Saunders, Brian v Commissioner Australian Federal Police

[1998] FCA 673

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW  - search warrants - legal professional privilege - whether warrant invalid for failure to recognise and give effect to legal professional privilege - alleged ambiguity or slip in wording of warrant - resolvable upon careful reading - non-disclosure of material information - whether duty of general disclosure - nature of statutory function of issuing search warrant - exculpatory explanation - whether exculpatory explanation to be put before issuing officer.

Crimes Act 1914 (Cth) s 3C, s 3E, s 3F s 10
Judiciary Act 1903 (Cth) s 39B

Baker v Campbell (1983) 153 CLR 52, discussed
Rogers v Moore (1992) 39 FCR 201, discussed
Arno v Forsyth (1986) 9 FCR 576, discussed
Allitt v Sullivan (1988) VR 621, discussed
Croft v Jumeau (1990) 22 FCR 276, cited
Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545, cited
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, applied
Lord v Commissioner of the Australian Federal Police (1997) 74 FCR 61, cited

BRIAN SAUNDERS v COMMISSIONER AUSTRALIAN FEDERAL POLICE
WAG 59 OF 1997

FRENCH J
PERTH
11 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 59  of   1997

BETWEEN:

BRIAN SAUNDERS

APPLICANT

AND:

COMMISSIONER AUSTRALIAN FEDERAL POLICE

RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

11 JUNE 1998

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The application is dismissed save as to the question of the existence of legal professional privilege in respect of the documents seized.

2. The applicant is to pay the respondent’s costs of the application.

3. The hearing of the application as to the existence of legal professional privilege be expedited.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 59 of 1997

BETWEEN:

BRIAN SAUNDERS

APPLICANT

AND:

COMMISSIONER AUSTRALIAN FEDERAL POLICE

RESPONDENT

JUDGE:	FRENCH J
DATE:	11 JUNE 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction
The validity of four search warrants issued under the Crimes Act 1914 (Cth) is put in question in this case. The issue of the warrants was part of an ongoing investigation into the taxation affairs of Dr Brian Saunders. The challenge to the warrants raises the following questions:

1.Whether the possibility that documents the subject of the warrants were covered by legal professional privilege should have been addressed by the terms of the warrants.

2.Whether the warrants were invalidly ambiguous.

3.Whether the material put before the magistrate who issued the warrants was incomplete for failure to include reference to information of an exculpatory nature provided by Dr Saunders.

This application was heard on 22 December 1998.  However, before the hearing of the application certain rulings which affected the conduct of the hearing were challenged in the Full Court which sat on 25 March 1998 and gave its judgment dismissing the appeal on 25  March 1998.

Factual Background
Doctor Brian Saunders is a mining engineer and prospector who lives at 258 Marine Parade, Swanbourne.  For some time he has been in dispute with the Australian Taxation Office in relation to his liabilities for income tax for the years 1989 to 1990 inclusive and for the year 1992.  He has lodged applications in the Administrative Appeals Tribunal for review of the decisions made by the Deputy Commissioner of Taxation in relation to each of his objections to ATO assessments.

Dr Saunders’ tax affairs have attracted the interest not only of the Australian Taxation Office, but also the WA Royal Commission into the Commercial Activities of Government.  And in 1995 a Deputy Commissioner of Taxation applied to the Supreme Court of Western Australia for a mareva injunction in relation to certain of his assets.  In December 1996 he was served with a Departure Prohibition Order by the Australian Taxation Office.

Since at least 1992, Dr Saunders has been either involved in or contemplating prospective litigation with the Australian Taxation office who have asserted that his liability exceeds $6.5 million.  He has consulted a number of legal practitioners in connection with these matters.

On 11 February 1997, Her Worship Mrs J.G. Musk SM issued four search warrants under the Crimes Act 1914 (Cth) each authorising a named member of the Australian Federal Police to search for and seize various categories of evidential material relating to Saunders’ affairs.

