Re William Thomas Bartlett v Claire Patricia Weir and Others [1993] FCA 38 (17 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM THOMAS BARTLETT
And: CLAIRE PATRICIA WEIR AND OTHERS
No. T G7 of 1992
FED No. 55
Number of pages - 17
Search Warrant

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Search Warrant - Validity - grant - requirements- reasonable grounds for suspicion or belief - facts to found reasonable suspicion or belief - information on oath - form of affidavit

Crimes Act 1914 (Cth) s10

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Beneficial Finance Corporation v Cmr Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523

HEARING

HOBART, 15, 16 September 1992
17:2:1993

Counsel for the Applicant: Mr P. Roach

Solicitors for the Applicant: Brookman Tilley

No appearance by the First Respondent

Counsel for the Second Respondents: Mr D. Wilson

Solicitors for the Second Respondents: Australian Government Solicitor

ORDER

1. The Court declares that each of the three search warrants was

valid.
2. The Court orders that the matter be referred for a Directions
Hearing on 29 March 1993 at a time to be determined by the
District Registrar.

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

DECISION

NORTHROP J. On 19 March 1992, members of the Australian Federal Police Force entered three separate premises at or near Launceston in the State of Tasmania and searched for and seized a large number of things found therein. In so doing they relied upon the authority conferred upon them by three separate search warrants dated 18 March 1992 granted by a Justice of the Peace pursuant to powers conferred by s10 of the Crimes Act 1914 (Cth). The applicant, being the person in possession or occupation of those premises, in these proceedings is seeking a declaration against the Justice of the Peace and the four members of the Australian Federal Police Force named in the three search warrants, that the search warrants were invalid and is seeking consequential orders including an order for the return of the things seized and an order for damages for trespass and wrongful detention. The action is brought pursuant to s39B of the Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977. The parties agreed that the Court should determine as a preliminary question, the validity of the three search warrants before hearing and determining the other questions raised in the proceedings. The Court agreed to that course.

2. The evidence before the Court on this preliminary issue comprises the information on oath presented to the Justice of the Peace upon which she granted the three search warrants, an affidavit sworn by the respondent Aikman setting out the facts which occurred before the Justice of the Peace when she granted the three search warrants and details of the things seized pursuant to the authority conferred by the three search warrants. No oral evidence was given.

3. Counsel for the applicant contended that the three search warrants were invalid on the ground there was insufficient material before the Justice of the Peace to justify the granting of the warrants. In developing this contention counsel relied upon two broad grounds, namely: 1. That the warrants were bad on their face in that they were too broad and vague and 2. That the material before the Justice of the Peace was not sufficient to satisfy the conditions precedent to the granting of the warrants. In reality, ground 1 merges into ground 2 but the distinction can be of assistance.

4. The relevant parts of s10 of the Crimes Act provide as follows:

"10(1) If a ... Justice of the Peace is satisfied by
information on oath that there is reasonable ground for suspecting
that there is in or upon any premises ... or place:
(a) ...
(b) anything as to which there are reasonable grounds for
believing that it will afford evidence as to the commission
of any such offence (against any law of the Commonwealth);
or
(c) ...
... the ... Justice of the Peace may grant a search warrant
authorizing any constable named in the warrant, with such
assistance, and by such force, as is necessary and reasonable, to
enter at any time the premises ... or place named or described in
the warrant, and to seize any such thing which he or she might
find there."

5. Before turning to the facts of this case, it is helpful to make a brief reference to the nature of a search warrant. In this respect, a very helpful passage appears in the judgment of the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104. That case involved a consideration of s679(b) of the Criminal Code (Q) which, for present purposes, is similar to s10 of the Crimes Act. At pp110-111 the Court, Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ., said:

