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Federal Court of Australia |
Last Updated: 17 February 2005
FEDERAL COURT OF AUSTRALIA
Australian Federal Police v Carson [2005] FCA 101
PROCEDURE – Application for urgent hearing and disposition
– Reason for urgency is potential use of evidentiary material in State
Courts
SEARCH WARRANT – Seizure of computer records for
which legal professional privilege is
claimed
AUSTRALIAN
FEDERAL POLICE v JOHN LANCE CARSON
SAD 4 of
2005
SELWAY
J
11 JANUARY 2005
ADELAIDE
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AUSTRALIAN FEDERAL POLICE
APPLICANT |
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AND:
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JOHN LANCE CARSON
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. Application for an urgent
hearing dismissed.
2. The applicant pay the respondent’s costs of today’s argument and of the attendance on 5 January 2005, certified fit for senior counsel.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
REASONS FOR JUDGMENT
1 On 5 January 2005 the applicant issued urgent proceedings in this court, seeking an order that documents currently held in the Adelaide Magistrates Court be delivered to the applicant, a declaration that documents seized pursuant to a search warrant were validly seized and a declaration as to what documents, if any, seized pursuant to that warrant were subject to legal professional privilege.
2 The applicant seeks an urgent hearing and resolution of that application, at least insofar as it relates to particular documents, being documents contained in computer files for which privilege is claimed. For the reasons given below, I do not think that the matter requires an urgent hearing.
3 On 16 March 2004 Mr Newman SM issued a search warrant pursuant to s 3E of the Crimes Act 1914 (Cth) to Constable Elston of the Australian Federal Police, authorising him to search premises in Henley Beach Road and to seize ‘evidentiary material’ as specified in the warrant. One of the conditions was that the material ‘will afford evidence as to the commission of offences’. A number of offences were specified. In general terms, they can be described as operating management investment schemes, publishing false and misleading statements in an information memorandum and money laundering. Various persons were specified who may have committed the relevant offences.
4 Annexed to that warrant, and apparently forming part of it, was a document entitled, ‘Claims for legal professional privilege, premises other than those of a lawyer, law society or like institution.’ That document set out a procedure to be followed if a claim for legal professional privilege was made. The procedure would seem to be similar to that agreed between the Australian Federal Police and the Law Council as to the procedure to be followed when documents are seized from lawyers’ premises: see 72 ALJ at 143 ff.
5 Pursuant to that warrant, on 18 March 2004 federal agent Mr Elston executed a search of the premises of the respondent and seized various items. Included amongst the items seized was a computer owned by the respondent. The items seized, including the computer, were sealed and held by the Federal Police. As to the computer, I note that there is no evidence in this case that the computer was merely removed (contrast Hart v Australian Federal Police [2002] FCAFC 392; (2002) 196 ALR 1 at 21 [83]. Both parties in their respective affidavits agree that it was seized.
6 It would appear that a copy of the computer hard drive was taken by the Australian Federal Police and that it is still held by them. The respondent, who owned the computer, claimed legal professional privilege in respect of some of the files on it. The respondent also claimed privilege in relation to various documents that were also seized. The computer and the privileged documents were then delivered into the possession of the registry of the Adelaide Magistrate’s Court. How this occurred has not been explained, nor has it been explained what jurisdiction that Court has to receive it or in what capacity it now holds it. The form annexed to the warrant assumes that parties can, by consent, require courts to act as bailees of the documents for which privilege is claimed. However the computer and the privileged documents got into the court, they still remain there.
7 The parties then entered into discussions as to what computer files might be subject to privilege. Ultimately, this resulted in the provision of a copy of the hard drive to the respondent, who then claimed privilege for a number of computer files on it. On or about 2 December 2004 the respondent issued proceedings in the Adelaide Magistrate’s Court, seeking relevant declaratory and other orders in relation to the privileged documents, including the computer files for which privilege was claimed. In those proceedings the respondent alleged that the warrant did not authorise the seizure of the various matters for which privilege was claimed, that the documents that were held in court were subject to the privilege and that the respondent had the right to immediate possession of the relevant documents.