The details of the warrants in summary are as follows:

PremisesExecuting Officer
Irdi & Associates, Solicitors
Suite 6, 284 Oxford Street Leederville WA    Rodney John Curtis

Solomon Brothers, Solicitors
Level 40, Exchange Plaza
2 The Esplanade, Perth WA  Mark Ernest Townsend

258 Marine Parade, Swanbourne WA           Stephen Gerald Paynter

Koala Storage,
54 Roberts Road,  Osborne Park WA            Wayne McKenzie

Each of the warrants was in the same form.  There were variations in the range of documents and things to be searched for and seized.  It is convenient for present purposes to set out the terms of the warrant issued in respect of 258 Marine Parade, Swanbourne.  It was as follows:

“COMMONWEALTH OF AUSTRALIA

CRIMES ACT 1914: Section 3E

SEARCH WARRANT

TO:      Stephen Gerald PAYNTER

a member of the Australian Federal Police, who is the executing officer in relation to this warrant;

AND TO any other constable whose name may be written on this warrant in accordance with section 3C(1) of the Crimes Act 1914, in which event that constable shall be the executing officer in relation to this warrant:

WHEREAS I JACQUELINE GAY MUSK, an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is at premises located at:

258 Marine Parade, Swanbourne, Western Australia;

evidential material which satisfies ALL of the following THREE conditions, namely:

FIRST CONDITION:

Things which are originals or copies of any one or more of the following including any of them which are stored on magnetic or electric storage medium:

-Deed of Settlement, dated 26 April 1985, between Jarrahmond and Ramsgate Pty Ltd

.

.

.”

followed by a lengthy list of documents which included such general categories as “correspondence”, “letters”, “notes”, “notebooks” and “diaries”. 

“SECOND CONDITION:

Things which relate to any one or more of the following:

-          Brian SAUNDERS
           -          Richard Forbes DONALD-HILL
           .
           .
           .”

There followed a long list of individual and company names including firms of solicitors Chalmers & Partners, Irdi & Associates and Solomon Brothers.

“THIRD CONDITION:

Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth:

a.That Brian SAUNDERS imposed upon the Commonwealth, by means of an untrue representation, namely on six occasions between 1984 and 1991 he understated his taxable income on his Australian Taxation Office Income Tax Assessment form with a view to obtaining a benefit, contrary to Section 29B of the Crimes Act 1914.

b.That Brian SAUNDERS endeavoured to impose upon the Commonwealth by means of an untrue representation, namely between March 1994 and May 1995, he presented fabricated documents which contained false statements to the Australian Taxation Office with a view to obtaining a benefit, contrary to Section 29B of the Crimes Act 1914.

c.That Richard Forbes DONALD-HILL between March 1994 and May 1995 was knowingly concerned in an offence against the Commonwealth, contrary to Section 5(1) of the Crimes Act 1914, namely he provided SAUNDERS with affidavits containing false information, knowing the affidavits were going to be used by SAUNDERS in his endeavours to impose upon the Commonwealth, contrary to Section 29B of the Crimes Act 1914.

d.That Brian SAUNDERS between March 1994 and May 1995, made false and misleading statements to the Australian Taxation Office, contrary to section 8K Taxation Administration Act.

I HEREBY AUTHORISE the executing officer or a constable assisting to do all of the following:

*to enter the said premises;

*to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

*to search the premises for any evidential material that satisfies ALL of the THREE conditions specified above and to seize any such evidential material that may be found;

*seize any other thing found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

(i)evidential material in relation to an offence to which the warrant relates; or

(ii)evidential material in relation to another offence that is an indictable offence;

*if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence;

*to seize other things found at the premises in the course of the search that the executing officer or constable assisting believes on reasonable grounds to be seizable items within the meaning of the Crimes Act 1914; and

AND I FURTHER AUTHORISE the executing officer or a constable assisting to conduct an ordinary search of any person who is at or near the premises when this warrant is executed if the executing officer or the constable suspects on reasonable grounds that the person has in his or her possession evidential material or seizable items, and to seize any such evidential material or other thing that may be found;

AND, by virtue of Division 2 of Part 1AA of the Crimes Act 1914, in executing this warrant:

*the executing officer may obtain such assistance as is necessary and reasonable in the circumstances;

*the executing officer, and any person assisting who is a constable, may use such force against persons or things as is necessary and reasonable in the circumstances; and

*any person who has been authorised by the executing officer to assist in the execution of this warrant, but who is not a constable, may use such force against things as is necessary and reasonable in the circumstances;

*and the executing officer or a constable assisting may exercise such other of the powers available under Division 2 of Part 1AA of that Act as are appropriate in the circumstances of the case.

