1) and (2) provided as follows (emphasis added):

“5D Class 2 offences

Class 2 offences

(1) This section sets out the offences that are class 2 offences for the purposes of this Act.


Serious offences etc.

(2) An offence is a class 2 offence if:

(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person’s life or serious risk of loss of a person’s life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) serious damage to property in circumstances endangering the safety of a person; or
…
(iv) trafficking in prescribed substances; or
(v) serious fraud ; or
(vi) serious loss to the revenue of the Commonwealth, a State or the Australian Capital Territory ; or
(vii) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory.”

13 Section 46 TI Act provided for the issue of warrants in relation to Class 2 offences. Section 46 was in the following terms:

“46 Issue of telecommunications service warrant in relation to class 2 offence

(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;

(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone;

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;

(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence, or class 2 offences, in which the person is involved; and

(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
(2) The matters to which the Judge or nominated AAT member shall have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1);

(b) the gravity of the conduct constituting the offence or offences being investigated;

(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences;

(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;

(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and

(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason.”

14 Section 49 provided for the form and content of a TI Act warrant. Section 49 provided (emphasis added):

“49 Form and content of warrant


(1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge or nominated AAT member who issues it.

(2) A warrant may specify conditions or restrictions relating to interceptions under the warrant.

(2A) Without limiting subsection (2), a named person warrant may state that the warrant does not authorise the interception of communications made to or from a specified telecommunications service.

(3) A warrant shall specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Judge or nominated AAT member shall not vary a warrant by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service, or a person, in respect of which a warrant has, or warrants have, previously been issued.

(6) In subsection (5), warrant means a warrant issued under this Act.

(7) A warrant shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant .”

15 Section 75 TI Act permits, in some circumstances, the giving of information in evidence where there has been a defect in connection with the warrant. Section 75 provides:

“75 Giving information in evidence where defect in connection with warrant

(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:

(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and

(b) in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):

(a) in, or in connection with the issue of, a document purporting to be a warrant; or

(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.”

Submissions of the Parties

16 The submissions for the Accused include the following elements:

(a) s.49(7) TI Act requires that a warrant set out “short particulars” of each serious offence in relation to which the warrant relates;

(b) in the case of a warrant for a Class 2 offence or offences, it is necessary that the offence be punishable by imprisonment for a maximum period of at least seven years and that the particular conduct constituting the offence involved, relevantly, serious fraud or serious loss to the revenue of the Commonwealth: s.5D(2)(a), (b)(v) and (vi);

(c) the present warrant included bare references only to the offences of conspiracy to defraud the Commonwealth contrary to s.86(2) Crimes Act 1914 (Cth) and defrauding the Commonwealth contrary to s.29D of that Act;

(d) it was conceded that the maximum penalty for offences under ss.29D and 86(2) exceeded imprisonment for seven years;

(e) however, to constitute a “class 2 offence” , it is necessary that the particular conduct constituting the offence involved, relevantly, serious fraud or serious loss to the revenue of the Commonwealth;

(f) there is nothing on the face of the warrant which indicates that the nominated AAT member was satisfied of this second essential ingredient of the definition of a Class 2 offence;

(g) further, the mandatory requirement that the warrant set out “short particulars” of each serious offence for the purpose of s.49(7) was not satisfied in this case, as the particulars provided in the warrant were confined to a bare recital of the offence, with no reference whatsoever to whether the conduct under investigation was said to involve the requisite element of seriousness for the purpose of the TI Act;

(h) strict compliance was required with respect to this requirement concerning the content of the warrant: Ousley v The Queen (1997) 192 CLR 69 at 118-120, 141; NSW Crime Commission v Vuletic (2005) 64 NSWLR 301 at 312-313 [43]-[46];

(i) public confidence in the process would be put at risk if TI warrants are issued otherwise than in strict accordance with statutory requirements: Ousley v The Queen at 95;

(j) the defect was “substantial” so that s.75 TI Act could not be called in aid by the Crown in support of evidence obtained pursuant to the warrant.

