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Federal Court of Australia |
Last Updated: 16 February 2006
FEDERAL COURT OF AUSTRALIA
A2 v Australian Crime Commission [2006] FCA 106
ADMINISTRATIVE LAW – validity of warrants – warrants
for purpose of Australian Crime Commission special investigation – whether
power
to issue and execute warrants limited – whether for use in criminal
prosecution process
Ryder v Morley (1987) 16 FCR 257
applied
Ryder v Morley (1986) 12 FCR 438 cited
Malubel Pty Ltd v
Elder [1997] FCA 1535 cited
Malubel Pty Ltd v Elder (1998) 88 FCR
242 cited
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 cited
Federal
Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148 cited
Adler v
Gardiner (2002) 43 ACSR 24 cited
Kennedy v Baker [2004] FCA 562; (2004) 135 FCR
520 cited
Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392; (2002)
124 FCR 384 cited
Harts Australia Ltd v Australian Federal Police
(1997) 75 FCR 145 cited
Jilani v Wilhelm [2005] FCAFC 269
cited
Judiciary Act 1903 (Cth)
Crimes Act 1914
(Cth)
Australian Crime Commission Act 2002 (Cth)
Criminal
Code Act 1995 (Cth)
Proceeds of Crime Act 1987 (Cth)
Crimes
(Search Warrants and Powers of Arrest) Amendment Act 1994
(Cth)
Proceeds of Crime Act 2002 (Cth)
Australian Crime
Commission Establishment Act 2002 (Cth)
National Crime Authority Act
1984 (Cth)
A2 v AUSTRALIAN CRIME COMMISSION AND IAN
PEEBLES
NSD 1997 OF 2005
YOUNG J
16
FEBRUARY 2002
MELBOURNE
|
A2
APPLICANT |
|
|
AND:
|
AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT IAN PEEBLES SECOND RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs, including reserved costs.
Note: Settlement and entry of orders
is dealt with in Order 36 of the Federal Court Rules.
REASONS FOR JUDGMENT
1 This proceeding involves an application under s 39B of the Judiciary Act 1903 (Cth) for declarations that two search warrants issued under Pt 1AA of the Crimes Act 1914 (Cth) ("the Crimes Act") are invalid.
2 The applicant contends, and the Australian Crime Commission ("ACC") admits, that the warrants were issued on the application of members of the staff of the ACC for the sole purpose of assisting a ‘special investigation’ being undertaking by the ACC under the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The applicant contends that Pt 1AA of the Crimes Act does not authorise the issue of search warrants for that purpose. The ACC disputes that proposition. The proceeding therefore turns upon the proper construction of Pt 1AA of the Crimes Act and provisions of the ACC Act.
THE FACTS
3 There is no dispute as to the relevant facts. The warrant applications were made by members of the staff of the ACC to the second respondent. The ACC is a body established by s 7 of the ACC Act. The second respondent is a Deputy Chamber Magistrate of the Local Court of New South Wales. The second respondent did not appear at the hearing, no doubt because he intends to abide the result of the proceedings.
4 The first warrant was issued to Roland Fleischer on 8 June 2005 as the executing officer in relation to the warrant. Mr Fleischer is a constable within the meaning of the Crimes Act and was so described in the warrant. The warrant authorised the executing officer to enter and search residential premises occupied by the applicant and to seize, inter alia, evidential material relating to the commission of offences against s 29D of the Crimes Act, ss 134.2(1) and 400(4) of the Criminal Code Act 1995 (Cth) ("the Criminal Code Act") and/or s 82 of the Proceeds of Crime Act 1987 (Cth) ("the 1987 Proceeds of Crime Act"). After the warrant issued, the name of Brian John Healy and thereafter the name of Ren de Haas in his stead, each of whom is a constable within the meaning of the Crimes Act, was written on the warrant as the executing officer in accordance with ss 3C(1) and 3E(5)(d) of the Crimes Act.
5 The second warrant was issued on 8 June 2005 to Mr Fleischer as the executing officer. Again, he was described in the warrant as a constable within the meaning of the Crimes Act. The warrant authorised the executing officer to enter and search certain business premises occupied by a group of companies of which the applicant was a director, and to seize evidential material relating to the commission of one or more of the offences that were mentioned in the first warrant. After its issue, the name of Brian John Healy and thereafter the name of Grant Prosser, each of whom is a constable within the meaning of the Crimes Act, was written on the warrant in accordance with ss 3C(1) and 3E(5)(d).
6 Both warrants were executed on 9 June 2005. Material was seized pursuant to the warrants, including material which was the property of the applicant.
7 Under s 7C of the ACC Act, the board of the ACC may determine in writing that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. On 13 May 2003, the board of the ACC made a determination pursuant to this provision which was termed the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003. The special investigation extends to activities that may have involved the commission of offences against s 29D of the Crimes Act, ss 134.2(1) and 400(4) of the Criminal Code Act, and s 82 of the 1987 Proceeds of Crime Act. There is no challenge to the validity of this determination.
8 In its defence, the ACC explicitly admits that the warrant applications were made, and the warrants were executed, to assist with the ACC special investigation.
9 For the sake of completeness, I should mention that the pleadings disclose one aspect of the facts where the applicant and the ACC adopt slightly different positions. The applicant alleges that, while each person successively named in each warrant was both a constable and a member of the staff of the ACC, he was appointed as executing officer in his capacity as a member of the staff of the ACC. The ACC denies the latter part of this allegation, and pleads instead that each such person was appointed as executing officer in his capacity as a constable within the meaning of the Crimes Act. Mr Graham QC, senior counsel for the applicant, referred to these different positions, but confirmed that he did not rely upon the applicant’s allegation as a ground for invalidating the warrant. He added that the applicant’s contention supported the proposition that the warrants were executed for the purposes of the ACC special investigation. Given the ACC’s explicit admission that the warrants were executed for the sole purpose of assisting the ACC special investigation, I consider that this minor difference in factual allegations is immaterial to the issues which I must consider.
THE CRIMES ACT
10 The provisions which govern the issue of the warrants are found in Div 2 of Pt 1AA of the Crimes Act. Pt 1AA was introduced into the Crimes Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) ("the Crimes Amendment Act"), which commenced on 30 November 1994. So far as relevant, s 3E provides:
"(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 time at which the warrant expires (see subsection 5A)); and
(f) whether the warrant may be executed at any time or only during particular hours."
11 ‘Evidential material’ is defined in s 3C to mean ‘a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form’. The terms ‘thing relevant to an indictable offence’ and ‘thing relevant to a summary offence’ are defined in s 3. It is sufficient to extract the definition of ‘thing relevant to an indictable offence’ as the other definition is in substantially similar terms:
"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."
12 Under ss 3E(6) and (7), a warrant may state that it authorises the seizure of other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be evidential material in relation to an offence to which the warrant relates, or to be a thing relevant to another offence, or to be evidential material or tainted property within the meaning of those terms in the Proceeds of Crime Act 2002 (Cth) ("the 2002 Proceeds of Crime Act"), provided that the executing officer or a constable assisting believes on reasonable grounds that the seizure of the thing was necessary to prevent its concealment, loss or destruction or its use in committing an offence.
13 Under s 3F, a warrant authorises the executing officer or a constable assisting to enter the specified premises and, inter alia, to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises. It also authorises the seizure of certain other things found at the premises.
14 There are no contentions in this proceeding that the warrants were defective in form, or that the issuing officer was not satisfied of the matters specified in s 3E(1), or that there was any deficiency or overreaching in the way in which the warrants were executed.
15 The application of Pt 1AA is addressed in s 3D. Sub-sections (1) and (2) of s 3D provide:
"(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth relating to:
(a) the search of persons or premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances; or
(d) the seizure of things.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law."
16 Section 3D(2) was a late addition to the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) ("the Crimes Amendment Bill"), during the course of its passage through Parliament. The Supplementary Explanatory Memorandum to the Crimes Amendment Bill ("the Supplementary Explanatory Memorandum") refers to sub-section 3D(2) (at that stage it was referred to as sub-section 3D(1A)) in these terms:
"This amends proposed section 3D by inserting new subsection 3D(1A) which removes any doubt that the powers and associated safeguards available under Part 1AA may be used when investigating Commonwealth offences under other Commonwealth legislation notwithstanding the availability of similar powers under that legislation. Proposed subsection 3D(1) preserves the operation of those other laws, but given that Part 1AA is the latest and most comprehensive legislation, and it is desirable that the police are able to use a single set of procedures, it was considered necessary to remove any doubt about that Part 1AA may be used as an alternative. The other laws have been preserved as they have yet to be fully reviewed to consider whether they are still needed, and if so, whether they should be changed to conform with the policy of the Bill. It is necessary to consider these issues with care as these other laws are primarily used by investigating officials from a variety of agencies other than the police."
