Caratti v Commissioner of the Australian Federal Police

Date of hearing: 19 - 23 October 2015, 2 December 2015

Date of last submissions: 1 December 2015

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 488

Counsel for the Applicant: Mr P Bruckner with Mr R Johnson

Solicitor for the Applicant: Wilson & Atkinson

Counsel for the First and Third Respondents: Ms K Stern SC with Mr D Hume

Solicitor for the First and Third Respondents: Australian Government Solicitor

Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs.

AND: COMMISSIONER OF THE AUSTRALIA FEDERAL POLICE First Respondent

FEDERAL COMMISSIONER OF TAXATION Third Respondent

JUDGE: WIGNEY J DATE OF ORDER: 15 SEPTEMBER 2016

1. Within 14 days the parties should confer in an endeavour to agree on the appropriate orders to give effect to the relevant findings and conclusions in the judgment, including in relation to costs.
2. In the event that the parties reach agreement in relation to the orders to give effect to the judgment, short minutes of those orders are to be provided to the Associate to Wigney J within 14 days.
3. In the event that the parties are unable to agree in relation to the orders to give effect to the judgment, the parties are within 21 days to each file written submissions in relation to the proposed orders, such written submissions not to exceed 5 pages (excluding the attached proposed orders). The written submissions should also indicate if a further oral hearing is requested. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

OVERVIEW OF FACTS, ISSUES & CONTENTIONS [4] UNCONTROVERSIAL FACTS [13] The joint investigation [15] The Starbrake allegations [21] The Westend allegations [26] Whitby Land Company allegations [33] The Gucce Holdings allegations [37] The search warrants [43] The execution of the warrants [56] Execution at the Wickham Street premises [64] The Duncraig Road premises [74] The Cornish Turn premises [78] The Osborne Park premises [80] The Irvin Street premises [83] The Wright Road premises [85] Motor vehicles [87] The AFP's undertaking [88] GROUNDS OF CHALLENGE AND RELEVANT ISSUES [89] THE VALIDITY OF THE WARRANTS - GROUNDS 1A, 1B, AND 1C [105] Ground 1B - are the offences to which the warrants related sufficiently described to define the permissible area of the search? [111] The Starbrake offences [122] The Westend offence [141] The Whitby Land Company offence [147] The Gucce Holdings Offence [155] Conclusion in relation to ground 1B [161] Ground 1A - was the information before the issuing officer sufficient to ground the issue of the warrants? [163] Were the offences broader than justified by the information? [169] Were the dates in the offences wrong? [182] Conclusion in relation to ground 1A [199] Ground 1C - the "storage medium" paragraph [200] Severance [227] Conclusion in relation to the validity of the search warrants [238] GROUND 2 - WERE THE WARRANTS LAWFULLY EXECUTED? [250] Relevant provisions and principles [267] Evidence and findings in relation to the execution of the warrants [278] Sufficiency of the briefings [297] Federal Agents' understanding of the warrants [305] The involvement of tax officers [313] The tax officers' understanding of the warrants [325] Mr Irvin's Search Relevances Document [335] Other aspects of the execution [347] Burden of proof [357] Conclusion in relation to the execution of the warrants [360] GROUND 3 - WAS ANY ELECTRONIC EQUIPMENT UNLAWFULLY SEIZED? [362] The Compaq and Toshiba laptops [366] The portable hard drives seized by Mr Andrews [389] The external hardware seized by Mr Khan [399] The Seagate and Imation storage devices seized at Wickham Street [406] The Strontium storage device [419] The TDK storage device [426] The Blackberry mobile devices [428] Conclusion in relation to seizure of electronic devices [432] REMEDIES [434] SUMMARY OF FINDINGS AND CONCLUSIONS [481] DISPOSITION [488]