17 The Crown response to these submissions may be summarised as follows:

(a) the words used in the warrant satisfied the requirement for “short particulars” under s.49(7) TI Act;

(b) this conclusion was supported by the decision of the Full Federal Court in Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149 at 195-200;

(c) the construction of the TI Act in Flanagan , which supports this conclusion, is correct and ought be followed by me;

(d) further, the decision of the Full Federal Court in Flanagan , construing the same Commonwealth legislation, ought be followed by me, as a matter of comity, unless I am satisfied that the interpretation in Flanagan is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; R v NZ (2005) 63 NSWLR 628 at 665 [156];

(e) further, I should follow the decision of Sully J on 4 March 2005 in this very case where his Honour rejected the arguments presently advanced on behalf of the Accused, and held that there was no defect on the face of the warrant - although I am not bound by the decision of Sully J, his Honour’s decision on the same question will assist me in determining the present application and, after making my own independent assessment of the submissions made, I should reach the same conclusion as that reached by his Honour: R v Petroulias (No. 1) at paragraphs 51-54;

(f) there is no defect on the face of the warrant and, accordingly, the warrant is valid;

(g) if, however, the Accused’s argument was correct and there was a defect on the face of the warrant, that defect is not “substantial” and, in all the circumstances, should be disregarded under s.75 TI Act: NSW Crime Commission v Vuletic at 313-317.

The Decision of Sully J of 4 March 2005

18 As observed earlier, the submissions made to Sully J prior to the first trial were along the same lines as those advanced to me on this application. His Honour concluded that, as a matter of statutory construction, it was not necessary that the warrant contain the additional material as contended by the Accused. His Honour formed that view without reliance on the decision of the Full Federal Court in Flanagan, but observed that the conclusion was fortified by the reasoning in Flanagan (pages 6-8, Judgment, 4 March 2005).

19 In a passage which attracted submissions before me, Sully J said (page 5):

“The argument that is raised in support of the present application is completely clear and straightforward. It is that a warrant issued pursuant to the Act must not only name a class 2 offence in the sense of pointing to some offence creating legislative provision, but it must provide, as well, particulars of that part or parts of section 5D(2)(b) that are seen by the person issuing the warrant as relevant to the particular case.

If that argument be correct, then plainly the warrant with which this ruling is concerned falls short of what is required.
It is submitted, and I accept, that the question is essentially one of statutory construction.”

20 Mr Lasry QC submits that Sully J erred in stating that the particulars to be inserted were those considered by the issuing person to be “relevant to the particular case”. He submits that s.49(7) TI Act required the words to be inserted, and this did not depend upon any assessment of relevance by the issuing person.

21 The Accused submits further that Sully J erred in applying Flanagan which, in a significant respect, was said to be distinguishable from the present case.

22 Mr Lasry QC submits that it was not correct to state that a question of statutory construction was involved in the present case or, for that matter, in Flanagan. He submits that the requirements of the TI Act were clear and that what is involved is an examination of the face of the warrant to determine whether the mandatory requirements concerning the form and content of a TI Act warrant were satisfied.

The Decision in Flanagan

23 Given the controversy which exists between the parties concerning the application to the present case of the decision in Flanagan, it is appropriate to refer to it.

24 There is a close similarity between the warrant in Flanagan and the subject warrant.

25 The warrant in Flanagan related to Class 2 offences comprising conspiracy to defraud the Commonwealth contrary to s.86 Crimes Act 1914 (Cth) and defrauding the Commonwealth contrary to s.29D of that Act. At the time of issue of the warrant in Flanagan, s.49(7) TI Act was in the same form as applicable here and “short particulars” were required to be inserted in the warrant. The “short particulars” in Flanagan were in the following terms:

“… the following class 2 offences in which that person is involved namely Conspiracy to Defraud the Commonwealth contract to section 86(1)(e), and now section 86A of the Crimes Act 1914; and Defrauding the Commonwealth contrary to section 29D of the Crimes Act 1914 …”

These particulars are indistinguishable from the short particulars given on the subject warrant.

26 It was submitted in Flanagan that the warrant was bad on its face because it did not contain “short particulars” as required by s.49(7). In assessing that submission, the Full Federal Court (Beaumont, Ryan and Lindgren JJA) said at 196-197:

“Although it must be accepted that s 49(7) imposes an obligation upon the eligible Judge to ensure that the TI warrant sets out the required ‘short particulars’, we cannot accept that there was any failure to discharge that duty in the present case.

In the final analysis, the question for determination is one of statutory interpretation. For this purpose, it is legitimate and appropriate to look, not only at the TI Act, but also at the TI Regulations, not to construe an overall scheme or to throw light on ambiguity in the statutory provision, but ‘to ascertain what the [legislative] scheme is’ (per Mason J in Brayson Motors Pty Ltd (in liq) v FCT (1985) 156 CLR 651 at 652; 59 ALR 265. When the TI Act and the TI Regulations are read together, it appears to us that what is required by s 49(7) is a statement of particulars which identify the alleged or suspected offences in a conceptual sense, in contrast to particulars of the essential factual ingredients of those offences in the particular case, such as those which an accused is entitled to have to enable him to prepare his defence: see, eg John B Bishop, Criminal Procedure 1983, pp 145–8. In our opinion, the requirements of s 49(7), as we construe them, were satisfied here. In particular, it was not necessary, in our view, that the TI warrant set out, as was suggested, ‘particulars’ of parties to the suspected conspiracy, the agreement alleged and its subject matter, even if, on a trial, an accused would be entitled to be informed of such matters.”

