JUDGMENT No. ooccZcBs Zena ob Lene ) VICTORIA DISTRICT REGISTRY No VG 293 of 1993 ) ) BETWEEN: ROBERT MELASECCA and ZYGMUNT ZAYLER Applicants AND: PETER MACAULEY Commissioner of the Australian Federal Police First Respondent - and - MALCOLM GRAY Acting Chairperson of the National Crime Authority Second Respondent - and - KEVIN PATRICK CONSIDINE Third Respondent - and - FRANK CRULCI Fourth Respondent - and - BRIAN BARROW Fifth Respondent - and - CLIFFORD JOHN HOSE Sixth Respondent ~ and - WENDY WILMOTH Seventh Respondent CORAM: Ryan J PLACE: Melbourne DATE: 14 October 1994 17 OCT 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTAY THE COURT ORDERS: NOTE: That the issue directed by Heerey J on 3 September 1993 to be tried separately be determined by declaring that the documents numbered 17-35 inclusive in Part 2 of Schedule 1 in the list of documents sworn by Kevin Patrick Considine on 23 August 1993 and which are still the subject of an objection to their production are not required to be produced for inspection by the applicants. That the costs of all parties of the trial of the said issue including the costs of the applicants' motion on notice dated 3 September 1993 be costs in the cause. That the directions hearing be adjourned to 18 November 1994. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. | BETWEEN: No VG 293 of 1993 ROBERT MELASECCA and ZYGMUNT ZAYLER AND: PETER MACAULEY Applicants Commissioner of the Australian Federal Police - and ~- MALCOLM GRAY First Respondent Acting Chairperson of the National Crime Authority ~ and ~ KEVIN PATRICK CONSIDINE - and - FRANK CRULCI - and - BRIAN BARROW - and - CLIFFORD JOHN HOSE - and - WENDY WILMOTH Ryan J Melbourne 14 October 1994 Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent -2- REASONS FOR JUDGMENT Ryan J: By application dated 19 July 1993, the applicants, who practise as solicitors in a firm of which they are the only two partners, seek a review of decisions of the fifth, sixth and seventh respondents to issue three search warrants. The fifth respondent is a magistrate who, on 17 May 1593, issued a warrant ("the State warrant") to the fourth respondent, an officer of the National Crime Authority ("the NCA") and members of the Australian Federal Police ("the Federal Police"). The sixth respondent is a justice of the peace who, also on 17 May 1993, issued a warrant ("the first Federal warrant") to the third respondent who is an officer of the Federal Police. The seventh respondent is also a magistrate who, on 15 July 1993 issued a further warrant ("the second Federal warrant") to the third respondent. By letter of 22 July 1993 addressed to the Registrar of this Court, the solicitor for the fifth and seventh respondent advised that his clients, in accordance with the principle indicated by the High Court in The Queen v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13 at 35, would submit to such order as the Court might make. No appearance has been filed by the sixth respondent. For the purposes of these reasons, "the respondents" refers to the first, second, third and fourth respondents only. By notice of motion filed on 3 September 1993, the applicants sought and were granted an order that there be a trial within -3- the proceeding of whether certain documents included in the respondents' list of documents sworn by the third respondent, Detective Sergeant Considine, on 23 August 1993, are privileged from production on the ground that their production would be contrary to the public interest. It is the trial of that question which is currently before the Court. On 18 May 1993, Detective Sergeant Considine and other officers of the Federal Police ("the Federal Police") attended at the premises of the applicants. The purpose of the attendance was to execute the first Federal warrant and the State warrant. Detective Sergeant Considine and the other officers seized documents and other items ("the applicants' documents") from the premises and placed them in five boxes which were then sealed. Following the seizure of the applicants' documents, an agreement was reached between the applicants and the respondents that the applicants' documents should be returned to the applicants and a further search warrant obtained. This was done and, on 15 July 1993, the second Federal warrant was issued to Detective Sergeant Considine. On that day the applicants' documents were returned to the applicants' premises and immediately seized under the second Federal warrant. That warrant reads as follows: - COMMONWEALTH OF AUSTRALIA SEARCH WARRANT Section 10, Crimes Act 1914 Tos Detective Sergeant K P Considine of the Australian Federal Police WHEREAS I, [handwritten] WENDY WILMOTH a Magistrate in the State of Victoria within the meaning of the expression in section 10 of the Crimes Act 1914, am satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there will be within 72 hours in or upon certain premises, namely the business premises of MELASECCA ZAYLER, barristers and solicitors, situated at lst Floor, 257 Chapel Street, Prahran in the State of Victoria certain things which satisfy all three of the following conditions namely: Pirst Condition things which are any one or more of the following: (2) Files, working papers, records, reports, diary notes, file notes, diaries and minutes; (ai) Accounting books and records including journals, ledgers, trust account ledgers, financial statements and ledger cards; (ir) Banking records including bank statements, cheques, cheque books, cheque registers, cheque requisitions, cheque records, bank vouchers, deposit and withdrawal = slips, applications for