WIGNEY J: 1 This matter concerns a scenario that is all too frequently encountered when search warrants are employed to facilitate the investigation of complex commercial or tax-related criminal offences. That scenario involves three potentially problematic features. The first feature is the issue and utilisation of so called "three condition" search warrants which define the object of the search in a broad, non-specific fashion. The warrants are often lengthy, overly complex and, regrettably, sometimes poorly drafted. The second feature is that the execution of the warrants is frequently, and unavoidably, carried out by teams of officers, many of whom have had little or no past involvement in the relevant investigation. The officers accordingly have little or no background knowledge or experience to assist them in the often complex and difficult task of executing the warrants. That frequently results in the execution of the warrants in a manner which is apt to create the perception, at least, that the officers do not really know what they should be searching for or seizing, and are instead simply seizing anything that looks even remotely like it might be relevant to the investigation. The third feature is that the execution of the warrants these days almost invariably involves the search and seizure of computer equipment and electronic data storage devices. That circumstances requires the executing officers, or forensic officers who are assisting them, to navigate the labyrinthine statutory provisions that deal with the search and seizure of such items. 2 The confluence of these three features often results in a judicial review challenge, by the occupier of the premises that were the subject of the warrants, or persons otherwise affected by the execution of the warrants (usually the target of the criminal investigation), to both the issue and execution of the warrants in question. Orders are generally sought for the return of the items said to have been unlawfully seized. Frequently that comprises a vast quantity of material. 3 That is what has occurred in this matter.

OVERVIEW OF FACTS, ISSUES & CONTENTIONS 4 On 23 January 2015, a member of the Australian Federal Police applied for, and a magistrate issued, search warrants pursuant to s 3E of the Crimes Act 1914 (Cth) in respect of five premises and two motor vehicles located in Western Australia. A further search warrant was applied for and issued in respect of other premises on 4 March 2015. The search warrants were applied for as part of a joint criminal investigation being undertaken by the AFP and the Australian Taxation Office. That investigation focused on the activities of Mr Allen Caratti, Mr Carrati's de facto partner, Ms Tina Bazzo, and various companies allegedly associated with them. Those companies included Starbrake Pty Ltd, Whitby Land Company Pty Ltd, Westend Asset Pty Ltd, Mammoth Nominees Pty Ltd, Mammoth Investments Pty Ltd, Forest Hope Pty Ltd and Gucce Holdings Pty Ltd. The premises and motor vehicles covered by the search warrants included residential premises linked to Mr Caratti, business premises associated with the relevant companies, and premises associated with lawyers and advisers who had apparently been retained by Mr Caratti to provide advice in relation to the transactions the subject of the investigation. 5 The search warrants issued on 23 January 2015 were executed by members of the AFP (or "Federal Agents" as they apparently like to be called), assisted by employees of the ATO (or "tax officers" as they tend to be called), on various days between 28 and 30 January 2015. The 4 March 2015 search warrant was executed on 5 March 2015. The Federal Agents who executed the warrants seized a very large number of documents and other items, mainly computers and electronic storage devices, that they believed fell within the terms of the warrants. 6 Mr Caratti promptly commenced this proceeding against the Commissioner of the AFP, the magistrate who issued the warrants, the Commissioner of Taxation, a number of individual Federal Agents and a tax officer. He challenged both the validity of the search warrants and the lawfulness of the actions of the Federal Agents and tax officers pursuant to (or purportedly pursuant to) the warrants. The relief sought by Mr Caratti, pursuant to both the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), included various declarations as well as orders quashing the decisions to issue the search warrants. It would be fair to say, however, that the principal relief sought by Mr Caratti was the return of the items seized under the warrants. 7 The proceedings were defended by the Commissioner of the AFP. The magistrate who issued the search warrants filed a submitting appearance. The claims against the individual officers were dropped. Mr Caratti ultimately did not press any claims for relief against the Commissioner of Taxation. 8 While Mr Carrati's claims have at times lacked clarity and have undergone a somewhat dramatic metamorphosis over time (including during the hearing), they ultimately raised four broad categories of issues. 9 First, were the search warrants lawfully issued? Was the information before the issuing officer (the magistrate) capable of establishing the criteria or conditions for the issue of a search warrant in s 3E of the Crimes Act? Were there defects on the face of the warrants that meant that the warrants did not properly define the scope of the authorised search and seizure? Mr Caratti's main arguments concerning the validity of the warrants related to, or arose from, what he contended were defective or deficient descriptions of the offences to which the warrants related. 10 Second, did the Federal Agents who executed the warrants, and the tax officers who assisted them, engage in conduct that was not authorised by the warrants or the relevant provisions of the Crimes Act? In particular, did they intentionally or unintentionally search for or seize items that they were not authorised to seize under the warrants? Did they otherwise act unreasonably, excessively or improperly? Mr Caratti's basic contentions were that the executing officers and the officers assisting them did not understand (and indeed could not understand) the warrant conditions, in particular the descriptions of the offences in the third condition of the warrants, and did not seize items by reference to the warrants. Rather, they acted instead on the basis of instructions (written and oral) provided by certain tax officers which, in Mr Caratti's submission, were based on a flawed understanding of the warrant conditions. 11 Third, were certain computers and other items of electronic equipment lawfully seized pursuant to the warrants and the specific provisions in the Crimes Act that deal with the search and seizure of such items? In particular, did the executing officers properly turn their minds to whether only the data on the equipment, as opposed to the equipment itself, fell within the terms of the warrants? Were the circumstances such that the executing officers should have copied the data on the equipment, as they were authorised to do under the relevant statutory provisions, rather than seize the equipment? 12 Fourth, if any of these questions are answered in the affirmative, with the result that some or all of the items seized under the warrants were not lawfully seized, what is the appropriate remedy? In particular, should the Commissioner of the AFP be ordered to return all unlawfully seized items to Mr Caratti? Does the Court retain the discretion to refrain from ordering the return of items found to have been unlawfully seized under a search warrant?

