Re Esso Australia Ltd v Christopher John Curran; Karl Leslie Kent; David Stephen Jones; Michael Stafford Hawley; Peter Barrington Crozier and Peter John Schiller [1989] FCA 22 (17 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: ESSO AUSTRALIA LTD
And: CHRISTOPHER JOHN CURRAN; KARL LESLIE KENT; DAVID STEPHEN JONES;
MICHAEL STAFFORD HAWLEY; PETER BARRINGTON CROZIER and PETER JOHN SCHILLER
No. NSW G28 of 1989
Administrative Law
(1989) 39 A Crim R 157

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - validity of search warrant issued pursuant to s.10 Crimes Act 1914 (Cth) - meaning of "information" within s.10 Crimes Act 1914 - degree of specificity with which suspected offences must be stated in search warrant - validity of warrant where commission of stated offence legally impossible - effect of s.5 Crimes Act 1914 - lawfulness of continued detention of "things" seized which do not satisfy description in warrant.

Crimes Act 1914 (Cth) ss. 5, 10

Petroleum (Submerged Lands) Act 1967, ss. 97, 98

HEARING

SYDNEY
17:2:1989

Counsel and Solicitors for D.E. Grieve Q.C and
the Applicant: P. Blackburn-Hart

instructed by Westgarth
Middletons.

Counsel and Solicitors for D.M. Bennett Q.C. and
Respondents: A.C. Bennett instructed

by Director of Public
Prosecutions.

DECISION

Esso Australia Ltd. ("the applicant") seeks an injunction restraining each of the respondents who are officers of the Australian Federal Police from executing two search warrants issued to them by Mr. Condie a Justice of the Peace and an order that the respondents deliver up to the applicant such documents, materials and things as were seized by the respondents on 2 February last from the applicant's premises.

2. The two warrants in question relate to different premises and name in certain respects different officers as adressees. Subject to these matters, each warrant was in similar form. By way of example, one warrant was, omitting names of the addressee, in the following form:

"WHEREAS I, Brendan Clifford Condie a Justice of the
Peace in the State of New South Wales within the
meaning of that expression in Section 10 of the Crimes
Act 1914, being satisfied by information on oath placed
before me this day that there is reasonable ground for
suspecting that there is in or upon the premises
occupied by Esso Australia Limited and being the
premises situated and known as 127-153 Kent Street,
Millers Point, Sydney in the said State and described
as being an eighteen storey brown building including
all rooms, offices, storage areas, store rooms, safes,
garbage areas, garbage containers; certain THINGS that
satisfy ALL of the three following conditions, that is
to say, THINGS which FIRSTLY are any one or more of the
following:
FIRST CONDITION:
THINGS being the original or copies of:
Internal and external memoranda,
Incoming/outgoing correspondence,
Diaries,
Diary notes,
Records
Notes,
Letters,
Files,
File or index cards
Lettergrams,
Telexes,
Telegrams,
Facsimile copies,
Personal records,
Maintenance records,
Minutes of Director's Meetings,
Staff employment records,
Staff employment contracts,
Manuals,
Reports,
Brochures,
Telephone Directories,
Teledexes,
Telephone Answering Machines,
Typewriters,
Typewriter Ribbons and or Cassettes,
Photocopy Machines,
Including any of the things named above on magnetic
and/or other storage medium.
SECOND CONDITION
AND which SECONDLY relate to any one or more of the
following:
Esso Australia Limited
Esso Standard Oil Proprietary Limited
Exxon Limited
Restech Consultants Proprietary Limited
Ms Jacqueline James
Mr Mark Crossley
Ms Jan Hayes
Mr Frank Dorber
Mr Gerald Carroll
Mr Maxwell Gooding
Mr Geoff Campbell
Mr Otto Harrison
West Kingfish Oil Platform
West Kingfish Oil Platform Skimmer Pile
West Kingfish Oil Platform 'Hot and Cold' permit
systems
West Kingfish Oil Platform permit system
West Kingfish Oil Platform Safety Zone concept
West Kingfish Oil Platform fuel gas scrubber
West Kingfish Oil Platform low pressure open drain
system
West Kingfish Oil Platform high pressure drain
system
West Kingfish Oil Platform skimmer pile pressure
(gas) vent system including check valve, Y
strainer and flame arrestor
West Kingfish Oil Platform gas turbines
West Kingfish Oil Platform deluge system
West Kingfish Oil Platform safety shower system
West Kingfish Oil Platform on board safety system
West Kingfish Oil Platform on board maintenance
system
West Kingfish Oil Platform brucker craft
THIRD CONDITION
AND as to which THIRDLY there are reasonable grounds
for believing that the same will afford evidence as to
the commission of the following offences against laws
of the Commonwealth, that is: -
(i) An offence against Section 97 of the
Petroleum (Submerged Lands) Act 1967 in that
on and about 6 November 1986, Esso Australia
Limited as permitee, lessee or licensee
failed to carry out all petroleum exploration
operations and operations for the recovery of
petroleum in the permit area, lease area or
licence area, known as the West Kingfish Oil
Platform and situated in the Bass Strait
about 72 kilometres from the Coast of
Victoria, in a proper and workmanlike manner
and in accordance with good oil-field
practice and failed to secure the safety,
health and welfare of persons engaged in
those operations in or about the permit area,
lease area or licence area.
(ii)An offence against Paragraph 98(2) of the
Petroleum (Submerged Lands) Act 1967 in that
on and about 6 November 1986, Esso Australia
Limited as operator failed to maintain in
good condition and repair all structures,
equipment and other property in the
operations area, known as the West Kingfish
Oil Platform and situated in the Bass Strait
about 72 kilometres from the coast of
Victoria, and used in connection with the
operations in which they are engaged."

3. On 2 February 1989 I granted an Interim Injunction restraining the respondents until further order from executing the warrants. On that day the respondents were represented in Court by a solicitor employed by the Director of Public Prosecutions, who had not had an opportunity to obtain instructions. By consent I treated the application then before me as an ex parte application and listed the matter on 6 February for further argument.

4. On this day I was advised by the parties that save, and with respect to, one matter relating to legal professional privilege which the parties desired to reserve, the parties wished that the proceedings that day be treated as a final hearing. Although not presently relevant, it appeared that during the course of executing the warrants, the respondents seized documents as to which a claim of legal professional privilege was made by the applicant and the documents in question were placed in a box and sealed with tape and forwarded to the Registry for safe-keeping. By consent other documents seized, in respect of which no claim for legal professional privilege was made, were also forwarded to the Registry. The parties have agreed to leave until a later time, if relevant, the question as to whether the applicant's claim for legal professional privilege in respect of the former class of documents was properly made.

5. By way of background to the warrants it would seem that the Department of Industry Technology and Resources, a Victorian State Government department, had referred to the Australian Federal Police for an enquiry under the Petroleum (Submerged Lands) Act 1967 circumstances relating to a Skimmer pile test on board the West Kingfish Oil Platform on 6 November 1986 on which day in the course of these tests a Mr. Crosley had died. Mr. Crosley was, it would seem, a process engineer, employed by Restech Consultants Pty. Limited which had been concerned in designing a modification to the Platform situated in the Bass Strait about 72 kilometres from Victoria.

6. A written Information containing the material which the Federal Police wished to put before the Justice in support of the issue of the search warrants was forwarded to the Justice by a Mr. Doherty, an officer employed in the office of the Director of Public Prosecutions, on Monday 30 January. The written information was considered by Mr. Condie who indicated at a meeting with Mr. Doherty on 1 February that he was satisfied that there were sufficient grounds to justify the issue of the warrants.

7. Evidence was also given by Mr. Curran, one of the respondents, who swore to the material in the Information.

8. The Information sworn to by Mr. Curran was produced to the Court on subpoena and I allowed the applicant to inspect that part of the Information relevant to the issues which had been idenfified by Mr. Grieve, Counsel for the applicant, in the ex parte hearing and opening. I did not permit inspection of the whole document for reasons which are to be found in a judgment which I delivered on 6 February.

9. The part Information, as to the correctness of which Mr. Curran swore on oath before Mr. Condie, referred to an investigation into alleged breaches of safe work practices by Esso Australia Ltd. thereinafter referred to as "Esso". The Information alleged that Restech Consultants Pty. Limited, the employer of Mr. Crosley had been "tasked by Esso with designing a modification to the West Kingfish Oil Platform ...". The document stated that various persons participating in the test were "employed by Esso" and alleged that senior management of the applicant including a Mr. Harrison had "commissioned the tests on the Skimmer Pile located on the West Kingfish Platform in order to establish whether hydrocarbon backflow through the open deck drains could be achieved under the existing system."