telegraphic transfer and declaration forms; (iv) Receipts, records of payment, invoices, cash books, deposit bocks, accounts for fees and bills of costs; (v) Transcripts, tapes, computer or word processor tapes or disks and printouts of data stored thereon and any computer hardware or software reasonably necessary for the purpose of reading, interpreting or analysing such tapes, disks or printouts; (vi) Telexes, telegrams, facsimile messages and other communications; (vii) Correspondence; (viii) Passports; (ix) A metal cash box approximately 14"x8"x6"; (x) Two Lockwood padlock keys to a storage locker at 1 Wren's Road Moorabbin. Second Condition Things which relate to, derive from or are connected with any one or more of the following persons: Gustav George HOFER Nicole HOFER Janice HOFER Guenter BRUNNER Zaki BAKRI Harold John REICHEL David Vernon CARTER Wayne Geoffrey ELLIOTT Don CARPENTER Peter John STRIKE Sandra STRIKE Edward Rex HURST Janice May ANDERSON May ANDERSON Michael TAYLOR, also known as Michael BARNARD Israel KRASNOV Peter PONIEWAZ Eugene OSENKOWSKI unless the things are; (a) A metal cash box approximately 14°x8"x6"; {b) Two Lockwood padlock keys to a storage locker at 1 Wren's Road Moorabbin. Third Condition - things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offence against the laws of the Commonwealth: that in and between Ist January 1990 and the 17th May 1993 ZYGMUNT ZAYLER engaged in money laundering contrary to the provisions of section 81 of the Proceeds of Crime Act 1987, such money laundering concerning: (a) the proceeds cf the sale of narcotic substances and drugs of dependence; and (b) Monies derived from or to be paid to some one or more of the following persons, namely: Gustav George HOFER Nicole HOFER Janice HOFER Guenter BRUNNER Zaki BAKRI Harold John REICHEL David Vernon CARTER Wayne Geoffrey ELLIOTT Don CARPENTER Peter John STRIKE Sandra STRIKE Edward Rex HURST Janice May ANDERSON May ANDERSON Michael TAYLOR, also known as Michael BARNARD Israel KRASNOV Peter PONIEWAZ Eugene OSENKOWSKI NOW YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter at any time the said premises and to seize any thing which satisfies all of the above three conditions which you may find in or upon the said premises, and for so doing this shall be your sufficient warrant. AND POURTHERMORE YOU MAY pursuant to section 10(1A) of the Crimes Act 1914 where it is necessary and reasonable to do so for the purpose of executing the warrant, break open such doors and receptacles as are in or upon the said premises and may do go with such assistance and by such force as 1s necessary and reasonable. Legal Professional Privilege NOTE: This warrant is issued on the basis that, as claims may be made for legal professional privilege in respect of the things named above, the Informant will follow the course of action set out in the document entitled "General Guidelines between the Australian Federal Police and the Law Council of Australia as to the Execution of Search Warrants on Lawyers' Premises, Law Societies and Like Institutions, in Carcumstancea Where a Claim for Legal Professional Privilege is Made" dated 7 June 1990, a copy of which is attached to this warrant. GIVEN under my hand at Melbourne in the State of Victoria this 15th day of July 1993 . Wendy Wilmoth [signed] A Magistrate in and for the State of Victoria " By order of this Court on 23 July 1993, the five boxes were removed from the custody of the Magistrates' Court where they had been held and placed in the custody of the Registrar of this Court. Various other orders were also made for the disposition of the matter, including one for "mutual discovery on or before 23rd August 1993". The respondents filed a list of documents on 24 August 1993 in the form of an affidavit sworn on 23 August 1993 by Detective Sergeant Considine. The applicants filed their list on 3 September 1993. On 18 November 1993, a further affidavit was sworn by -7- Detective Sergeant Considine containing an amended list of documents. For present purposes the affidavit dated 18 November 1993 is the relevant one and it reads in part: "i. 2. (a) (») 18. 19. 20. 21. 22. 23. 24. 25. 26. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground: as to the documents numbered 17-35 inclusive, that their @isclosure would be contrary to the public interest because their disclosure: (4) would disclose lawful methods by which investigations are undertaken into breaches er posaible breaches of the law; (Li) would be likely to severely diminish the abilaty of the National Crime Authority and the Australian Federal Police to investigate breaches or possible breaches of the law; (i1i) would reveal the existence or identity of a police informant; or (iv) would jeopardise a continuing investigation into serious criminal offences. SCHEDULE 1 Part 2 Draft of second Federal warrant and information (prepared by counsel). Documents marked "Al" and "A2" and initialled by me. Documents marked "Bl", "B2" and "B3" and initialled by Documents marked "Cl" to "C10" ("C8" being 2 pages) and initialled by me. Document marked "D" and initialled by me. Reference to the NCA from the Commonwealth Attorney~ General. Document marked "E* and initialled by me. Deleted. Minute dated 6 April 1993. Plastic sleeve containing 16 pages. 27. Deleted. 28. Video. 23. Deleted. 30. Program detailing future course of investigation. 31. Handwritten plan re offences. 32. Files numbered MX38420, MX38382 and MX38383. 