Australian Federal Police v Carson [2005] FCA 101

FEDERAL COURT OF AUSTRALIA

Australian Federal Police v Carson [2005] FCA 101 PROCEDURE – Application for urgent hearing and disposition – Reason for urgency is potential use of evidentiary material in State Courts SEARCH WARRANT – Seizure of computer records for which legal professional privilege is claimed AUSTRALIAN FEDERAL POLICE v JOHN LANCE CARSON SAD 4 of 2005 SELWAY J 11 JANUARY 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 4 OF 2005

BETWEEN: AUSTRALIAN FEDERAL POLICE

APPLICANT

AND: JOHN LANCE CARSON

RESPONDENT

JUDGE: SELWAY

DATE OF ORDER: 11 JANUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application for an urgent hearing dismissed. 2. The applicant pay the respondent's costs of today's argument and of the attendance on 5 January 2005, certified fit for senior counsel. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 4 OF 2005

BETWEEN: AUSTRALIAN FEDERAL POLICE

APPLICANT

AND: JOHN LANCE CARSON

RESPONDENT

JUDGE: SELWAY

DATE: 11 JANUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 5 January 2005 the applicant issued urgent proceedings in this court, seeking an order that documents currently held in the Adelaide Magistrates Court be delivered to the applicant, a declaration that documents seized pursuant to a search warrant were validly seized and a declaration as to what documents, if any, seized pursuant to that warrant were subject to legal professional privilege. 2 The applicant seeks an urgent hearing and resolution of that application, at least insofar as it relates to particular documents, being documents contained in computer files for which privilege is claimed. For the reasons given below, I do not think that the matter requires an urgent hearing. 3 On 16 March 2004 Mr Newman SM issued a search warrant pursuant to s 3E of the Crimes Act 1914 (Cth) to Constable Elston of the Australian Federal Police, authorising him to search premises in Henley Beach Road and to seize 'evidentiary material' as specified in the warrant. One of the conditions was that the material 'will afford evidence as to the commission of offences'. A number of offences were specified. In general terms, they can be described as operating management investment schemes, publishing false and misleading statements in an information memorandum and money laundering. Various persons were specified who may have committed the relevant offences. 4 Annexed to that warrant, and apparently forming part of it, was a document entitled, 'Claims for legal professional privilege, premises other than those of a lawyer, law society or like institution.' That document set out a procedure to be followed if a claim for legal professional privilege was made. The procedure would seem to be similar to that agreed between the Australian Federal Police and the Law Council as to the procedure to be followed when documents are seized from lawyers' premises: see 72 ALJ at 143 ff. 5 Pursuant to that warrant, on 18 March 2004 federal agent Mr Elston executed a search of the premises of the respondent and seized various items. Included amongst the items seized was a computer owned by the respondent. The items seized, including the computer, were sealed and held by the Federal Police. As to the computer, I note that there is no evidence in this case that the computer was merely removed (contrast Hart v Australian Federal Police (2002) 196 ALR 1 at 21 [83]. Both parties in their respective affidavits agree that it was seized. 6 It would appear that a copy of the computer hard drive was taken by the Australian Federal Police and that it is still held by them. The respondent, who owned the computer, claimed legal professional privilege in respect of some of the files on it. The respondent also claimed privilege in relation to various documents that were also seized. The computer and the privileged documents were then delivered into the possession of the registry of the Adelaide Magistrate's Court. How this occurred has not been explained, nor has it been explained what jurisdiction that Court has to receive it or in what capacity it now holds it. The form annexed to the warrant assumes that parties can, by consent, require courts to act as bailees of the documents for which privilege is claimed. However the computer and the privileged documents got into the court, they still remain there. 7 The parties then entered into discussions as to what computer files might be subject to privilege. Ultimately, this resulted in the provision of a copy of the hard drive to the respondent, who then claimed privilege for a number of computer files on it. On or about 2 December 2004 the respondent issued proceedings in the Adelaide Magistrate's Court, seeking relevant declaratory and other orders in relation to the privileged documents, including the computer files for which privilege was claimed. In those proceedings the respondent alleged that the warrant did not authorise the seizure of the various matters for which privilege was claimed, that the documents that were held in court were subject to the privilege and that the respondent had the right to immediate possession of the relevant documents. 8 The respondent claimed in those proceedings declarations in relation to privilege, orders for the delivery up of the computer and the privileged documents and orders for the delivery up by the Australian Federal Police of any copies of files held by them comprising privileged documents. No defence has been filed to those proceedings, although I am informed that the Australian Government Solicitor has a draft defence that it intends to file. The applicant has advised me that it also intends to dispute the jurisdiction of the Adelaide Magistrates Court. The applicant says that the Court has no jurisdiction by reason of s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Given the claim that is made and the relief sought, it would seem to me to be at least arguable that the Adelaide Magistrates Court does not have jurisdiction to hear that matter. Indeed, the only available jurisdiction of that Court would appear to be under s 8 of the Magistrates Court Act 1991 (SA), which is a jurisdiction to recover title to personal property worth less than $80,000. In the circumstances, it would seem a necessary precondition to the exercise of that jurisdiction that the computer was seized unlawfully. In any event, for present purposes at least, I am prepared to assume that the Adelaide Magistrates Court may not have jurisdiction to make the orders sought. 9 In the meantime, the Commonwealth Director of Public Prosecutions ('the CDPP') issued proceedings in the Queensland District Court, seeking an ex parte order under s 19 of the Proceeds of Crime Act 2002 (Cth) in relation to various assets held by Lorraine Carson (the wife of the respondent) and a company the sole director of which was the respondent's son. Ex parte orders were made on 16 March 2004. 10 The respondents to that action applied to have the order discharged. After hearing evidence, the relevant orders were revoked by Forde DCJ on 17 December 2004. The reasons of Forde DCJ reveal: 1. The orders were initially sought on the basis that the assets were the proceeds of offences relating to the operating of a management investment scheme and publishing false and misleading statements in an information memorandum. 2. It was conceded before Forde DCJ that none of the assets were the proceeds of those alleged offences. 3. It was open to the CDPP to argue that the order could be supported on the basis of other offences. 4. The CDPP argued that the order could be supported on the basis that the assets were the proceeds of indictable crimes committed in foreign jurisdictions. Japanese and New Zealand crimes were suggested. 5. However, after considering the evidence of the Australian Federal Police officers called by the CDPP, Forde DCJ concluded, in par 94 of his reasons: