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Federal Court of Australia |
Last Updated: 30 June 2006
FEDERAL COURT OF AUSTRALIA
Egglishaw v Australian Crime Commission [2006] FCA 819
ADMINISTRATIVE LAW – judicial review
pursuant to Judiciary Act 1903 (Cth) s 39B – search warrant
executed by respondent, notice to produce issued by respondent and conduct
engaged in by respondent pursuant
to both impugned as unlawful – burden of
proof – extent to which burden lies on respondent – how respondent
discharges
burden
Held: respondent discharges burden by producing
warrant and notice and showing conduct did not exceed authority conferred by
warrant and
notice, burden of making out grounds on which warrant, notice and
conduct impugned lies on applicant
STATUTES –
Crimes Act 1914 (Cth) ss 3F, 3K and 3L – how provisions relate
– whether applicability of one means others cannot be relied
on
Held: subject to express limitations, ss 3F, 3K and 3L provide
person executing warrant with variety of options, availability of one not
precluding choice of another
Crimes Act 1914 (Cth)
ss 3F, 3K and 3L
Judiciary Act 1903 (Cth) s 39B
Australian Crime
Commission Act 2002 (Cth) s 29
A2 v Australian Crime
Commission [2006] FCA 106 approved
Cooper v Commissioner of
Taxation [2004] FCA 1063; (2004) 139 FCR 205 followed
Minister for Immigration and
Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586
followed
Ryder v Morley (1987) 16 FCR 257 followed
Williams v
Keelty [2001] FCA 1301; (2001) 111 FCR 175 followed
Kennedy v Baker [2004] FCA 562; (2004) 135 FCR
520 approved
X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413
cited
Chairman, National Crime Authority v Flack (1998) 156 ALR 501
considered
Puglisi v Australian Fisheries Management Authority (1997)
148 ALR 393 discussed
Bridges v Hawkesworth (1851) 21 LJQB 75
cited
South Staffordshire Water Company v Sharman [1896] 2 QB 44
cited
Parker v British Airways Board [1982] 1 QB 1004
cited
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 not followed
Johnson v
Williams (2000) 58 ALD 1 followed
Malone v Metropolitan Police
Commissioner [1980] QB 49 cited
Parker v Churchill (1985) 9 FCR
316 cited
Explanatory Memorandum, Cybercrime Bill 2001
(Cth)
PHILIP
EGGLISHAW v AUSTRALIAN CRIME COMMISSION and ELIZABETH LAMBDEN
VID
1649 OF 2005
SUNDBERG J
30 JUNE
2006
MELBOURNE
|
PHILIP EGGLISHAW
Applicant |
|
|
AND:
|
AUSTRALIAN CRIME COMMISSION
First Respondent ELIZABETH LAMBDEN Second Respondent |
|
DATE OF ORDER:
|
|
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 On 13 February 2004, on the application of the first respondent (the Commission), the second respondent – a Magistrate of the Magistrates Court of Victoria – issued a search warrant (the warrant).
2 The warrant records that the second respondent was
"satisfied by information on oath that there are reasonable grounds for suspecting that there will within the next 72 hours be at [a specified hotel room] ... evidential material, as defined in the Crimes Act 1914 (Cth), which satisfies ALL of the following three conditions".
The first condition referred to things that are originals or copies of any of a list of things that included personal computers. The second referred to things that relate to any of a list of persons and entities that included the applicant and Michael Brereton. The third referred to things
"as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth:
(i) That between May 1998 and 24 May 2001, at Melbourne ... and elsewhere ... Brereton did defraud the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth).
(ii) That between 25 May 2001 and July 2002, at Melbourne ... and elsewhere, ... Brereton by a deception, dishonestly obtained a financial advantage from another person, and the other person is a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth).
(iii) That between 25 May 2001 and July 2002, at Melbourne ... and elsewhere, ... Brereton dealt with money or other property, valued at $100,000.00 or more, knowing it to be proceeds of crime, contrary to
s 400.4(1) of the Criminal Code Act 1995 (Cth)."