33. Document marked "F" and initialled by me. 34. Tapes marked "G" and "H"™ and initiailed by me. 35. Information for search warrant issued on 15 July 1993. It is in respect of documents 17 to 35 ("the respondents' documents") that the question of public interest immunity first arose. Following the hearing of the matter on 22 November 1993, the parties mentioned the case before the Court on 16 December 1993. The purpose of that mention was to advise the Court that one of the applicants, Mr Zayler, had been charged with a number of offences, including charges of receiving, possessing and disposing of "moneys reasonably "suspected of being proceeds of crime contrary to section 82(1) of the Proceeds of Crime Act 1987". On the mention the respondents contended that, although the laying of charges may affect the status of some of the respondents' documents which had been the subject of a claim for privilege, the substantive issues remained unaffected. That was, it was further submitted, because additional investigations were taking place and the charges which had been laid related to only some of the matters set out in the information on which the second Federal warrant had been -9- issued ("the information"). It was agreed that an affidavit be filed by the respondents setting out the effect of the charges on this matter. The applicants were granted liberty to apply to make further submissions after considering that affidavit. To date no further affidavit has been filed by the respondents. Nor have the applicants exercised their liberty to apply. However, a letter dated 23 December 1993 from the respondents' solicitor has been filed with the Court. That letter recites that documents 18, 21 and 34 and paragraphs 4, 12, 13, 23, 35, 36, 37, 39 and 40 of document 35 (from the list of the respondents' documents) are no longer the subject of a claim for public interest immunity. Although the issue to be tried concerns all of the respondents' documents not thereby excepted from the claim for public interest immunity, the argument was largely confined to the remaining paragraphs of document 35, the information. At the end of the hearing on 22 November 1993, the respondents agreed that a copy of the information (with those paragraphs for which public immunity privilege had originally been claimed sealed up or deleted) would be provided to the applicants and to the Court. It is of little assistance to reproduce the copy of the information which has been edited in that way. However, it is appropriate to set out the following passages from an affidavit in support of the claim for public interest immunity sworn by Mr M A Keehn, the Regional Manager, Operations, of the NCA on 24 September 1993: . - 10 - I have personally formed the opinion that on the grounds of public interest each of the public interest documents (save for part of document number 35) should not be disclosed because they contain: (1) matters which would disclose lawful methods by which investigations are undertaken into breaches or possible breaches of the law; (il) matters which would be likely to severely diminish the ability of the National Crime Authority ox the Australian Federal Police to investigate breaches or possible breaches of the law; (iii) matters which would reveal the existence or identity of a police informer; and/or (iv) matters which would jeopardise a continuing investigation into serious criminal offences. General Policy Considerations 9. i0. il. 12. 13. 14. The Authority and other law enforcement agencies receive a significant degree of assistance in their investigation of serious criminal offences from information supplied by registered informants and other members of the public. Disclosure of the adentity of informants is likely to expose the informants, their families, their friends and their property to considerable risk. In some cases, that risk can include the possibility of death or serious injury. The disclosure of the identity of anformants is also likely to deter other informants and members of the public from providing vital information to the Authority and other law enforcement agencies, to the detriment of the public interest, as the provision of such information depends on the anonymity of persons providing it being assured. The standards of confidentiality required in respect of registered informants and other members of the pubiic providing information in relation to serious criminal offences are common to ail Commonwealth, State and Territory law enforcement agencies ancluding the Authority. If any agency were to fail to protect diligently the identity of informants, then there would be adverse consequences for other agencies reliant on information supplied by informants. For reasons set out above, I believe it is against the public interest to disclose information that tends to reveal the identity of confidential informants. The Authority is heavily reliant upon information from other law enforcement agencies. If the Authority failed rigorously to protect the identity of informants, or the confidentiality of other information provided, or details as to methods of operation used in the detection of crime, or the antegrity of investigations launched by any such information provided, then it is likely that the flow of information from those sources would rapadly decline or even cease, to the severe detriment of the -11- effectiveness of the Authority in fulfilling its functions. is. The Authority and other law enforcement bodies use certain lawful methods of surveillance and of investigation and detection of crime. Release of information as to such methods would be likely to prejudice ongoing and future criminal investigations, both in Australia and overseas, and whether involving the Authority or other inveatigation agencies, and would thus be likely to have a serious effect on future criminal detection operations. 16. Information as to the state of an ongoing investigation must be protected if the integrity of the investigation itself is to be protected. Suspected persons, armed with knowledge of the state of the investigation, are able to discern the relevance of other material, and can then take steps to destroy valuable evidence. In addition, witnesses and potential witnesses may be the subject of interference including threats of violence and violence. 17. Disclosure of any material of the type referred to in paragraphs 9 to 16 hereof would be lakely to severely diminish the ability of the Authority and other investigation agencies to investigate breaches or possible breaches of the law. Confidential Affidavit of Reasons 18. It is not possible for me to set out in the necessary detail the reasons for making the claim in respect of the public interest documents without disclosing the material for which the claim is made. Accordingly I have sworn a separate affidavit ("the confidential affidavit of reasons") setting out my reasons in Getail and referring to the contents of the public interest documents in detail, but which affidavit will not be served on the applicants, and which affidavit 16 itself the subject of a claim for public interest immunity. 1s. Now produced and shown to me in an envelope marked "MAK- 1" is the confidential affidavit of reasons sworn by me this day." I declined to receive the confidential affidavit of reasons, at least until I had resolved whether or not to inspect the respondents' documents, including the information, for myself. In the result, I have not referred at all to the confidential affidavit exhibited to Mr Keehn's affidavit. In order to identify the applicants' interest in the production of the respondents' documents, and most importantly the information, grounds of the application dated 19 July 1993. has been primarily concerned with the second Federal warrant, only the grounds of the claim for relief in respect of that warrant have been set out. claims in respect of the first Federal warrant and the State ~12- warrant are substantially the same. 10. 12. 14. 17. Contrary to s.10 of the Crimes Act 1914 (Cth) at the time of issuing the second Federal warrant the Seventh Respondent was not or ought not have been satisfied by the information on oath before her that the offences alleged in the second Federal warrant had been committed, or that there were reasonable grounds for suspecting that such offences had been committed. Further or in the alternative, the terms of the second Federal warrant were so general in their terms and operation that the second Federal warrant did not satisfy s.10 of the Crimes Act 1914 (Cth) on its face. Further or in the alternative, the applicants for the second Federal warrant did not make full disclosure to the Seventh Respondent in obtaining the second Federal warrant. By reason of the matters referred to in preceding paragraphs hereof in relation to the second Federal warrant: (a) the procedure required by 8.10 of the Crimes Act 191¢ (Cth) to be observed in connection with the making of the decision was not observed within the meaning of 8.5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 ("ADIR"); (b) the Seventh Respondent did not have the jurisdiction under 8.10 of the Crimes Act 1914 (Cth) to make the decision within the meaning of &.5(1)(c) of the ADJR; (c)} the decision was not authorised by s.10 of the Crimes Act 1914 (Cth) wathin the meaning of 8.5(1)(d) of the ADJR; (d) the making of the decision was an improper exercise of the power conferred by s.10 of the Crimes Act 1914 (Cth); (e) the decision involved an error of law within the it is necessary to consider some of the As this trial The grounds of the applicants' The applicants then claim various declarations and injunctions in respect of the applicants' 19. 20. 21. 22. -13- meaning of 8.5(1)(£) of the ADJR; (f) there was no evidence or other material to justify the making of the decision within the meaning of @.5(1)(h) of the ADJR; and/or (g) the decision was otherwise contrary to law within the meaning of s.5(1)(i) of the ADUR. Further or in the alternative, the said documents did not satisfy the conditions of the second Federal warrant and accordingly did not fall within its terms. Further or in the alternative, certain of the said documents constitute communications which are the subject of legal professional privilege and thereby are not capable of being made the subject of a search warrant or being seized pursuant to a search warrant. Particulars The documents which are the subject of legal professional privilege are contained in a number of boxes and were lodged for safe keeping wath the Registrar of the Magistrates Court. By reason of the matters referred to in preceding paragraphs hereof: (a) the State warrant and the first and second Federal warrants were invalid, void and of no effect; and/or (b) the documents were wrongfully and unlawfully seized." Federal Police and the NCA. The grounds of the application in respect of the second Federal warrant may conveniently be summarised as follows: (i) The Magistrate could not have been satisfied that the specified offence of money laundering had been committed, or was reasonably suspected of having been committed, by Mr Zayler; documents and their use by the - 14 - (ii) That the terms of the warrant were excessively general; (LiL) Full disclosure was not made to the seventh respondent at the time when she issued the warrant; (iv) The decision to issue the warrant is