10. Annexed to the Information were documents marked Annexure "9" (Exhibit 1) which included correspondence between Esso Eastern Inc. of Texas and Mr. Harrison of Esso Australia Ltd. and other correspondence including electronic mail tranmission under the heading of Esso Australia Ltd.

11. The plain effect of the documents comprising Exhibit 1 was that the Kingfish Platform was owned and operated by Esso Australia Ltd. and no indication appears in the documents to suggest that any other company has any direct involvement in the operations carried on in the West Kingfish area of Bass Strait. Evidence was, however, adduced at the hearing and was not disputed to the effect that the applicant was not within the meaning of the words as used in the Petroleum (Submerged Lands) Act 1967 as amended in respect of the West Kingfish Platform a "permitee", "lessee", "licensee" or "operator" but rather that the relevant permits and licences were held by Esso Exploration & Production Australia Inc and BHP Petroleum Pty Limited jointly.

12. Mr. Curran gave evidence of correspondence from which it was clear that the relevant production licence for petroleum was not held by the applicant and from which it was clear that in the work being carried on in the West Kingfish field, the applicant was acting as agent for Esso Exploration & Production Australia Inc. It may be inferred, although I do not think anything turns upon it, that Mr. Curran was aware of the correspondence and therefore aware that the applicant was not itself the permitee, lessee, licensee or operator prior to the swearing of the information for the search warrant before Mr. Condie. However, it is clear from the evidence that Mr. Curran did not communicate this information to Mr. Condie and it has not been suggested that anyone else did so.

13. It was not suggested that I should draw any inferences concerning the failure of the respondents to call Mr. Condie.

14. Counsel for the applicant sought to attack the validity of the search warrant on four bases.

15. First, it was argued that each warrant was bad on its face because it did not state that Mr. Condie was himself satisfied that there were reasonable grounds for suspecting that there were on the relevant premises "things" as to which there were reasonable grounds for believing that they would afford evidence as to the commission of the offences under ss. 97 and 98(2) stipulated in the warrant, but rather that the proper construction of each warrant was that Mr. Condie stated that he was only satisfied that there were on the relevant premises things as to which the searcher would have reasonable grounds for believing that they would afford evidence as to the commission of the relevant offences.

16. With respect to this argument while conceding that the warrants may not have been elegantly drafted, I do not think the construction sought to be placed on the warrants is really open. It seems to me that the draftsman has sought to follow the wording of s.10 as closely as possible and that on its face each warrant states that Mr. Condie was satisfied that there were reasonable grounds for suspecting that there were upon the premises specified "things" as to which there were reasonable grounds for believing that they would afford evidence as to the commission of the stated offences. Thus I am of the view that this first argument fails.

17. The second attack on the search warrants was that they were in their reference to the offences under ss. 97 and 98(2) of the Petroleum (Submerged Lands) Act 1967 too wide with the consequence that the warrants were bad on their face and void. It was argued that the description of each offence, while limited in terms to a stated date and a stated place (the West Kingfish Oil Platform) opened up a multitude of particular offences. Read carefully it was said, taking paragraph 1 of the Third Condition as an example, the warrants particularised one offence alleged against the applicant as permittee, one as lessee and one against the applicant as licensee. Each of those offences was then further multiplied into additional offences by the reference to permit area, lease area and licence area and further by the reference to the failure to carry out petroleum operations in a proper and workmanlike manner, and further by reference to the failure to secure safety, health and welfare of persons engaged in the operations and so on. It was even suggested that each of safety, health and welfare provided further categories of offences. The same criticism was made as to paragraph 2.

