Smethurst & Anor v Commissioner of Police & Anor - [2019] HCATrans 216

[2019] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S196 of 2019

B e t w e e n -
ANNIKA SMETHURST
First Plaintiff
NATIONWIDE NEWS PTY LTD
Second Plaintiff
and
COMMISSIONER OF POLICE
First Defendant
JAMES LAWTON
Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 NOVEMBER 2019, AT 10.00 AM

____________________

MR S.B. LLOYD, SC: May it please the Court, I appear with my learned friends, MR P.D. HERZFELD and MR B. HANCOCK, for the plaintiffs. (instructed by Ashurst Australia)

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR C.L. LENEHAN, SC and MS S. ZELEZNIKOW for the first defendant and the Commonwealth Attorney‑General intervening. (instructed by Australian Government Solicitor)

KIEFEL CJ: There is a submitting appearance for the second defendant.

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS K.M. SCOTT, for the Attorney‑General for the State of South Australia intervening. (instructed by Crown Solicitor’s Office (SA))

MS K.A. STERN, SC: May it please the Court, I appear with MR D.P. HUME for the Australian Human Rights Commission. (instructed by Australian Human Rights Commission)

KIEFEL CJ: The parties received a communication from the Court advising that the Court would be assisted if, in the first instance at least, there was a concentration of argument upon the validity of warrant and any relief flowing from that question. I see that your outline has dealt with that accordingly.

MR LLOYD: Yes, your Honour. What I am proposing to do and what I understood that email meant was that I should address those questions and then stop, and then the Commonwealth ‑ ‑ ‑

KIEFEL CJ: Yes, that is correct. I do not think the interveners will be concerned in this question. Thank you.

MR LLOYD: Part 1AA of the Crimes Act – I am looking first here at the search warrant legislation, deals with the search powers. It starts at page CJ of the court book. Division 2, which concerns search warrants, starts at page CQ and section 3E is also on that page. Looking at section 3E, maybe seeing that an issuing officer has a power to issue a search warrant in respect of premises once the specified state of satisfaction is reached - that is a state of satisfaction that there are reasonable grounds to suspect that there is any evidential material at the premises. Although I will need to come back to this page, I need to ask the Court to turn back to page CK, which is where section 3C is and there is a definition there of “evidential material”.

KIEFEL CJ: Mr Lloyd, you probably do not need to refer to pages - I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smethurst & Anor v Commissioner of Police & Anor

Details

AGLC: Smethurst & Anor v Commissioner of Police & Anor [2019] HCATrans 216
Case: [2019] HCATrans 216
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the validity of search warrants issued under the *Crimes Act 1914* (Cth) and the admissibility of evidence obtained pursuant to those warrants. The applicants, Smethurst and another, sought to challenge the legality of the search of their premises and the subsequent seizure of documents and electronic devices, arguing that the warrants were invalidly issued. The Commissioner of Police and another were the respondents.

The central legal issues before the High Court were whether the warrants were properly authorised under section 3L of the *Crimes Act 1914* and, if not, what the consequences were for the admissibility of the evidence seized. Specifically, the Court had to determine whether the issuing officer had a sufficient evidentiary basis to be satisfied that there were reasonable grounds to believe the premises were related to the commission of a federal offence, and whether the warrants themselves sufficiently particularised the items to be seized.

The High Court reasoned that the issuing officer must have a reasonable belief that the premises are "related to" the commission of a federal offence, which requires more than a mere possibility. The Court found that the information before the issuing officer did not establish a sufficient nexus between the premises and the alleged federal offences. Consequently, the warrants were held to be invalidly issued. The Court further considered the application of section 138 of the *Evidence Act 1995* (Cth), which governs the exclusion of improperly or illegally obtained evidence, and concluded that the evidence obtained should be excluded due to the illegality of the search.

The High Court allowed the appeal, quashed the search warrants, and ordered that the evidence obtained pursuant to those warrants be excluded.

Orders