, Dor [1995] AFPIT 4 IN THE FEDERAL POLICE ) ) No. 3 of 1984. DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SERGEANT RONALD GEORGE CLARKE FINDINGS Member Mr R.J. Cahill, S.M. The Tribunal finds that Sergeant Ronald George Clarke is not guilty. of the two disciplinary offences alleged in charges 22/8384 and 23/8384 namely: ' "At Box Hill, in the State of Victoria, on 4 March 1982, he in the performance of his duties, failed to comply with the law applicable to him and that he exceeded the authority of a search warrant issued 3 March 1982 in that he seized documents from premises situated at unit 3/35 Victoria Street, Box Hill, in the said State which were not permitted by the said warrant". "At Melbourne in the State of Victoria, between 4 March and 17 June 1982 he failed to make a prompt return of property to wit, certain documents seized by him on 4 March 1982 to the owner thereof, which documents were received by him in the course of his duty". . RO. CAHILL, S.M. Membe 13 February 1985 FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 3 of 1984 COMMISSEONER OF AUSTRALIAN FEDERAL POLICE RONALD GEORGE CLARKE Before R.J. CAHILL SM, member JUDGMENT and REASONS FOR FINDING The Commissioner, by two notices dated 1 December 1983, charged the member with two offences under paragraph 18(1)(a) of the Australian Federal _ Police Discipline Requlations, the first charge being an offence under paragraph 3(e), the second charge being an offence under paragraph 8(b). The first charge pursuant to paragraph 3(e) alleged: "At Box Hill, in the State of Victoria, on 4 March 1982, he in the performance of his duties, failed to comply with the law applicable to him in that he exceeded the authority of a search warrant issued 3 March 1982 im that he seized documents from premises situated at unit 3/35 Victoria Street, Box Hill, in the said State which were not permitted by the said warrant." The second charge under paragraph 8(b) alleged: "At Melbourne in r the State of Victoria, between 4 March and 17 June 1982, he failed to make a prompt return of property to wit, certain documents seized by him on 4 March 1982 to the owner thereof, which documents were received by him in the course of his duty." Largely at the request of the Tribunal, the Commissioner, because of the large number of documents involved, (said to be in excess of 2000) provided particulars of both charges. There may be an issue as to whether the Tribunal can compel the provision of particulars by the Commissioner. However, such an order would, in my view, appear to be within the ambit of the discretion given by the Court by Section 76 of the Complaints Act. The Commissioner voluntarily provided particulars which were lodged in the registry of the Tribunal on 1 June 1984. : The particulars provided a copy of the search warrant dated 3 May 1982 referred to in both charges and further stated as follows:- ee 2f~ "It is alleged that each of the documents referred to in ...-.... paragraphs of tne Partacu1ars of Docuuments herein dated 8 May 1984, were wrongfully. seized in that they were outside the scope of the said search warrant. It is further alleged that in so seizing the said documents the member failed to comply with the law applicable to him." A series of documents with index vere lodged in the Tribunal Registry which were said to comprise the classes of documents seized. Following an adjournment from March 1984 until August 1984, the particulars were withdrawn as the Commissioner found difficulty in proving that the documents specified were in fact seized by the membei pursuant to the search warrant. The particulars as provided, whilst they may have purported to identify classes of documents seized, did not in any way specify the basis upon which. it was alleged by the Commissioner that the authority of the warrant had been exceeded by the member. Such particulars would have enabled the defence to be better prepared and also the Tribunal to appreciate the evidence that came forth. The charges arise out of the issue and execution of a search warrant, and the search warrant and the information have 'been .temdered before the Tribunal as Exhibit C. The information contains much of the background material upon which the charges were based and the relevant evidence upon which the search warrant was issued. The search warrant states as follows:- "TO: Ronald George CLARKE Australian Federal Police WHEREAS I, Graeme Treford Wheelhouse A Stipendiary Magistrate being 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 is reasonable ground for suspecting that there is in a place situate at Unit 3, 35 Victoria Street, Box Hill, Victoria or any motor vehicle garaged at these premises Banking Receipts, Records, Bank books, Cheque Butts and Documents as to which there is. reasonable grounds for believing that the same will afford evidence as to the commission of 'an offence against Section 86(1)(a) Crimes Act 1914 and Section 42(1), Banking (Foreign Exchange) Regulations a law of Australia namely the offence of conspiracy to contravene the provisions of the Banking (Foreign Exchange) Regulations. YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place, if necessary by force, and to seize the abovenamed articles which you may find in the said place 'and as to which there is reasonable ground for believing that the same will afford evidence 'as to the commissian of the said offence and for so doing this shall be your sufficient warrant. Given under my hand at Melbourne in the said State' this 3rd May 9 March ; 1982 ee Signed G. Wheelhouse Stipendiary Magistrate Justice of the Peace " Z/ The information states as follows:- Information to Ground the Issue of a Search Warrant under Section 10(b) of the Crimes Act 1914 AUSTRALIA Crimes Act 1914 - Information (Search Warrant) On the 3rd day of March 1982, Ronald George CLARKE of Melbourne in the State of Victoria, Australian Federal Police Officer, hereinafter called "the informant" appears before me a Stipendiary Magistrate and Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914 of Australia and informs me on oath: 1. That he is a Detective Senior Constable in the Australian Federal Police stationed at the Currency Branch Melbourne. 2. Gn 15 September 1981 "the informant" received information that Maurice HAZAN of Unit 3, 35 Victoria Street, Box hill, Victoria was transferring to ISRAEL large amounts of money. It was alleged that innocent persons were being used as couriers to transport the money, previously converted to bank drafts, to Israel on behalf of HAZAN. 3. On 5 or 6 September 1981, HAZAN approached Jacques (Jack) AZOULAY of 3/124 Alm Road, East St. Kilda whilst both men were at the Yeshiva Synagogue in Hotham Street, East St. Kilda. On this occasion HAZAN gave to AZQULAY $1,500.00 cash and asked him to obtain a bank draft inthe name. of SIHMA CHETRIT a resident of Israel. HAZAN told AZOULAY that CHETRIT was his mother and he needed the money but he, HAZAN had already forwarded his allowance. AZOULAY has provided a statement relating to this event. 