UNCONTROVERSIAL FACTS 13 The parties read a large number of affidavits, some of them very lengthy. They also tendered an equally large number of documentary exhibits. Most of the evidence concerned the actions of the Federal Agents and tax officers before and during the execution of the warrants. Many, if not most, of the deponents of affidavits were cross-examined, generally to little effect. At the end of the day, most of the evidence, and most of the cross-examination, was of little, if any, moment in resolving the key issues. 14 Following is a brief summary of the material facts established by evidence which was either uncontroversial or not substantially challenged. The contentious facts will be considered later in the context of the grounds of Mr Caratti's challenge to the execution of the warrants and the seizure of specific items.

The joint investigation 15 In May 2014, the AFP and the ATO entered into an agreement, called a "Joint Agency Agreement", to conduct a joint investigation into "suspected non-declaration of income, the deception of the ATO in order to refrain or limit the taxation paid by the CARATTI Group and the deception of the ATO in order to dishonestly obtain tax refunds". The joint investigation was to be called "Operation Caballus" (curiously, the Latin expression for "horse"). 16 The agreement provided the following background to the investigation. In 2008, Project CABALLUS was formed by the ATO to identify risks associated with the principal individuals of the CARATTI Group, primarily Allen CARATTI, born 24 February 1956 (CARATTI) and his de facto partner Tina BAZZO (BAZZO), born 24 February 1966. The CARATTI Group has a history of non-compliance with the ATO dating back to the 1970's and despite the continued scrutiny of the ATO and repeated audits they continue to operate in a highly non-complaint manner. Operation CABALLUS will investigate the CARATTI group's involvement in false or misleading lodgement of business income tax returns and business activity statements, the non-declaration of income, the provision of forged documents, the deception of the ATO in order to refrain or limit the taxation paid by their companies and the deception of the ATO in order to dishonestly obtain refunds from the ATO. It is estimated that the value of the alleged fraudulent activity is greater than $15 million. 17 The "mission" of Operation Caballus was said to include the investigation and prosecution of offences alleged to have been committed by members of the so-called "Caratti Group", including Mr Caratti, Ms Bazzo and companies allegedly associated with them. Those offences were said to include forgery, contrary to s 145.1 of the Criminal Code Act 1995 (Cth), and fraud upon the ATO, contrary to various provisions in Part 7.3 of the Criminal Code. The AFP's "primary focus" was to lead the investigation and prosecution of any Criminal Code offences. The ATO's primary focus was to support the investigation and prosecution of those offences. It was specifically envisaged that the AFP would apply for and execute search warrants with "support" from the ATO. Federal Agent Alexander Nicholson was appointed senior investigating officer of Operation Caballus. 18 It is clear from the evidence of Federal Agent Nicholson, together with various operational documents prepared in the course of the investigation (including the Terms of Reference and Investigation Plan of Operation Caballus), that information concerning the suspected offences by Mr Caratti first emerged in the context of audits conducted by the ATO into the taxation affairs of Mr Caratti and companies allegedly owned, controlled or managed by him or Ms Bazzo. The ATO had referred that information to the AFP for the investigation of suspected serious criminal offences. The ATO was to assist the AFP in the investigation and possible prosecution of those offences. The effect of the largely unchallenged evidence of Federal Agent Nicholson was that, while there was a nexus with the ongoing or past ATO audits, the criminal investigation was not intended in any way to assist the ATO in relation to that audit activity. To the extent that the purpose of Operation Caballus included any assistance to the ATO, the assistance was to be provided to the ATO's criminal investigation arm in respect of possible offences under the Taxation Administration Act 1953 (Cth). 19 The evidence concerning the purpose and respective roles of the AFP and ATO in pursuance of Operation Caballus was initially of some importance. That was because Mr Caratti's challenge to the issue and execution of the warrants initially included a claim that the AFP applied for the warrants for improper and unlawful purposes. The unlawful purposes were alleged to include the sharing of "financial information" with the ATO so as to assist the ATO in issuing assessments or amended assessments to Mr Carratti, Ms Bazzo or the companies associated with them. It was also contended that any purpose of assisting the ATO to prosecute offences under the Taxation Administration Act would be unlawful. It is, however, unnecessary to consider those contentions or the evidence that was led in relation to them. That is because ultimately Mr Caratti did no pursue any claims involving the allegation of improper or unlawful purpose. 20 It would appear that of the various ATO "referrals" to the AFP, four specific groups of allegations or transactions became the main focus of the joint criminal investigation. The following summary of the four groups of allegations is based largely on the affidavit sworn in support of the search warrant application.

