CATCHWORDS Administrative law - application for order of review of decision of magistrate authorising issue of search warrants - whether warrants invalid for lack of certainty - failure to describe offences in relation to which the warrants were issued - matters to be defined with particularity in serach warrants. Crimes Act 1914: ss. 10 and 70. AUSTRALIAN BROADCASTING CORPORATION & CHRISTOPHER W. MASTERS v. PAUL 3. CLORAN, TONI-MICHELLE QO' BRYAN, PAUL DEAVES, MAURICE A. POLKINGHORNE & JOHN JONES G451 OF 1984 LOCKHART J. 21 DECEMBER 1984 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G451 of 1984 ) ) GENERAL DIVISION BETWEEN ; AUSTRALIAN BROADCASTING CORPORATION First Applicant CHRISTOPHER WAYNE MASTERS Second Applicant AND: PAUL STANISLAUS CLORAN First Respondent TONI-MICHELLE 0' BRYAN Second Respondent PAUL DEAVES Third Respondent MAURICE APTHUR POLKINGHORNE Fourth Respondent JOHN 7 NES Fifth Respondent JUDGE MAKING ORDER: LOCKHART J. WHERE MADE: SYDNEY DATE OF ORDER: 21 DECEMBER 1984 ORDER THE COURT ORDERS THAT: 1. Search warrants numbers 930 of 1984 and 512 of 1984 being exhibits 1 and 2 in these proceedings be quashed. The documents being a blue coloured personal diary anda journalist's notebook marked "Dr E." seized on 14 December 1984 from the premises no. 64 Westbrook Avenue, East Wahroongqa, occupied by the applicant, Christopher Wayne Masters. be delivered up on or before Monday 24 December 1984 to the District Registrar of the New South Wales District Registry to this Court. or his nominee in the event of the District Reqistrar being unavailable. to abide the further order of the Court. The costs of the applicant of the hearing on Wednesday 13 December 1984 and today be paid by the second. third and fifth respondents. The application stands adiourned to 15 February 1985 with liberty to anv party to restore in the meantime on two days notice. IN THE FEDERAL COURT OF AUSTRALIA NEW 30UTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G451 of 1984 BETWEEN: AUSTRALIAN BROADCASTING CORPORATION First Applicant CHRISTOPHER WAYNE MASTERS Second Applicant AND: PAUL STANISLAUS CLORAN First khespondent TONI-MICHELLE 0' BRYAN Second Respondent FAUL DEAVES Third Respondent MAURI_E ARTHUR FOLKINGHORNE Fourth Respondent JOHN JONES Fifth Respondent REASONS FOR JUDGMENT LOCKHART J. On 3 November 1984 the Australian Broadcasting Corporation ("the ABC") telecast its programme "Four Corners" featuring a seqment entitled "Branded". which I gather related to tattoos on the human body. Christopher Wayne Masters is a television reporter emploved by the ABC on Four Corners. He prepared the programme "Branded". On 15 November 1984 Mr. Masters was interviewed by police officers. Subsequently, two search warrants were issued. one. on 12 December 1984, directed to an officer of the Australian Federal Police. authorising the search of premises occupied by Mr. Masters at 64 Westbrook Avenue. Wahroonga: and the other. issued on 14 December 1984 directed to an officer of the Australian Federal Police authorising the search of premises occupied by the ABC at Artarmon. Each warrant 1s in the same terms in all material respects. For convenience I shall refer. where necessary, to the warrant which related to the ABC itself. The ABC and Mr. Masters instituted proceedings in this Court seeking orders to review tne decisions of the two Maqistrates who authorised the issue of the warrants and orders quasning the warrants. together with certain consequential orders. The validity of the warrants 13 challénged on various grounds. only one of which is relevant for today 3 purposes, namelv. that the Court should determine. aaa preliminary 'uestion. whether the two warrants are invalid on their face. In addition, the applicants challenaed the efficacy of the warrants on other grounds relating to the circumstances in which they were issued. Those qrounds probably involve questions of fact as well as questions of law. but they are not aqermane to the questions which arise for determination to-day. The applicants contend that the warrants failed to describe the offences in relation to which they were issued with sufficient certainty and particularity and therefore, they are bad. The source of the authority to issue the warrants in this case is s. 10 of the Crimes Act 1914. That section authorises a justice of the peace. if satisfied by information on oath that there is reasonable grounds for suspecting that there is in any house, vessel or place anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence against any law of the Commonwealth. to arant a search warrant authorising any constable named therein, with such assistance as he thinks necessary, to enter at any time any house. vessel or place named or described in the warrant. if