4. On 12 September, 1981 HAZAN whilst at a function held by the AZOULAY's at their residence approached Mrs Esme AZOULAY requesting that she purchase two bank cheques on his behalf. One was to be in an amount of $3,000.00 and the other $1,500.00. The cheques were to be in the names of Esma AZOULAY and Simha CHETRIT respectively. HAZAN also advised Mrs AZOULAY that CHETRIT was his mother. Mrs AZQULAY has provided a statement relating to this evemt. 5. Also present at the function held at the AZOULAY's on 12 September, 1981 was one Meir BEN-CHABAT of flat 9, 124 Alma Road, East St. Kilda. BEN-CHABAT was present when HAZAN approached! Mrs AZOULAY and heard the conversation and saw the $4,500.00 givem ito Mrs AZOULAY by HAZAN. Meir BEN-CHABAT has also made a statement. 6. Because'of concern by the AZOULAY's that they may be compounding an offence they reported the matter to the Federal Police. As a result I instructed Jacques AZOULAY to purchase only one bank draft for $1,500.00 in the name of SIMHA CHETRIT. 'AZOULAY complied with request and purchased the draft through the ANZ Banking Group Ltd; 227 Carlisle Street, Balaclava. 7. Enquiries with the ANZ Bank at 227 Carlisle Street, Balaclava have resulted in photccopies of the aforementioned drafts, purchased by the AZOULAY's for HAZAN in the name of SIMHA CHETRIT, being recovered. A check made through banking system has revealed that these two drafts were negotiated at Bank Leumi Le-Israel B.M.; 130 Ben Yehuda Branch, Tel-Aviv on 15 October 1981. 8. Since that time enquiries made by "the informant" have also revealed that HAZAN requested Mrs Kathleen HARKENSEE of Unit 9, 35 Victoria Street, Box Hill purchase a bank draft on his behalf at the ANZ Bank, 993 tihitehorse Road, Box Hill. . 9. Enquiries made by "the informant" at the ANZ Bank 993 Whitehorse Road, Box Hill reveal that two applications for bank drafts were made by a Mrs K, HARKENSEE of .9-35 Victoria Street, Box Hill. The first was on 11 December 1981, in an amount of $1,000-00 Australian and the second was on 15 December 1981 in an amount of $500.00 Australian. The favouree of both drafts was Alice ELBAZ, ASHDOD, Israel. Both drafts were issued. 10. Enquiries made by "the informant" have also revealed that HAZAN requested Peter NEWMAN of 13 Ellesmere Road, East Burwood purchase two bank drafts on his behalf at the State Savings Bank of Victoria, 527 Riversdale Road, Camberwell. 11. Enquiries made by "the informant" at the State Savings Bank of Victoria 527 Riversdale Road, Camberwell reveal that two applications for bank drafts were made by Mr Peter NEWMAN of 13 Ellesmere Road, East Burwood. The first application was made on 15 September 1981 in an amount of $1,500.00 Australian. Because of S.S.B. policy three drafts were issued in U.S. currency in.amounts .equal to $600.00, $600.00 and $300.06 Australian respectively. Each of these drafts was made payable to ABRAHAM SISSO of Israel. 12. On 16 December 1981 the second application was presented to the State Savings Bank of Victoria, 527 Riversdale Road, Camberwell. This application was also in an amount of $1,500.00: Australian. Again three drafts were issued to U.S. dollars in amounts equal to $600-00, $600-00 and $300-00 Australian respectively. The favowree of each draft was Abraham SISSOS of Israel. 13. 'The informant' has been told and verily believes' that HAZAN has also approached an unknown number of persons with a view to having these persons purchase bank drafts in amounts not exceeding $Al,500-00, for favourees, nominated by HAZAN, all of whom are resident in Israel. 14. Because of Reserve Bank Exchange Control requirements records of transactions similar to those made on behalf of HAZAN are unable to 'be traced. 15. Motor Registration Branch records reveal that HAZAN is the registered owner of Motor Vehicle IDR 439. Surveillance indicates this vehicle is normally garaged at Unit 3, 35 Victoria Street, Box Hill. AND further informs me on cath that by reason ef the aforesaid there is __. Teasonable ground for suspecting that there is at Unit 3, Victoria Street; ~ Box Hill, Victoria, Banking Receipts, Records, Cank Books, Cheque Butts and Documents as to which there are. reasonable grounds for believing oD /= that the same will afford evidence as to the commission of an offence against Section 86(1)(a) Crimes Act 1914, Banking (Foreign Exchange) Regulations, namely an offence of conspiracy to contravene the provisions of the Banking (Foreign Exchange) Regulations. WHEREFORE the informant prays that a search warrant may be granted to search the said place situate at Unit 3, 35 Victoria Street, Box Hill and any Motor Vehicles garaged at these premises aforesaid for the said Banking Receipts, Records, Bank Books, Cheque Butts and Documents. Sworn at Melbourne in the said State Signature of Informant the 3rd March 1982 Signature of Stipendiary Magistrate " The search warrant entitled the member to seize "the abovenamed articles which he may find in the. place and to which there is reasonable ground for believing that the same will afford evidence as to the commission of the said offence and for so doing this shall be your sufficient warrant." The Commissioner never submitted that the documents seized would not ' have been included in the description: "banking receipts, records, bank books, cheque butts and documents" but rather the documents seized and particularized would not have afforded evidence as to tihe commission of offences, (i.e., offences under section 86(1)(a) of the Crimes Acit 1914 and section 42(1) of the Banking and Foreign Exchange Regulations, and ofifences of conspiracy to - contravene the provisions of the Banking and Foreign Exichange Regulations). . The facts before me really are within a narrow compass and are basically contained in a report submitted by the membez which comprises part of exhibit H. That report states as follows: " Allegations of Misconduct COMPLAINANT: HAZAN, Moshe Ben @ Maurice . As directed the following details outliine the circumstances that surround the investigation of the abovemamed. 2. As a result of information received from Jack AZOULAY, 3/124 Alma Road, East St. Kilda to be the effiect that HAZAN had approached both him and his wife Esme to purcihase bank drafts in amounts of $A1500 for persons resident in Isrizel and AZOULAY not wishing to compound any offence/s, reported tlhe circumstances to the St. Kilda Police initially and was .adwised by them to report the matter to the Australian Federal Pwlice Currency Branch. ; ...6/- 3. On 5 September 1981 AZOULAY visited our office at the Reserve Bank, Note Printing Branch, Fitzroy and supplied us with scant details of the method to be used by HAZAN to transfer monies to Israel. I instructed AZOULAY to purchase a draft if approached by HAZAN and to advise me immediately. HAZAN did approach AZOULAY on 12 September 1981 and requested that he purchase three bank drafts, each in an amount equivalent to $A1500, and to.return the drafts to him. AZOULAY contacted our office for advice and I told him to purchase only one draft and to return the remaining $A3000 to HAZAN. On 15 or 16 September 1981 AZOULAY advised me that he had purchased only one draft for HAZAN payable to Simha CHETRIT in Israel. The purchase was made at the ANZ Bank 227 Cariisle Street, East St. Kilda. 