27 The Full Federal Court paid particular regard to the complete legislative scheme, including the TI Regulations and the form of TI warrant prescribed by the Regulations. Their Honours said at 197:

“It will be recalled from our earlier discussion of the legislative scheme that s 46(1) provides that the eligible Judge may issue a TI warrant where, on the basis of the information given to him or her under Pt VI, the Judge is satisfied, amongst other things, that:

‘(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence … in which the person is involved … [Emphasis added.]’

In this regard it will be remembered that the form of TI warrant prescribed by the Regulations requires the recital of the eligible Judge's satisfaction of the matters stipulated in para (d) to be followed by ‘short particulars’ to be provided in the following context:

‘… the investigation … of the following class 2 offence/offences/ in which that person is involved, namely (set out short particulars of the class 2 offence/offences ) … [Emphasis added.]’

28 Their Honours stated at 198-199:

“A requirement of conceptual identification of the suggested offence or offences is distinct from and falls far short of a requirement that the eligible Judge set out in the TI warrant the essential factual ingredients of each offence which the person has committed, is committing or is suspected on reasonable grounds of having committed or being likely to commit. Whether the matter is considered literally or purposively, there is no sound basis for adopting the latter construction. For one thing, there is no practical way in which the eligible Judge, who has no inquisitorial function in this regard, could embark upon that exercise independently; further, there is no obligation imposed upon the AFP by the TI Act to provide information to the Judge to enable him or her to do so. But, in any event, such an exercise is inappropriate as a condition of the exercise of a power to facilitate the gathering of information likely to assist in connection with the investigation (as defined in s 6A(1)) of a class 2 offence. Entirely different considerations create the need for more extensive particulars at or after the laying of charges which marks the beginning of the trial process. Those differences are emphasised when it is recalled that the ‘short particulars’ contemplated by s 49(7) may be of an offence as to which the judge is satisfied only that the subject person is suspected on reasonable grounds of being likely to commit it. The Judge may well obtain that degree of satisfaction without being able to give particulars of the kind for which the applicants contend indicating the essential ingredients of the offence.

It follows, in our view, that the applicants’ contention cannot be sustained as a matter of construction of the TI Act. Consideration of the form of warrant prescribed by the TI Regulations reinforces this conclusion. Support for it is also found in the fact that s 49(7) refers back to ss 45(d) and 46(1)(d) which refer to ‘a class 1 offence, or class 1 offences’ and ‘a class 2 offence, or class 2 offences’ respectively. This alone suggests that what is called for is a singling out of each particular class 1 offence or class 2 offence, as defined, which is relied on. No doubt a purpose of the requirement is to ensure and make plain that the alleged or suspected offence does indeed fall within the definition of ‘class 1 offence’ or ‘class 2 offence’, as the case may be, and is therefore one in respect of which there is power, and it is appropriate, to issue a warrant.
The terms of s 49(1) explicitly require that the prescribed form of TI warrant is to be adopted, and it appears that nothing in s 49(7) was intended to derogate from that prescription, ie the prescribed form is quite consistent with s 49(7). As has been said, the contrary is not, and could not be, suggested. It will be recalled that the prescribed form initially follows the wording of s 46(1)(d) and proceeds as follows:

‘… offence … in which that person is involved, namely (set out short particulars of the class 2 offence) …’

In our opinion, the use in this context of the word ‘namely’ is significant. It serves to indicate a requirement that the offence be identified; and that this process of identification be carried out by the provision of short details of the offence in which the person is said to be involved in the requisite sense, sufficient to identify it in conceptual terms rather than provide ‘particulars’ of material facts. By using the adjective ‘short’, something different from such ordinary particulars, something special, is indicated.”

Is the Subject Warrant Bad on its Face?

29 Mr Lasry QC submitted that the Full Federal Court had confined attention to the absence on the face of the warrant of any reference to the particulars of the alleged conspiracy or fraud, rather than the absence of any reference to the seriousness of the fraud alleged. In this way, Mr Lasry QC sought to distinguish Flanagan from the present case. He submitted that the precise argument advanced here by reference to the second essential ingredient of a “class 2 offence” was not advanced in Flanagan.