"In reference to the procedure for issuing a search warrant under
s10 of the Crimes Act, Mason J said in Baker v Campbell (29):
"For present purposes the important characteristics of the
search warrant procedure are that its foundation is the
making of an order by a judicial officer and that the
warrant which issues by virtue of the order authorizes the
search and seizure of documents in the possession of another
for use in the investigation and in any subsequent trial
arising out of the investigation."
A search warrant thus authorizes an invasion of premises without
the consent of persons in lawful possession or occupation thereof.
The validity of such a warrant is necessarily dependent upon the
fulfilment of the conditions governing its issue. In prescribing
conditions governing the issue of search warrants, the legislature
has sought to balance the need for an effective criminal justice
system against the need to protect the individual from arbitrary
invasions of his privacy and property. Search warrants facilitate
the gathering of evidence against, and the apprehension and
conviction of, those who have broken the criminal law. In
enacting s679, the legislature has given primacy to the public
interest in the effective administration of criminal justice over
the private right of the individual to enjoy his privacy and
property. The common law has long been jealous of the prima facie
immunity from seizure of papers and possessions: see Holdsworth,
A History of English Law, vol 10 (1938), pp668-672. Except in the
case of a warrant issued for the purpose of searching a place for
stolen goods, the common law refused to countenance the issue of
search warrants at all and refused to permit a constable or
government official to enter private property without the
permission of the occupier: Leach v Money [1765] EngR 11; (1765) 19 State Tr
1001; Entick v Carrington (1765) 19 State Tr 1029. Historically,
the justification for these limitations on the power of entry and
search was based on the rights of private property: Entick (1765)
19 State Tr at p1066. In modern times, the justification has
shifted increasingly to the protection of privacy: see Feldman,
The Law Relating to Entry, Search and Seizure (1986), pp1-2.
State and Commonwealth statutes have made many exceptions to the
common law position, and s679 is a far-reaching one.
Nevertheless, in construing and applying such statutes, it needs
to be kept in mind that they authorize the invasion of interests
which the common law has always valued highly and which, through
the writ of trespass, it went to great lengths to protect.
Against that background, the enactment of conditions which must be
fulfilled before a search warrant can be lawfully issued and
executed is to be seen as a reflection of the legislature's
concern to give a measure of protection to these interests. To
insist on strict compliance with the statutory conditions
governing the issue of search warrants is simply to give effect to
the purpose of the legislation. It will be convenient to consider
the relevant conditions prescribed by s679 under three headings:
the justice's function, the material to ground the issue of a
warrant and the facts to be established."

6. The High Court then considered in detail the relevant principles of law to be applied under each of those headings. The reasons should be read in full. In summary, three principles are set out based upon s10 of the Crimes Act.

1. The justice's function
7. The opening words of s10 - "If a Justice of the Peace is satisfied by information on oath" - impose on a Justice to whom an application for a search warrant is made the duty of being satisfied that the conditions for the issue of the warrant are fulfilled. It is implicit in s10 that the applicant for the search warrant should entertain the suspicion that there is in the premises or place things as to which there are reasonable grounds for believing will afford evidence as to the commission of any offence against any law of the Commonwealth. The High Court makes it clear that the Justice to whom the application for the warrant is made, must be satisfied that there are reasonable grounds for the person seeking the grant of the search warrant entertaining the relevant suspicion and belief. There is no requirement that the Justice must also entertain the relevant suspicion and belief. The Justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind in the person seeking the warrant.

2. The material to ground the issue of a warrant 8. The discussion under this heading commences at p113. The facts relied upon by the applicant for the warrant must be by information on oath. The information on oath should contain sufficient material to establish reasonable grounds for the suspicion and belief of the applicant mentioned in s10. It is noted that the word "information" has no technical meaning but refers to material being facts, information, beliefs and suspicions sufficient to satisfy the Justice that there are reasonable grounds for the suspicion and belief of the aplicant mentioned in s10. In other words, the material presented to the Justice must be sufficient to induce that state of mind in a reasonable person.