4. When HAZAN requested AZOULAY to purchase these drafts, apart from Mrs. AZOULAY, Mr. Meir BEN-CHABAT was also present. Statements were obtained from Mr. and Mrs. AZOULAY and Mr. Meir BEN-CHABAT. Copies of the draft requisition together with.details of the draft were obtained from Mr. Rolly TOMLINSON, Accountant at the A.N.Z. Bank, 227 Carlisle Street, East St. Kilda. 5. As a result of this an information was prepared with a view to obtaining a Search.Warrant, under the provisions of Section 10 Crimes Act 1914.. The information was sworn before Mr. WHEELHOUSE, SM at Melbourne Magistrates Court on 3 March 1982 and a search warrant issued in respect.of HAZAN's residence at 3/35 Victoria Street, Box Hill, © 6. About 7am on 4 March 1982 in company with Constables Rona DENT and George WHILEY I went to 3/35 Victoria Street, Box Hill to execute the search warrant. The front door of the Unit was opened by.HAZAN in response to my knocks. After - introducing ourselves as Federal Police and showing HAZAN my identity certificate I told him I had a warrant to search the premises. He then invited us into the kitchen of the unit and there I read to him, in the presence of DENT and WHILEY, the search warrant. He was cautioned and at my direction, as there was another occupant in the Unit, I had policewoman DENT raise this female, a Minnie BELL. Miss BELL was requested to sit in the lounge room whilst we proceeded to search the rooms occupied by HAZAN. 7. On the kitchen table I found four sheets of paper headed 'Summary'. These appeared to be recorded details of drafts: purchased by persons on behalf of HAZAN. In the main only christian names of purchasers and favourees were itemised (copies attached). 8. HAZAN's bedroom. was searched and property seized. This amounted to his briefcase which contained $1055 cash and various banking documents and a diary. A metal file case containing various documents was also seized. oee7/- 9. The lounge room was searched and a large amount of records and documents were found and seized. 10. Miss BELL's bedroom was searched by DENT and WHILEY in the presence of BELL whilst I.searched cupboards in the passage in the presence of HAZAN. Nothing was seized as a result of these searches. ll. DENT remained with Miss BELL in the house while WHILEY _ and I searched the garage and HAZAN's motor vehicle in his presence. Again nothing was found or seized. 12. Upon our return to the interior of the house I requested HAZAN to shower, shave and dress as I wanted him to accompany us to Divisional Headquarters in Jolimont. After HAZAN had showered and dressed I requested Miss BELL do the same. When she was ready the seized property was loaded into the boot of the police car and we returned to D.H.Q. I directed WHILEY to return to the Currency Branch and his normal duties. 13. Upon our arrival at Jolimont HAZAN was taken 'to the second floor and sat in the foyer. Miss BELL was placed in an interview room whilst DENT and I proceeded to try and establish from her the addresses of the banks: at which she purchased bank drafts on behalf of HAZAN. Miss BELL was unable to recall these details. I then telepihoned Constable ROACH and had him take Miss BELL back to 3/35 Victoria Street, Box Hill. 14. I then requested HAZAN to enter an interview room with a view to establishing identity details that appeared on the sheets of paper headed 'Summary'. At this podint HAZAN requested that he be allowed to ring a Solicitor. His request was complied with and shortly thereafter Mr. Jeremy ST. JOHN arrived. He had a brief discussion with HAZAIN and then spoke to me. He enquired as to whether his client was under arrest. I replied 'no'. ST. JOHN said 'then he refuses to answer questions and we are leaving'. As a result off this together with the details.on documents seized by me I thad reasonable grounds to believe that HAZAN had committed offences contrary to Commonvealth Statutes. .I advised ST. JOHN that I would be arresting HAZAN and he again requested to speak with his client privately. The request was granted anxi after this discussion ST. JOHN. told me that HAZAN was now alleging that I had assaulted him.. I said to ST. JOHN: that I would get an officer and he could formally complain to thim. ST. JOHN declined to take the matter further. I deny having assaulted HAZAN or of threatening him with physical violence. 6 8/-, earings hte aha Sng Nine nea = Fereennasdinh ane snwene etna Bee Aaa tRs cans mame eo * 15. ST. JOHN and I then returned to the interview room and there in the presence of. Constable DENT, ST. JOHN, HAZAN and myself I proceeded to tape record a record of interview with HAZAN. He refused to answer any questions apart from personal particulars. He was then formally arrested and after informations and court documents were prepared HAZAN was taken to Melbourne Magistrates Court. A delay in the transfer occurred because ST. JOHN had left his office for lunch and it was not until he returned that we went to the Court. This was done by consent to enable HAZAN to be represented at Court and not have to be held in the cells at the City Watchhouse. i 16. An application for bail was made which resulted in | HAZAN having to lodge a $10000 surety, surrender his passport, report twice weekly to the Box Hill police station and advise the informant of any change of address. 17. An investigation was then commenced by myself to identify the persons described in the sheets headed 'Summary'. This was. done by.circularising several.major banking organisations in Melbourne requesting that they in turn circularise their branches in the Melbourne area. Whilst this was being done I proceeded to examine the documents seized under the provisions of the search warrant with a view to establishing the identity -of these persons. Several persons have now been identified as co-offenders and they are to be interviewed and charged. 18. Due to a request by HAZAN and ST. JOHN to return to HAZAN documents relating to proceedings before the Family Law Court I contacted him by telephone and he attended the Currency Branch office on 11 March 1982 where several items were returned to him (copy of indemnity receipt attached). 