18. Ever since the great decisions of the eighteenth century Entick v. Carrington [1765] EWHC J98; (1765) 2 Wils KB 275, 95 ER 807; R. v. Wilkes [1799] EngR 484; (1763) 2 Wils KB 151, 95 ER 737; and Huckle v. Money [1799] EngR 225; (1763) 2 Wils KB 205, 95 ER 768; and see too Home v. Bentinck [1820] EngR 447; (1820) 2 Brod & B 130, 129 ER 907 the courts have stated in unequivocal terms the sanctity and inviolability of the home and person of a subject from executive interference without proper authority conferred by law. See as to United Kingdom position per Lord Denning in Ghani v. Jones, (1970) 1 QB 693 at 706-709, and also Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123 at pp 140-141 per Lockhart J. The only exception to this principle irrelevant to the present case was, as pointed out by Lockhart J. in Crowley v. Murphy, the issue of a warrant to search a person's home for stolen goods.

19. Where legislation was passed to derogate from this important principle such legislation was to be construed so as not to derogate from the common law right without express words or necessary implication in accordance with the general principle enunciated by the High Court in Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174 at p 206.

20. Where, as in s.10 of the Crimes Act 1914 (Cth) Parliament conferred upon a justice of the peace power to issue a warrant having serious consequences to the rights of the occupier of the premises to be searched, it was not surprising that the courts both here and abroad have, unless the statutory context required otherwise (cf IRC v. Rossminster Ltd.) [1979] UKHL 5; (1980) AC 952) required a degree of specificity in a warrant not only in respect of the things for which the search was instituted but also as to the offences which it is alleged have been committed and in respect of which the "things" searched for may provide evidence. R v. Tillett ex parte Newton (1969) 14 FLR 101, pp 112-3 and cases there cited.

21. As was pointed out by Pincus J. in OPSM v. Withers, 13 FCR 594 at p 596 there has been some variance as to the degree of particularity required, referring to R. v. IRC ex parte Rossminster Ltd. supra; Trimboli v. Onley (No. 1), (1981) 56 FLR 304 at p 314. However as his Honour points out at p 599 the weight of authority in this court is in favour of the view that particularity is necessary. That it was was decided by Fox J. in R. v. Tillett ex parte Newton (1969) 14 FLR 101, at pp 112-113 where his Honour quashed a search warrant for failure to describe at all a particular offence and to authorise seizure by reference to that offence. As his Honour put it at p 112:

"What s.10 authorises to be seized is therefore any
'thing' which is, in the way required by the
section, related to a particular offence. The
warrant cannot authorize the seizure of things in
general or things which are related to offences in
general. In my opinion the warrant should refer
to a particular offence and authorize seizure by
reference to that offence."

22. Subsequent cases in this court have accepted the law as stated by Fox J. See Brewer v. Castles (1984) 1 FCR 55; ABC v. Cloron (1984) 4 FCR 151; Ryder v. Morley 76 ALR 329; Arno v. Forsyth (1986) 9 FCR 576; Parker v. Churchill (1986) 65 ALR 107 at p 113; OPSM v. Withers supra.

23. There seem to be two threads of thought running through the decisions of this court to which reference has been made. The first is that if a warrant were to authorise a search for example, for things which afford evidence of the commission of offences generally, then the warrant would be so wide as to amount to a general warrant and it could not be assumed from s.10 that the common law prohibition of a general warrant had been abrogated.

24. The second and related thought is that a warrant, which may be directed not only to the person who may have committed the offence in question but indeed also to persons quite unrelated to those who may have committed the offence should be sufficiently specific so that both the person executing the warrant and the occupier of the premises searched should be able reasonably to know whether documents on the premises satisfy the description shown on the face of the warrant. In the case of the person executing the warrant this is necessary so that the interference with the rights of the subject brought about by the warrant can be confined by reference to the documents relating to the specific offence named in the warrant and in the case of the occupier so that the occupier may know the object of the search, and may obtain if he desires legal advice as to the possible limits of the search, or himself make an assessment of the material likely to be within or without the ambit of the warrant. See Tillett at p 113; Ryder v. Morley 70 ALR 593 at p 597 per Toohey J. where his Honour said:

"The requirement of particularity is not merely
formal; it enables the person to whom the warrant
is addressed and the person whose premises are to
be searched to know the object of the search so
that each may make an assessment of the material
likely to prove relevant:"

25. The test was stated by Jackson J. in Parker v. Churchill (1986) 65 ALR 107 at p 120 as follows:

"A warrant should state the description of the
offence in question with a particularity
sufficient to enable the person whose premises are
being searched to know the exact object of the
search."

