we ee eee Administrative law - search warrant - whether warrant invalid or invalidly issued - particulars of offences ~ absence of date or time of offences - whether evidence to justify justice's exercise of discretion - claim of public interest immunity with respect to information - production of information to Court Judiciary Act 1903 s.39B Crimes Act 1914 ss. 10, 86(1)(e) Federal Court Rules 0.54A MURRAY VERNON OQUARTERMAINE v. CEDRIC JOHN NETTO, STUART YOUSTON, JAMES MacLAREN and DOUGLAS BRADDON CHILD No. WA G99 of 1984 TOOHEY J. PERTH 14 DECEMBER 1984 et em ttt eed LA te ek IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G99 of 1984 BETWEEN: MURRAY VERNON QUARTERMAINE Applicant and CEGRIC JOHN NETTO, STUART YOUSTON, JAMES MacLAREN and DOUGLAS BRADDON CHILD Respondents PROPOSED ORDER JUDGE MAKING ORDER : Toohey J. DATE OF ORDER 14 December 1984 WHERE MADE $ Perth The Court declares that the search warrant obtained by the first respondent on 23 October 1984 is not invalid by reason only of the description of offences, things directed to be seized and the person or persons suspected of the offences therein. Liberty to apply as to further orders in accordance with these reasons for judgment. IN THE PEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G99 of 1984 ~~ eee BETWEEN: MURRAY VERNON QUARTERMAINE Applicant and CEDRIC JOHN NETTO, STUART YOUSTON, JAMES MacLAREN and DOUGLAS BRADDON CHILD Respondents CORAM: TOOHEY 7. 14 December 1984 REASONS FOR JUDGMENT This application is made pursuant to the provisions of Order 54A of the Federal Court Rules, an order which implements s.39B of the Judiciary Act 1903. That section includes within the original jurisdiction of the Federal Court "any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". The applicant seeks to restrain the further execution of a search warrant obtained by the first respondent, a Detective Senior Sergeant of the Australian Police. on 23 October 1984. The applicant seeks other relief including a declaration that the search warrant is invalid or was invalidly issued. At this stage of the proceedings the Court is asked to deal only with the question of the validity of the search warrant. Aa ranean a le eee The applicant carries on business as a travel agent, as do L.H. Quartermaine & Co.. Quartermaine Travel and Four Winds Tours International Pty. Ltd. with which he is associated. It 1S apparent from the lanquage of the warrant that it was issued pursuant to para (b) of s.10 of the Crimes Act 1914 which empowers a Justice of the peace to grant a search warrant if satisfied by information on oath that there is reasonable ground for suspecting that there is in any place: "(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence". The reference to "any such offence" is to the language of the preceding paragraph which speaks of "any offence against anv law of the Commonwealth ...". The search warrant authorised Detective Sergeant Netto "to enter at any time the said place, if necessary by force, and to se1ze the said things more fully described above ...". The place is the premises occupied by MacKinlays who are solicitors for the applicant and, I take it, for the firm and companies mentioned above. The things more fully described are: "... books, records, bank books, copies of bank books, extracts/coples of banks statements. cheque butts, copies of cheques, files, invoices, diaries, promissory notes, copies of promissory notes, deposit slips, copies of deposit slips, withdrawal slips, copies of withdrawal slips, receipts, ov i a ee reports, letters, handwritten notes, typewritten notes, transcript of Court proceedings and other such material relating directly or aindirectly to the payment of commissions by Airline Companies to the aforesaid Murray Vernon Quartermaine, or companies known as L.H. Quartermaine & Co., Quartermaine Travel or Four Winds Tours International Pty. Ltd." The warrant recites that there are reasonable grounds for believing that this material: ',..will afford evidence as to the commission of offences by the aforesaid Murray Vernon Ouartermaine and other persons of offences of conspiring to defraud the Commonwealth, namely the Australian Taxation Office, contrary to Section 86(1)(e) of the Crimes Act 1914", Paragraph 86(1)(e) of the Crimes Act makes it an indictable offence to conspire with another "to defraud the Commonwealth or a public authority under the Commonwealth". The challenge to the validity of the search warrant is twofold. First it is said that the warrant fails to relate the material authorised to be seized to any specified offence. Second, it is said that the description of the material is far too wide, being unqualified as to time or circumstance. In an affidavit filed in answer to the application, Detective Sergeant Netto deposed to swearing "a five page typed information with numerous annexures thereto" before the stipendiary magistrate who granted the warrant and to giving oral evidence in support of the application. Counsel for the applicant 4. called upon the respondent to produce the information. Objection was taken by counsel for the respondent on the ground that the information and any supporting material were privileged from production. Counsel for the applicants said that as an alternative to the production of the material for his inspection, 1t should be produced to the Court for its inspection. I said I would consider this particular aspect of the proceedings and deal with it in the course of my reasons for judgment. If I thought that the applicant was entitled to the production of the material and that his application could not succeed in its absence, I would give counsel a further opportunity to speak to the