19.. About 3pm on or about 29 April 1982 I received a telephone call from Mr. ST. JOHN requesting the.return of all documents and papers in my possession as he required them for proceedings in the Family Law Court. . I declined to surrender the documents to him and he. told.me that he would obtain a Court order and call me back. About 3.30pm I received a phone call from a male person stating he was the Registrar at the Family Court, Melbourne. This person, whose name I cannot recall, told me that the Judge presiding in HAZAN's matter would not issue an order and would I be prepared to allow Mr. ST. JOHN to photocopy the documents in my possession. I consented to this and Constable WHILEY took to ST. JOHN's office on 3 ane 4 May 1982 a number of documents that were to be returned and those that were .to be retained were photocopied. An indemnity receipt was obtained from ST. JOHN on behalf of .HAZAN in respect of the property returned (copy attached). ++ 9/- 20. Shortly after this about 5, 6 or 7 May 1982 I was contacted by telephone by Mr. ALWYN SAMUELS, Solicitor advising that he was now representing HAZAN and could I provide him with all the documents in my possession in respect to HAZAN. Again I refused although assurances were given by SAMUELS that the property would be put into a trust. . I told SAMUELS on this occasion that I was due to go on leave on 10 May 1982 until 28 May 1982. Upon my return I would again examine the documents and return to him those that would not be used as evidence. He agreed and a date of 15 June 1982 was agreed upon. On Friday, 11 June 1982 I was instructed by. you (Mr. MITCHELL) not to return the property to SAMUELS but to return the property to HAZAN personally together with photocopies of documents retained. In.order to comply I contacted SAMUELS and advised him of having to return the property.personally. He stated that he would contact HAZAN and have him attend his office on 17 June 1982, at 9am. On this date, in company with Detective Acting Inspector PHELAN, I went ta@ SAMUEL's office, however, at that time he advised me he had failed to advise HAZAN, but he would phone him and have him atttend at his | office now. We agreed and shortly after HAZA\N attended and property and photostats.handed over (copy of -indemnity receipt dated 17.6.82 attached). 21. With respect to the allegation contained in "E" I agree that I spoke to the Mr. Noel MILLEN, Supervisor, New Business Department, Bank of New South Wales, 360 Collins Street, Melbourne. As I had had :HAZAN under surveillance he had been seen entering this particular branch and when MILLEN was approached by our surveillance officers he was given my name and telephone number to. 'contact. . No information was. supplied to him, however, he :advised me that a search of, I believe 'Dunn and Bradstreet" records, revealed that the ANZ bank had taken out an action against HAZAN in respect of his overdrawn Bankcard account and! that the Bank of N.S.W. preferred not to do business with HHAZAN. I respectfully submit that this is the perogative of that Bank. 22. In respect to the allegation contained at "F" I advise that after an examination of HAZAN's bank acec:ounts, which about June 1981 grossed in excess of $200,000 I wass of the opinion that loans available to Victorian residents ttogether with the interest.relief subsidy were for persons who suffered financial hardship. On this basis I prepared a report sn 21 April 1982 outlining details of these matters. At this time I requested your permission to be allowed to approach the: Victorian Ministry of Housing officially so that these matters.c:ould be brought to their attention (copy of report attached). «eo e10/~ -10- 23. On 30 April 1982 I received your reply (copy attached) - agreeing to my request. On 7 May 1982 a report was forwarded to the Victorian Ministry of Housing advising them of suspected breaches of their statutes (copy attached). 24. The preceding information is to the best of my recollection the events. surrounding my. involvement with HAZAN. It should also be noted that as of the date of this report it has been established that twenty five persons assisted him to commit these offences and we have successfully identified fifteen of them. I am still unable to accurately establish the amount of money remitted joverseas by HAZAN, however, it is believed to be {approximately $150, ooo. 25. Report submitted as directed. . (CR. CLARKE) Detective Acting Senior Sergeant 529 " The report vas produced .in response to a direction to the member by Chief Inspector Mitchell pursuant to paragraph 19(1)(b) of General Order 6. The written direction itself is exhibit G herein. The balance of exhibit H is the written interrogation of the member by Chief Inspector Mitchell upon his report. It is important to note that many of the allegations contained in the direction, exhibit G, were totally irrelevant te the consideration of the tribunal in this matter, and went beyond the issues of the contents of that of the Search Warrant. A later record of interview was conducted by Chief Inspector Mitchell with the member (i.e. exhibit I). The matters contained in the report and the two interviews are largely undisputed. A number of preliminary issues that had to be determined at various states in the proceedings. A challenge was made by Mr Howie on behalf of the member to the jurisdiction of this tribumal. The basis of that challenge being that this tribunal, in hearing this charge, was required to consider section 21 of the Commonwealth Crimes Act and the time limits contained therein in respect of prosecutioms for offences against laws of the Commonwealth and of territories. I ruled on 9 August 1984 that such a challenge failed. My ruling was as follows: : "In respect of this particular matter Mr Howie challenges the jurisdiction of the tribunal on the following basis. He says that the provisions of : eeell/- mh herein.» Bad Woon = Bet i ne care ene pe em ee me ep ee ee eee ee cet tet cia tna apt tee ci pete pap tes nam cone tye gee erp enya ene eens ap pees ene, — -ll- section 21(c)(i) of the Crimes Act, 1914 of the Commonwealth apply to the disciplinary proceedings presently charged before this tribunal in this case. That particular section, in summary, provides that a prosecution in respect of an offence against. any law of the Commonwealth may be commenced as follows, and there are various provisions. The one that would be applicable here is the provision contained in paragraph (c)(i) where it states: Where the punishment. provided in respect of the offence is a pecuniary penalty at any time within one year of the commencement of the offence. _I believe it is common ground in this particular case that if that section were to apply to these proceedings the tribunal would not have jurisdiction. Simply on the basis there is no doubt in the particular case the proceedings were instituted outside the period of one year after the alleged commencement of the offence. So there is no factual dispute as to the matter; the question is simply as to whether or not the Commonvealth Crimes Act 1914 applies to proceedings under the Complaints Act. The vital consideration is whether or not these proceedings under the Complaints Act could be described as a prosecution in respect of an offence against any law of the Commonwealth. I have examined the matter closely. I have examined the authorities mentioned and in particular I have referred to the very recent authority of the Federal Court in Hardcastle -v- The Commissioner of Police to get some guidance as to the nature of these particular proceedings. In the case of Hardcastle -v- The Commissioner of the Australian, Federal Police, which is as yet an unreported decision as I understand it, handed down by the full Federal Court on 13 April 1984, the court comprising Bowen CJ, Gallop