3 The warrant was directed to Gail McClure, a "constable" within the meaning of the Crimes Act 1914 (Cth) who is a member of the Commission’s staff. It authorised Ms McClure to (among other things):
• enter the hotel room referred to at [2] in the period between 7.00am and 9.00pm;
• search the hotel room for evidential material of the kind described at [2]; and
• seize such evidential material.
It also authorised her to "exercise such other of the powers available under Division 2 of Part 1AA of [the Crimes] Act as are appropriate in the circumstances of the case". The warrant expired at midnight at the end of 20 February 2004.
4 The warrant was executed on the day after it was issued. Ms McClure attended at the hotel room with three other members of the Commission’s staff: Ian Andrew, Harry Constandaras and Simon Gullifer. In the course of their search of the hotel room they came across a notebook computer belonging to the applicant (the notebook).
5 Ms McClure and her colleagues took the notebook to the Commission’s offices. (I deliberately use the neutral word "took" because the procedure by which the Commission obtained the notebook is the subject of dispute in the instant proceeding.) There, Ms McClure asked Darren Freestone to search the notebook’s hard drive using the key word "Brereton". That search turned up numerous instances of the key word. Ms McClure deposed that "on that basis [she] was satisfied the notebook and its contents fell within all three conditions of the warrant [and a]ccordingly, seized the notebook". Later, she asked Mr Freestone to create a forensic image – that is, a copy – of the hard drive. The notebook was then returned to the applicant.
6 On 19 February 2004, Mr Andrew obtained from Mr Freestone a copy of the forensic image referred to at [5] on two digital video discs (the DVDs).
7 Also on 19 February 2004, one of the Commissioner’s examiners issued a notice to produce (the notice). The notice required the applicant to attend at the Commission’s offices "forthwith" and produce the DVDs, being "things in [the applicant’s] custody, possession and/or control".
8 The applicant attended at the Commission’s offices later that day pursuant to a summons to give oral evidence. During a break in the applicant’s evidence, Mr Andrew handed him the DVDs and then served him with the notice. The applicant complied with the notice and produced the DVDs that had just been handed to him.
9 The validity of the procedure by which the Commission obtained the DVDs is also the subject of dispute in this proceeding.
10 The foregoing is merely a prefatory account of the events that gave rise to the current proceeding. I will address them in more detail later.
THE INSTANT PROCEEDING
11 By an application filed on 21 December 2005 (the application), the applicant seeks relief under ss 39B(1) and (1A) of the Judiciary Act 1903 (Cth). First, it seeks declarations that:
• the application for the warrant "was and is ultra vires, unlawful and of no force and effect";
• the decision to issue the warrant "was and is unlawful";
• the warrant "was and is ultra vires, void, unlawful and of no force and effect";
• "the seizure, use and communication of materials obtained by the ... warrant was and is unlawful";
• the notice "was and is unlawful and of no force and effect"; and
• "the use and communication of materials obtained under the notice ... was and is unlawful".
Second, it seeks orders quashing or setting aside the application for the warrant, the issue of the warrant, the warrant and the notice. The third form of relief sought is injunctions "restraining the [Commission] ... from communicating, making use of or making a record of the documents and other information" obtained by the warrant and the notice. Finally, it seeks "the delivery up of all documents and things (including copies thereof and extracts thereof)" obtained by the warrant and the notice.
12 The second respondent has indicated that she will submit to any order made by this Court, save that she wishes to be heard as to any order for costs that might be made against her.
13 The issues that fall for determination are:
• the applicant’s attack on the warrant on the same grounds as those dealt with by Young J in A2 v Australian Crime Commission [2006] FCA 106 (the A2 point);
• his attack on the procedure by which the Commission obtained the notebook; and
• his attack on the procedure by which the Commission obtained the DVDs.
THE A2 POINT
14 The A2 point can be disposed of shortly. Mr Lucarelli QC for the applicant said:
"The parties [are] content ... to ... simply rely upon [their] written submissions and the decision [in] A2 with the statement by the applicant that A2 is wrong. But the applicant understands ... that your Honour may well be persuaded by what [was] said in A2 and that your Honour is naturally entitled to follow A2 ..., although the applicant [says] that A2 is wrong and that your Honour ought not follow it."