8 The respondent claimed in those proceedings declarations in relation to privilege, orders for the delivery up of the computer and the privileged documents and orders for the delivery up by the Australian Federal Police of any copies of files held by them comprising privileged documents. No defence has been filed to those proceedings, although I am informed that the Australian Government Solicitor has a draft defence that it intends to file. The applicant has advised me that it also intends to dispute the jurisdiction of the Adelaide Magistrates Court. The applicant says that the Court has no jurisdiction by reason of s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Given the claim that is made and the relief sought, it would seem to me to be at least arguable that the Adelaide Magistrates Court does not have jurisdiction to hear that matter. Indeed, the only available jurisdiction of that Court would appear to be under s 8 of the Magistrates Court Act 1991 (SA), which is a jurisdiction to recover title to personal property worth less than $80,000. In the circumstances, it would seem a necessary precondition to the exercise of that jurisdiction that the computer was seized unlawfully. In any event, for present purposes at least, I am prepared to assume that the Adelaide Magistrates Court may not have jurisdiction to make the orders sought.
9 In the meantime, the Commonwealth Director of Public Prosecutions (‘the CDPP’) issued proceedings in the Queensland District Court, seeking an ex parte order under s 19 of the Proceeds of Crime Act 2002 (Cth) in relation to various assets held by Lorraine Carson (the wife of the respondent) and a company the sole director of which was the respondent’s son. Ex parte orders were made on 16 March 2004.
10 The respondents to that action applied to have the order discharged. After hearing evidence, the relevant orders were revoked by Forde DCJ on 17 December 2004. The reasons of Forde DCJ reveal:
1. The orders were initially sought on the basis that the assets were the proceeds of offences relating to the operating of a management investment scheme and publishing false and misleading statements in an information memorandum.
2. It was conceded before Forde DCJ that none of the assets were the proceeds of those alleged offences.
3. It was open to the CDPP to argue that the order could be supported on the basis of other offences.
4. The CDPP argued that the order could be supported on the basis that the assets were the proceeds of indictable crimes committed in foreign jurisdictions. Japanese and New Zealand crimes were suggested.
5. However, after considering the evidence of the Australian Federal Police officers called by the CDPP, Forde DCJ concluded, in par 94 of his reasons:
‘The applicants did discharge their onus of proof and established that in respect of the order of Judge Rackemann that the order could not stand (save for $AUD20,401.26). The Director then by additional evidence attempted to establish that there was another foreign indictable offence which ordinarily would provide grounds for an order being made. I am satisfied that there are no grounds for suspecting that the property which is the subject of the restraining order is the proceeds of a foreign indictable offence relied upon by Mr Fryer on the present hearing. In order to find that there is some ground to suspect under s 19, it is necessary to have regard to the definition of "indictable offence". The question which is found to be answered in the negative is, "if the conduct had occurred within Australia, would it have constituted an offence." If one does not know the nature of the indictable offence, how can one have reasonable grounds to suspect that the property is the proceeds of a foreign indictable offence. The appropriate time to consider such material under s 42(5) was at the time of considering the application to revoke the order. Further, I am not satisfied that the Director is able, under the Proceeds of Crime Act to rely on new offences to thwart the making of a revocation order. The applicants have established that there are no grounds on which to make the order [in] relation to the indictable offences involving the Australian Corporations Law relied upon by his Honour Judge Rackemann save for the proceeds in the ANZ bank account containing the $20,401.26. The only additional material in relation to the offences involving the Corporations Law was limited to the sum of $20,401.26 and which was conceded by the applicants at the outset to be properly restrained.’
11 Also on 17 December 2004 Forde DCJ granted the CDPP a stay of the orders made by him, revoking the previous restraining order, so that the CDPP could consider whether to appeal. That stay order automatically terminates on Friday 14 January 2005 unless earlier extended.
12 Against this background, the alleged urgency can be identified. The applicant applies to this Court for it to make the relevant declarations and orders, at least in relation to the documents in computer files, so that the CDPP can access the computer files in order to determine whether a basis exists for applying to the District Court of Queensland for a continuation of the stay order.
13 The respondent, in its written submissions, has argued that these proceedings are an abuse of process. That submission was not vigorously pursued in oral submissions. In any event, I do not agree that there is any abuse. At least for the purpose of these interlocutory proceedings, I accept that this application for declarations can give rise to a "matter" (see Commonwealth v Lyon [2003] FCAFC 284; (2003) 203 ALR 553). I also accept that this Court can make declarations as to whether or not documents seized by the Australian Federal Police pursuant to a search warrant for the purpose of criminal proceedings were lawfully seized (see, for example, Branson J in Kennedy v Baker (No 2) (2004) FCA 809).