matter. In support of his submission that the search warrant was invalid, counsel for the applicant referred to many decisions, beginning with R. v. Tillett; Ex parte Newton (1969) 14 FLR 101 and concluding with Coward v. Allen (1984) 52 ALR 320. I shall not comment on all the authorities referred to by counsel but shall confine mvself to those decisions in which there is to be found a statement of principle applicable to the present case or a decision on facts so close to those in the present case as to provide a useful guide to the proper outcome of this application. Recent decisions have contained a close examination of the relevant authorities and there is no need to repeat what is said there. However, I take as a starting point a passage from the judgment of Mason J. in Baker v. Campbell (1983) 57 ALUJR 749 at pp.760-1: 5. "The search warrant has been described as 'part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known': Attorney- General of Nova Scotia v. MacIntyre (1982) 132 DLR (3d) 385, at 397, per Dickson J. Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant. For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation". Questions arise as to the particularity with which a warrant must specify: (a) the offence for which the items authorised to be seized are believed to afford evidence (b) the items believed (on reasonable grounds) to afford evidence as to the commission of an offence (c) the person or persons suspected of the offence There is no need to spend time on the third of these questions. The search warrant identifies the applicant by name a and that is sufficient even though there is a reference to the commission of offences by "other persons". The applicant's attack on the failure of the warrant to identify an offence with sufficient particularity focused on the identification of the offence itseif and the absence of any indication as to the time at which or the period during which the offences were said to have been committed. A defendant, faced with an indictment in terms of the warrant, would be entitled to particulars of the conspiracies including particulars of the alleged connection between the payment of commissions by airline companies anda conspiracy to defraud the Australian Taxation Office. The person would also be entitled to particulars of the time at which or the period during which each offence was alleged to have been committed. It does not follow that a search warrant, lacking the particularity required of an indictment, is invalid. The question is - how much particularity is required in the present case? The requirement of particularity is not merely formal; it is aimed at ensuring that the person whose premises are being searched knows the object of the search and can therefore make some assessment of the material likely to prove relevant. It is unacceptable that such a person be left in the dark as to the object of the search. In Tillett's case at p.113, Fox J. spoke of the absence of authority on the need for identification of the offence though there are Canadian cases that decide: "... that the information must relate toa particular offence, that the description of the offence in the warrant must be sufficiently clear to enable the person where premises are being searched to know the exact object of the search, and that there must be in the warrant a sufficient description of the documents or things". It 1S apparent that too much precision cannot be required of a search warrant for, as Northrop J. pointed out in Coward v. Allen at p.332: "At the stage of the investigation when a search warrant is granted, it may not be known what particular offence or offences have been committed. It is sufficient that the warrant specifies the offences in such a way as to enable the constable executing it, as well as those assisting him, to decide if the things seized come within the things @escribed in the warrant". In that case the offences were identified as "the making, contrary to paragraph 40(c) of the Banking (Foreign Exchange) Regulations, to an agent of the Reserve Bank of Australia, of statements known to be untrue or misleading relating to transactions to which a provision of those Regulations namely paragraph 5(1)(b) applies". Northrop J. held that the warrants in question sufficiently particularised the offences being investigated. It may be noted that the statements said to be untrue or misleading were not specified in the warrant nor was any date or time of the alleged offences mentioned. Mention may also be made of Inland Revenue Commissioners v. Rossminster Ltd (1980) AC 952, in particular the judgments of Lord Wilberforce at p.999, Viscount Dilhorne at p.1005, Lord Salmon at p.1020 and Lord Scarman at pp.1023-1024. In that case, on ae ee 8. where a statute authorised the issue of a warrant to search and seize where there was reasonable ground for suspecting that an offence "involving any form otf fraud in connection with, or in relation to, tax has been committed", their Lordships were of opinion that it was unnecessay for the warrant to specify an offence. In the present case I am of the opinion that the absence of a date or time does not affect the validity of the warrant; equally I am of the opinion that the offences are sufficiently particularised. The two matters do not stand independent of each other; nor together do they stand independent of the reference to "material relating directly or indirectly to the payment of commissions by Airline Companies ...". It may be that if the documents referred to in the warrant are identified only in the most qeneral way, greater particularity is required in identifying the offence and perhaps in specifying a date or period during which the offence is alleged to have been committed. But in the present case the warrant is directed to material relating to the payment of commissions by airline companies to the applicant and the others mentioned in the warrant. When that is read with the reference to the commission of offences of conspiring to defraud the Australian Taxation Office, there is sufficient precision to enable the officer executing the warrant to know what he is required to look for and for those in whose premises documents are found to make some assessment of what is required of them. Greater precision is lent to the warrant by the express mention of the applicant though it has been held that s.10 of the 9. Crimes Act does not require that a warrant name the person suspected of committing the offence. Trimboli v. Onley (No. 2) (1981) 56 FLR 317. One of the grounds upon which the applicant contends that the search warrant was invalid is that: "(iii) there was no evidence or otherwise to justify the exercise of discretion by the Justice to issue the warrant". There is no presumption of regularity in the case of a search warrant (Tillett's case at p.106). In many of the decisions referred to by counsel no question arose as to the exercise of power by the justice in granting a warrant. See for instance Coward v. Allan at p.329. In some cases it has been possible to demonstrate from the warrant itself that there was nothing to indicate that the justice was satisfied by information on oath that there was reasonable ground for suspecting that there was in any place anything of the nature referred to in s.10 of the Crimes Act or its counterpart. For instance, in Tillett's case the warrant merely recited that a police officer had made an information on oath that there was reasonable ground for suspecting that there were in certain premises documents, as to which there was reasonable grounds for believing that they would afford evidence of the commission of an offence. But nothing was said to indicate that the justice was himself satisfied of those matters. Accordingly the warrant was invalid. Again, in T.V.W. Limited v. Robinson (1964) WAR 33 the warrant merely reiterated the terms of the complaint and said nothing to indicate that the tase ad AG ee ee 10. Justice was satisfied of anv of the matters mentioned in s.71l of the Criminal Code (W.A.), a section comparable in its terms to s.10 of the Crimes Act. The warrant was quashed. In the present case the warrant recites that the justice was "satisfied by information on oath placed before me this day" that there were reasonable grounds for suspecting the existence of documents relating to the commission of an offence. It cannot be said that the warrant is bad on its face. However Mr. Heenan, counsel for the applicant, submitted that he was entitled to see the information placed before the justice with a view to arguing that there was no evidence to justify the issue of a warrant. Mr. Wheatley, counsel for the respondent, objected to the production of the information to the applicant's legal representative on the ground that the material therein was protected by the public interest immunity which covers investigations into possible criminal offences. He referred to the judgment of Lord Wilberforce in Inland Revenue Commissioners v. Rossminster Ltd. At p.999 his Lordship said: "I accept that some information as regards the person(s) who are alleged to have committed an offence and possibly as to the approximate dates of the offences must also certainly have been laid before the board and the judge. But the occupier has no right to be told of this at this stage, nor has he the right to be informed of the 'reasonable grounds' of which the judge was satisfied. ... all this information is clearly protected by the public interest immunity which covers investigations into possible criminal offences". na Once tere a . a Fane ree ORT OO NY SOT ee DOO a EY Das Sa ato tas oo et ica Tad sdebser ss am. tae, , 3a Se a, ii. Mr. Wheatley said that there was no objection to the information itself being inspected by the Court but there was objection to its production to anyone acting on behalf of the applicant because "that document exhibits part of the evidence against the applicant as to the commission of certain offences, and it qoes to the very heart of establishing that these offences were committed". Presumably the objection is to the disclosure of information at this stage. Eventually, if the applicant is charged with an offence and there are committal proceedings, the "evidence" will have to be disclosed to him. This particular matter does not appear to have arisen in any of the cases referred to by counsel in the course of their submissions. I do not think that the information itself necessarily enjoys an immunity from production. It may be largely formal in its language. But it may be, on examination, that it details investigations being conducted, material which is protected by the public interest immunity of which Lord Wilberforce spoke. In the circumstances I propose to accept the respondents' invitation to make the information available to the Court. If it appears that there is nothing in the document, the disclosure of which would offend the notion of public interest immunity, I shall direct that it be made available to the applicant's counsel. If the document contains material of such a nature and it is not possible to isolate it from the rest of the document, I propose to return the information to the respondents' counsel and to make no further order in respect of that material. I certify that this and the ten preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice "Oe wg CO Dated: 14 December 1984 Associate