Federal Court of Australia Hartley v Commissioner of the Australian Federal Police [2023] FCAFC 197 Appeal from: Hartley v Commissioner of the Australian Federal Police [2023] FCA 368 File number: NSD 473 of 2023 Judgment of: MURPHY, BROMWICH and HORAN JJ Date of judgment: 1 December 2023 Date of publication of reasons: 12 December 2023 Catchwords: CRIMINAL LAW – appeal from decision of primary judge to dismiss a challenge to the validity of a search warrant – whether primary judge erred in finding warrant sufficiently described nature of offence to indicate area of search – where warrant not established to be invalid – where no error established in decision of primary judge – appeal dismissed Legislation: Criminal Code (Cth) ss 11.2, 83.3 Cases cited: Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 Beneficial Finance v Commissioner of Australian Federal Police (1991) 31 FCR 523 Brewer v Castles (1984) 1 FCR 55 Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; 257 FCR 166 Parker v Churchill (1985) 9 FCR 316 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177 Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 18 Date of hearing: 1 December 2023 Counsel for the Applicant: Mr C Lenehan SC and Mr D Hume Solicitor for the Applicant: Nyman Gibson Miralis Defence Lawyers Counsel for the First Respondent: Mr P Herzfeld SC and Ms K Pham Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs. ORDERS NSD 473 of 2023 BETWEEN: KEITH ANDREW HARTLEY Appellant AND: COMMISSIONER OF THE AUSTRALIAN FEDERAL First Respondent LYNETTE DUNCAN Second Respondent order made by: MURPHY, BROMWICH and HORAN JJ DATE OF ORDER: 1 december 2023 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judge of this Court, dismissing a challenge to the validity of a search warrant. In particular, the appellant challenges the finding by the primary judge that there was no material deficiency in the statement of the suspected offence in the third condition of the impugned search warrant. 2 At the conclusion of the hearing of the appeal, we made orders to dismiss the appeal with costs. These are our reasons for making those orders. 3 As was the case before the primary judge, there was no dispute between the parties in the appeal as to the applicable legal principles, which are well settled. Those principles were recently addressed by the High Court in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177. It is common ground that the reasons for judgment in Smethurst (and in particular the reasons of Kiefel CJ, Bell and Keane JJ at [22]-[30]) reflect established principles that emerge from the preceding cases, and the primary judge proceeded on that basis (see the reasons below at paragraph [18]). Accordingly, the grounds of appeal are not concerned with any controversy about the applicable legal principles, but rather with the application of accepted principles to the particular circumstances of the present case. 4 Applying those accepted principles, the impugned search warrant would be invalid if the description of the offence to which the warrant relates is insufficient to indicate the areas of the search authorised by the warrant; that is, the object of and limits to the scope of the search which has been authorised. 5 The offence description in the warrant was as follows: Between 30 June 2018 and January 2022, Keith Andrew HARTLEY, born 26/08/1948, contrary to section 83.3 of the Criminal Code (Cth), provided training involving the use of arms or practising military exercises, movements or evolutions where the training was directed, funded or supervised by a foreign government principal, being the Chinese Peoples' Liberation Army (PLA), or a person acting on behalf of the PLA, in that HARTLEY as the Chief Operating Officer of Test Flight Academy of South Africa (TFASA) organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy. 6 The offence provision in s 83.3(1) of the Criminal Code (Cth) was (and remains) in the following terms: 83.3 Military‑style training involving foreign government principal etc. Offence in relation to military‑style training (1) A person commits an offence if: (a) the person provides, receives, or participates in, training; and (b) the training involves using arms or practising military exercises, movements or evolutions; and (c) any of the following circumstances exists: (i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1); (ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation. 7 As counsel for the appellant accepted, the offence description in the warrant can be divided into two parts, separated by the words before and after "in that …". It is plain that the wording from "provided training" to "foreign government principal" is drawn from the text of the offence provision. Nevertheless, the first part of the description does not simply restate the language of the statute – it selects and specifies certain elements of the offence, making clear that the alleged offence relates to the provision of training (as opposed to the receipt of training or participation in training) that was directed, funded or supervised by (as opposed to being provided on behalf of) a foreign government principal (as opposed to a foreign political organisation): see the reasons below at [57]. The first part also identifies the foreign government principal who is suspected of directing, funding or supervising the relevant training, either directly or by a person on its behalf, being the Chinese Peoples' Liberation Army (PLA). Further, the first part specifies the time period during which the suspected offence is alleged to have occurred. 