" Administrative law - validity of search warrant - warrant issued pursuant to Crimes Act 1914 to member of Australian Federal Police while seconded to National Crime Authority - whether warrant invalid as failing to comply with relevant provisions of National Crime Authority Act 1984 - allegation that description of documents and identification of offence in warrant not sufficiently particularised - whether warrant bad on its face - need to examine warrant in its entirety - offence in warrant adentified by reference to incorrect section - whether warrant invalidated Crimes Act 1914 5.10 National Crime Authority Act 1984 ss.22, 51 Australian Federal Police Act 1979 s.33 WAYNE RYDER, EVELYN AMY RYDER, W. RYDER & CO. |*. THOR NICKEL EXPLORATION PTY. LTD. , FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PITY. LTD. and ~ TAKSAN PITY. OTD. Vv. THEODORE RICHARD MORLEY and JAMES KENNETH McLAREN and NATIONAL CRIME AUTHORITY . No. WA G78 of 1986 TOOHEY J. PERTH 12 DECEMBER 1986 "De \ Ree IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G78 of 1986 BETWEEN: WAYNE RYDER, EVELYN AMY RYDER, W. RYDER & CO., THOR NICKEL EXPLORATION PTY. LTD, FRANCO AUSTRAL EXPLORATION PTY. LID., RAFFINDALE PTY. LTD. and TAKSAN PTY. LTD. Applicants and THEODORE RICHARD MORLEY First Respondent and JAMES KENNETH McLAREN Second Respondent and NATIONAL CRIME AUTHORITY Third Respondent CORAM: TOOHEY J. 12 December 1986 REASONS FOR JUDGMENT This case concerns the validity of a search warrant. Like most such cases, much turns upon the language of the warrant itself. For that reason I attach as an appendix a copy of the warrant under attack. However there is amore basic question, involving the relationship between the National Crime Authority Act 1984, the Crimes Act 1914 and the Australian Federal Police Act 1979. I shall deal with that question first. The search warrant was issued to James Kenneth McLaren, a member of the Australian Federal Police. Detective Sergeant McLaren deposed that as from 16 September 1985 (some ten months before the issue of the warrant) he had been attached to the National Crime Authority. He further deposed that, while attached to the Authoritv, he assisted members of a task force investigating matters concerning the applicant Wayne Ryder and various corporations, entities and persons associated with him. In the course of his duties in assisting the task force in those investigations, Detective Sergeant McLaren obtained the search warrant that is the subject of this application. The applicants' submission, put shortly, was that a search warrant to be executed for the purposes of the Authority must be issued pursuant to and subject to the restrictions of the National Crime Authority Act and that s.10 of the Crimes Act cannot be prayed in aid of the warrant. The argument was developed in this way. Section 10 of the Crimes Act empowers a Justice of the Peace, in the circumstances there mentioned, to grant a search warrant authorising any constable named therein to take any of the steps set out in the section. Section 3 defines "Constable" to mean "a member of the Australian Federal Police or of the police force of the State or Territory". The National Crime Authority Act contains, in ss.22 and 23, provisions for the issue of a search warrant. Section 23 is concerned with applications by telephone and no more need be said about it. It is not easy to paraphrase s.22; it is enough to set out sub-ss.(1) and (2) in full. (lL, A member of the Authority may apply to a Judae of a prescribed court for the issue of a warrant under sub-section (2) if - (a) the Authority has reasonable arounds for suspecting that, on a particular dav (in this section referred to as the 'relevant dav'), being the day on which. or a particular day within one month after the dav on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a matter relating to a relevant criminal activity, being a matter into which the Authority 1s conducting a special investigation (in this section referred to as 'things of the relevant kind'}; and (b) the Authority believes on reasonable grounds that, 1f a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed. (2) Where an application under sub-section (1) is made to a Judge of a prescribed court, the Judge may issue a warrant authorizing a member of the Australian Federal Police or of the Police Force of a State, or any other person, named inthe warrant, with such assistance as he thinks necessary and if necessary by force - (a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; (b) to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and (c) to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so seized to the Authority". The Authority consists of a chairman and two other members (s.7); one of those may apply for the issue of a warrant. The warrant itself may authorise a member of the Australian Federal Police or of the police force of a state or any other person, named in the warrant, to take any of the steps referred to in sub-s.22(2). The justification for the issue of a warrant under s.22 is that the Authoritv has reasonable grounds for suspecting the existence of something "connected with a matter relating to a relevant criminal activity, being a matter into which the Authority 1s conducting a special investigation". "Special investigation" carries a particular meaning; it means "an investigation that the Authority 1s conducting in the performance of its special functions" (sub-s.4(1)). The special functions of the Authority are to be found in s.11. Sub-section 11(1) deals with the qeneral functions of the Authority and these, broadly speaking, are