3. The facts to be established
9. This aspect of the analysis is the most complex. Suspicion and belief are different states of mind. The facts must establish that there is reasonable ground for the applicant suspecting the existence of a thing or things as well as establishing that there are reasonable grounds for believing that that thing or those things will afford evidence of the commission of the offence. At pp116-7, the High Court concludes that the existence of the thing or things is the subject of the suspicion. At the same time, there is the requirement that there are reasonable grounds for the belief of the applicant that the thing or things will afford evidence. The facts which can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief, but some factual basis for suspicion must be shown. Essentially suspicion is a state of conjecture or surmise where proof is lacking. The objective circumstances sufficient to show a reason to believe point more clearly to the subject matter of the belief, but do not need to establish on the balance of probabilities that the subject matter exists. Belief is an inclination of the mind towards assenting, rather than rejecting a proposition. Something may be left for surmise or conjecture.

10. In this context, the identification of the thing or things being the subject of the suspicion and belief is of importance. At p117, the Court said:

"So to hold does not deprive the requirement of "reasonable
grounds for believing" in par(b) of significance. That
significance depends on the manner in which a complaint which
grounds a search warrant and the warrant itself identify the
object of the search. A thing must be identified either as a
specific object or as an object which answers a particular
description. It is by reference to the means of identification of
the object of the search that the sufficiency of both reasonable
grounds for suspecting and reasonable grounds for believing must
be judged. Where a specific object is identified, the question
whether there are reasonable grounds for believing that, if it
exists and is found, it will afford evidence as to the commission
of an offence is a discrete question to be answered according to
the facts set out in the complaint. Where the object is
identified by description, the broader and less specific the
description, the more difficult it is likely to be to satisfy the
requirement of reasonable grounds for believing that a thing
answering the description will afford evidence of the commission
of an offence. Conversely, the narrower and more specific the
description, the more difficult it may be to satisfy the
requirement of reasonable grounds for suspecting that the
designated object is in the particular location."

Examples are then given to illustrate the proposition.

11. In George v Rockett, the applicant for the warrant identified the things for which he was seeking a search warrant "as a bundle of A4 pages ... and part of the transcript of hearings bearing handwritten annotations". It was not disputed that the sworn material before the justice contained sufficient material to satisfy the magistrate that there were reasonable grounds for suspecting that those documents were in the place specified. The essential question was whether there was sufficient material in the sworn complaint to satisfy the magistrate that there were reasonable grounds for the applicant for the warrant believing that the document would afford evidence as to the commission of the relevant offences. The High Court found the material so presented to the magistrate was not so sufficient.

12. Before turning to the facts of this case, reference should be made to Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523, a decision of a Full Court constituted by Sheppard, Pincus and Burchett JJ. That case involved a consideration of the validity of a search warrant granted under s10 of the Crimes Act. A major issue considered related to what constituted a sufficient indication of the offence alleged in a warrant being the offence which limited the power to seize the things identified in the warrant. The leading judgment was given by Burchett J with whom Sheppard J agreed. Burchett J examined a large number of authorities relating to this issue, some of which appeared to contain conflicting views. His conclusion is stated at p543:

"I have discussed the authorities dealing with the true test, for
the sufficiency of the statement of the offence in a search
warrant, at considerable length, because of the importance of the
principle, and the difficulty which has arisen from the
conflicting statements of it. In my opinion, the conclusion
emerges clearly that there is no justification for an "exact
object" test. The matter should be viewed broadly, having regard
to the terms of the warrant in the circumstances of each case.
The question should not be answered by the bare application of a
verbal formula, but in accordance with the principle that the
warrant should disclose the nature of the offence so as to
indicate the area of search. The precision required in a given
case, in any particular respect, may vary with the nature of the
offence, the other circumstances revealed, the particularity
achieved in other respects, and what is disclosed by the warrant,
read as a whole, and taking account of its recitals."

13. The facts relating to the present case are not in dispute. On 18 March 1992, the respondent Aikman appeared before the respondent Weir, a Justice of the Peace within the meaning of s10 of the Crimes Act, on an application for the granting of three search warrants. He had with him a document headed:

"COMMONWEALTH OF AUSTRALIA
INFORMATION
SEARCH WARRANT, SECTION 10
CRIMES ACT 1914"

14. This document is hereafter described as "the information". A copy of the document is attached as Annexure A to these reasons.