THIS WARRANT MAY BE EXECUTED BETWEEN THE HOURS OF 7AM AND 5PM.

THIS WARRANT REMAINS IN FORCE FOR A PERIOD OF SEVEN DAYS FROM THE DATE OF ISSUE.

GIVEN under my hand at Perth

in the State of Western Australia this

11th day of February 1997.

“J. MUSK”

A Magistrate in and for the State of Western Australia”

The Present Application
By his amended application under s 39B of the Judiciary Act 1903 (Cth) filed on 21 October 1997, Dr Saunders seeks a declaration that each of the search warrants was invalid.

There were in the amended application some six grounds of invalidity relied upon.  They were numbered 1.1 to 1.6 inclusive.  In the course of argument 1.3, 1.4 and 1.5 were abandoned.  Grounds 1.1 and 1.2 allege that the warrants were bad on their face:

“1.1....by reason that the warrants fail to recognise and give effect to the doctrine of legal professional privilege and/or purport to authorise the seizure of privileged documents and to that extent were not authorised by law;

1.2...in purporting to authorise the executing officer, or a constable assisting, to seize any thing found at the premises in the course of the search that the executing officer or constable assisting believes on reasonable grounds to be “evidential material in relation to another offence” that is an indictable offence and, contrary to section 3E(6)(a)(ii) of the Crimes Act 1914, failing to contain a statement by the Issuing Officer that the warrant authorises the seizure of “a thing relevant to another offence” alternatively failing to contain the qualification referred to in s 3E(6)(a).”

Ground 1.6 asserts:

“1.6the decision by the Issuing Officer to issue each search warrant was not authorised by the provisions of section 3E of the Crimes Act 1914 in that it was made:

1.6.1without the respondent having drawn to the attention of the Issuing Officer, or the Issuing Officer giving any attention to, the possibility that things otherwise falling within the ambit of the terms of the search warrants sought by the Respondent would be subject to legal professional privilege;

1.6.2was based upon an information placed before the Issuing Officer which failed to disclose facts material to the decision whether or not to issue the search warrant;

PARTICULARS

A.One of the allegations made in the Information was that the Applicant had submitted to the ATO four documents, being photocopies of:

(i)a letter to Tonto Pty Ltd from Richard Forbes Donald Hill (“RFDH”) bearing date 25 September 1987,

(ii)a letter to the Applicant from RFDH bearing date 1 December 1988,

(iii)a letter from the Applicant from RFDH bearing date 20 June 1990 (sic)

(iv)a letter to the Applicant from RFDH bearing date 4 January 1993,

each bearing an original signature of RFDH, which documents had been fabricated by the Applicant and contain false statements, the fabrication consisting of photocopying other documents and obtaining the signatures of RFDH on the photocopies at the one time.

B.In fact the Applicant had by the combination of his oral statement to Ian Kitney an ATO Officer in June 1996 and his written submission dated 23 December 1996 to the ATO, told the ATO prior to the issue of the Search Warrant of the fact that:

(a)the documents were photocopies of original facsimile transmissions received by the Applicant on thermal paper;

(b)that they were fading or, the Applicant considered, were at risk of fading;

(c)that the Applicant perceived that the documents were, because they were, firstly, merely faxes and not the original signed document and, secondly, were at risk of fading to illegibility, of limited value to him as original documents and that to overcome this problem the Applicant having photocopied the faxes onto bond paper with the facsimile transmission details and any signature deleted, treated the photocopies as original documents and forwarded them to RFDH to sign or resign as the case may be.

C.The Respondent failed to disclose to the Issuing Officer in the Information the information specified in paragraph B above.

D.One of the allegations made in the Information is that the Applicant had transferred, or caused the transfer, by Tonto Pty Ltd and Finwest Pty Ltd as companies associated with the Applicant of, large sums of money overseas in recent years amounting to an alienation of assets that would otherwise be available to the ATO as his creditor and/or amounting to “money laundering”.