I have read A2 and the parties’ written submissions.
15 As a matter of comity I should follow the decision of another judge of this Court unless I am convinced it is "clearly or plainly wrong". See Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 139 FCR 205 at [46] per Lander J – which was approved by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [38].
16 The applicant has put no contention to me that was not put to Young J in A2 or, more importantly, explained why his Honour’s treatment thereof was deficient. In those circumstances, I cannot see how I could be convinced that his Honour was clearly or plainly wrong in A2.
17 In any case, Young J rejected the principal argument put to him as contrary to the decision of the Full Court in Ryder v Morley (1987) 16 FCR 257. Like Young J, I am bound by the decision in Ryder to reject that argument.
THE BURDEN OF PROOF
18 I should address the question of who bears the burden of proof before I turn to the second and third matters set out at [13].
19 In Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at [235] and [236], Hely J said:
"The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543):
‘Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5; [1984] AC 74 at 112 per Lord Scarman.’
I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants’ rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49; 192 CLR 69] at 130-131 are to like effect."
(The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach".
20 The Commission has discharged the onus described by Hely J. The warrant was adduced into evidence by Ms McClure’s affidavit, and the notice by Mr Andrew’s affidavit. Further, it is not the applicant’s case that the Commission’s actions were outside the scope of the authority conferred by the warrant and the notice. The applicant’s case is described at [24] and [46].
THE PROCEDURE BY WHICH THE NOTEBOOK WAS OBTAINED
21 Section 3F of the Crimes Act relevantly provides:
"(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
...
(c) 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 ...."
The expression "evidential material" is defined in s 3C as "a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form". The expression "a thing relevant to an indictable offence" is defined in s 3 as:
"(a) either of the following:
(i) 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;
(ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, 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."
(The emphasis is mine.)
22 Section 3K relevantly provides:
"(1) The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
(2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material ...."
(The emphasis is mine.)
23 Section 3L relevantly provides:
"(1) The executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:
(a) the data might constitute evidential material; and
(b) the equipment can be operated without damaging it.
(1A) If the executing officer or constable assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:
(a) copy the data to a disk, tape or other associated device brought to the premises ...
and take the device from the premises.
...
(2) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form -- operate the facilities to put the material in that form and seize the documents so produced.
(3) A constable may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b) ....
(4) If the executing officer or a constable assisting believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise."
...
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first."
24 The applicant impugned the procedure by which the Commission obtained the notebook. First it was said that the notebook was seized pursuant to s 3F at the hotel room rather than at the Commission’s offices. Consequently, the making of the forensic image at the Commission’s offices was unlawful because it was not done in accordance with s 3L. Then it was said that even if the notebook was not seized pursuant to s 3F at the hotel room:
• it should not have been taken from the hotel room to the Commission’s offices because the Commission should have used the procedure provided for in ss 3L(1) and (1A); and
• in any case, the Commission failed to comply with s 3K(2)(a)(i) when it moved the notebook from the hotel room to its offices.
Was the notebook seized pursuant to s 3F at the hotel?
25 Mr Lucarelli QC for the applicant contended that there was "overwhelming objective evidence" that the notebook was in fact seized at the hotel room. He pointed to three items of such evidence. First, a document that purports to list the items seized at the hotel room (the record). Secondly, the notice. Thirdly, a file note by Mr Andrew (the file note).
26 That contention must fail.
27 As to the circumstances in which the record was made, Ms McClure deposed as follows:
(a) In the course of the execution of the warrant at the hotel room, the applicant handed her three files containing documents described as "meeting notes" (the files).
(b) Satisfied that the files met all of the warrant’s conditions, she seized them.
(c) Mr Gullifer recorded the files on the record.
(d) A subsequent search of the hotel room turned up the notebook and two mobile telephones belonging to the applicant.
(e) She formed the view that the notebook met all of the warrant’s conditions.