necessary by force. and to seize any such thina which he mav find there. A 3@arch warrant must be considered as a whole: hence regard must be had to what I shall call 'and which certain of the reported cases describe as, the recital when interpreting the operative provision of warrants. I aqree with what was said in this respect by Beaumont J. in Brewer v. Castles & Ors. (No. 2) (1984) 51 A.L.R.. 577 at p. 580. The reported cases contain many instances where warrants have been issued pursuant to s. luv which have defined in the recital the premises to be entered, the things to be s3eized and the offences which have been or which are suspected of having been committed and where the operative part of the warrants confers the authority to enter. search and seize merely by adopting the prior descriptions or some of them. That has become a commonplace doubtless at least in part due to the absence of a prescribed form of warrant. The correctness of a warrant in such a form was not challenged by the applicants. The warrant relating to the premises of the ABC in the present case is in the following terms: "SEARCH WARRANT NO. 90 OF 1934 COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT TO: Toni-Michelle O'BRYAN, an Australian Federal Police Officer WHEREAS I: Paul Stanislaus cloran a Justice of the Peace within the meaning of that expression in Section 10 «of the Crimes Act 1914, being satisfied by information on oath placed before ne this dav that there 13s reasonable ground for sus-vectina that there are in a place. being situated at .v Campbell Street. Artarmon, and anv outhouses or stru_tures at the said place. being premises occupled by the Australian Broadcasting Corporation 'Four Corners) thinas including but not limited to. a blue coloured personal diarv beina the property of Christopner Wayne MASTERS, any journalistic notebooks, including sine specifically marked 'Dr E"",. all tapes. film. dccumentation and records maintained by the Australian &rcadcasting Corporation in the preparation. seoduction and cransmission of the Four Corners Programme titled "BRANDED". as to which there are reasonable arounds for believing that the same will afford evidence as to the commission of offences against Section 70 of the Crimes Act 1914. a law of the Commonwealth. YOU ARE HEREBY AUTHORISED with such assistance as you think necessary, to enter at anv time the said premises, if necessary by force and to 3eize the said things including, but not limited to. a blue coloured personal diarv being the property of Christopher Wayne MASTERS, any journalistic notebooks. including one specifically marked "Dr E", all tapes, film, documentation and records maintained by the Australian Broadcasting Corporation in the preparation. production and transmission of the Four Corners Programme titled "BRANDED", a3 to which there are resonable qrounds for 5. believing that the same will afford evidence as to the commission of offences against a law of the Commonwealth and for s30 doing this shall be your sufficient warrant. GIVEN under my hand and geal at Sydney in the said State this 14th day of December 1984 P. CLORAN (Signed) A Justice of the Peace in and for the State of New South Wales" The operative provision of the warrants. however, authorise the police officer to whom each warrant 1s directed. with such assiatance as he or she may think necessary, to enter the relevant premises at any time (being the ABC's premises at Artarmon which are described as "the said premises"). The warrant proceeds to authorise the police officer to seize "the said things' which 1s followed by an inclusive description which corresponds with tne description appearing in the recital. But the warrant does not go on to say that the relevant offences against Commonwealth law are "the said offences" or otherwise to import by reference the description of the offences appearing in the recital. I accept as correct the submission of the applicants that in these circumstances 1t 13 impermissible to construe the warrant as defining in its operative provisions the alleded offences as being offences against s. 70 of the Crimes Act 1914. The warrants are therefore Lad because thev fail to describe the particular offences in relation to which the seizure is authorised so as to enable the persons to whom they are addressed and the persons whose premises are to be searched tc know the exact obfect of the search. See The Queen v. Tillett & Org; Ex parte Newton & Ors. (1969) 14 F.L.R. 101 per Fox J. at p. 113 and the cases there cited by his Honour. Also see Crowley & Org. v. Murphy (1981) 34 A.L.R. 496 at p. 519. where I said something about the matter. See also Brewer v. Castles & Ors. No. 2 (1984) 52 A.L.R. 577 per Beaumont J. at p. 579: and Hoare