17 Section 3D(2) is directly relevant to the applicant’s argument that Pt 1AA does not authorise the issue of a search warrant solely for the purposes of assisting a special investigation by the ACC.
THE ACC ACT
18 The ACC was established by the Australian Crime Commission Establishment Act 2002 (Cth) ("the ACC Establishment Act"), which made extensive amendments to the National Crime Authority Act 1984 ("the NCA Act"). The ACC combined the functions of the National Crime Authority ("NCA"), the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments. The functions of the ACC include the collection of criminal information and intelligence, the undertaking of intelligence operations, and the investigation of federally relevant criminal activity: see s 7A of the ACC Act.
19 The expression ‘federally relevant criminal activity’ is explained by several definitions in s 4 of the ACC Act. In summary, it refers to any circumstances implying, or any allegations, that a serious and organised crime may have been, may be being, or may in future be committed so as to give rise to an offence against a law of the Commonwealth or of a Territory, or a law of a State that has a federal aspect.
20 The ACC does not itself have the power to institute criminal proceedings. Under s 12(1), if the ACC obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, it must assemble the evidence and provide it to the relevant law officer, law enforcement agency or prosecuting authority.
21 Section 22 of the ACC Act deals with the issue of search warrants. For present purposes, the most pertinent sub-sections are (1), (5) and (10). They provide:
"(1) An eligible person may apply to an issuing officer for the issue of a warrant under subsection (2) if:
(a) the eligible person has reasonable grounds for suspecting that, on a particular day (in this section referred to as the relevant day), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a special ACC operation/investigation (in this section referred to as things of the relevant kind); and
(b) the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed.
...
(5) A warrant issued under this section shall:
(a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the special ACC operation/investigation and with which the things of the relevant kind are connected;
(b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;
(c) include a description of the kind of things authorized to be seized; and
(d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.
...
(10) Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section."
22 Section 22 differs only in minor respects from the search warrant power that was previously found in s 22 of the NCA Act. Before its amendment by the ACC Establishment Act, s 22(1) of the NCA Act provided as follows:
"A member of the Authority may apply to a Judge of a prescribed court for the issue of a warrant under sub-section (2) if-
(a) the Authority has reasonable grounds for suspecting that, on a particular day (in this section referred to as the ‘relevant day’), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation (in this section referred to as ‘things of the relevant kind’); and
(b) the Authority believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed."
Sub-section (10) was in identical form in the NCA Act.
23 The revised explanatory memorandum to the Australian Crime Commission Establishment Bill 2002 (Cth) explained the amendments that were made to s 22 of the NCA Act in these terms:
"Items 87 to 100
These Items amend section 22 (Search warrants) to ensure that an eligible person (as defined in subsection 4(1)) will be able to apply for a search warrant in relation to a special ACC operation/investigation in the same circumstances in which an eligible person could apply for a search warrant in relation to a special NCA investigations. Although search warrants may now be obtained for intelligence operations, the existing threshold tests and the operation of the provision are not otherwise altered by the amendments.
Item 100 makes the point that an issuing officer need not accept the function conferred in recognition that the power is being exercised in a personal capacity and not as a member of a Court."
24 There are obvious differences in scope and function between Pt 1AA of the Crimes Act and s 22 of the ACC Act. For instance, s 3E requires that the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material (as defined) at the premises to which the search warrant is to relate. Different pre-conditions are found in s 22(1) of the ACC Act. The applicant for a warrant under s 22 must have reasonable grounds for suspecting that a thing or things or a particular kind connected with a special ACC operation/investigation are at the specified premises and, in addition, the applicant must believe on reasonable grounds that if a summons were issued for the production of the thing or things they might be concealed, lost, mutilated or destroyed. It follows that a warrant could be obtained under s 22 in circumstances where none could be obtained under s 3E, and vice versa. But it does not follow that the mere fact that a warrant might be obtainable under s 22 precludes the issuance of a warrant under s 3E.