15. The respondent Aikman handed the original of the information to
the Justice. At that time the information had not been signed or sworn. From a copy of the information, he read aloud to the Justice the contents of the information. The Justice wrote in the date "18th" and her name on the first page of the information and handed the original information to him. He then "swore the information" in the presence of the Justice who then "signed the original information to witness my signature".

16. The respondent Aikman then handed to the Justice three pro forma documents headed:

"COMMONWEALTH OF AUSTRALIA
CRIMES ACT 1914
SECTION 10
SEARCH WARRANT"

17. Each document, with the exception of the address of the premises referred to in the document, was in identical terms. The Justice wrote in her name on the first page of each document, the date "18" on the second page of each document and signed each of the documents. She then handed each of the documents to the respondent Aikman. Each of these documents thus granted by the Justice is relied upon to justify the entry on 19 March 1992 of the three premises being the premises known as "Croftside", the premises situated at 103 Wellington Street Launceston and premises being a shop marked 54 Frederick Street Launceston respectively. Each of these documents is hereafter referred to as the search warrants. A copy of one of the search warrants is attached as Annexure B to these reasons.

18. The wording of the information appears to make obscure what should be set out clearly in plain language. The draftsperson appears to have thought that the word "information" in sub-sec 10(1) of the Crimes Act has a technical meaning as if it described a document in which there was to be an informant and a defendant. Thus the information commences by stating that the respondent Aikman "hereafter called the Informant, appears before me .......... a Justice of the Peace ... and informs me on oath that ...". Thereafter, the respondent Aikman refers to himself as "the Informant".

19. The sub-section merely requires the Justice of the Peace to be "satisfied by information on oath" of certain things. In theory, the information on oath could be given orally, but the authorities make it clear that it is desirable that the information should be in writing to enable a written record to be kept of the information upon which the Justice acted. Thus, an applicant for a search warrant should, in normal cases, have an ordinary affidavit or affidavits on oath or affirmation (see s27 Acts Interpretation Act 1901) setting out the information justifying the granting of a search warrant under s10 of the Crimes Act. In some cases it may be necessary for oral information on oath to be given to add to the information in the affidavit. If this is done a record of the oral information should be kept.

20. Normally, the affidavit should set out the relevant suspicion and belief of the person seeking the grant of the search warrant, the relevant law of the Commonwealth and the material upon which the applicant relies to support that relevant suspicion and belief. If the Justice to whom the application is made is satisfied that that material is sufficient to induce the relevant suspicion and belief in a reasonable person, the warrant should be granted. If this form is followed, greater clarity in the expressions used in the information, being the affidavit, may result.

21. Paragraphs 1 to 11 of the information contain information, including information supplied to the respondent Aikman by other persons. All this information forms the basis for the respondent Aikman entertaining the suspicion that there is in premises things as to which there are reasonable grounds for believing will afford evidence as to the commission of an offence against a law of the Commonwealth. The information then sets out the heading "The Informant Believes". Under this heading, the respondent Aikman sets out a number of beliefs he held based on the information contained in paragraphs 1 to 11. In its context, this part of the information forms part of the narrative.

22. The information then continues:

"And the informant on oath informs me that by reasons of the
matters stated there are reasonable grounds for suspecting that
there are at premises ...".

There are then set out the three different premises mentioned in the search warrants. The information continues: "things being" followed by a wide ranging list of things which it is said are suspected to be within the premises described earlier. This passage is lengthy and confusing, not so much because of the catalogue of things set out but because after identifying the things, the information continues without a break, not even a full stop but merely a comma:

"which there are reasonable grounds for believing that the same
will afford evidence as to the commission of an offence against
Section 29B Crimes Act 1914, or Section 24 (2) Cash Transaction
Reports Act 1988, both laws of the Commonwealth, namely Imposition
and Operate a Bank account in a false name."

The information then contains the final paragraph which prays that a search warrant be granted to search the premises for the things described.