reviewable under the ADJR Act; (v) The applicants' documents seized under the second Federal warrant were not within the terms of the warrant; (vi) Some of the applicants' documents are protected from seizure by legal professional privilege. In order to make out some of those grounds, the applicants clearly need to have available to them the full text of the information on which the search warrant was issued. That observation applies specifically to the grounds summarised above numbered (i), (iii) and, in an indirect way, (iv). The matters of which a Magistrate or Justice of the Peace must be satisfied before he or she can issue a warrant are stipulated as follows in s.10(1) of the Crimes Act (1914) Cth ("the Act"): "10. (1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place: (a) anything wath respect to which any offence against - 15 - any law of the Commonwealth or Territory has been, or is suspected on reasonable grounds to have been, committed; (b) anything as to which there are reasonable grounds for believing that at will afford evidence as to the commission of any such offence; or (¢) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence; or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there." Whilst it is a matter for the Magistrate or Justice of the Peace to decide whether he or she is satisfied that the information is sufficient to justify the issue of a warrant at the date of issue, the reports abound with instances of the propriety of issuing a warrant being reviewed by a superior court. See eg Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; where many of the other authorities in this area are discussed. An example of an application for review of the issue of a warrant on the ground that full disclosure was not made to the issuing Magistrate by the investigating authorities is provided by Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 where a Full Court of this Court observed, at 481: "So too, to require a strict duty of full disclosure of material facts by the informant seeking a warrant is but to reflect the traditional polacy of the common law to protect the privacy of individuals against the arbitrary use of the power of entry and search. The obligation arises also from the fact that of necessity, the issue of a search warrant 18 an ex parte procedure. In granting ex parte relief, the courts of equity have always required the applicant for - 16 - such relief to bring to the notice of the court all facts material to the determination of the raght to that relief. In such cases, as the High Court pointed out in Thomas A Edison Ltd v Bullock (1912) 1S CLR 679 at 682: "Dberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application.** Obviously, a reviewing superior Court can only test whether full disclosure has been made by examining, in the light of facts actually or constructively known to the investigating authorities, the information and other material laid before the issuing Magistrate. It is equally obvious that, to participate adequately in that process of review, an applicant and his legal advisors must have available to them the text of the information and other material which was before the Magistrate. The Beneficial Finance case (supra) also affords an example of a review under the ADJR Act of a decision to issue a warrant. In that context, the learned primary Judge and the Full Court each examined the information for themselves before upholding the respondent's claim of public interest immunity. There are high policy considerations in favour of affording to a citizen a full and effective opportunity to review the issue of a search warrant. Those considerations were recognized by the High Court in George v Rockett (1990) 170 CLR 104 where it was observed, at 110: "A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or - 17 - occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the indavidual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679 [of The Criminal Code of Queensland}, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol. 10 (1938), pp.668-672... State and Commonwealth statutes have made many exceptions to the common law position, and s. 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect." The High Court's words suggest that there is an interest in protecting individuals from the invasion of their privacy and property by ensuring that provisions like s.10 of the Act are strictly complied with. Inherent in the application in this case is the contention that s.10 has not been properly applied by the seventh respondent. However, the interest of an applicant in being able to participate fully in proceedings by way of review of the issue of the warrant may have to yield to the countervailing public interest embodied in the privilege asserted by the present respondents. As already noted, that occurred in the Beneficial Finance case (supra). Nevertheless, the mere invocation by the investigating authority of public interest immunity is not enough. Thus, in Sankey v Whitlam (1978) 142 CLR 1 it was said, at 38: - 18 - "It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies." The two competing public interests which have to be balanced were succinctly identified in slightly different terms by Lord Reid in Conway v Rimmer [1968] AC 910 where his Lordship observed, at 940: "There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not he frustrated by the withholding of documents which must be produced 2f justice is to be done." It has been noted by a Full Court of this Court in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1, at 31, that: "When a Claim for public