THE APPLICANT’S ARGUMENTS
25 The applicant puts its case that the warrants are invalid in essentially two ways. First, the applicant argues that s 22 is a code or regime that sets out the ACC’s powers in respect of search warrants, and represents the only source of power to issue search warrants when they are sought for the purpose of assisting an ACC special investigation. Second, the applicant argues that the purpose of search and seizure under s 3E of the Crimes Act is to obtain and preserve evidential material for use in the criminal prosecution process. According to the applicant, this means that Pt 1AA does not confer power to issue a search warrant whose sole purpose is to assist an ACC special investigation. In reality, these two arguments may be different dimensions of a single argument, namely that Pt 1AA should be read down by reference to s 22. Be that as it may, I propose to deal with the two arguments separately.
REJECTION OF THE APPLICANT’S CASE
26 In my opinion, the arguments advanced by the applicant are unsound and I reject them.
27 In summary, I consider that there is no justification for reading down Pt 1AA of the Crimes Act by reference to s 22 of the ACC Act. The conditions and limitations in s 22 apply when an application is made for a search warrant under that section. But if a staff member of the ACC can satisfy an issuing officer of the conditions set out in s 3E of the Crimes Act, nominates a constable to execute the warrant, and otherwise complies with all of the requirements of Pt 1AA, there is no reason why a search warrant cannot issue under s 3E. The fact that the sole reason for applying for a search warrant under s 3E may be to assist a special investigation that is being undertaken by the ACC does not render s 3E inapplicable. Section 3E does not impose any limitation of that kind. Nor does it impose any limitation upon the persons who may apply for a warrant under it.
28 Section 3D(2) puts the matter beyond doubt by making it plain that the search warrant power in s 3E may be used when Commonwealth offences are being investigated under another piece of Commonwealth legislation, notwithstanding the availability of a search warrant power under that other legislation.
29 I now turn to a more detailed discussion of my reasons for rejecting the arguments advanced by the applicant.
THE ACC ACT DOES NOT LIMIT PART 1AA OF THE CRIMES ACT
30 The applicant contends that the ACC Act contains a special regime of powers in respect of search warrants. In effect, the applicant argues that s 22 is the only source of power to issue search warrants when they are sought for the purpose of assisting an ACC special investigation.
31 In my opinion, the argument is not sustainable. In Ryder v Morley (1987) 16 FCR 257 ("Ryder v Morley"), the Full Court (Fox, Jenkinson and Wilcox JJ) rejected an identical argument in the context of s 22 of the NCA Act. The case concerned a search warrant that was issued to a detective sergeant in the Australian Federal Police. He had been seconded to the NCA to assist it with a particular investigation. The applicant argued that a search warrant that was to be executed for the purposes of the NCA investigation must be issued pursuant to, and subject to the restrictions of, the NCA Act, including in particular s 22 thereof, and that s 10 of the Crimes Act (the predecessor of s 3E) cannot be prayed in aid of the warrant.
32 At trial in Ryder v Morley (1986) 12 FCR 438, Toohey J held that the attachment of the detective sergeant to the NCA did not deprive him of his status as a constable within the meaning of the Crimes Act, and nor did it deprive him of the right to seek the issue of a search warrant pursuant to s 10 of that Act. His Honour did not see anything to preclude recourse being had to s 10 of the Crimes Act, as he explained in the following passage at 441:
"It is clear that he was invoking s 10 and not relying upon any provision of the National Crime Authority Act 1984. Had a member of the Authority required a warrant for the purpose of a special function of the Authority, it was open to that member to apply to a judge of a prescribed court under s 22(1). But the warrant was sought by a member of the Australian Federal Police who satisfied a justice of the peace, by information on oath, that a warrant was justified in terms of s 10 of the Crimes Act 1914."
Toohey J also said that s 22(10) was conclusive against the applicant’s argument:
"I agree with counsel for the respondents that the subsection simply means what it says and that there is no justification for reading it down. Counsel for the applicants argued that if a police officer seconded to the Authority could rely upon s 22(10) to justify the obtaining of a warrant under s 10 of the Crimes Act 1914, the limitations in s 22 could be set at naught. But that is not so. The limitations in s 22 apply when the Authority relies upon a special investigation which it is conducting to obtain a search warrant in the terms of that section. But if a constable can satisfy a justice of the peace, in terms of s 10 of the Crimes Act 1914, that a search warrant is justified, the justice may issue a warrant under that section. There is nothing uncertain or ambiguous about s 22(10); in my view the subsection is designed for the sort of situation that arose in the present case."