8 The appellant's challenge to the validity of the warrant was not directed to the first part of the offence description. Instead, the appellant's challenge was confined to the second part of that description, being the words "in that [the appellant] as the Chief Operating Officer of Test Flight Academy of South Africa (TFASA) organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy". In broad terms, the appellant argues that those words cannot be regarded as a "further and more specific elucidation" of the suspected offence, as was found by the primary judge (at [57]), but involve a "departure" from the first part of the description that either results in a misstatement of the offence or introduces intractable ambiguity in the offence description. 9 We do not accept the arguments advanced on behalf of the appellant. The primary judge found no inadequacy in the particulars set out in the third condition of a kind capable of rendering the suspected offence description inadequate to define the ambit of the search authorised by the warrant. We can see no error in her Honour's reasoning to that conclusion. To the contrary, we agree with her Honour's reasons. We need only make the following brief observations. 10 First, in relation to the statement in the third condition that the appellant "provided" training that was directed, funded or supervised by the PLA, we do not consider that this gives rise to any inconsistency with the subsequent elaboration or qualification of that statement "in that [the appellant] … organised and facilitated training delivered by TFASA to PLA pilots". For the reasons given by the primary judge, it is clear from the face of the warrant that the appellant is alleged to have provided training as a principal offender, and no issue of accessorial liability under s 11.2 of the Criminal Code arises. As a matter of statutory construction, the term "provides" training in s 83.3(1)(a) is not limited to the direct delivery of training in person, and is capable of encompassing conduct involved in organising or facilitating training to be delivered by another person. Contrary to the appellant's submissions, on this construction, the term "participates in" training still has work to do and is not rendered otiose. In any event, whether the appellant's alleged conduct in organising and facilitating training amounts to an offence of "providing" training contrary to s 83.3 would be a matter relevant to the framing of any subsequent indictment and would ultimately be a question for the trial judge in any future criminal trial. It does not lead to ambiguity or insufficient particularity in the statement of the offence to which the warrant relates. 11 Secondly, read fairly and in the context of the warrant as a whole, the reference to training "in regard to military aircraft platforms" is "both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand": Smethurst at [27] (Kiefel CJ, Bell and Keane JJ). 12 It can be accepted that the statement of the offence to which the warrant refers must enable each of the issuing officer, the officer executing the warrant and the persons affected by the warrant to understand the object of the search and the limits to the scope of the search, such that it is necessary that "persons executing and affected by the warrant understand what is being sought": Smethurst at [27]-[28] (Kiefel CJ, Bell and Keane JJ), see also at [207], [225] (Edelman J). The sufficiency of the warrant for such purposes is an objective test, assessed "from the point of view of those reading it": Smethurst at [30], [42] (Kiefel CJ, Bell and Keane JJ). In so far as the test is concerned with the person or persons affected by the warrant, such as the owner or occupier of the premises to which the warrant is directed, it may be relevant to take into account any particular knowledge or experience possessed by that person or persons in determining what is conveyed by the offence description contained in the warrant. But, in addition to enabling the person whose premises are subjected to the search to understand the basis for the search, "the detail in the warrant must be of sufficient content and clarity to give reasonable guidance to the executing officer and those assisting in the execution of the warrant to decide if the things to be seized are within the scope of the warrant": Smethurst at [207] (Edelman J). For such purposes, any specialised knowledge or experience of the owner or occupier of the premises would not be directly relevant to the assessment of what is conveyed by the warrant to an "ordinary reader" (see Smethurst at [42]) in the position of the executing officers. 