E.In fact:

(a)the Applicant had firstly, in response to an affidavit sworn on behalf of the ATO by Richard Lee Groser on 5 May 1995 in Supreme Court of Western Australia action CIV 1385 of 1995 in support of an application for a mareva injunction against the Applicant, by affidavit sworn by the Applicant on 11 May 1995, secondly by letter from the Applicant’s solicitors to the ATO dated 3 February 1997 and thirdly by letter dated 3 February 1997 from the Applicant to the Commonwealth Ombudsman copied by the Ombudsman to the ATO (together “the Applicant’s Response”) given an explanation to the ATO for each alleged transfer of funds;

(b)the Applicant had by the Applicant’s Response demonstrated that the ATO had mistakenly calculated that six overseas transfers by Tonto Pty Ltd totalling $1,030,652.00 had occurred in the period 7 April 1994 to 16 June 1994 when in fact only two such transfers totalling $415,828.23 had in fact occurred;

(c)the Applicant had by the Applicant’s Response asserted that of the $415,828.23 in fact transferred out of Australia by Tonto Pty Ltd, all of the funds were a repayment of funds previously borrowed by Tonto Pty Ltd from overseas and had identified the transactions amounting to the initial receipt from overseas of the funds by Tonto Pty Ltd;

(d)Finwest Pty Ltd carried on business as a money lender and $67,998 transferred overseas by Finwest Pty Ltd was a loan by it to a third party, Mr M. Stow, on commercial terms secured by a mortgage over real estate in Britain.

F.The Respondent failed to disclose to the Issuing Officer in the Information the information specified in paragraph E above.

G.The information specified in paragraphs B and E above was information which was material to the exercise by the Issuing Officer of her discretion as to whether or not to issue each of the Search Warrants and the terms to be contained in the Search Warrants if they were to be issued.”

In addition to the declaration of invalidity, other relief is sought including declarations that certain documents are subject to legal professional privilege, were unlawfully seized and removed from the custody or control of the applicant and are unlawfully held by the respondent.  Orders are sought for the release of the privileged documents and a mandatory injunction requiring the respondent to deliver up to the applicant all documents other than the privileged documents and those previously returned to the applicant’s solicitors by the respondent which were seized pursuant to the search warrants relating to 258 Marine Parade, Swanbourne and 54 Roberts Road, Osborne Park.

On 29 October 1997 the Commissioner filed a response to the amended application.  He denied that the warrants were “bad on their face”.  In respect of ground 1.6.1 he said he drew to the attention of the issuing officer the possibility that documents the subject of the warrant might be subject to legal professional privilege.  In this regard it is said the Information provided:

“It is my intention that, if practicable, before premises listed at D, E and F are searched, the executing officer will give the occupier of the premises, or a person who apparently represents the occupier, a copy of the document entitled “General Guidelines Between the Australian Federal Police and the Law Council of Australia as to the Execution of Search Warrants on Lawyer’s Premises, Law Societies and Like Institutions in circumstances Where a Claim of Legal Professional Privilege is Made”...and that, as far as possible, the search will be conducted in accordance with the procedures set out in that document in the event that legal and professional privilege is claimed in respect of any document covered by the warrant.”

In respect of the particulars in paragraph 1.6.2 the Commissioner’s response was as follows:

“3.1As to particular A, the respondent admits that there was information on oath contained in the Information and placed before the issuing officer as follows:

3.1.1The applicant did submit to the Australian Taxation office (“ATO”) photocopies of facsimiles addressed to the applicant from Donald Forbes Donald-Hill (“Donald-Hill”) and being the letters referred to in paragraphs (i) to (iv) in particular A of the application.

3.1.2On 25 and 28 March 1994, the ATO notified the applicant that he was required to produce all four originals of the abovementioned facsimiles by 11 April 1994.  These originals were produced by the applicant through his solicitor on 30 march 1994.

3.1.3On 26 May 1994, the abovementioned original documents were examined by forensic document examiner John D. Gregory (“Gregory”).  Gregory concluded that:

3.1.3.1The document dated 1 December 1988 was in his opinion “suspect”.