I consider that his Honour’s reasoning is compelling.
33 On appeal from Toohey J, the Full Court said at 263-264:
"It is submitted that, bearing in mind relevant parts of s 22, and other provisions in the Act protective of individuals being investigated by the Authority (see ss 28-32) it cannot have been intended that the protection could be subverted by reliance on s 10(1) of the Crimes Act 1914. We have in what we have already said attempted to show the different purposes and functions of s 10(1) of the Crimes Act 1914 and s 22 of the Act. In our view, it is not to be assumed that the latter negatives the operation of the former. Indeed, the contrary is expressly provided for: s 22(10).
We are of the view that the provisions of the Act referred to cannot properly be construed as involving any restriction on the use of s 10(1) of the Crimes Act 1914 for purposes such as those under discussion. On the contrary, once an offence is known or suspected, s 10(1) acts as a convenient corollary to s 22 and other powers of the Authority."
34 In the present case, the applicant attempted to distinguish Ryder v Morley on the ground that Toohey J and the Full Court did not know whether the search warrant was obtained in connection with an NCA special investigation. In my view, the supposed distinction is not made out. It is founded on a statement in the Full Court judgment that ‘we do not know whether it was a "special investigation", which deals with a "matter relating to" a specified "relevant criminal activity", and is not confined to things used or believed to be intended to be used for the commission of a crime.’ It is not clear whether the Full Court was saying that it did not know whether it was a special investigation at all, or whether it was saying that it did not know that the special investigation had the particular features it mentions. However, it does not matter. The applicant’s whole argument in Ryder v Morley invited the Court to assume that a search warrant could have been issued pursuant to s 22 of the NCA Act. In other words, the argument invited the Court to assume that the search warrant in question had been sought in connection with a special investigation by the NCA. The Court was well aware that the power conferred by s 22(1) of the NCA Act could only be exercised in connection with a special investigation. The thrust of the argument the Court was addressing was that, as s 22 was available, the legislative intention was that it should apply to the exclusion of s 10 of the Crimes Act. Both Toohey J and the Full Court addressed the merits of this argument on the assumption that s 22 was available and that its conditions could have been satisfied. It follows that the observations made both by Toohey J and the Full Court concerning the relationship between s 22 of the NCA Act and s 10 of the Crimes Act were premised upon an assumption, favourable to the applicant in that case, that the warrant had been sought in order to advance a special investigation by the NCA and so could have been obtained under s 22 of the NCA Act.
35 For the foregoing reasons, I consider that Ryder v Morley is Full Court authority directly contrary to the argument that the applicant advances in this case. Ryder v Morley was followed by Moore J in Malubel Pty Ltd v Elder [1997] FCA 1535 ("Malubel). One of the submissions made by the applicant in Malubel was to the effect that it was not open to the second respondent to make application under s 3E of the Crimes Act given the special provisions of s 22 of the NCA Act. His Honour dismissed the application and in doing so he referred with approval to Ryder v Morley. Moore J’s decision was upheld on appeal by the Full Court (Burchett, RD Nicholson and Madgwick JJ): see Malubel Pty Ltd v Elder (1998) 88 FCR 242.
36 Since Ryder v Morley was decided, s 10 of the Crimes Act has been replaced by Pt 1AA, and there have been minor amendments to s 22 of the ACC Act. However, s 22(10) is unchanged. In my opinion, none of these changes affects or in any way reduces the authority of Ryder v Morley.
37 When the ACC Act was enacted in 2002, s 22(10) was left in the form in which it was considered in Ryder v Morley, notwithstanding the introduction of Pt 1AA of the Crimes Act in 1994 by the Crimes Amendment Act. Viewed against the background of Ryder v Morley and the introduction of s 3D(2) into Pt 1AA of the Crimes Act, the retention of s 22(10) in unchanged form affords an indication that Parliament intended that in appropriate cases police officers who had been seconded to the ACC to assist it with a special investigation could apply for search warrants under Pt 1AA of the Crimes Act, provided of course that the requirements of Pt 1AA could be satisfied.