26. It seems also to be accepted that the question whether there is a sufficient particularity is a question which is to be resolved by looking at the warrant in its entirety (see per Toohey J. in Ryder v. Morely supra at p 598); Brewer v. Castle 84 FCR 55 and that the practical application of the test may vary from instance to instance per Jackson J. in Arno v. Forysth (1986) 9 FCR 176 at p 595, per Lockhart J. at p 591.

27. A similar view has been taken in New Zealand and Canada as is demonstrated by the cases referred to by Fox J. in Tillett's case supra at p 113 and in Alder v. AG (1977) 5 WWR 132 at p 147; Auckland Medical Aid Trust v. Taylor (1975) 1 NZLR 728; and see Fontana, Law of Search & Seizure in Canada 2nd ed., p 33.

28. In a particular case the degree of particularity required may give rise to difficulty. Mere reference to a section number of a criminal code may not in a particular case be sufficient. See ABC v. Cloron supra where the offences referred to in the warrant were stated to be "offences against s.70 of the Crimes Act 1914 a law of the Commonwealth" and the warrant was held to be bad; and see Regency Realties Inc. v. Lorancer (1961) 36 CR 291 (Quebeck Supreme Court); and Model Power v. The Queen 21 CR (3 d) 195 (Ontario C.A.); but cf. Ryder v. Morley (supra) where the warrant referred to two named persons conspiring "in about 1979 to defraud the Commonwealth of Australia of revenue, to wit income tax in respect of the fiscal years after ... contrary to s.86(1)(c) of the Crimes Act, a law of the Commonwealth", where the warrant was held to be good notwithstanding that the section number relative to the offence was s.86A. A warrant referring merely to the commission of an offence under s.86 of the Crimes Act or indeed s.86A of the Act, without more would clearly be bad. (Cf. Arno v. Forsyth supra).

29. However, whatever the case might have been if the present warrants had merely referred to the particular sections of the Petroleum (Submerged Lands) Act, I am of the view that the present warrants are not invalid for failure to specify the offence alleged to be committed with sufficient particularity.

30. In undertaking its role of judicial review the court must exercise care that it does not frustrate the proper administration of justice and that it balances this interest with the legitimate interest of privacy of the citizen. There is much to be said for the view that there could be a different standard of particularity applicable to warrants addressed to the person suspected of committing the offence as against warrants addressed to third persons. But it is unnecessary here to address that question.

31. The warrants here before the court identify a time and place. It has never been suggested that a warrant was bad merely because more than one offence was specified. Of course, in a particular case a warrant which identified a multitude of different and unrelated offences might be argued to be bad as amounting in effect to a general warrant, a matter upon which I express no opinion, but that is not the present case.

32. In my view the present warrants sufficiently particularise the offences in question to enable both the persons executing the warrants and the applicant to know the exact object of the search and accordingly are not for that reason bad on their face.

33. The third attack made was that the information sworn to by Mr. Curran was false and accordingly was not "information" for the purposes of s.10. It was said that it was clear that the applicant as a matter of fact could not on the evidence be a person which could commit an offence under ss.97 and 98(2) of the Petroleum (Submerged Lands) Act and that accordingly the material put before the magistrate was untrue.

34. It was not suggested by counsel for the applicant that there was mala fides on the part of Mr. Curran although it was said that I should infer, as I do, that Mr. Curran was aware prior to giving information on oath before Mr. Condie that the applicant could not have committed the offences under ss. 97 (and 98(2)) referred to. For present purposes I ignore the effect of s.5 of the Crimes Act 1914 to which I shall return.

35. Section 10 of the Crimes Act 1914 provides that,"if a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel or place" (anything which satisfies the criteria set out in (a), (b) and (c) of the section) "he may grant a search warrant."

36. Counsel for the applicant submitted that I should interpret "information" as being information in the normal sense of knowledge or material communicated which knowledge or material is as a matter of substance true. He submitted that the expression "information" should not be construed as having the technical legal meaning of a statement of fact made before a justice in writing.