The Starbrake allegations 21 The first group of allegations concerned a company called Starbrake Pty Ltd. At the relevant time Mr Caratti was a director of Starbrake and beneficially owned all of its shares. In late 2004 Starbrake purchased land at 52 Callaway Street, Wangara, Western Australia. In July 2008, Starbrake granted a company called Rocla Pty Ltd a lease and exclusive licence to extract sand from the Callaway Street property. Rocla allegedly paid Starbrake $7,700,000 (inclusive of GST of $700,000) as either a royalty payment, payment for the grant of the licence, or as a prepayment for sand to be extracted from the land. 22 On 17 October 2008 Starbrake lodged a Business Activity Statement (BAS) for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act). The BAS was referrable to the period 1 July 2008 to 30 September 2008. Starbrake did not declare, or otherwise bring to account in the BAS, the $700,000 portion of the payment received by it which represented the GST collected in relation to its supply of the licence (or extracted sand) to Rocla. 23 In February 2012 Starbrake lodged its income tax return for the year ending 30 June 2009. The income declared or disclosed in the return did not include the $7,000,000 payment (excluding GST) received from Rocla. 24 The ATO conducted an audit of Starbrake. In the course of that audit, the ATO ascertained that Starbrake's general ledger recorded the $7,700,000 receipt by Starbrake as a loan from Mammoth Nominees Pty Ltd. Mr Caratti was a director and sectary of Mammoth Nominees. The registered office of Mammoth Nominees was Mr Caratti's home address. The ATO also obtained copies of emails sent to and received by Mr Joseph Catenacci, an accountant or tax agent who appears to have been retained by Starbrake. Those emails suggested that the accounting classification of the $7,700,000 receipt by Starbrake was changed in about December 2011. It was originally classified as income, however in December 2011 Mr Catenacci was allegedly instructed to classify the receipt as a loan from Mammoth Nominees. 25 The allegation being investigated was that Mr Caratti, as sole director of Starbrake, directed the reclassification of the receipt from Rocla so as to obtain a financial benefit. That financial benefit was said to be the understatement of Starbrake's income for the year ending 30 June 2009, as well as the non-remittance to the ATO of the GST collected by Starbrake (the GST portion of the payment) in relation to its supply to Rocla. That remittance should have been included as part of the BAS for the quarter ending 30 September 2008.