38 The applicant also submitted that significant safeguards are incorporated in s 22 that are not found in Pt 1AA. The most important of these was said to be that, under s 4 of the ACC Act, an issuing officer is defined to mean ‘a Judge of the Federal Court, a Judge of a court of a State or Territory or a Federal Magistrate’. It was said that, in contrast, the Crimes Act confers power to issue a search warrant upon a Magistrate, a Justice of the Peace and various court officials. Mr Robberds QC, senior counsel for the ACC, pointed out that essentially the same differences existed at the time that Ryder v Morley was decided: under s 22 of the NCA Act a search warrant application had to be made to a judge of a prescribed court, whereas the search warrant under challenge in Ryder v Morley had been issued by a Justice of the Peace.
39 The applicant also submitted that sub-sections (3), (4) and (5) of s 22 contain further safeguards which have no direct equivalents in Pt 1AA. Particular reference was made to the provisions of sub-section (5).
40 The ACC submitted that the differences in safeguards between Pt 1AA and s 22 are marginal and no significant weight attaches to them in resolving the issues before the Court. I agree with these submissions. In particular, when ss 22(1), (3), (5) and (7) of the ACC Act are examined, it is apparent that a similar range of protections can be found in ss 3E(1), (5) and (6)(a) and 3F(1)(c) of the Crimes Act.
41 Even if there were significant differences between the safeguards attending Pt 1AA and those attending s 22, any such differences could be relevant only to an argument that Pt 1AA should be read down by reference to s 22. The argument that the Crimes Act should be read down so as to prevent the safeguards in s 22 being subverted was explicitly rejected by the Full Court in Ryder v Morley. As will later appear, I also consider that any such reading down would be contrary to the plain language and intention of s 3D(2) of the Crimes Act.
PART 1AA AUTHORISES THE ISSUE OF THE WARRANTS
42 The applicant contends that Pt 1AA does not confer any power to apply for, grant or execute a search warrant where the sole purpose of the process is to assist an ACC special investigation. It is unclear whether this contention is put independently of the argument that the ACC Act contains its own code or special regime for the issue of any search warrants that are required for the purposes of a special ACC operation or investigation. But, in any event, I have concluded that the contention is not supported by the language, context or purposes of Pt 1AA.
43 The applicant’s contentions about the limited scope of Pt 1AA are built upon the proposition that the purpose of search and seizure under ss 3E and 3F is to obtain and preserve evidential material for use in the criminal prosecution process. In my view, this is too narrow a description of the functions and purposes of search warrants under Pt 1AA.
44 The applicant relies on a statement by the responsible Minister in his second reading speech for the Crimes Amendment Bill that ‘[s]earch warrants will authorise the seizing of evidence of the offence to which the warrant relates as well as evidence of any other indictable offence’: see Hansard, House of Representatives, 17 November 1993 at 3030. As I read his speech, the Minister was simply describing in general terms certain uses to which a search warrant can be put. His statement does not support the limitation that the applicant seeks to imply into Pt 1AA.
45 More importantly, the limitation that the applicant would import into Pt 1AA is negated by the language of ss 3E and 3F. Section 3E authorises the issue of a search warrant where there are reasonable grounds for suspecting that there is, or will be within 72 hours, any evidential material at the premises in question. Amongst other things, s 3F authorises the officer executing the warrant to search for and seize evidential material of the kind specified in the warrant, other evidential material found at the premises that relates to the offences specified in the warrant or other unspecified offences that are indictable offences, other evidential material or tainted property as those terms are defined in the 2002 Proceeds of Crime Act, or seizable items as defined in s 3C of the Crimes Act. Section 338 of the 2002 Proceeds of Crime Act defines ‘evidential material’ quite differently from the way in which it is defined in s 3C of the Crimes Act: it means evidence relating to property in respect of which action has been or could be taken under the 2002 Proceeds of Crime Act, benefits derived from the commission of an indictable offence, or literary proceeds (being benefits derived from exploiting a person’s notoriety resulting from the commission of an indictable offence). Broadly summarised, s 338 defines ‘tainted property’ to mean the proceeds of an indictable offence, or property that was used, or was intended to be used, in or in connection with an offence.