23. The draftsperson of the information seems to have assumed that the information on oath placed before the justice should be sufficient to satisfy the justice to entertain the suspicion that there are in the premises things as to which there are reasonable grounds for believing will afford evidence as to the commission of a stated offence. That is not necessary. The applicant for the warrant must entertain the suspicion and have the belief. The information on oath must be sufficient to satisfy the Justice that there are reasonable grounds for the applicant to entertain that suspicion and to have that belief. When this distinction is fully understood, the draftsperson of the information on oath should be able to produce a document setting out the information which supports the relevant state of mind of the applicant.

24. The legal position is made clear by a reference to George v Rockett at pp 111-113. A number of extracts from that passage are set out:

"The opening words of s679 - "If it appears to a justice" - impose
on a justice to whom an application for a search warrant is made
the duty of satisfying himself that the conditions for the issue
of the warrant are fulfilled. In TVW Ltd v Robinson (1964) WAR 33
at p 37, Negus J said. "It is the duty of a justice before issuing
... a warrant, to satisfy himself that there are grounds for
suspecting and grounds for believing the respective matters
mentioned in s711 of the Criminal Code and that those grounds are
reasonable.""
"Although it is implicit in s679 that the applicant for the search
warrant should entertain the suspicion and belief to which that
section refers, it must "appear" to the issuing justice that there
are reasonable grounds for entertaining the relevant suspicion and
belief. ..."
"When a statute prescribes that there must be "reasonable grounds"
for a state of mind - including suspicion and belief - it requires
the existence of facts which are sufficient to induce that state
of mind in a reasonable person. That was the point of Lord
Atkin's famous, and now orthodox, dissent in Livesidge v Anderson
[1941] UKHL 1; (1942) AC 206."

25. In the present case, counsel for the applicant spent much time submitting that the Justice had not performed her duty properly. He relied upon what the High Court said in George v Rockett at p111 where the Court cited with approval what was said by Burchett J in Parker v Churchill (1985) 9 FCR 316 at p322. In matters of this kind, the justice does not give reasons for granting the warrant. Where the validity of a warrant is challenged, the Court has before it the material which was before the justice and the Court must determine whether that material discloses the existence of facts which are sufficient to induce the required state of mind, including suspicion and belief, in the mind of a reasonable person.

26. On the facts of this case, that requirement has been satisfied.

27. Applying the principles discussed earlier in these reasons, including what was said by Burchett J in Beneficial Finance v Commissioner of Australian Federal Police, the warrants make clear the nature of the relevant offences against the law of the Commonwealth namely s29B of the Crimes Act or s24(2) of the Cash Transaction Reports Act 1988 being, broadly, imposition and operating a bank account in a false name respectively. What is being sought is evidence to support a possible prosecution for those offences. The material before the Justice, much of it being based on information that had been given to the respondent Aikman, tends to support the state of mind of the respondent Aikman. The things specified later in the material in support of the grant of the warrants, as well as in the warrants themselves, are numerous but appear to be directed to the type of things that would afford evidence of the commission of the offences. The material establishes facts sufficient to induce a suspicion in the mind of a reasonable person that there were in the described premises, those things specified and a belief that those things could afford evidence as to the commission of the offences specified. It must be remembered that this is all in the context of investigating possible offences of the kind specified.

28. Accepting the information supplied to the respondent Aikman, which for present purposes must be accepted, as well as the information on oath given by him, there are reasonable grounds to support his state of mind that he suspects the applicant and Laura Heiner were engaging in activities that would constitute offences against the specified Commonwealth statutes. In carrying on those activities it is reasonable to assume they would use things of the type specified in the information and in the warrants and that these things were in the premises specified. Thus there were reasonable grounds for the suspicion of the respondent Aikman that those things were in those premises. The same material constitutes reasonable grounds for his belief that these things could afford evidence of the commission of those offences. Further, in my opinion, all that material is sufficient to induce the same state of mind in a reasonable person.

29. It follows that, despite the convoluted wording of the information on oath and of the warrant itself, neither is too broad or vague so as to make it invalid. Similarly, in my opinion, the material placed before the Justice was sufficient to justify the granting of the search warrants.

30. Accordingly, the Court finds that each of the warrants was valid.