the collection and analysis of criminal information and intelligence relating to relevant criminal activities, the dissemination of that information and intelligence to appropriate agencies, the investigation of matters relating to relevant criminal activities and the arrangement of task forces. Sub-section 11(2) lists the special functions of the Authority in terms of references under ss.13 or 14 i.e. a reference from the Minister or from a Minister of the Crown of a state (with the Minister's consent) to investigate a matter in so far as_ the relevant offence is against a law of the Commonwealth, territory or state depending on the source of the reference. In the applicants' submission, once Detective Sergeant McLaren became attached to the Authority, any warrant authorising him to search and seize had to be a warrant issued in compliance with s.22. The warrant under attack was not such a warrant. It had not been sought bv a member of the Authority; it had not been issued by a yudge of a prescribed court and in other respects it did not meet the requirements of sub-s.22(1). The conclusion contended for by the applicants follows logically enough if the major premise upon which they rely is well 5. Founded. Buc in my view 16 1s not. The attachment of Detective Seraqeant McLaren to the Authority did not deprive him of his status as a constable within the Crimes Act. Nor did it deprive him of the right to seek the issue of a search warrant pursuant to s.10 of that Act. It 1s clear that he was invoking s.10 and not relying upon any provision of the National Crime Authority Act. Had a member of the Authority required a warrant for the purpose of a special function of the Authority, it was open to that member to apply to a judge of a prescribed court under sub~s.22(1). But the warrant was sought by a member of the Australian Federal Police who satisfied a Justice of the Peace, by information on oath, that a warrant was justified in terms of s.10 of the Crimes Act. In that regard it is relevant to look at s.33 of the Australian Federal Police Act, as amended by No. 35 of 1986 (an amendment that was assented to on 24 June 1986, nearly a month before the issue of the warrant). Sub-section 33(6) provides that during a period of secondment of a member of the force, the member "(a} retains the same rights, powers and immunities as the member would, but for the secondment, have as such a member; and (b) remains subject to the same obligations and liabilities in relation to discipline as those to which the member would, but for the secondment, have been subject as such a member." More importantly perhaps, sub-s.22(10) of the National Crime Authority Act reads: "Nothing in this section affects a right of a person to apply for. or the power of a person to assue, a warrant, being a right or power existing otherwise than by virtue of this section". I agree with counsel for the respondents that the sub-section simply means what it says and that there is no justification for reading it down. Counsel for the applicants arqued that 1f a police officer seconded to the Authority could relv upon sub-s.22(10) to justifv the obtaining of a warrant under s.10 of the Crimes Act, the limitations in s.22 could be set at naught. But that is not so. The limitations in s$.22 apply when the Authority relies upon a special investigation which it is conducting to obtain a search warrant in the terms of that section. But if a constable can satisfy a Justice of the Peace, in terms of s.10 of the Crimes Act, that a search warrant is justified, the Justice may issue a warrant under that section. There is nothing uncertain or ambiguous about sub-s.22(10); in my view the sub-section is designed for the sort of situation that arose in the present case. The applicants also relied upon s.51 of the National Crime Authority Act. That section makes it an offence for any person to whom the section applies to divulge any information acquired by reason 'of, or in the course of, the performance of duties under the Act. Sub-section 51(3) provides that a person to whom the section applies shall not be required to produce in any court any document that has come into his custody or control in the course of, or by reason of, the performance of duties under the Act or be required to divulge or communicate to a court a matter or thing that has come to his notice in the performance of duties under the Act. But an exception to this prohibition is to be found in para.(b) of sub-s.(3) which speaks of "the purposes of a prosecution instituted as a result of an investigation carried out by the Authoritv in the performance of its functions". Thus there 1s no barrier to the production in court, for the purpose of a prosecution, of material obtained through the execution of a warrant under the National Crime Authority Act. That assumes of course that the material was obtained in accordance with the Act. In my view material obtained by the issue of a warrant pursuant to s.10 of the Crimes Act would not fall within s.51 in any event. The question then becomes one of the formal validity of the warrant. Counsel referred to a number of decisions, particularly of the Federal Court, in which warrants have been attacked on the ground that they were so imprecise as to constitute a general warrant. I do not propose to refer to all those decisions. Some relevant dicta have been subsumed in later decisions and some cases have turned on language significantly different from that in the present warrant. Nevertheless some of the decisions are important in determining the present application. The argument that the warrant was bad on