3.1.3.2The documents dated 20 June 1990 and 4 January 1993 respectively, were both fabricated; were signed at one time and were created on a common photocopier and were ‘manufactured’ after 4 January 1993.

3.1.3.3The document dated 25 September 1987 was fabricated; signed at the same time as the other facsimiles and was created on a common photocopier with the other facsimiles.

3.1.4The facsimiles dated 25 September 1987, 20 June 1990 and 4 January 1993, were fabricated by the applicant to document transactions he allegedly undertook with Donald-Hill.

3.1.5Save as aforesaid, the respondent denies each and every allegation made in paragraph A of the particulars in the application.

3.2The respondent does not admit any of the allegations pleaded in paragraph B of the particulars in the application.

3.3As to paragraph C of the particulars, the respondent admits that he did not disclose to the Issuing Officer in the Information any of the matters pleaded in paragraph B of the particulars and says further that at all material times he had no knowledge of any of the matters alleged in Paragraph B.

3.4As to paragraph D, the respondent admits that there was information on oath contained in the Information and placed before the issuing officer as follows:

3.4.1Tonto Pty Ltd on six occasions between 7 April 1994 and 16 June 1994, sent funds overseas.  These transfers totalled Pounds Sterling 596,394 (Australian Dollars $1,245,902.00).  In each case the sending party was St George Bank, the receiving institution was Barclays Bank PLC St Helier, Jersey, Channel Islands, the beneficiary was Halifax International (Jersey) Ltd account of Richard Forbes Donald-Hill Australia.

3.4.2The applicant gave instructions to the St George Bank to transfer the abovementioned funds.

3.4.3Enquiries with the Australian Transaction Document Agency revealed that Tonto Pty Ltd a company which the applicant has strong associations with, has on six occasions between 7 April 1994 and 16 June 1994, sent $1,245,902.00 overseas and that the money transfers are connected to the Applicant.

3.4.4Companies which the applicant had either control of or has strong connections to between April 1994 and March 1996, have transferred in excess of four million Australian dollars overseas.

3.4.5Save as aforesaid, the respondent denies each and every allegation made in paragraph D of the particulars in the application.

3.5The respondent does not admit any of the matters pleaded in paragraph E in the particulars in the application.

3.6As to paragraph F of the particulars, the respondent admits that he did not disclose to the Issuing Officer in the Information any of the matters pleaded in paragraph E of the particulars and says further that at all material times he had no knowledge of any of the matters alleged in paragraph E.

3.7The respondent denies each and every allegation contained in paragraph G of the particulars.”

Statutory Framework
Part IAA of the Crimes Act 1914 (Cth) deals with search warrants and powers of arrest. Section 3C sets out various definitions including:

““evidential material” means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form;”

Section 3 contains definitions of the terms “thing relevant to an indictable offence” and “thing relevant to a summary offence”.  The definitions are in similar form and it is sufficient to set out the first of them:

““thing relevant to an indictable offence” means:

(a)anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; or

(b)anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

(c)anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence;”

The term “issuing officer” is defined in s 3C thus:

““issuing officer”, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:

(a)a magistrate; or

(b)a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be;”

Section 3E of the Act authorises the issue of search warrants and provides in the relevant parts:

“3E(1)  An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
.
.
.
    (5)  If an issuing officer issues a warrant, the officer is to state in the warrant:

(a)the offence to which the warrant relates; and

(b)a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c)the kinds of evidential material that are to be searched for under the warrant; and

(d)the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

(e)the period for which the warrant remains in force, which must not be more than 7 days; and

(f)whether the warrant may be executed at any time or only during particular hours.

(6)The issuing officer is also to state, in a warrant in relation to premises:

(a)that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

(i)evidential material in relation to an offence to which the warrant relates; or

(ii)a thing relevant to another offence that is an indictable offence;

if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(b)whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.”

The authority conferred by a search warrant is spelt out in s 3F:

“3F(1)  A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
.
.
.
    (5)  If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.”  