14 However, that is not the critical issue before me today. The critical issue today is whether that jurisdiction should be exercised today, some six days after proceedings were first issued. It seems to me that the answer to that question is no. There are a number of reasons for it. First, the only urgency is so that the relevant information can be looked at to see if it supports a restraining order brought by another party, the CDPP, in civil proceedings against different, albeit related, parties in relation to the seizure of assets derived from foreign crimes in proceedings in Queensland.
15 As to that, firstly, not only are there expressed powers under the Proceeds of Crime Act to issue search warrants but the Queensland District Court has its own powers of discovery, subpoena and so forth. Given the circumstances, it might be doubtful if that Court would exercise those powers for the purpose of giving the CDPP access to the documents for the purpose for which that access is sought, but at least that would be an appropriate matter for that Court to determine.
16 Mr Stanley, who appeared before me for the applicant, argued that in circumstances where little is known of what forensic use might be made of the documents in the Queensland proceedings it was inappropriate to inquire too far into that purpose. That merely highlights the problem in bringing proceedings in this Court for the purpose of obtaining evidence that may be useful in the Queensland District Court. In the absence of any application to the Queensland Court, I can see no reason why this Court should be providing the relevant assistance.
17 Secondly, I have some doubts whether the Australian Federal Police can permit the CDPP to access the information for the purpose for which the CDPP now seeks to use it (see Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at 57). However, I accept that this may well depend upon what the relevant information reveals when it is looked at.
18 Thirdly, in any event, it is difficult to see how the information can be relevant for the purpose for which it is sought. The hearing in Queensland is over. The CDPP called its evidence. That evidence was not sufficient to satisfy the District Court. The basis upon which the information is now sought is disclosed in par 16 of exhibit A1, the affidavit of Mr Williams sworn on 4 January 2005. That suggests that there are various indications by which it is thought that some of the information may potentially have some relevance to the matters being considered in Queensland.
19 However, properly considered, what the Director is now doing, it seems to me, is fishing for further information in the hope that the Director may be able to argue before an appeal court that the information can now be relied upon to support an appeal. If it were a matter for me, I would think the argument would be bound to fail. It is not a matter for me but, in any event, I cannot see any reason why this Court should assist in what seems to me plainly a fishing expedition.
20 The question of whether the relevant documents are subject to privilege or not may well be one of some difficulty and complexity (see, for example, the procedure undergone in Carbone v Police (1997) 68 SASR 200 at 210 - 215). It is not a task to be undertaken on the basis that the decision must be delivered immediately, unless that is clearly necessary in the interests of justice. I am not satisfied that it is necessary in the interests of justice in this case.
21 In the circumstances, I am not inclined to treat the matter as one of extreme urgency, requiring full argument, consideration and decision today, or tomorrow at the latest. In my view, the matter should be listed in the ordinary way for disposition in accordance with the usual processes of the court. Issues of urgency can then be addressed as and when they arise. For these reasons, the application for an urgent hearing is dismissed.
22 The respondent has sought indemnity costs. In the circumstances of this matter, it does not seem to me that the application that was made for an urgent hearing, is sufficiently outside of the ordinary range of what might be expected as part of the usual risks of litigation as to give rise to indemnity costs. Nevertheless, given that it is an interlocutory application, it may be that in due course when one gets to the end it will be revealed that the whole matter, if you like, was so fraught with unarguable propositions that indemnity costs might well be granted.
23 For the present purposes, I make an order that the applicant pay the respondent’s costs of today’s argument and of the attendance on 5 January 2005. Certified fit for senior counsel.
Associate:
Dated: 16 February 2005
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Counsel for the Applicant:
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T Stanley
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Solicitor for the Applicant:
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Australian Government Solicitor
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Counsel for the Respondent:
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ML Abbott QC with D Agresta
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Solicitor for the Respondent:
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Iles Selley Lawyers
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Date of Hearing:
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11 January 2005
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Date of Judgment:
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11 January 2005
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