and Lockhart JJ, the court there spoke generally as to the nature of disciplinary proceedings under this complaints legisletion. Whilst it was not a matter squarely on point with the submission here I believe the approach of the court is of some guidance. ve012/- —a_e RE een Re ee ete SS RR -12- At the bottom of page 5 of the joint judgment of the three judges the judgment states as follows: The primary argument of counsel for the appellant concerned the construction of paragraph 18(1)(d) of the Discipline © Regulations. Counsel submitted that the . Tribunal lacked jurisdiction to hear the appeal because, upon the proper construction of the Discipline Regulations, paragraph 18(1){d) does not encompass conduct which, if proved, constitutes a criminal offence. Two matters were relied on to support this construction. First, it was submitted that in respect of criminal conduct a member of the Australian Federal Police is entitled to be tried before a tribunai which applies the criminal onus of proof namely, proof beyond reasonable doubt and, where the conduct is serious, he is entitled to trial by jury. Second, it was asserted that the institution of proceedings in relation to a disciplinary offence, where the conduct relied on amounts to the commission of a criminal offence, exposes the member of the police force to double jeopardy. Whatever the result of the disciplinary proceedings they would not bar the institution of subsequent criminal proceedings in respect of the same conduct. It was submitted that paragraph 18(1)(d) should therefore be so construed as to remove. the possibility of the occurrence of double jeopardy. I use that quotation because that puts the context that was there before the tribunal. At the bottom of page 6 of the Federal Court go on to state; In our opinion there is no substance in this submission. It misconceives the character of disciplinary proceedings in general and under the Discipline Regulations in particular. The object of disciplinary proceedings under the Discipline Requlations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish ... The Federal Court then refer to Harvey -v- Law Society of New South Wales, (1975) 49 ALJR 362 and specifically to the judgment of Sir Garfield Barwick at page 364 and then refer to Ex-parte Attorney-General; rea Barrister and Solicitor (1972) 20 FLR 234 at page 244, + 013/- cian nance cree eer ace anc ee ccnncc ene eT A, CEES © SP Mie rata eP CERO PANG Ee te -13- The judgment continues: The expression "disgraceful or improper conduct" is of wide import; sometimes it will and, at other times will not,.encompass conduct which is also criminal conduct. We see no warrant. for construing the words of paragraph 18(1)(d) otherwise than according to their ordinary and natural meaning, a construction which is consonant with the evident purpose of the paragraph when considered in the context of the Discipline Regulations as a whole. There is no room for the application of what is sometimes mis- leadingly called the principle of double jeopardy in this case. -The issue before the full Federal Court is a different one but in my view it bears some assistance in relation to the question here before me. The concept of a prosecution involves an informant alleging a charge against a defendant, whether it be on indictment or in summary form;. it involves.the application of rules of evidence; it involves in my view necessarily in this context the standard of proof being beyond reasonable doubt and the onus of proof being on the prosecutor. The Complaints. Act does not apply the strict rules of evidence (ef Section 76) and further, it is quite clearly established now as far as this tribunal is concerned that the standard of proof involves.the standard of proof on the balance of probabilities with the. reservations expressed in Briginshaw -v- Briginshaw and Scanes -v- The Commissioner of Police. All of those characteristics in my view make it quite obvious as a matter of law that the proceedings presently before this tribunal did not fall within the description of a prosecution in respect of an offence against any law of the Commonwealth. I am further supported in that view by the decision of McInerney J. in Bodna -v- Della.and the Public Service Appeals Tribunal, (1981) VR 183. There is further support.for such a view in the decision of Morling J. .in Morrison.-v- Williamson 40 ALR 335, a case involving a public service disciplinary hearing. The approach taken by those two judges in different jurisdiction in relation to similar subject matter involving disciplinary proceedings under the Public Service Act strengthens my view that these types of proceedings here before the tribunal do not amount to prosecutions for offences against the law of the Commonwealth. .0014/- ee ee a ie ene sccm EET NEC ONGC ES BERRI, ee tee heme LAID ik aS -14- For those reasons I am satisfied that the challenge to the jurisdiction of tribunal put by Mr Howie must fail. I am satisfied that the tribunal does have jurisdiction to hear these matters on the basis that the time limit is set out in section 2l(c)(i) of the Crimes Act is not applicable. What I have said should not be. interpreted as support for the proposition that there should be inordinate delays in bringing such proceedings. I am simply saying this in case there appear to be no express time limits for the bringing of disciplinary proceedings under this complaints legislation. I believe as a matter of policy it is. quite obvious it is highly desirable such matters should be dealt with as soon as possible, both in the interests of members of the police force and obviously in the good _Tunning and discipline of police force itself. I think those matters need to be formally stated." . After the hearing had commenced the Commissioner attempted to withdraw the charges from the Tribunal. . I am of the view, that section 67 of the legislation. requires that, once a charge is brought before the tribunal, the tribunal is bound to determine it. The words are mandatory, in form and effect. This would not have presented a practical problem if, prior to a hearing commencing, the Commissioner had merely indicated he did not wish to call further evidence. The tribunal would have to determine the matter then in favour of the member. The difficulty arose in this particular case because at the time the Commissioner sought to withdraw. there was already some evidence before the tribunal against the member. There appears to be no precise power to withdraw in these situations. Perhaps, as a matter of policy there should be. I discussed that. issue in a decision I gave in the case of Commissioner of Police -v- Barrett. I leave open the question where in the event the Commissioner does not call evidence, whether the tribunal has a responsibility in the public interest to pursue its own inquiries pursuant to its wide powers, under section 76 of the Complaints Act. I do not need to determine that. The. third preliminary issue relates.to the second charge, against paragraph 8(b) of the Regulations which involved the failure te promptly return