37. There has been some debate as to whether the "information" to which s.10 refers must be oral or in writing. The question was raised before Fox J. in Tillett's case supra at p.109 but his Honour after referring to a number of authorities found it unnecessary to decide whether the justice could proceed by way of oral information. The debate was again referred to by Lockhart J. in Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123 at pp 142-3. In addition to the cases referred to in these judgments reference could also be made to McArthur v. Williams [1936] HCA 10; (1936) 55 CLR 324.

38. It can with some force be argued that there is a distinction between a statutory provision which refers to the justice taking "information on oath" and a statutory provision (such as considered in McArthur v. Williams supra) which refers to "an information in writing on the oath of the informant". From this distinction it would follow that the expression "information" in s.10 is not used in a technical sense but refers rather to the communication of material i.e. that there is no absolute requirement in s.10 that there be writing.

39. Like Lockhart J. and Fox J. before me, I do not find it necessary to decide between the competing views but add my voice to theirs in support of the view that the information should in the interests of justice be presented in writing.

40. Even assuming in favour of the applicant's submission that "information" can be oral, I can see no reason why false information could not be in a relevant sense "information". Accordingly, I do not find the warrant for this reason to be void on its face.

41. The fourth argument, which was closely related to the third was that each warrant was bad on its face because it was said it was clear on the evidence that the applicant could not have committed the offence complained of. By way of analogy an example was given of a warrant which referred to an offence such as s.82 of the Crimes Act (NSW) which could only be committed by a woman but where the person referred to in the information before the justice, and subsequently in the warrant as being guilty of the offence, was a man.

42. The analogy is not in my view apposite. In such a case, leaving aside s.5 of the Crimes Act (Cth) there would not be reasonable grounds for the satisfaction of the justice of the matters referred to in s.10 and it is clear law that not only must the justice be satisfied in fact but that his satisfaction must be based on reasonable grounds and if it is not it will be set aside. In the present case, by contrast, the material before the justice, which I have earlier described, afforded in my opinion reasonable grounds upon which the justice could be satisfied as to the commission of an offence by the applicant and no other person. The fact that it might be shown now by evidence adduced before me, not being evidence before the justice, that the applicant could not have committed the offence does not require the conclusion that the material before the justice did not provide reasonable grounds for the formation by the justice of the opinion. I should add that it was not suggested by Counsel for the applicant that the justice was not in fact satisfied.

43. It does not however, in my view, follow that the fact that the material before the justice (which was incomplete and omitted details as to the ownership of the relevant petroleum leases or licences from which it would be clear that the applicant could not have committed an offence) would lead a reasonable man to the conclusion that the applicant could have committed the offences under ss. 97 and 98(2) made the evidence before me of such ownership irrelevant.

44. As was said in Trimboli v. Onley (No. 3) (1981) 56 FLR 321 at pp 334-5 an officer executing a warrant must entertain at the time of seizure of things under the warrant a belief on reasonable grounds that the documents seized by him fall within the description of the documents authorised to be seized by the warrant. Further, the court will exercise a supervisory role over the execution of the warrant and in determining challenges to the validity of a claim to be entiteld to detain property seized under the warrant. The belief and the grounds for that belief must exist: "at every point at which lawfulness is claimed under the warrant for taking and keeping another's property" per Holland J. at p 335.

45. Prima facie, therefore, viewing the matter as at the time of hearing the persons executing the warrants now know, what they might not have known beforehand, that there are no documents on the premises of the applicant which are capable of falling within the terms of the warrants for the simple reason that the applicant could not as a matter of law have committed the offences referred to in each warrant.

46. Counsel for the respondents sought to avoid the consequences of the argument by reference to s.5 of the Crimes Act 1914.

47. That section provides:-

"Any person who aids, abets, counsels or procures,
or by act or omission in any way directly or
indirectly, knowlingly concerned in, or party to,
the commission of any offence ... shall be deemed
to have committed that offence and shall be
punishable accordingly."

48. The respondent accordingly submitted that s.5 would have effect to deem the applicant to commit the offences under ss. 97 and 98(2) (assuming the applicant to fall otherwise within s.5 for all purposes so that the present warrants should be read as referring not only to the direct substantive offences under ss. 97 and 98(2) but also to the offences that could be deemed to have been committed under ss. 97 and 98(2) by virtue of the provisions of s.5.