its face was largely in terms that the warrant listed, by general description, a range of documents "in respect of" the applicants, qualified only by the statement that there were reasonable grounds for believing that the documents would afford evidence as to the commission of an offence viz. that "Peter Briggs and Wayne Ryder conspired in or about 1979, to defraud the Commonwealth of Australia of Revenue, to wit, income tax in respect of the financial years after the financial year ended 30/6/1979, contrary 8. to Section 86i1)(e) of the Crimes Act 1914, a law of the Commonwealth". There is certainly one respect in which the warrant is defective and that is in its reference to para.86(1)(e) of the Crimes Act. That paragraph was omitted by the Statute Law (Miscellaneous Provisions) Act (No. 2), No. 165 of 1984. The paragraph dealt with conspiracy to defraud the Commonwealth or a public authority under the Commonwealth. The relevant provision since the Statute Law (Miscellaneous Provisions) Act (No. 2) is s.86A which reads: "A person who conspires with another person to defraud the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence". A warrant must specify the offence or offences in question. But unless a reference to an incorrect section has the result that the warrant does not specify any offence or makes the warrant so ambiguous that it is not possible to tell what offence is referred to, a reference to an incorrect section in the description of an offence does not of itself invalidate a warrant. See Jackson J. in Parker v. Churchill (1986) 65 A.L.R. 107 at 113. In the present case the warrant identifies in intelligible terms an offence to which s.10 relates. The applicants complain that the warrant simply lists documents by general description and fails to offer any criterion by which their relevance may be determined, other than that there are reasonable arounds for believing that those documents will afford evidence as to the commission of an offence. When one comes to the operative part of the warrant, the applicants make the further complaint that the onlv qualification to the general description 1s in the words "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offence ...". This, they say, is a further basis of invalidity. The warrant begins by speaking of the justice being satisfied that there are reasonable grounds for suspecting that the documents will afford evidence as to the commission of an offence. But it then goes on to authorise the seizure of documents as to which there are reasonable grounds for believing that they will afford evidence as to the commission of the said offence, thereby shifting the reasonable grounds for belief to that of the person executing the warrant. This, the applicants contend, is impermissible. A warrant must describe the particular offence in relation to which seizure is authorised. The requirement of particularity 1s not merely formal; it enables the person to whom the warrant is addressed and the person whose premises are to he searched to know the object of the search so that each may make an assessment of the material likely to prove relevant. R. v. Tillett; Ex parte Newton (1969) 14 F.L.R. 101 at 113; Australian Broadcasting Corporation v. Cloran (1984) 57 A.L.R. 742 at 744. In Quartermaine v. Netto (unreported decision delivered 14 December 1984) I suagested that it 18S necessary to lookat a warrant in its entiretv, for lack of particularity in one respect may be compensated for by information given in some other respect. Thus, if the documents referred to ina warrant are identified 10. only in the most qeneral way. greater particularity may be required in identifving the offence, including the date or period during which the offence 1s alleged to have been committed. In the present case the description of documents is, for the most part, very general though some are referred to with considerable precision. But the documents are identified by naming the applicants, by identifying the persons said to have committed an offence and by naming the offence itself, though admittedly within a broad time framework. In my view, when the warrant 1s read in its entirety there is an adequate description of the offence so as to enable the person executing the warrant and the person whose premises are being searched to make an assessment of what is required of them. See also Brewer v. Castles (No. 2) (1984) 52 A.L.R. 577. I do not accept the applicants' contention that in some way the warrant shifts the source of reasonable grounds for belief from the Justice of the Peace to the person executing the warrant. In the recital, which occupies the first page, the reference to "reasonable grounds for believing that the same will afford evidence as to the commission of an offence ..." is clearly a reference to reasonable grounds for belief held by the Justice. The operative part of the warrant, to be found on p.2, repeats the description of documents to be found in the recital and concludes with the words "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offence ...". In my opinion, the concluding words are simply repetitive of the language qualifying the description of documents in the recital. They are not intended to alter the ll. scope of the warrant by directing the person who executes it to those documents which he believes will afford evidence as to the commission of the offence. Counsel for the applicants sought to derive some support from the decision at first instance in Re Arno; Ex parte Forsyth (1985) 63 A.L.R. 130. Certainly Sweeney J. considered the role in the operative clause in the warrant of the