13 As a consequence, it would not be sufficient of itself to establish the validity of the warrant that the appellant himself was not or would not have been under any misapprehension as to the meaning of the term "military aircraft platforms" in the light of his background in the aviation and defence industries, including his position as the Chief Operating Officer of TFASA. While such expected knowledge or expertise of the person affected by the warrant may form part of "the circumstances of the case at hand" (Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; 257 FCR 166 at [40]), it is difficult to see how such matters could ordinarily have any bearing on what would be conveyed on the face of the warrant to the executing officers and others assisting in its execution. Further, there was no evidence in the present case that the executing officers had received any specific briefings prior to the execution of the warrants: cf. Caratti at [83], [134], [144]-[145]. Of course, it should be remembered that the present appeal is concerned with a challenge to the validity of the warrant on its face, as opposed to the manner in which it was executed. The appellant did not bring any challenge to the decision to issue the warrant based on the information before the magistrate, nor to the execution of the warrant: see the reasons below at [80]. 14 Ultimately, the meaning of "military aircraft platforms" was sufficiently clear from the ordinary meaning of the words having regard to their context, so as to convey to the ordinary reader with sufficient particularity the offence to which the warrant related and to indicate the areas of the search and their limits. Some of the dictionary definitions considered by the primary judge encompass a meaning of "platform" as referring to a vehicle such as an aeroplane, particularly when used for specific purposes including carrying or delivering weapons. While the word "platform" also has a number of other meanings, the context points to and supports its use in that sense in the warrant. The immediate context within the third condition refers to training delivered to "PLA pilots" by the "Test Flight Academy of South Africa", and the word "platforms" is used as part of a composite phrase "military aircraft platforms". Further, "[i]t may be accepted that regard may be had to other parts of the warrant to assist in an understanding of what is said in the third condition": Smethurst at [42] (Kiefel CJ, Bell and Keane JJ), referring to Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 154 and Brewer v Castles (1984) 1 FCR 55 at 62. Here, the second condition of the warrant includes references to a number of persons or matters connected with aviation, particularly in a military context. Having regard to the subject-matter of the offence created by s 83.3 of the Criminal Code, which is concerned with "[m]ilitary‑style training", the meaning of "military aircraft platforms" as used in the third condition of the warrant would not be ambiguous or unclear to the ordinary reader. 15 Notwithstanding this context, the appellant sought to illustrate the potential ambiguity in the term "military aircraft platforms" by submitting that it was unclear whether the term was intended to refer to planes, or to a flight simulator or even flight simulation software. In our view, however, these possibilities do not render the description of the suspected offence unintelligible or ambiguous, nor do they entail any uncertainty about the bounds of the search authorised by the warrant. 16 Finally, the appellant maintained his submission that the words "training … in regard to … military doctrine, tactics and strategy" were ambiguous, and did not relate to the offence in s 83.3 of the Criminal Code which is concerned with "using arms or practising military exercises, movements or evolutions". We do not consider that these words are unconnected with the offence created by s 83.3, and note that the appellant does not contend that the conduct as stated in the warrant is incapable of engaging the offence provision (see the reasons below at [41]). As the primary judge recognised, in order for the warrant to state the offence to which it relates, it is not necessary to demonstrate that the ordinary reader of the warrant would match up the language of the third condition set out in the warrant with the elements of the offence, provided that the warrant is sufficient to indicate the bounds of the search: see the reasons below at [43]. The question whether such conduct amounts to an offence against s 83.3 is ultimately a question which would fall to be determined in any future criminal trial. The warrant, on the other hand, is issued "as a tool of investigation or of evidence gathering": see Beneficial Finance v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 533-534, referring to Parker v Churchill (1985) 9 FCR 316 at 319. 17 Accordingly, the warrant does not fail to state an offence, and is sufficient to indicate to those reading it the areas of the search including the limits to the scope of the search which has been authorised. The primary judge was correct so to conclude. 18 For those reasons, the appeal was dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Bromwich and Horan. Associate: Dated: 12 December 2023