49. Counsel for the respondents referred me in written submissions to what was said by Latham C.J. in Mallan v. Lee [1949] HCA 48; (1949) 80 CLR 198 at p 211 where his Honour said:

"I see no difficulty in accepting the proposition
that, when a person or company is guilty under
section 230 of an offence of understating income in
a return, another person who, with knowledge of the
relevant facts, prepared the return would be a
person who has aided the person or company in
committing the offence, with the result that such a
person would, by reason of section 5 of the Crimes
Act, be 'deemed to have committed that offence' and
be punishable accordingly ... The purpose of
Section 5 of the Crimes Act is to make it possible
for a person to be prosecuted for an offence
against another law of the Commonwealth and to be
punished for that offence."

50. That case concerned the public officer of a company who was prosecuted under the then s.230 of the Income Tax Assessment Act (now repealed) for having aided or abetted the taxpayer company, whose return it was, in understating its income. The context of the case concerned whether the time within which proceedings could be brought was regulated by s.230 of the Income Tax Assessment Act or by s.21 of the Crimes Act 1914 there being different limitation periods in each alternative.

51. The court held that the limitation period under the income tax legislation prevailed.

52. Latham C.J. at p 211 described the effect of s.5 in the following terms:

"When under a statute a person is to be deemed to
have done something which he has not in fact done
the result is that he is to be treated by a court
engaged in the interpretation and administration of
the law as having incurred the consequences of that
which he is deemed to have done for the purposes
for which the 'statutory fiction is to be resorted
to' ... The purpose of s.5 of the Crimes Act is to
make it possible for a person to be prosecuted for
an offence against another law of the Commonwealth
and to be punished as for that offence."

53. Reference was made also to Hamilton v. Whitehead [1988] HCA 65; (1988) 82 ALR 626 where the managing director of a company was held liable under s.38(1) of the Companies & Securities (Interpretation & Miscellaneous Provisions) (WA) Code) (equivalent to s.5 of the Crimes Act) of being knowingly concerned in offences of offering or issuing to the public a prescribed interest which offences were committed directly by the company and not vicariously as was the case in Mallan v. Lee.

54. Counsel for the applicant sought to distinguish Mallan v. Lee and Hamilton v. Whitehead supra and submitted that it was, having regard to what was said in these cases, just as impossible for the applicant to commit an offence having regard to s.5 of the Crimes Act 1914 as it was to commit the offence simpliciter. With respect to this argument it seeks to confine s.5 by reference to the particular facts of the two cases in question. I can see no reason why s.5 should, as was argued, be confined to the two cases of (a) vicarious liability and (b) liability of those acting as the directing mind and will of a company and I can find nothing in the case law which suggests that s.5 is to be so confined. The section clearly covers every case where in common law terms a person could be charged with an accessory offence.

55. The question in the present case seems to me to be what the function of the deeming of s.5 is. As Kinsella and Collins JJ. observed in Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 at p 384:

"Where a statute provides that something shall be
deemed to be a fact, it is necessarily implicit in
such a provision that the assumption shall be made
if necessary contrary to fact ..."

56. See too D.C. Pearce, Statutory Interpretation in Australia, 2nd ed. at p.49; and cf. Hunter Douglas Australia Pty. Ltd. v. Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at p 65; University of Wollongong v. Metually [1984] HCA 74; (1984) 56 ALR 1 per Mason J. at p 12; Thorn EMI Pty. Ltd. v. F.C.T. (1987) 71 ALR 728, per Beaumont J. at p 734. Thus by the operation of s.5 if rape were an offence under Commonwealth law a wife could be found guilty of rape where she aided and abetted her husband in the perpetration of the offence, cf. R. v. Ram (1893) 17 Cox's case 609; R. v. Goldie [1937] HCA 65; (1937) 59 CLR 254 at p 271.

57. The purpose of the deeming in s.5 is to make the aider and abettor punishable to the same extent as if he had committed the "principal offence". It does not have a wider operation. As Evatt J. said in R. v. Goldie supra at p 271:

"If, for instance, the offence aided is a crime
which can be committed only by a bankrupt, sec. 5
makes the aider liable to the same punishment as is
provided in the case of a bankrupt committing the
offence; it does not attempt to perpetrate the
absurdity of declaring the aider a bankrupt."