30 I do not accept this submission. It is apparent in the course of the detailed analysis in Flanagan (at 197) that the Court made express reference, with emphasis, to the “serious fraud” and “serious loss of revenue to the Commonwealth” elements of the definition of a “class 2 offence”. I am satisfied that the Full Federal Court in Flanagan held that it was not necessary to include these express matters on the face of the warrant to satisfy the requirements of s.49(7) of the Act. I agree with the conclusion of the Full Federal Court and Sully J that a question of statutory construction is involved. That question is the proper construction of the term “short particulars” in s.49(7) TI Act, viewing that term in the statutory scheme erected by the TI Act and TI Regulations.

31 I am satisfied that the subject warrant satisfied the requirements of s.49(7) TI Act. This was the conclusion of the Full Federal Court in Flanagan when considering a warrant in terms indistinguishable from the subject warrant. I have reached this conclusion as a result of my own independent assessment of the question falling for determination on the present application. Having regard to the principle of comity referred to at paragraph 17(d) above, I would have reached a similar conclusion unless satisfied that the interpretation adopted by the Full Federal Court in Flanagan was plainly wrong. As it happens, and with respect, I am satisfied that the interpretation adopted in Flanagan is correct. Sully J reached the same conclusion in the judgment of 4 March 2005.

32 Accordingly, I am not satisfied that the warrant is bad on its face and is, therefore, invalid.

The s. 75 TI Act Discretion

33 Had I determined that the warrant was defective or irregular in the manner alleged, it would have been necessary for me to consider whether information obtained pursuant to the warrant ought be admitted into evidence under s.75 TI Act. As short submissions were made on this point, I should express my tentative view on one aspect of the argument. It is inappropriate, in any event, that I express a concluded view concerning this hypothetical question, given that submissions on factual matters may have been advanced by the parties which would be capable of bearing upon any discretionary decision to be made.

34 On a s.75 argument, it would be necessary to consider whether any defect or irregularity of the type alleged here was “substantial”: NSW Crime Commission v Vuletic at 314-317.

35 The warrant does not recite a conclusion that the particular conduct constituting the offence involved serious fraud or a serious loss to the revenue of the Commonwealth. Unsurprisingly, the term “serious fraud” is not defined in the TI Act. The word “serious” should be given its ordinary meaning. It is a word which by its very nature imports a sense of degree and probably imports a range: Meyer v Bright (1993) 110 DLR (4th) 354 at 364-365. The meaning of ‘serious” includes “weighty or important”: Macquarie Dictionary; Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 at 327. Where a statute prohibited behaviour which would be likely to cause reasonable persons to be “seriously alarmed or seriously affronted”, Samuels JA (Moffitt P and Hope JA agreeing) observed that the use of the word “seriously” is “sufficient to indicate that it is not behaviour of a trivial kind which is in contemplation”: Lake v Dobson (Court of Appeal, 19 December 1980) 5 Petty Sessions Review 2221 at 2222.

36 It will be recalled that the nominated AAT member, in deciding to issue the warrant, had regard to the “gravity of the conduct constituting the offences being investigated” (paragraph (d)(ii) of the subject warrant). In R v Petroulias (No. 1), I observed at paragraph 318:

“In Wills v Petroulias (No. 2 ) [(2003) 58 NSWLR 618] , Spigelman CJ at 626 [49] observed that ‘important public interests are involved in these prosecutions’. The allegations are serious involving, as they do, a claim of serious misconduct on the part of a person holding a very senior rank within the ATO”.

37 The requirement of “serious fraud” in s.5D(2)(b)(v) may be satisfied by reference to factors apart from the level of financial loss which is said to have occurred. The concept of “serious loss to the revenue” is to be found in a separate subparagraph within the definition.

38 In my view, it would be relevant to an assessment of whether the particular conduct constituting the alleged offence involved “serious fraud” to consider that the conduct alleged was said to have been committed by a senior officer within the Australian Tax Office in the course of his official duties. It would be relevant to any discretionary exercise under s.75 to note that the nominated AAT member had regard to “the gravity of the conduct constituting the offences being investigated” before determining to issue the warrant.

39 Had the point been reached on the present application, subject to any further argument which the parties sought to advance on the question, a basis may have existed for a finding that any defect was not substantial and for a discretionary ruling under s.75 TI Act allowing information obtained under the warrant to be admitted into evidence in the proceedings. In the result, that point has not been reached, given my ruling that the warrant is good on its face and is valid.

Conclusion

40 I am satisfied that the warrant is good on its face and is valid. I reject the Accused’s application.

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