The Westend allegations 26 The second group of allegations concerned a company called Westend Asset Pty Ltd. The sole director of Westend was Ms Bazzo's mother, Ms Josephine Bazzo. Beyond that somewhat indirect connection, there was apparently no evidence to suggest that Mr Caratti had any direct or indirect interest in Westend. Despite this, it appears that the AFP alleged that Westend was controlled by Mr Caratti. 27 In 2002, Westend purchased land in Darch, Western Australia, for the purposes of undertaking a residential housing development. It would appear that the land cost somewhere in the order of $7,600,000. The residential development became known as the Ashdale Mews Estate development. The development apparently proceeded and in due course Westend sold the developed parcels of land. Those sales were said to have occurred between September 2003 and December 2008. 28 The ATO commenced an audit of Westend in 2009. In the course of that audit it was ascertained that Westend had not reported or declared the land sales as part of its business operations for tax purposes. It had not declared any before tax profits made from its sales of the developed land. 29 In the course of the audit, Westend provided the ATO with copies of tax invoices from Mammoth Nominees addressed to Westend for work supposedly carried out in relation to the development. Those tax invoices totalled $5,400,000. Presumably the invoices were provided for the purpose of demonstrating that the expenses reflected in the invoices reduced any pre-tax profit made by Westend from the development. 30 During an interview conducted by the ATO in January 2010, Mr Caratti and his tax agent, Mr Hendricus Schokker, told the ATO that the development work reflected in the invoices was in fact carried out by a company called Mammoth Investments Pty Ltd, supposedly on behalf of Mammoth Nominees. Mr Caratti and various members of his family were directors of Mammoth Investments. 31 The allegation being investigated as part of operation Caballus was that the invoices totalling $5,400,000 were false. An analysis conducted by the ATO from financial records and other information revealed that the cost of any work carried out by Mammoth Investments totalled just over $2,000,000; that Westend never paid Mammoth Investments (or Mammoth Nominees) $5,400,000 in respect of any works, but that the invoices were nevertheless treated as a loan expense; and that the invoices were created in June 2009, after the ATO's audit had commenced. Mr Caratti's brother, Mr John Caratti, told the ATO in the course of an interview that the invoices were false and were created by Mr Caratti. 32 It was alleged, in short, that Mr Caratti created the false invoices to inflate Westend's expenses in relation to the development and therefore reduce any tax liability in respect of profits earned by Westend from the development.

Whitby Land Company allegations 33 The third group of allegations concerned a company called Whitby Land Company Pty Ltd. Mr Caratti was a director of Whitby Land Company. 34 In January 2008, Whitby Land Company acquired land at 293 Nicholson Road, Forrestdale, Western Australia. It would appear that Whitby Land Company subdivided and developed the Nicholson Road land into residential lots. The lots were subsequently sold for a total amount of about $24,000,000. Those sales appear to have occurred during 2011 and 2012. 35 Despite its involvement in the enterprise responsible for the development and sale of the Nicholson Road land, Whitby Land Company was never registered under the GST Act. It follows that it never reported or remitted any GST payable and collected by it in respect of its supply of the developed lots. The ATO assessed Whitby Land Company's GST liability as being in the order of $1.5 million. 36 The allegation being investigated was that Mr Caratti, as a director of Whitby Land Company, deliberately failed to register Whitby Land Company for GST and deliberately failed to remit the GST portion of the consideration it received from the land sales.

The Gucce Holdings allegations 37 The fourth group of allegations concerned two companies: Gucce Holdings Pty Ltd and Forest Hope Pty Ltd. Ms Bazzo was a director of both companies. Mr Caratti had been a director of Gucce Holdings, though at a time well before the events the subject of the relevant allegations. He was a director of Forest Hope up to a time just before the most significant events the subject of the investigation. 38 In December 2009, Gucce Holdings and Forrest Hope entered into a joint venture agreement in relation to the subdivision of land in Avery, Western Australia. Gucce had a 50% interest in that land. 39 Gucce Holdings retained Mammoth Nominees to do civil and earth works in relation to the subdivision. Mammoth Nominees issued forty invoices to Gucce Holdings and Forest Hope in relation to the works. The invoices totalled $15,040,672.14, including GST of $1,367,344. Each of the invoices was signed-off by an independent site supervisor. Between August 2011 and December 2012, Gucce Holdings paid $14,153,499.33 to Mammoth in respect of the work. 40 In May 2013, the ATO commenced an audit of Gucce Holdings. During the audit it was ascertained that Gucce Holdings had claimed input tax credits under the GST Act in respect of the works carried out by Mammoth Nominees. The input tax credits claimed by Gucce Holdings totalled $2,218,953.22. In simple terms, the amount of the input tax credits to which Gucce Holdings was legitimately entitled to claim equalled the amount of the GST it paid in respect of Mammoth Nominee's supplies: see s 11-25 and s 17-5 of the GST Act. It appeared that Gucce Holdings had claimed more input tax credits than it was legitimately able to claim. 41 In the course of the audit, Gucce Holdings endeavoured to support its entitlement to claim input tax credits referable to the supplies by Mammoth Nominees by providing detailed information, including invoices, suggesting that Gucce had in fact paid $22,847,181 to Mammoth Nominees for the works. That was a considerably larger amount than the amount reflected in the 40 invoices signed off by the independent site supervisor. 42 The allegation being investigated was that Mr Caratti and Ms Bazzo colluded to overstate the input tax credits which Gucce was entitled to claim and created false invoices to substantiate that claim.