v. Cooper, unreported, 9 May 1980, a decision of St. John Jd. Even if it is permissible to read the description of the offence in the operative part of the warrant as incorporating the description in the recital the warrants would still in my view be bad for failing to specify the particular offence or offences alleged to be involved. Subsection 70(1) of the Crimes Act 1914 provides: "Anv per3zon who. being a Common:.ealth officer. publishes or communicates. ertept to some person to whom he is authorisei to publish or communicate 1t. any fact or document which comes to his knowledge, or into his possession. bv virtue of his office. and which 1t is his duty not to disclose. shall be guilty of an offence." Subsection 70(2) provides a like offence in the case of a person who. "having been a Commonwealth officer. publishes or communicates. without lawful authority or excuse (proof whereof shall lie upon him). any fact or document which came to his knowledge, or into his possession, by virtue of his office and which. at the time when he ceased to be a Commonwealth officer. 1t was his dutv not to disclose ..." A penalty is provided of imprisonment for two years. Section 70 thus provides for the commission of a somewhat indeterminate number of' offences. Although perhaps as amatter of pure logic it may be that each subsection provides for the possible commission of four offences. this. of course. overlooks the consideration which may arise in practice of more than one person being involved in the publication or communication of the relevant material to more than one person. Thus. the possible combinations of people who communicate information and of those to whom information is imparted are manifold. The warrants in this case are fairly open to the construction that. cn the assumption that it 13 permissible to read the operative provistons in light of the recital (insofar as the delineation of the offences 13 concerned). it i3s impossible to know with any degree of particularity or precision what are the sffences alleged to be committed against 3. 70. I am conscious of the fact that the administration of the criminal law requires that search warrants be issued for the purpose of obtaining evidence for legitimate use in criminal proceedings. But that consideration must be weished against the interference with privacy that is the inevitable consequence of the execution of a search warrant. It must be remembered that the entry, search and seizure authorised by s. lu of the Crimes Act 1914 is not confined to the premises of a person suspected of committing a crime. The owner or occupier of the premises may be quite unconnected with the, commission of any crime. This illustrates the necessity for search warrants, which are intrusions into the sanctity of a person's domain and. concomitantly an interference with his privacy, to define with reasonable particularity all relevant matters; the premises, the things liable to be seized and the offences which were committed or suspected to have been committed. Both warrants fall short of the standards in this case in relation to the definition of the offences committed or suspected of having been committed. It was also argued on behalf of the applicants that the warrants are bad for a further reason. namely, that they do not define with sutficient particularity the things which may be seized from the premises referred to in the warrants. In ~«iew of the conclusion I have reached in relation to the definition of the offences in the warrants. I do not find it necessary to determine this question. In my opinion both warrants should be quashed. The fact that the warrant in relation to Mr. Masters has aready been executed does not prevent an order being made quashing it. The Court makes the following orders: 1. That search warrants numbers 30 of 1984 and 512 of 1984 being exhibits 1 and 2 in these proceedings be quashed. That the documents being a biue coloured personal diary and a journalist's notebook marked "Dr E." seized on 14 December 1984 from the premises no. 64 Westbrook Avenue. East Wahroonga, occupied by the applicant, Christopher Wayne Masters. be delivered up on or before Monday 24 December 1984 to the District Registrar of the New South Wales District Registry to this Court, or his nominee in the event of the District Reaistrar being unavailable, to abide the further order of the Court. The costs of the applicant of the hearing on Wednesday 13 December 1984 and today be paid by the second. third and fifth respondents. The application stands adjourned to 15 February 1985 with liberty to any party to restore in the meantime on two days notice. 1 certify that this and the v preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice Lockhart. ) / bo Associate Dated: .2/~/2 - 34.