Legal Professional Privilege
The issue of a search warrant under s 3E of the Crimes Act 1914 (Cth) does not abrogate nor authorise the abrogation of legal professional privilege. The statutory predecessor of s 3E was s 10 of the Crimes Act 1914 (Cth). It was said of that section in Baker v Campbell (1983) 153 CLR 52 that in the event that legal professional privilege attached to and was maintained in respect of documents those documents could not properly be made the subject of a search warrant issued under that section. That was the answer provided in that case to a question referred to the Court by case stated. There is nothing in the provisions which have replaced s 10 to suggest a different answer would now be given to the same question. Nor was any different position advanced by the respondent in this case.

The practical question is, how can the privilege be protected in a way that is compatible with the purposes of the search warrant provisions of the Crimes Act 1914? As I have said in another context relating to alleged non-disclosure of material facts upon the issue of a search warrant, “...it is necessary to bear in mind the nature of the function being undertaken. It is the administrative act of issuing an investigative process.  It is in most cases necessarily ex parte.” - Rogers v Moore (1992) 39 FCR 201 at 217. Unless on the face of it the warrant is directed to documents which include documents to which legal professional privilege undoubtedly attaches there is no requirement on the part of the issuing justice to conduct an inquiry into questions of privilege which may involve controverted issues of fact and law. Indeed even in the case in which it is clear that the warrant is directed to documents which include privileged documents, it may be too much to assume at the point of issue that the privilege will be maintained in respect of all or any of them.

The question referred to the High Court for determination in Baker v Campbell rested on the premise that legal professional privilege attached to and was maintained in respect of the subject documents.  It has been suggested that the Court was there “dealing only with the position at the time of attempted seizure and was not dealing with the position at the time of the grant of the warrant” - Arno v Forsyth (1986) 9 FCR 576 at 597 (Jackson J). That observation cast doubt upon the respondent’s proposition in the latter case that the effect of the decision in Baker v Campbell was that a search warrant may not validly be granted in respect of a document to which legal professional privilege attaches.  Fox J in Arno said at 580:

“The question whether there is privilege, and its extent, falls to be dealt with when it is sought to execute the warrant.  Before a justice could decide a question of legal professional privilege there would be the hopeless matter of seeing the documents to which it relates, how, and for what purpose, they came into existence and between whom the relevant confidences lay.”

In his Honour’s view, the warrant in that case was not invalid because it authorised search and seizure of documents which might prove to be the subject of legal professional privilege.  Lockhart J took a different view regarding as untenable the proposition that the warrant should issue without any consideration being given by the Justice of the Peace to the question of professional privilege and that the privilege question should only be dealt with later by litigation (at 588).  

The general approach adopted by Fox J was favoured in the Full Court of Victoria in relation to s 465 of the Crimes Act 1958 (Vic) in Allitt v Sullivan (1988) VR 621. It was the practical difficulty of imposing a requirement for endorsement of some reference to legal professional privilege on the face of a search warrant that underlay the comments of the majority in the latter case. Murphy J saw the requirement for an endorsement as a condition of validity of the warrant placing an almost intolerable burden upon the issuing justice in any particular case and putting the constable executing the warrant in the unenviable position of having a duty to perform and not knowing whether his warrant of authority was invalid. Murphy J was unable to agree that a warrant is bad because it failed somewhere to state the matters relating to legal professional privilege to which Lockhart J had referred in Arno v Forsyth. And Brooking J at 642 said the necessary certainty about seized documents could be achieved for the purposes of the Crimes Act 1958 (Vic) by the court holding “that privilege is something to be dealt with when the seized documents are brought before a justice”.  The alternative in his Honour’s view was “judicial legislation: a code of procedure in relation to the issue and execution of warrants based, not on statutes or on the known rules of the common law, but on judges’ notions of what is fair and reasonable”.  So too in Croft v Jumeau (1990) 22 FCR 276 at 289 Jenkinson J said:

“The question whether circumstances relating to legal professional privilege may result in a legal requirement, failure to comply with which entails invalidity, that a reference to that subject appear on the warrant itself by way of endorsement, is a narrow one.  It is the only question which these grounds raise.  In my opinion it should be answered in the negative, for the reasons given by Fox J.”

The proposition that a warrant is not invalid for failure to include express reference to legal professional privilege where documents attracting the privilege may be involved, is not undercut by the decision of the High Court in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545. That was concerned with the question of whether legal professional privilege subsisted in particular documents.