58. Section 10 of the Crimes Act 1914 does not expressly require that a warrant to be valid set out a specific offence against a law of the Commonwealth contravened; that requirement has been found by the courts to exist for the reasons set out earlier. But the very reasons which have been advanced for requiring the warrant to specify the offence with sufficient particularity to enable the person whose premises are searched to determine whether things seized meet the description in the warrant suggest that if the offence in question was, for example, the aiding and abetting the commission by some other person of an offence it would be necessary that the warrant set out that offence rather than the offence to which it was accessory.

59. If this were not so then every warrant which referred to a Commonwealth offence would have to be read as including a reference to the multitude of possible offences that might be found to exist under s.5. This would not only assume a very high degree of legal sophistication on the part of the person whose premises are to be searched in determining the ambit of the warrant but also would introduce an unacceptable level of ambiguity into any search warrant.

60. I should say that the problem could have been avoided altogether by omitting from the warrants reference to the applicant as the person having committed the offences under ss. 97 and 98(1) of the Petroleum (Submerged Lands) Act 1967.

61. For these reasons I am of the opinion that while each warrant was at the time of issue valid on its face there could not now exist in the mind of the persons executing the warrant on reasonable grounds a belief that the things seized could provide evidence of the offences said to be committed by the applicant under ss. 97 and 98(2) of the Petroleum (Submerged Lands) Act 1969.

62. It follows, therefore, that the continued detention of the things seized by the respondent would be unlawful and that this court should prima facie order the return of the things seized to the applicant.

63. However, in Ghani v. Jones (1970) 1 QB 693 Lord Denning at p 706 said:

"I take it to be settled law, without citing cases,
that the officers (referring to officers who inter
alia enter a man's house by virtue of a warrant)
are entitled to take any goods which they find in
his possession or in his house which they
reasonably believe to be material evidence in
relation to the crime for which he is arrested or
for which they enter. If in the course of their
search they come upon any other goods which show
him to be implicated in some other crime, they may
take them provided they act reasonably and detain
them no longer than is necessary. Such appears
from the speech of Lord Chelmsford L.C., in Pringle
v. Bremner and Stirling (1867) 5 Macph HL 55,
60 and Chic Fashions (West Wales) Ltd. v. Jones
(1968) 2 QB 299."

64. It would seem that a similar view is taken in Australia, see G.H. Photography Pty. Ltd. v. McGorrigle (1974) 2 NSWLR 635 at pp 644-5 and Gillies, The Law of Criminal Investigation 1982 ed. at pp 214-7 and cases there discussed and in Canada, see Alder v. Attorney General (1977) 5 WWR 132, 147 at pp 149-153; and Re Shama's Clover Farm v. The Queen (1982) 1 CCC (3d) 119.

65. What then is the proper order to be made? Prima facie, on the view I have taken, the things seized should be returned to the applicant as they can never provide evidence of the commission of the offences named in the warrants. However, the material seized might provide evidence of the commission by the applicant of accessory offences under the combined effect of s.5 of the Crimes Act 1914 and ss. 97 and 98(2) of the Petroleum (Submerged Lands) Act 1967. In the event of a dispute between the parties it would be the court and not the respondents which would decide whether the things seized could in fact afford evidence of the committal by the applicant of the relevant offences.

66. There is an apparent illogicality, on the one hand, in finding that continued detention of the things seized is prima facie illegal and refusing to order that those things be returned, on the other. Such a course could, in my view, tend to bring the administration of justice into disrepute (see Alder at p 152). On the other hand it may well be that in respect of particular documents, for example, the respondents might wish to make submissions that they do in fact provide evidence of the commission by the applicant or perhaps others of other offences. In such a case it would seem from the authorities that the court should in its supervisory role adjudicate upon that matter.

67. Accordingly, it seems to me that the proper orders in the present case would be an order directed to the addressees of the warrants restraining them from proceeding further with the execution of the warrants and a declaration that the respondents are not by virtue of the warrant entitled to retain possession of the documents and things seized. All parties will have liberty to apply. I direct the applicant to bring in short minutes of order on 3 March 1989 at 9.30 a.m. and I will hear argument as to the question of costs on that day. Directions may then be given, if necessary in respect of the further hearing of the matter to deal with any argument in respect of particular documents which the parties are unable to agree should be returned.