46 The definition of ‘evidential material’ in s 3C does not support an implication that the material in question must be seized for use in the criminal prosecution process. When read with the definitions of a thing relevant to an indictable offence or summary offence in s 3, the definition extends to anything with respect to which an offence is reasonably suspected to have been committed, anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence, or 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.
47 On the face of these provisions, it is impossible to confine them to evidential material that is for use in the criminal prosecution process. Material that assists the investigation of suspected offences, but which is incapable of being used in the criminal prosecution process, falls squarely within the definition of evidential material. Material of this kind would constitute something with respect to which an indictable offence has been committed or is reasonably suspected to have been committed. The expression "with respect to" has a wide meaning: see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 526-527 and 556; and as to the cognate phrase ‘in respect of’, see Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148 at 171.
48 The definition of a ‘thing relevant to an indictable offence’ in s 3 refers to things that might ‘afford evidence’ as to the commission of an offence. This concept is not to be understood narrowly. In Adler v Gardiner (2002) 43 ACSR 24 at 29, in a passage quoted with approval by Branson J in Kennedy v Baker [2004] FCA 562; (2004) 135 FCR 520 at 543, Hely J rejected a submission that documents fell outside the scope of a warrant issued under s 3E because the documents could never be admitted into evidence at a trial in relation to the warrant offences. His Honour said:
"The submission misconceives the reach of the expression ‘afford evidence’. Bearing in mind that the power to issue a search warrant is in aid of a criminal investigation, a thing may afford evidence as to the commission of an offence, even though it may not be admissible in evidence at a trial: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 119. A thing will afford evidence of the commission of an offence if it assists, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters: George v Rockett (supra) at 120. The expression ‘will afford evidence’ does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged: Parker v Churchill (1985) 9 FCR 316 at 326. That includes things which are adjectivally relevant as well as things which are of substantive relevance: Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 at [30]- [31]."
The argument that evidential material cannot be made the subject of a s 3E warrant unless it is for use in the criminal prosecution process is similarly flawed.
49 In Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 ("Hart") at 399-403, the Full Court (French, Sackville and RD Nicholson JJ) explained the approach that should be adopted to the construction of Pt 1AA. The Court said:
"64. The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose. This reflects the primary object of all statutory construction which, according to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ, is ‘to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’. The importance of purpose and policy was emphasised in that case by reference to the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397: ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’
65. The purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore (1992) 39 FCR 201 at 217 per French J. Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject.
66. There is a significant emphasis in the case law on the need to apply a ‘strict’ construction to such provisions. This is because, as a general rule, the search of premises and the seizure of goods therefrom has always been illegal unless authorised by law. The manifestation of that authority has traditionally been in the form of a warrant. ...
...
67. Where ‘strict construction’ is invoked it is necessary to keep in mind what that term means. In the context of penal statutes it was said, a long time ago, and yet consistently with contemporary doctrine (Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 155 per Isaacs J), to reflect nothing more than a requirement that:
‘a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.’
The invocation of ‘strict construction’ in penal statutes was described by Gibbs J as ‘perhaps one of last resort’: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576. It should not distract from the primary object of statutory construction enunciated in Project Blue Sky. The search and seizure provisions of the Crimes Act are not punitive. They are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304 per O'Connor J; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437-438 per Mason CJ, Brennan, Gaudron and McHugh JJ.
68. Notwithstanding these general considerations, effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred. The need to recognise the operational realities in which warrants are executed was acknowledged by the learned primary judge, who referred in that connection to Dunesky v Commonwealth (1996) 89 A Crim R 372 at 382-383 per Lockhart J. See also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 83 per Mason J. The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy (1981) 52 FLR 123 at 141-142 (Northrop J agreeing at 132)."
50 The Court concluded its discussion by observing that:
"...there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power."
51 The applicant submitted that the Full Court’s reference in par 65 to the ‘gathering of information to determine whether offences have been committed and to facilitate proof of them’ supports its argument. I disagree. When the relevant passages in the judgment of the Full Court are read as a whole, it is plain that the Full Court was not suggesting that information can only be gathered under a search warrant if it serves the dual purpose of both determining whether offences have been committed and facilitating proof of them in a criminal prosecution process. Moreover, I do not consider that the Full Court was referring to proof in a criminal prosecution process, as distinct from proof in the broader context of a criminal investigation that may or may not result in a prosecution.