(f) However, "she decided to move the notebook to the [Commission’s offices] where it could be examined by a forensic computer expert to determine whether it could be seized".
(g) "The notebook and the [mobile telephones] were recorded on the ... record to provide a record of the fact that those items were moved from the ... hotel room. In light of the need for expert examination of [those items], I had not decided to seize those items at the time they were moved from the [hotel room] to the [Commission’s] offices."
28 The record consists of two pages – each in the same standard form – and is exhibited to Ms McClure’s affidavit. The standard form is headed "Property Seizure Record". The record lists the files, the notebook and the mobile telephones and two passports. (The passports are not mentioned in the affidavit.) Each page is dated 14 February 2004 and specifies the hotel room as the warrant premises, Ms McClure as the warrant holder, Mr Gullifer as the recording officer and the warrant’s number. Ms McClure’s, Mr Gullifer’s and the applicant’s signatures appear at the foot of each page.
29 In the light of Ms McClure’s evidence as recorded at [27](f) and (g), I cannot see how the fact that the notebook appears on the record suggests that it was seized at the hotel room. Ms McClure’s explanation for that fact as recorded at the first sentence of [27](g) is unexceptionable. In view of that explanation, the fact that the standard form is headed "Property Seizure Record" is neither here nor there. Further, the applicant did not seek to challenge that explanation by way of cross-examination – for example, by suggesting that it was a reconstruction.
30 The notice describes the DVDs as "a copy of [the notebook] hard drive seized pursuant to a s 3E of the [Crimes Act] search warrant executed at 11.05am on" 14 February 2004. (The emphasis is mine.) Nothing in that description points to where or when the notebook was seized.
31 The file note says "searched suite and seized 3 x document files, Toshiba laptop computer, 2 x mobile phones, passport". Nothing turns on it. The evidence makes clear that Ms McClure was the member of the Commission’s staff who took the lead in the events that gave rise to the instant proceeding. Indeed, the warrant was directed to her. She has deposed that she did not seize the notebook at the hotel room and instead seized it at the Commission’s offices. In any case, she was not challenged by way of cross-examination as to the (apparent) discrepancy between her evidence and the file note.
Was the making of the forensic image unlawful?
32 If I am wrong, and the notebook was seized at the hotel room, I cannot see what difference it makes whether the notebook was seized there rather than at the Commission’s offices. The applicant contended that seizure at the hotel room rendered unlawful the making of the forensic image because that making was not done in accordance with s 3L. Section 3L authorises (among other things) the seizure of electronic equipment found at the warrant premises after the operation of that equipment at the warrant premises only if it is "not practicable" to copy or put into material form at the warrant premises the data accessed by such operation. For two reasons, s 3L was never engaged. First, the notebook was not operated at the hotel room. (The propriety of Ms McClure’s decision not to do so is something that I deal with later.) Secondly, s 3L says nothing about the circumstances in which data accessed by operating electronic equipment seized pursuant to s 3L(2)(a), let alone pursuant to s 3F, can, after such seizure, be copied or put into material form.
Was the taking of the notebook from the hotel room to the Commission’s offices unlawful because the Commission should have used the procedure in ss 3L(1) and (1A)?
33 Sections 3F, 3K and 3L provide a person executing a search warrant with a variety of options:
• seizure simpliciter: s 3F(1)(c);
• bringing to the warrant premises equipment to examine or process a thing in order to determine whether it may be seized: s 3K(1);
• removing from the premises a thing to examine or process elsewhere in order to determine whether it may be seized: s 3K(2);
• operating electronic equipment at the premises, copying the data found thereby on to a device brought to the premises and removing that device from the premises: ss 3L(1) and (1A);
• operating electronic equipment at the premises and then seizing it: s 3L(2)(a) – but only if it is "not practicable" to use certain other procedures provided for by s 3L:
s 3L(3);
• operating electronic equipment at the premises, using facilities at the premises to create documents therefrom and then seizing them: s 3L(2)(b); or
• securing electronic equipment at the premises so that it may be operated with the assistance of an expert: ss 3L(4) and (6).
Only some of those options involve seizure.