documents seized. It became obvious during the hearing that an arrangement that had been reached between the Commissioner and the Ombudsman pursuant to the provisions of section 11 of the Complaints Act. "YS f= It was never part of that arrangement that Sergeant Clarke be charged with the second charge. It was the recommendation of the. Ombudsman in an arrangement with the Commissioner that the.second charge would not proceed. This was made clear by the various documents tendered by the parties. : . Mr. Howie for the member (and supported by Mr 'Vickery for the Commissioner) submitted that when a.charge was laid contrary to an arrangement reached between.the Ombudsman and the Commissioner pursuant to Section 11, the charge must fail. | As I dismissed the second charge on other grounds I leave the question of the effect of a departure from a "Section 11 arrangement" upon the validity of a charge open. It is clear that.the legislature intended that where such an arrangement .was reached it should be adhered to and charges should follow accordingly. One would not see the point.of any such arrangement unless that was the case. There.is specific provision for the intervention of the Attorney-General in the event of disagreement between the Commissioner and the Ombudsman. For the first charge the Commissioner must prove: (1) The documents were in fact seized by the member, or under his authority, or by one_of his assistants - and further would have to actually identify the specific documents seized; , (2) The documents were in fact seized outside the authority of the warrant; and (3) The manner and basis upon which the seizure upon which the.seizure of each and every document exceeded the authority of the Search Warrant. To succeed on the second charge the Commissioner must prove: (i) the documents were in fact seized by the member (as with the first charge); and (ii) that the documents were not promptly returned in all the circumstances. In relation to the second charge, I note that there was return of documents on three separate occasions. There were receipts tendered for the return of those documents, comprising exhibits.D, E and F. The last return of documents occurred in mid-June 1982. -16- In respect to both charges, the Commissioner has had obvious difficulty in proving what documents were in fact seized by the member. Initially at the hearing lengthy adjournments were granted in an endeavour to reach agreement as to what items were seized by the member pursuant to the Search Warrant. Counsel for the Commissioner , Mr Vickery, had not had the opportunity himself of examining the documents prior to the hearing commencing and a delay was occasioned because of that fact. . I believe that the experience of this case would demonstrate that charges of this sort should never be brought prior to the documents being clearly identified and examined in detail. To take a global. approach in relation to documents where specific matters have to be proved by the Commissioner in relation to seizure of documents and their identification is a dangerous enterprise. If the member were to have been.a defendant to a civil action between a person whose documents .he seized the member' would have needed to justify his seizure of the documents pursuant to the warrant. But Sergeant Clarke is charged before this tribunal with the seizure of certain documents alleged to be outside the authority of the warrant and further that he also failed to promptly return documents so seized. It is not encumbent upon Sergeant Clarke to prove anything. The Commissioner bears the onus of proof to the standard of proof on the balance of probabilities with the additional factors referred to in Scanes -v- Wilson 3 ACTR 20 at 26 per Fox J. On 1 June 1984 there was an attempt to reach: agreement between the parties as to the documents seized by the member pwrsuant to the Search Warrant. That attempt was unsuccessful because: ifr Howie on instructions was unable to agree either. because his client denied some of the documents were a part of those seized or alternatively his client simply was not able to instruct him that he had seized: the documents. Such a concession need never have been made by the defence. .The defence could have elected, quite properly, to remain silent amd leave it to the Commissioner to prove. It is obvious that after the particulars were lodged on 1 June 1984 the Commissioner had extreme difficulty in proving the documents that were seized. The hearing resumed in August 1984 and at that time it was obvious that the. Commissioner desired to withdraw both. charges. I do not investigate the basis of that attitude.. The problem of identification of the documents was indicated to the Tribunal. Further, iby that time the complainant had been sentenced in the County Court of Wictoria following a - plea of guilty. The Crown Prosecutor who conducted these proceedings had given an opinion in support of the member's seizure of documents. wel 7/- -17- The question of withdrawal is indeed a difficult one: on the one hand the. rights of the member and the Australian Federal Police are important; but on the other hand, of course, there is a public interest in complaints being properly pursued regardless of the attitude of the Commissioner of the Australian Federal Police. Accordingly, I felt it entirely appropriate that I would request Mr Vickery to call Mr Hazan, the complainant, and Mr Hazan would have the opportunity of.giving evidence before this tribunal and at least, having had the opportunity in a public setting of having his complaint aired. Initially, in March 1984, Mr Hazan had some difficulties in giving evidence as he had not then been dealt with and of course this tribunal should not and would not transgress the right against self~ incrimination, a person who had.not been dealt with would be in jeopardy of perhaps incriminating himself. That situation had resolved itself by August 1984 as Mr Hazan had in fact pleaded guilty, been convicted and sentenced by the County Court of Victoria. The details of those proceedings are set out in exhibits K and N. Mr Hazan gave evidence of his general complaint that documents were seized that were irrelevant to any offence alleged. He could not be precise as to exactly what documents were taken and wowld not have been in a position to identify the documents seized by the member pursuant to the Search Warrant. It is an element of each of the two offences: to prove the specific documents were in fact seized by the member amd then go on to consider those documents in respect of the excess of the authority in one charge and the failure to promptly return on the other. There has really been no decument specifically tendered before me in the tribunal as having been seized by Sergeant Clarke in relation to this search warrant and the subject of any charge, and Mr Vickery, Counsel. for the Commissioner, indicated that he was not in a position to prove which documents were seized. It is incumbent upon the Commissioner, to prove that issue in respect of both charges. During a Record of Interview, exhibit