words "the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same wlll afford evidence as to the commission of the said offences and in respect to which it is suspected on reasonable grounds that the said offences have been committed". But as I read his Honour's judgment, he was concerned that the use of certain words in the operative clause viz. "and in respect to which it is suspected on reasonable grounds that the said offences have been committed", which had not appeared in the recital, might have the consequence that the warrant was "capable of meaning different things to different searchers" (at 139). That is not the case here. When Re Arno went on appeal, the particular aspect to which I have referred does not appear to have been argued for it is not mentioned in the judgments of the Court. See 65 A.L.R. 125. It has proved unnecessary to deal with various objections made by the respondents to the affidavit of Wayne Ryder sworn 4 August 1986 and filed in support of the application. a 12. I should perhaps add that no question of legal professional privilege has been raised in the present application. Also, a ground of the application that there was no evidence or other material to iustifv the making of the decision was, by consent, stood over until the various matters that have been canvassed in these reasons were decided. It 1s therefore not appropriate that the application be dismissed, notwithstanding that I have rejected the arguments on behalf of the applicants. I shall hear from counsel as to the orders to be made. I certify that this and the preceding 11 pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey. Associate Dated: 12 December 1986 the applicants: Mr. D. Solomon instructed by Messrs. Phillips Fox Mr. E.M. Heenan Q.C. and Mr. D. Dawes instructed by Australian Government Solicitor Date of hearing: 14 November 1986 rr ay eo APPENDIX COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT To; James Kenneth McLaren, a member of the Australian Federal Police. WHEREAS, I PF HeEvD< ae RICHARD JPPOR LEW a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914, of the Commonwealth of Australia, being satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there are at the premises, namely the office premises of HORWATH and HORWATH, Chartered Accountants, 15 William St., Perth, in the State of Western Australia, Files in respect of Wayne RYDER, Evelyn Any RYDER, W. RYDER & CO., THOR NICKEL EXPLORATION PTY. LTD., FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PTY. LTD. as Trustee for RYDER FAMILY INVESTMENT TRUST, and TAKSAN PTY. LTD. as Trustee for RYDER TRADING TRUST. books, registers, receipts, receipt books, cheque butts, cheques, invoices, accounts, account books, bills of sale, correspondence, ledgers, manifests, records, microfiche records, diaries in respect of Wayne RYDER, Evelyn Amy RYDER, W. RYDER §& CO., THOR NICKEL EXPLORATION PTY. LTD., FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PTY. LTD. as Trustee for RYDER FAMILY INVESTMENT TRUST, and TAKSAN PTY. LTD. as Trustee for RYDER TRADING TRUST, handwritten list of 29 questions raised by the Australian Taxation Office on 3/9/85 in respect of Wayne Ryder and the abovenamed companies and trusts, two bundles of answers to the 29 questions raised by the Australian Taxation Office on 3/9/85 in respect of Wayne Ryder and the abovenamed companies and trusts, handwritten list containing answers to questions raised by the —~ Australian Taxation Office on 11/7/85 in respect of Wayne Ryder, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of an offence namely that Peter Briggs and Wayne Ryder conspired in or about 1979, to defraud the Commonwealth of Australia of Revenue, to wit, income tax in respect of the financial years after the financial year ended 30/6/1979, contrary to Section 86(1)(e) of the Crimes Act 1914, a 1 £ the C 1th. a aw of the Commonwealt _ a AN HT! Vi, — -2- YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time, if necessary by force the premises, namely the office premises of HORWATH AND HORWATH, Chartered Accountants, 15 William St., Perth, in the State of Western Australia, and seize any Files in respect of Wayne RYDER, Evelyn Amy RYDER, W. RYDER §& CO., THOR NICKEL EXPLORATION PTY. LTD., FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PTY. LTD. as Trustee for RYDER FAMILY INVESTMENT TRUST, and TAKSAN PTY. LTD. as Trustee for RYDER TRADING TRUST. books registers, receipts, receipt books, cheque butts, cheques, invoices, accounts, account books, bills of sales, correspondence, ledgers, manifests, records, microfiche records, diaries in respect of Wayne RYDER, Evelyn Amy RYDER, W. RYDER & CO., THOR NICKEL EXPLORATION PTY. LTD., FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PTY. LTD. as Trustee for RYDER FAMILY INVESTMENT TRUST, and TAKSAN PTY. LTD. as Trustee for RYDER TRADING TRUST, handwritten list of 29 questions raised by the Australian Taxation Office on 3/9/85 in respect of Wayne Ryder and the abovenamed companies and trusts, two bundles of answers to the 29 questions raised by the Australian Taxation Office on 3/9/85 in respect of Wayne Ryder and the abovenamed companies and trusts, handwritten list containing answers to questions raised by the Australian Taxation Office on 11/7/85 in respect of Wayne Ryder which you may find in the premises, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offence and for so doing this will be your sufficient warrant. GIVEN under my hand at Perth in the State of Western Australia this 3" day of July 1986. G0) weWORLEY uP A Justice of the Peace in and for the State of Western Australia