34 The applicant’s contention that the notebook should not have been taken from the hotel room to the Commission’s offices because the Commission should have used the procedure provided for in ss 3L(1) and (1A) must fail. The availability of some of the options set out at [33] is expressly limited. See for example ss 3L(2)(a) and (3). Leaving aside such express limitations, there is nothing in the Act to suggest that the availability of one option precludes the choice of another. There is no hierarchy of options. After all, the Commission could just as easily have used the procedure provided for in ss 3K(1) or 3L(4) and (6). Further, the contention assumes that:
• s 3L exhaustively defines how any electronic equipment found at the warrant premises must be dealt with; and
• s 3L(2)(a) exhaustively defines the circumstances in which such equipment may be seized.
There is nothing in the Act to support those assumptions.
Did the Commission fail to comply with s 3K(2)(a)(i)?
35 The applicant complains that the Commission:
• has failed to show that, in the terms of s 3K(2)(a)(i), it was "significantly more practicable to [move the notebook to the Commission’s offices] having regard to the timeliness and cost of examining ... the [notebook there] and the availability of expert assistance"; and
• in taking the notebook to its offices, failed to have regard to those matters that
s 3K(2)(a)(i) says it must.
36 The complaint is misconceived and without merit. The onus is on the applicant to show that s 3K(2)(a)(i) was not satisfied. See [19] and [20]. The applicant has failed to adduce evidence to that end.
37 Further, the Commission has adduced evidence that shows that it did have regard to those matters that s 3K(2)(a)(i) says it must. Mr Freestone deposed:
"On ... 14 February 2004, [Mr] Andrew telephoned me at home from the [hotel room] and requested my assistance. He indicated to me that the applicant was in possession of a notebook computer. I suggested it may take some time for me to attend the [hotel room] to examine the notebook as I needed to collect and then transport my equipment from the [Commission’s] offices to the [hotel room].
The examination of a notebook computer can often be technically complicated because of its design, therefore it is preferable to have internet resources such as user manuals on hand. I advised [Mr] Andrew that examining the notebook at the [Commission’s] offices would be more practicable and would save time."
Further, Mr Andrew, Mr Freestone and Ms McClure all deposed that the Commission advises its staff not to turn on computers "in the field" without the assistance of an expert. Messrs Andrew and Freestone explained why such advice was given. To put it shortly, turning on a computer "in the field" without the assistance of an expert may result in the alteration or loss of data on that computer.
38 Section 3K(2)(a)(i) calls for a balancing exercise. On any given occasion, one of the matters therein may assume greater importance than the others.
39 In this instance, the availability of Mr Freestone’s assistance was of the greatest import. The Commission’s advice referred to at [37] necessitates such assistance. The reasons for that advice are unexceptionable. The applicant’s complaint that that advice dictates an a priori assumption that notebook computers should be moved from warrant premises to the Commission’s offices for examination is beside the point. In any case, Mr Freestone’s evidence necessarily implies that Mr Andrew initially asked him to attend at the hotel room in order to examine the notebook. That does not conflict with Ms McClure’s evidence that she
"did not make arrangements for him to attend [at the execution of the warrant] as I was of the understanding that it is much more practicable for a computer to be accessed and analysed at the [Commission’s] offices than in the field, as [the latter course] requires the forensic computer expert to bring with them a large amount of equipment and possibly even to have to return to the [Commission’s] offices to obtain more equipment."
Instead, Mr Freestone advised Mr Andrew that the notebook should be examined at the Commission’s offices rather than at the hotel room. Again, the reasons for that advice are unexceptionable.
40 Timeliness was also of some import. Mr Freestone deposed that he advised Mr Andrew that examining the notebook at the Commission’s offices rather than at the hotel room "would save time". Timeliness in s 3K(2)(a)(i) means no more than that. The Explanatory Memorandum to the Cybercrime Bill 2001 (Cth) – the source of s 3K(2)(a)(i) – says:
"In determining whether it is significantly more practicable to process or examine the thing at another place, the executing officer or constable must have regard to the timeliness and cost of processing or examining the thing at another place rather than on site and to the availability of expert evidence. In other words, the proposed amendment would permit a thing to be moved to another place if it is significantly faster or less costly to process or examine the thing at that other place or easier to obtain expert assistance to process or examine the thing at the other place.