52 The limitation that the applicant seeks to import into Pt 1AA is inconsistent with other authorities. In Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 at 153, the Full Court (Hill, Cooper and Whitlam JJ) recognised that search warrants can be sought and issued at an early stage of an investigation when it is unclear whether any criminal prosecution will occur. In Jilani v Wilhelm [2005] FCAFC 269 at [55]- [58], the Full Court (Dowsett, Jacobson and Greenwood JJ) approved the statements in Hart that I have extracted and added that statutes such as Pt 1AA should not be construed narrowly but consistently with the operational reality applicable to the issue and execution of warrants.
53 In summary, I consider that the limitation that the applicant seeks to read into Pt 1AA has no basis in the language of Pt 1AA. Indeed, it conflicts with the text of both ss 3E and 3F. It is, moreover, inconsistent with the operational reality applicable to the issue and execution of search warrants. As a matter of history, statutory construction and authority, I consider that a search warrant can be issued under Pt 1AA in order to advance a criminal investigation, whether or not any decision has been made about the likelihood of a prosecution, and whether or not the material sought by the warrant is intended to be used, or is capable of being used, in a criminal prosecution.
54 Thus far, I have considered the applicant’s limitation on Pt 1AA without regard to the provisions of s 3D(2). In my view, s 3D(2) is fatal to the applicant’s argument. Section 3D(2) expressly confirms that, despite the power conferred by s 22 of the ACC Act, members of the staff of the ACC may apply for warrants under Pt 1AA, provided that the requirements of s 3E are otherwise satisfied. This interpretation of s 3D is supported by the Supplementary Explanatory Memorandum, as I have already mentioned.
55 The applicant asserted that s 3D(2) is of no assistance to the ACC in seeking to rely on Pt 1AA. This assertion rested entirely on the two contentions that I have already rejected, namely that s 22 is an exclusive code that precludes recourse to Pt 1AA, and that Pt 1AA does not confer any power to apply for, or to issue, a search warrant where the sole purpose of the warrant is to assist an ACC special investigation. The latter contention was advanced by the applicant without addressing the meaning and effect of s 3D(2). In that respect, the applicant’s contention begs the question whether on the proper construction of Pt 1AA as a whole, including s 3D(2), it contains any limitation of the kind asserted. In my opinion, both for the reasons already given and because of the plain meaning and intended effect of s 3D, no such limitation can be imported into Pt 1AA.
56 The applicant attempted to minimise the significance of s 3D(2) by describing it as a non-limitation provision which operated in a similar fashion to s 3D(1). Section 3D(1) performs a different function from s 3D(2). It confirms that Pt 1AA does not limit or exclude s 22 of the ACC Act. It is not directly relevant in this case because the ACC did not invoke any powers under s 22. On the other hand, s 3D(2) declares that the search warrant powers under Pt 1AA may be used even if another law of the Commonwealth, such as s 22 of the ACC Act, provides for the issuance and execution of search warrants. In that way, as the Supplementary Explanatory Memorandum stated, the purpose and effect of s 3D(2) is to remove any doubt that the search warrant powers under Pt 1AA may be used when Commonwealth offences are being investigated under other Commonwealth legislation, even if that other legislation contains search warrant powers.
CONCLUSION
57 For the foregoing reasons, I reject the applicant’s challenge to the validity of the search warrants. In my view, the search warrants were validly issued under s 3E of the Crimes Act. There is no challenge to the way in which the search warrants were executed.
58 The application is dismissed.
59 I order that the applicant pay the
first respondent’s costs of the proceeding, including reserved costs. As
to reserved
costs, the parties informed me at the hearing that they agreed that
all reserved costs should follow the event. I do not propose
to make any order
for costs that affects the position of the second respondent.
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I certify that the preceding fifty-nine (59) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Young.
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Associate:
Dated: 16 February 2006
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Counsel for the Applicant:
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Mr D. Graham QC with Mr A. Thomas
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Solicitors for the Applicant:
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Cosoff Cudmore Knox
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Counsel for the Respondent:
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Mr L. Robberds QC with Dr S. Donaghue
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Date of Hearing:
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6 February 2006
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Date of Judgment:
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16 February 2006
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/106.html