In my opinion there is no requirement to be found in the Crimes Act 1914 or mandated by the cases, that conditions the validity of a search warrant upon its inclusion of an express limitation affecting documents the subject of legal professional privilege. The fact that some document within the class is covered by the warrant might attract the privilege does not mandate any such endorsement. The question of privilege can be addressed at the point of execution. The warrant can be taken not to extend to documents covered by it. However the identity of the documents so covered can be ascertained in connection with the seizure process.

For these reasons the first ground of the challenge to the issue of the warrants fails.

The Ancillary Power of Seizure
The second ground upon which the warrant was attacked fastened upon the following words appearing after the specification of the Third Condition:

“I HEREBY AUTHORISE the executing officer or a constable assisting to do all of the following:

*         ....(not relevant for present purposes)

*....(not relevant for present purposes)

*....(not relevant for present purposes)

*seize any other thing found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

(i)evidential material in relation to an offence to which the warrant relates; or

(ii)evidential material in relation to another offence that is an indictable offence;

*if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence;”

As can be seen the last bullet point is superfluous.  The words “if the executing officer..” and the following words are a qualification of the text under the preceding bullet point.  Nevertheless it was submitted that this creates an ambiguity for the person who is not familiar with the Act and does not know that the last bullet point introduces what is a qualifying statement to that which precedes it.  In my opinion there is no ambiguity for a person who reads the warrant carefully.  It would not even be necessary to resort to the Act to ascertain that much.

The other argument raised under ground 1.2 was that s 3E(6)(a)(ii) authorises, inter alia, the seizure of a thing found at the premises in the course of the search which the executing officer or a constable assisting believes on reasonable grounds to be:

“a thing relevant to another offence that is an indictable offence”

The warrant in its invocation of this power refers in (ii) after the fourth bullet point to:

“evidential material in relation to another offence that is an indictable offence.”

But “evidential material” means, according to s 3C “a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form”.

There is, in my opinion, neither ambiguity nor invalidating error in the use of the term “evidential material” in the warrant.  Counsel for the applicant was unable to point to any disadvantage that his client would suffer from the use of that term.  For these reasons ground 1.2 fails.

Non-disclosure
The first limb of ground 1.6.1 raises in a different way the question whether the issuing officer should have had drawn to her attention the possibility that there were documents falling within the ambit of the terms of the search warrant that would be subject to legal professional privilege.  Given the views I have already expressed about the absence of any invalidating condition requiring express reference to be made on the face of the warrant to its possible application to documents covered by legal professional privilege, this ground cannot succeed.

Ground 1.6.2 asserts that the warrant was based upon an information placed before the issuing officer which failed to disclose facts material to the decision whether or not to issue the warrant. 

Relevant portions of the information upon which the issue of the warrant was based are set out at paragraphs A and D of the particulars to 1.6.2.  What the applicant says he told the Australian Taxation Office in relation to those matters is set out in paragraphs B and C of the particulars.  Then in paragraphs C and F it is said that the respondent failed to disclose the applicant’s version to the issuing officer. 

In the respondent’s response, the non-disclosure of the relevant information is admitted but on the basis that the respondent had no knowledge of what the applicant said he had told the Australian Taxation Office.

The objection can be disposed of, in my opinion, on the assumption, favourable to the applicant, that the respondent was aware of what the applicant had told the Australian Taxation Office. 

An applicant for a search warrant who discloses material in the information giving reasonable grounds for suspecting the presence of evidential material on the subject premises is not obliged to traverse those facts by reference to exculpatory explanations raised by the object of the suspicion.  An exculpatory explanation does not necessarily dispel the grounds for suspicion that justify the issue of a warrant.  And the issuing justice is not required to conduct an inquiry to determine where the truth may lie.  It is the object of the search warrant to assist law enforcement authorities to that outcome.  I repeat what I said in Rogers v Moore at p 217 in relation to s 10:

“The application for the issue of a warrant is not a function of its nature congruent in kind with an ex parte application for an interlocutory injunction.  While the duty of full disclosure imposed by the courts in such cases to avoid the possibility of misuse of coercive powers is able to be applied in the case of a search warrant, its content is to be determined by reference to the statutory purpose.  The purpose of a warrant is not to advance or protect private rights as in an application for an injunction, but to gather information to determine whether an offence has been committed and to facilitate proof of it.
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The observations of the Full Court in Karina Fisheries in my opinion, would require the disclosure to the issuing justice of matters relevant to the power to issue the warrant.
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Anything of significance going to the question whether there were reasonable grounds for the suspicion that conditions the power would have to be disclosed.”

In Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555, decided after Rogers v Moore, Beaumont and Whitlam JJ considered whether an applicant for a warrant under s 10 of the Crimes Act 1914 had a “duty” of disclosure. The question was one of statutory construction and not to be resolved by reference to principles of the general law. There was nothing in their Honours’ view to suggest the existence of a “duty” of disclosure in the informant breach of which would invalidate the warrant. They said:

“It follows, in our view, that there is no general, in the sense of abstract, “duty” of disclosure here.  This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation.  For this purpose, a statement which was a half truth and thus misleading (see eg R v Kylsant [1932] 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.

Put differently, the primary question here is not whether the informant was under an obligation to disclose to the justice a particular fact, but whether the statements in the Information were sufficient to satisfy the requirements of s 10(1).”

The other member of the Court, Hill J, saw it as imposing too great an obligation upon the informant to say that the law implies a legal obligation to place before the issuing officer all material in the possession of the informant or known to the informant which might bear upon the decision which must be made:

“The nature of the issue to be determined, one of suspicion of the existence of things and suspicion or belief as to the committal of an offence, suggests to me that the obligation could not be intended to be imposed in terms of objective criteria.  Thus it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the magistrate or Justice is not such as to mislead and that any omission of relevant material was inadvertent.  This is merely another way of saying that the informant must in compiling the information act in “good faith”.” (at 569)

See also the discussion by Lindgren J in Lord v Commissioner of the Australian Federal Police (1997) 74 FCR 61 at 87-89.

The applicant argued that the Crimes Act contemplates that the informant will be the only source of information on which the issuing officer is to base his or her decision.  Therefore, it was submitted, a failure to make a full disclosure of information known to the Australian Federal Police and the Australian Taxation Office including information that they had obtained from the intended subject of the search which may be exculpatory of that subject could result in the issuing officer making a decision which did not take into account all relevant considerations.  Moreover it was suggested that the emphasis which the Full Court in Lego placed on the conduct of the parties with responsibility for presenting the information to the issuing officer was misplaced.  It did not follow, it was said, that the decisive factor in determining the lawfulness of the decision should be the moral quality of the conduct of the party presenting evidence to the decision-maker and not, as is usually the case in administrative law, the quality of the decision itself.  There was a submission that this Court should not follow the approach of the Full Court in Lego and that appeared to be on the basis that the court’s decision was per incuriam.  In my respectful opinion, the approach taken in the joint judgment and in the judgment of Hill J was properly directed to nature of the statutory function being undertaken by the issuing officer.

Counsel for the applicant did endeavour to amend ground 1.6 to raise the possibility of a misrepresentation arising from the non-disclosure.  The way it was put by counsel for the applicant was that the Information misled in the sense of conveying a false impression that there had been no exculpatory explanation.  In my opinion the omission to refer to an exculpatory explanation does not, of itself, convey a representation that there was none.  The question before the issuing officer was whether or not there were reasonable grounds for suspicion that on the subject premises there was evidential material.  If there were grounds for the formation of a suspicion properly laid by the material put before the issuing officer that suspicion was not going to be dispelled by the existence of an exculpatory explanation which might or might not be correct on the part of the applicant.

In my opinion this ground also fails.

Conclusion
For the reasons I have expressed the application as a whole fails and will be dismissed with costs.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French

Associate:

Dated:            11 June 1998

Counsel for the Applicant:	Mr T. Siopis with Mr P. Fletcher
Solicitor for the Applicant:	Solomon Brothers
Counsel for the Respondent:	Mr S Owen-Conway with Ms L Ward
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	22 December 1997
Date of Judgment:	11 June 1998