...
The existing provision is too restrictive. The requirement that it be ‘not practicable’ to process or examine the thing at the warrant premises before it can be moved does not allow consideration to be given to whether it would be more efficient or effective to process or examine the thing at another place."
(The emphases are mine.)
41 It seems cost was of little import. There is no evidence about it. However, it may be inferred from Mr Freestone’s evidence that it would have been more costly for him to collect his equipment, travel to the hotel room and examine the notebook there rather than at the Commission’s offices. See also [39].
42 For the above reasons, the complaint that the Commission failed to comply with
s 3K(2)(a)(i) when it moved the notebook from the hotel room to its offices is without substance.
THE PROCEDURE BY WHICH THE DVDS WERE OBTAINED
43 Though it created the DVDs, the Commission ultimately obtained them by way of the notice.
44 Mr Andrew deposed to the circumstances in which the notice was issued:
(a) On 17 February 2004, he "asked Mr Freestone to conduct various key word searches of the forensic image to determine which parts [thereof] fell within the third condition of the warrant". Though Mr Freestone conducted those searches, Mr Andrew did not obtain the results thereof.
(b) After discussions with Ken Goodchild, another member of the Commission’s staff, Mr Andrew "suspected that there would be information on the forensic image that would be relevant to [certain investigations of the Commission] that did not fall within the terms of the warrant".
(c) Messrs Andrew and Goodchild "wished to access the entire contents of the forensic image [and] decided to apply to an examiner" for the notice.
(d) The application for the notice was prepared by David Hellings, who seems to be a member of the Commission’s staff, and endorsed by Mr Goodchild.
(e) On 19 February 2004, Mr Freestone gave Mr Andrew the DVDs.
(f) Also on 19 February 2004, one of the Commissioner’s examiners issued the notice.
Mr Andrew also deposed to the provision of the DVDs to the applicant, the service of the notice on him and his compliance with the notice. Those events are described at [7] and [8].
45 Section 29 of the Australian Crime Commission Act 2002 (Cth) relevantly provides:
‘(1) An examiner may, by notice in writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the [Commission]; and
(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special [Commission] operation / investigation.
(1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice."
46 The statement of claim pleaded that:
• "[i]n the premises, s 29 ... did not authorise a member of staff of the [Commission] to require the applicant to produce the [DVDs] pursuant to the notice" (para 17); and
• "[b]y reason of the foregoing ... the notice ... was issued for an unlawful purpose [and] was unlawful and of no force and effect" (para 18(c)).
However, the grounds on which the notice is impugned were not exposed until the applicant filed and served written submissions in reply – on the day the hearing of the application commenced. Pursuant to leave, the applicant filed and served an amended statement of claim that pleaded the two grounds exposed by the submissions. First, that the examiner who issued the notice was not, in the terms of s 29(1A) "satisfied that it [was] reasonable in all the circumstances to do so". Secondly, that the DVDs were never in the applicant’s "custody, possession and/or control" and, therefore, could not have been produced pursuant to the notice. I will deal with them in reverse order.
"Possession, custody and/or control"
47 By his written submissions in reply, the applicant contends that:
"[The applicant] was required to produce a thing which was not in his ‘custody, possession and/or control’ in the requisite sense. In circumstances where:
(a) the notice ... required the production of the ... DVDs ‘forthwith’;
(b) [the applicant] was afforded no opportunity to verify the contents of the DVDs; and
(c) [the applicant] was handed the ... DVDs at a time when his presence at the [Commission’s] offices was involuntary –
possession of the ‘thing’ did not pass to [the applicant]."
(The emphases are in the original.) The applicant also cites Chairman, National Crime Authority v Flack (1998) 156 ALR 501 as discussing the relevant authorities. (The Commission does not dispute the facts set out in sub-paras (a) to (c) of the passage quoted above.)