I, Chief Inspector Mitchell questioned the member on Page 3 (half way down) as follows: "Q. During a search of his premises more than 2000 documents were seized. At the time the documents were seized, had you addressed your mind to each and every document in respect of whether they afforded evidence to the commission of the of fence? A. No, that would be a sheer impossibility. Q. In those circumstances do you appreciate that you may have been acting illegally in seizing property which was not in fact covered by the warrant? A. Yes." ++ 18/- -18- I accept those answers as honest and they.may be interpreted as a general admission on a question of law, although vague and general in nature. It involves the.member inaking a general concession of illegality in his seizure of documents. It is for the tribunal_to make the legal and factual findings on such issues. The admissions above do not satisfy the onus upon the Commissioner to identify the documents seized and the fact they were seized outside the authority of the search warrant or that he failed to return promptly documents seized. The Commissioner has tendered, by consent, a letter from the. Crown Prosecutor who conducted.the prosecution against Mr Hazan on behalf of the DPP in the Victorian County Court, i.e.. exhibit L. The contents are opinion only, but of assistance to the Tribunal, as the Crown Prosecutor is probably in the best position to make a professional judgment about the relevance of documents to the commission of an offence and the use of such documents in the prosecution. : Exhibit L in its relevant parts states as follows: "Re: Ronald George Clarke - Prosecution: Maurice Hazan. Pursuant to our telephone conversation of the 19th July, f confirm that I was Counsel briefed by and on behalf of the Director of Public Prosecutions for the Commonwealth to prosecute the matter of Maurice Hazan (also known as Moshe Ben Israel Hazan). This matter related to a number of breaches of the Banking (Foreign Exchange) Regulations committed by Hazan, involving a considerable amount of currency. Mr. Clarke was the Informant in the matter. The matter ultimately proceeded by way of plea before His Honour Judge Hewitt in the Melbourne County Court last month, where the accused was dealt with. As Prosecuting Counsel, I held the appropriate conferences with Mr. Clarke, and was supplied with all relevant documents from him, including documentation seized by him pursuant to a Federal Search Warrant. This material included financial documents, personal ; correspondence, documents and materials relating to previous litigation and personal documentation of various kinds. All of the material I was given and sighted was of actual or potential relevance to the Crown case, and indeed central to many prosecution issues. ye l9/e -19- You will no doubt be aware that the Crown case against Hazan was that he had used other people to obtain foreign currency for purposes designated by him; that he had obtained a considerable amount of currency in this way; that the purposes designated appeared to be on behalf of members of. his family; and that in short he had, by these means managed to convert a large amount of money .into foreign currency in an easily transmittable form (by way of bank drafts). The Crown, to conduct the case properly, needed to be in _ possession, not only of materials, documentation etc., central to the essential.elements of the case, but also material which would enable it to rebut potential defences. Thus, to give one example, his personal correspondence with those very members of his family, who were designated as recipients of. the fraudulently obtained bankdrafts was of great importance to the Crown, since it appeared not to indicate any such receipts thus again, the Jury could be asked to draw the inference that the stipulated purpose for which the foreign currency was obtained was in fact, false - thereby grounding the Crown case of a breach of Regulation 41. To give another example, the Crown had documentation showing that the purpose of several drafts in his own name, were allegedly for his sister, as payment for her caring for his infant son in Israel and running into considerable sums of money. Personal correspondence between Hazan and his sister- in-law, however, indicates not only no such meceipt but Hazan arguing over the $20.00 purchase of a heater 'for the child's room, where he offers to pay for a third of the cost, on the grounds that she also looks after 2 other children who would benefit from such a purchase. This is a contira indication of the largesse allegedly distributed by Hazan aind again, a matter from which a Jury would be asked to draw inference central to the Crown case. j g Again, documentation relating to his personal. circumstances were very relevant in establishing motive and! mens rea, both - central elements to the Crown case. Material relating to his curriculum vitae was: also of relevance to the Crown, since it would (and did) enable: the prosecution to be fully appraised of all such matters which might very : easily become relevant either on rebuttal or 'in cross-examination, and indeed, applied either in trial circumstances or (as _ eventuated) a plea. : ) : OS 20/2 ts fei g ee pe repre ae me ee pene ecirey Sete Sees pemenye remreeenerie Sorte "GOBER, igus | eweee ae nt ce pear. snene een cum smeeree . . - ar woos a — -20- Of documents relating to his finances of course nothing need be said, since they (and I include here, bank account summaries, financial summaries and his diaries) formed the very core of the evidence upon which the Crown case was founded. I have in this letter not gone into details of .each individual document but I am able to answer your queries that the documents I sighted apparently obtained as a result of a search warrant, were documents of . relevance to the successful prosecution. Of these charges against Hazan, and indeed, were of a nature such as I would expect to be seized by a competent and reliable Police officer. Moreover, had such documents not been seized .and presented for ultimate perusal to me, there may well have been grave difficulties placed in the path to successful prosecution. I have not, of course, made reference to individual documents, but only an overall reference, but should you require further clarification on such individual documents please do not hesitate to specify them and I shall endeavour to categorize them. Yours faithfully, LILLIAN LIEIDER. Barrister-at-Law." This would provide another ground for failure, particularly in respect of the both charges. The opinion strongly supports and justifies. the member's actions. The scope of the authority of search warrants; has been the subject of many recent authorities in the Federal Court:. This case exemplifies the practical problem for a police officer 'investigating a fraud involving numerous documents. The question that. ihas to be asked is how can a police officer be satisfied he is seizing: each individual ° document within the authority of a.warrant without a specific and detailed examination of each particular