interest immunity is raised, there may be a threshold question to be resolved by the court. That is whether the documents in question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve thezr inspection, of balancing the public interest in wathnolding the production against the public interest in the administration of justice." Here the respondents contend that no balancing exercise is necessary because there is no demonstrable countervailing interest which would outweigh the public interest in withholding production of the information. In the respondents' submissions, the applicants should be required to wait until the trial commences before being able to challenge the sufficiency of the evidence relied on for the issue of the - 19 - second Federal warrant and that at the trial *... there will be ample opportunity afforded in the context of a prosecution for the defendants ... to deal with it with the full rigour of the administration of justice...". Since I have accepted that three of the six broad grounds on which decisions in relation to the second Federal warrant are challenged required for their effective prosecution, access to the information and other respondents' documents which have not been produced, it follows that the applicants have an interest which falls within the "public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done"; Conway v Rimmer [supra]. The interest of the applicants in the protection of their individual right to privacy identified above must also be taken into account. The existence of the applicants' interests which I have just identified is not diminished by the fact that the failure by the respondents to produce some of the respondents' documents may be challenged in other proceedings. As the facility selected by the applicants is available for the challenge of the validity of search warrants irrespective of whether proceedings have been instituted elsewhere, it may frustrate the administration of justice if the failure to disclose the respondents' documents were to have the effect of preventing the applicants from not only putting their case to the Court in accordance with their rights under the ADJR Act, but also - 20 - from properly formulating it. In assessing a claim of public interest immunity, the principles to be applied are those stated by Gibbs ACJ in Sankey v Whitlam [supra] at 43: "The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this Class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, at 1.s desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made." The Full Court in Commonwealth of Australia v Northern Land Council [supra] examined in detail, at 22-39, the Australian and English authorities canvassing the matters to be considered in conducting the balancing exercise. Although that case dealt with a claim of public interest immunity in respect of documents which recorded Cabinet discussions, the conclusions reached are applicable in several significant ways to the present case. There, as in this case, the documents sought were clearly relevant to the issues between the parties and were likely to advance the Council's case or damage that of the Commonwealth. The Full Court concluded that the application should not be characterized as a "fishing expedition". Nor am I persuaded - 21 - to characterize the present application in that way. The Full Court went on, at 38, to indicate six factors which will be included in those relevant to deciding a public interest immunity claim and continued: "Inspection by the judge can be undertaken as an aid to the court in assessing whether or not documents for which public interest immunity is claimed should be produced. It may enable the judge to identify and weigh with greater confidence than might be possible in the absence of such inspection, the factors to which reference has already been made. The decision whether or not to inspect itself involves a kind of anticipatory balancing exercise. It is certainly in the nature of a screening process but comes well within the province of the courts. It is multa-factorial and does not require the application of some rule of thumb which may distract the judicial mind from the demands of the particular case." The leading High Court authority on the circumstances in which a court should inspect the disputed documents for itself is Alister v The Queen (1984) 154 CLR 404. In that case Gibbs CJ said, at 414: "Both Burmah Oil Co. Ltd. v Bank of England [(1980} A.C. 1090 and Air Canada v Secretary of State for Trade [1983] 2 A.c. 394 support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; ain the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [(1983} 2 A.C. at p.439, he must have "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam), so in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings." In Commonwealth of Australia v Northern Land Council [supra], - 22 - the Full Court examined the decision in Alister v The Queen and particularly the use there made of the Air Canada case and concluded at 37 that: "The High Court in Alister's case did not lay down any rule of law to bind the judges of this Court in determining whether in a civil case, where discovery has been given and a claim of public interest immunity is made on proper grounds, the documents in question should be inspected and whether they should be disclosed to the parties. Given the provisions of © 15, rr 14 and 15 of the Federal Court Rules, which are less confined than thowe in RSC 0 24 r 13, under which the English cases were decided, this Court is free to take a somewhat broader approach bearing in mind nevertheless that