48 The applicant’s contentions in the passage quoted at [47] are fundamentally unsound. The qualification of "custody, possession and/or control" by "the requisite sense" begs the question of what that sense is. The terms of the notice are clear. There is no reason to read them down. In the events that occurred, possession – however fleeting – of the DVDs passed to the applicant when they were handed to him. It is beside the point that they were created by the Commission and handed to him in the knowledge or with the intention that he would immediately thereafter be compelled by way of the notice to hand them back. Until he was so compelled he was in possession of them. It is also beside the point that he was not in possession of them when the notice was issued – as opposed to when the notice was served on him. As far as he was concerned, the notice was a dead letter unless and until it was served on him.
49 The Commission referred to the decision of Hill J in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 396 and 403. In that case, material had been ‘seized’ at two premises. However, those ‘seizures’ were defective. In order to remedy those defects, the material was returned to the respective premises and ‘re-seized’. At 396, his Honour said:
"At the premises at Bungo Street the goods which had been seized were brought into the house and then re-seized. However, at 40 Parson Street the seized goods remained in the police vehicle stationary in the driveway and Mr Puglisi’s wife was asked to come out to the vehicle and identify the material. The material was ‘re-seized’ while it was still in the vehicle ... and driven away."
At 403, his Honour said:
"In my view the items that were in the Federal Police car were never ‘found’ at the Parson Street premises in the course of a search. Nor were they ever then ‘seized’. The items were always in the possession of the ... Federal Police and in the car. In my view it would be a misuse of language to speak of items always in the possession of the ... Federal Police as being ‘found’ at premises merely because they are in a car owned by the Federal Police parked in the premises. Nor can items held by the ... Federal Police be seized by the Federal Police from the Federal Police."
Clearly, the situation in the instant proceeding was different from that in Puglisi. The DVDs were handed back to the applicant. That is analogous to the situation at the Bungo Street premises rather than that at the Parson Street premises referred to above.
50 The fact that the applicant was not afforded an opportunity to verify that the DVDs’ contents matched their description in the notice does not detract from the fact that he was in possession of the DVDs at time the notice was served on him. Only if the DVDs’ contents did not match their description would the notice have been defective because it compelled the applicant to produce "forthwith" a thing that was not in his "custody, possession and/or control".
51 The fact that the applicant was served with the notice during his involuntary attendance at the Commission’s offices is neither here nor there.
52 The authorities discussed in Flack avail the applicant nothing. They include the ‘finding’ cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a ‘finding’ case. The DVDs were handed to the applicant at the Commission’s offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.
53 It was put by Mr Lucarelli QC that a failure by the Court to disapprove of the device by which the Commission obtained the DVDs from the applicant might allow the Commission to employ a similar device in order to, for example, hand a person a gun and then compel him or her to hand it back. I do not intend to read down the plain terms of s 29 and the notice in order to accommodate an extreme hypothetical example. In any case, the potential mischief sought to be illustrated by way of the example is not of great import. The only evidence that could be created by such a device is of the fact that the person possessed the gun between the point at which it was handed to him or her by the Commission and the point at which he or she was compelled to hand it back to the Commission.
54 The applicant’s complaint that the Commission has failed to show that the examiner who issued the notice was, in the terms of s 29(1A) "satisfied that it [was] reasonable in all the circumstances to do so" is misconceived. The onus is on the applicant to show that there was no such satisfaction. See [19] and [20]. The applicant has failed to adduce evidence to that end.
55 The Commission did not adduce evidence that the examiner was satisfied in the requisite sense. That lack of evidence is unexceptionable because the applicant failed to adduce evidence that the examiner was not so satisfied and first raised the issue of whether or not the examiner was so satisfied on the day the hearing of the application commenced. For those reasons:
• it is not appropriate for me to draw an inference of the sort described by Windeyer J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 320-321 from the Commission’s failure to adduce evidence from Messrs Hellings or Goodchild – whose roles in the procurement of the notice are described at [44](d) – or the examiner; and
• I need not deal with the applicant’s contention that the examiner could not have been satisfied in the requisite sense when he issued the notice because he must have known that the Commission created the DVDs and/or that the applicant was not, at that point in time, in "custody, possession and/or control" of the DVDs.