document. If that had kxeen done before seizure, the process would have taken many hours. The jpractical problem highlighted by this case was adverted to by Mason J. im Baker -v- Campbell 49 ALR 385 at page 407 as follows: "In approaching the scope of the authority giwen by the warrant we must keep practical considerat:ions steadily in mind. It is simply impossible for a police officer executing a warrant to make am wee 2l/- eee -2)- : instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. These considerations suggest that para (b) and the concluding yords of the section, in so far as they relate back to para (b), are looking to documents as to which there are reasonable grounds for believing that they will in some way implicate the persons named in the warrant, or, if no person is named, someone in the commission of the offence. To say that the section excluded documents the subject of legal professional privilege from the scope of the authority given by the warrant would unduly inhibit the investigation of crime and lead to the institution of legal proceedings before trial which would require a determination of the existence of the privilege because the Crown's right to retain the documents would depend on the resolution of this issue. In the case of production on discovery. and under subpoena duces tecwn there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that.Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s 10(b)." The High Court in the case was considering the applicability of leyal professional privilege to documents seized under a search warrant. The majority of the court held that legal professional privilege applied to the seizure of documents under a search warrant. Mason J. was in the minority but nevertheless his comments remain pertinent to the practical problem here. Mason.J. comments on the general role of a search warrant at pages 405 and 406 of his judgment as follows: "Likewise, search and seizure under the authority of a warrant is not a form of discovery in an action; nor is it a proceeding ancillary to the trial in the sense in which an interlocutory application is a proceeding ancillary to the action itself. 12 22/- The search warrant has been described as "part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identify of.all of the suspects.is known": A-G (Nova Scotia) v MacIntyne (1982) 132 DLR. (3d) 385. at 397, per Dickson J. Its function is to authorise a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorises is designed, among other things,.to yeild evidence which can be tendered by the prosecution in the subsequent trial of a person | For the offence described in the warrant. 'For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorises the search and seizure of .documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation. The end result of the procedure, though it is achieved . by different means, is relevantly similar te that of discovery and of the subpoena duces tecwn which make awailable to a party to litigation then on foot documents im connection with that litigation.. For this reason there is a case for saying that a privilege which is available in answer to production on discovery. and-under a subpoena should likewise be available in answer to a search warrant, even though the procedure which follows the issue of a warrant is in no sense a judicial or quasi-judicial procedure. This argument is much stronger in its application to documents brought into existence for the purpwse of any contemplated trial arising out of an investigation in which the search and seizure is an element, mot being communications made in furtherance of. a criminal offence, because execution of the search warrant in relation to the documents may constitute an interference with the contemplated trial. But in the present case it is not suggested that the claim of privilege applied to documents of this kind." Northrop J. in Coward v Allen (19 March 1984 Federal. Court of Australia) at page 33 of his judgment expresses reservations about the power of .a police officer to remove documents from premises for the purposes of examining their relevance and then later returning them. He leaves that question open. He emphasizes the.need to closely align the purpose and scope of the warrant with the documents being seized (cf pages 25-26). He tends to favour a police officer having greater flexibility in his assessment and his ultimate decision to not issue an injunction' (see page 35). 000 23/— _ The issue has also been discussed by Beaumant J. in Brewer v Castles & Others (No. 3) (Federal Court of Australia at Sydney on 28 March 1984). A Police Officer must ensure that each document complies with the authority of his search warrant before he seizes it. If he does not, he leaves himself open to disciplinary charges such as this or. civil action. He must consider: can he take. the document away for a reasonable time for examination? This appears doubtful on the present law. Alternatively, does he tie up perhaps a.busy, professional office for several days while he satisfies himself about the documents? The latter course would obviously involve disruption and inconvenience to the operation of a business on professional practice, along with embarrassment arising from the presence of police at the premises. t Can a police officer be expected to make judgments about legal professional. privilege? Must he ensure that he does not fall foul of the principles of the majority decision of Baker v Campbell (Supra). When one considers that the Bench of the High Court of Australia has expressed varied opinions as the relevant law of legal professional privilege as it relates to Search Warrants, one can feel some sympathy for the police officer applying these principles in the execution of his Search Warrant. The courts have indicated the need for the resolution of the dilemma facing the police officer in the member's situation. Perhaps what is required is a limited power to detain and examine documents with specific protection of the documents being retained and controlled in the court office or Registry. This would enable a proper examination of documents by police but under the auspices and control of the Court. The inability of the Commissioner to prove and specifically identify the documents seized under the search warrant is fatal to both charges. Further the expert opinion of the Crown Prosecutor who handled the prosecution of Mr Hazan goes a considerable distance in justifying the seizure and retention of the documents by the member in this case. On the evidence before me the Commissioner would probably have failed in respect of both charges if the documents had been abledto be specified by the Commissioner. I find the member not guilty of both charges before me. I am satisfied that the Commissioner should pay the costs of the member relating to these proceedings. The parties should.endeavour to .agree as to the quantum of those costs. In the event the quantum cannot be agreed I grant leave to re-list the matter before me. 13 February, 1985 (Delivered orally on 3 December, 1984)