under O 15, r 15 production of a document must be 'necessary at the time when the order is made'". The Court went on to make the observations quoted at p.21 of these reasons. The propositions to be extracted from those passages have been referred to with approval in Beneficial Finance (at 552), and Zarro v Australian Securities Commission (1992) 10 ACLC 831 at 845. In the present case, it is appropriate to apply the principles to be distilled from the cases just discussed, governing the preliminary question of whether to inspect the information for myself, in the context of the reasons advanced by the respondents for according public interest immunity to the information. Those reasons rest on two distinct objections. The first is that disclosure of some of the respondents' documents including parts of the information would reveal, in a way detrimental to the public interest, aspects of police investigative techniques in general or of the particular investigation into the applicants. Secondly, it is objected that disclosure would, or might, reveal the identity of an informer. It is convenient to examine each of these ~ 23- objections separately. In Conway v Rimmer [1968] AC 910, Lord Reid Observed, at 953: "The police are carrying on an unending war with criminals many of whom are highly intelligent. So it is essential that there should be no disclosure of anything which maght give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy." See also per Lord Upjohn at 995, The concept of investigative intelligence was more specifically considered by the High Court in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 where it was pointed out in the joint judgment of Mason, Wilson and Dawson JJ at 323 that: "It 18 of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of unquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment." See also Spargos Mining NL v Standard Chartered Australia Ltd (1990) 8 ACLC 87 where McLelland J observed, at 87-8: "In my opinion, documents within the possession of the Commission of a confidential nature recording information received by the Commission relating to possible offences or irrequiarities, or recording information received in the course of the investigation of possible offences or irregularities, ancluding the identity of informants, and confidential documents recording the actual or possible course of such investigations or particulars of available or potentially available evidence, are in the public interest prima facie immune from compulsory disclosure, on the basis that such disclosure would be likely to seriously impede the ability of the Commission to fulfil its function of effectively investigating possible offences under (inter alia) the Companies (New South Wales) Code, and in appropriate cases instituting and prosecuting criminal - 24 - or civil proceedings in the public interest. I see no difference in substance for the present purposes between such an investigation by the Commission on the one hand and the investigation by the police of possible criminal offences in other areas on the cther." In Quartermaine v Netto (unreported 14 December 1984 WA G99 of 1984) Toohey J referred to the view expressed by Lord Wilberforce in Inland Revenue Commissioners v Rossminster Ltd {1980} Ac 952 at 999 that "at this stage" the occupier has no right to be told of the information laid before the board and the judge issuing the warrant or of the "reasonable grounds" of which the judge was satisfied as: "all this information is clearly protected by the public interest immunity which covers investigations anto possible criminal offences". However, Toohey J did not regard information laid before an authority empowered to issue a warrant as automatically or necessarily attracting public interest immunity. He concluded, at p.11: "I do not think that the information itself necessarily enjoys an immunity for 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 ammunity 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 ait 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 am prepared to accept the assertion sworn to by Mr Keehn, the NCA Regional Manager, that in part of the suppressed paragraphs of the information there are "matters which would - 25 - disclose lawful methods by which investigations are undertaken into breaches or possible breaches of the law". Mr Keehn is a duly qualified legal practitioner and has deposed that he has inspected the information for himself. It has not been suggested that he had any motive for misleading the Court about the contents of the suppressed paragraphs. Nor has it been suggested that he had been mistaken about the effect which he has attributed to those paragraphs. The conclusion which I have quoted from his affidavit is one which the nature of the information and the purpose which it was intended to serve suggest is a natural inference to be drawn in respect of the contents of the suppressed paragraphs. In these circumstances, I do not think, on balance, that it is appropriate to myself inspect those paragraphs merely to reassure the applicants of Mr Keehn's veracity. In the words used in Alister v The Queen [supra] at 414, I am not persuaded that inspection would be likely to satisfy me that I ought to order production. On behalf of the applicants it was contended that, in so far as the suppressed paragraphs revealed investigative techniques which were well-known to the public, like the use of telephone interceptions and listening devices, no public interest could be served by their non-disclosure. I do not accept this submission. The fact that one of several well-known