CONCLUSION
56 For the above reasons, I would dismiss the application with costs. Further, if I am wrong in any of those reasons, I would, in the exercise of my discretion, refuse to grant the relief sought. In Johnson v Williams (2000) 58 ALD 1 at [24] and [25], the Full Court of this Court said:
"One matter that is properly to be taken into account in proceedings to quash or have declared invalid an administrative decision is whether there has been delay in bringing the proceeding. Courts quite properly take the view that there is a need for a speedy determination of the validity of an administrative decision. The interests of good administration and third parties are at stake: O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 284; Caswell v Dairy Produce Quota Tribunal for England & Wales [1990] UKHL 5; [1990] 2 AC 738. Unreasonable or unaccounted for delay cannot be tolerated.
The timely action that is required is the commencement of proceedings for or in the nature of judicial review."
(The emphasis is mine.) In that case, the relief sought from and refused by the primary judge was an order to quash a decision of the Attorney-General to refuse to withdraw a request for extradition.
57 In the present case, the warrant was issued on 13 February 2004 and executed the following day. The notice was issued and served on 19 February 2004. The application was filed on 21 December 2005: over 22 months after the events that gave rise to it occurred. The applicant has failed to explain his inordinate delay in commencing proceedings. His attempt to do so by the affidavit of Philip Cadman (of his solicitors) fails. Mr Cadman deposed that:
"The ... warrant ... and the ... notice ... form part of a clandestine investigation conducted in circumstances of confidentiality and secrecy. Prior to the [Commission] releasing details of actions taken in the course of their investigations ... [by way of certain press releases issued in June 2005 and exhibited to Mr Andrew’s affidavit], it was not possible for the applicant or any other members of the public to be aware that materials outside the scope of the warrant and the notice ... were being acted on by the [Commission]."
Apart from being hearsay, this is beside the point. The applicant complains that the Commission’s exercise of coercive power – in the form of a substantial interference with his personal property – was unlawful because it was done pursuant to an unlawful warrant and notice. What happened afterwards is irrelevant to the basis upon which that complaint is made. At most, it merely – to put it colloquially – raised the stakes for the applicant in his attempt to impugn the warrant and the notice.
58 In any case, Mr Cadman’s evidence is contradicted by other evidence adduced by the applicant. Michael Carr (of other solicitors for the applicant) deposed that on 19 February 2004 a member of the Commission advised the applicant in the presence of himself and Mr Galbally QC – who appeared for the applicant before me – that
"the investigation being conducted by the [Commission] would be broadened to include other persons who the applicant had dealings with, as identified in correspondence contained on the applicant’s computer [and] stated words to the ... effect [that] ‘[t]here will be another search warrant’."
It is neither here nor there that no such warrant was obtained.
59 In the circumstances, I need not deal with the Commission’s alternative submission that, if the applicant had made out a case for relief, I should not order the return of the information obtained pursuant to the warrant and the notice or prohibit its use, so as to preserve it for use in foreshadowed criminal proceedings – pending a determination of the trial judge therein as to whether or not it should be excluded on the grounds that it was unlawfully obtained. See for example Malone v Metropolitan Police Commissioner [1980] QB 49 and Parker v Churchill (1985) 9 FCR 316.
60 The application is dismissed. The applicant must pay the Commission’s costs.
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I certify that the preceding sixty (60) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Sundberg.
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Associate:
Dated: 30 June 2006
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Counsel for the Applicant:
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Mr D Galbally QC
Mr N Lucarelli QC Mr A Thomas |
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Solicitor for the Applicant:
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Browne & Co
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Counsel for the First Respondent:
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Ms D Mortimer SC
Dr S Donaghue |
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Solicitor for the First Respondent:
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Ms R Sharp, Australian Crime Commission
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Date of Hearing:
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1 and 2 June 2006
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Date of Judgment:
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30 June 2006
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/819.html