investigative techniques has been used in a particular context may be an important piece of information, the disclosure of which could alert persons the subjects of the investigation to - 26 - the course which it was taking or might take in the future, and to the information which had been amassed in the course of it and the sources of that information. In that sense, disclosure would run counter to the policy applied by Lockhart J in Zarro v Australian Securities Commission (supra) at 839 when his Honour upheld the non-disclosure of "documents that showed the extent of information gathered and the direction the investigation is or may be taking". Mr Keehn has also deposed that the suppressed paragraphs of the information contained matters which would reveal, or help to reveal, the existence or identity of a police informer. I have no reason to doubt that assertion which brings those parts of the information within the long-established principle traceable back to Hardy's Case (1794) 24 How St Tr 199 where Eyre CJ said, at 808: "There ig a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed." See also R v Rankine (1986] 2 All ER 566, Signorotto v Nicholson [1982] VR 413 and Cain v Glass [No 2] (1985) 3 NSWLR 230 where McHugh JA observed, at 248: "...I think that the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and 18 relaxed only 'where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could heip to show that the defendant was innocent of the offence'. I have stated the exception in the language of Lord Diplock in Dv National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218." - 27 - His Honour continued on the same page to note that references in other authorities to the exception to the principle: "were made in civil proceedings. They were concerned to show that the exception to the general paramountcy of the informer principle does not apply in civil proceedings in any carcumstances whatever." Mr Slade, who appeared for the applicants, did not deny that the informer principal is still good law and applies without exception to preclude disclosure in civil proceedings of the identity of informers. However, he contended that in the present case there has been exstrinsic identification of the informers because of the allegation pleaded as follows in paragraph 30 of the respondents' defence: "30. Insofar as the applicants contend that the documents were the subject of legal professional privilege, then insofar as the privilege inheres ans (a) Gustav George HOFER; (b) Nicole HOFER; or (c) Janice HOFER; then the privilege has been waived." It was said to be a legitimate inference that all of the other persons named in the second Federal warrant continue to claim privilege. From that premise, it was contended to be reasonable to infer that the Hofers are the informers whose identity is disclosed by the information. Accordingly, so the argument went, the case falis within the category discussed by Tadgell J in Muratti v Murnane (unreported, Supreme Court of Victoria 5 March 1992) at p.13 where his Honour observed: "The rationale of the rule appears to be that secret informers should - 28 - not be identified. Once they are identified and become witnesses giving evidence in a court it seems to me that the rationale for the rule in relation to them ceases to exist. I refer to the decision of the Supreme Court of Canada in Bisaillon v Keable & Ors (1983) 2 Dominion Law Reports (4th series) 193, and in particular to p.221 of the report." However, it by no means follows that the informers who identity would be disclosed by the suppressed paragraphs of the information are any of the persons named in the third condition of the warrant as providers or recipients of the allegedly laundered money. The informers may be, or include, persons with some knowledge of the impugned transactions who derived no benefit at all from them. Accordingly, for reasons Similar to those already indicated in respect of the paragraphs which deal with broader aspects of the investigation, I have declined to inspect for myself those parts of the information which presumptively reveal the identity of an informer or informers. In the light of all these considerations I have concluded that the public interest in non-disclosure of investigative techniques, the progress of an investigation and the evidence so far collected in the course of it, together with the related interest in maintaining the informer rule, require that the preliminary issue be determined adversely to the applicants. I am reinforced in this conclusion by the recollection that the present proceedings are civil in nature and the applicants will have an unrestricted opportunity to challenge at a committal hearing or in the course of a subsequent criminal trial (if they are committed), the issue - 29 - of the warrant or to object to the adducing in evidence of documents or other things seized pursuant to it. Accordingly, there must be a declaration that the suppressed paragraphs of the information and the other disputed documents are not required to be produced for inspection by the applicants. I shall order that the costs of all parties of the trial of that issue including the costs of the motion on notice dated 3 September 1993 be costs in the cause. I certify that this and the preceding twenty eight (28) pages are a true copy of the reasons for judgment of his Honour Justice Ryan Associate: h L. {AJ at Date: (G Ockebe IF7y Counsel for Applicant: Mr P Slade Solicitor for Applicant: Melasecca Zayler Counsel for Respondent: Mr H Jolson with Mr B Walters Solicitor for Respondent: Australian Government Solicitor