The search warrants 43 In January 2015, Federal Agent Nicholson decided that the criminal investigation of the four groups of allegations would be advanced if search warrants were obtained and executed in respect of premises associated with Mr Caratti, Ms Bazzo, the relevant companies and their advisers. Those premises were: 44 - 48 Wickham Street, East Perth, being the registered business address of Gucce Holdings and Mammoth Nominees; 2 Duncraig Road, Applecross, Western Australia, being Mr Caratti's residential premises and the registered office of Whitby Land Company; 7 Cornish Turn, Baldivis, Western Australia, being the residential address of Mr Schokker, Mr Caratti's accountant or tax adviser; 517 Great Eastern Highway, Redcliffe, Western Australia, being the registered business address of Mammoth Investments; 3/14-16 Irvin Street, Perth, Western Australia, being the officers of a firm of solicitors that acted for Starbrake in relation to the purchase of the Calloway Street property; Unit 4B/176 Main Street, Osborne Park, Western Australia, being the officers of Mr Catanecci, the accountant or tax agent that provided accounting services for Starbrake; and Two motor vehicles apparently associated with Mr Caratti and Ms Bazzo. 44 Federal Agent Nicholson told the AFP case officer for Operation Caballus, Federal Agent Szolnoki, of the decision to apply for search warrants. Federal Agent Szolnoki in due course swore an affidavit for the purposes of the application. That affidavit was sworn on 23 January 2015. Federal Agent Szolnoki's evidence was that a draft of the affidavit was provided to Perth Magistrates Court on 22 January 2015. The magistrate issued and signed search warrants in respect of each of the premises on 27 January 2015. 45 The content of Federal Agent Szolnoki's affidavit is of some considerable significance. That is because one of Mr Caratt's grounds of challenge to the search warrant is that the search permitted by the warrants exceeded what was justified by the material that was before the magistrate. As will be seen, the main basis for that argument was that the offences specified in the search warrants were, in Mr Caratti's submission, broader than justified by the information in the affidavit. 46 The search warrants the subject of the application were so-called "three condition" warrants. A three condition warrant is a warrant drafted in such a way that the "evidential material" to be searched for and seized is defined by way of three conditions, each of which must be met. The first condition is usually that the evidential material comprises "things" which are items of a particular description, such as a type of document or other item, such as a computer, mobile phone or hard-drive. The second condition is ordinarily that the "things" relate to particular persons or companies. The third and perhaps most important condition is that there are reasonable grounds for suspecting that the "things" will afford evidence as to the commission of particular offences specified in the warrant. 47 In his affidavit, Federal Agent Szolnoki deposed that he suspected "and an issuing officer may be properly satisfied" that evidential material which satisfied three conditions would be at the relevant premises. The three conditions referred to in the affidavit were the three conditions specified in the warrants that were the subject of the application. The warrants (including the three conditions) are extracted in full later in these reasons. 48 The affidavit then detailed information concerning each of the four groups of allegations that have just been summarised. Federal Agent Szolnoki deposed that the information had been obtained by him and other AFP officers in the course of their duties and that he believed it to be true and correct. 49 After setting out the information relating to the four groups of allegations, Federal Agent Szolnoki deposed as follows: I suspect that the things described above will provide evidence of the following: That Allen CARATTI, as sole director of STARBRAKE, reclassified income received by STARBRAKE, as a loan, in order to avoid paying lawful taxation, which resulted in him dishonestly obtaining a financial benefit from a Commonwealth entity, namely the Australian Tax Office. That Allen CARATTI and Hank SCHOKKER, through the entity WESTEND, engaged in criminal activity, by falsifying costs incurred by WESTEND, in order to avoid paying lawful taxation, attempting to dishonestly obtain a financial benefit from a Commonwealth entity, namely the Australian Tax Office. That Allen CARATTI, as director of WHITBY, deliberately withheld Goods and Service Tax payable to a Commonwealth entity, namely the Australian Tax Office, in order to dishonestly obtain a financial advantage, by failing to meet taxation obligations. That Allen CARATTI and Tina BAZZO through their controlled entities MAMMOTH and GUCCE, formed an agreement to created false invoices, in order to attempt to claim Goods and Services Tax Credits, from a Commonwealth entity, namely the Australian Tax Office, in order to dishonestly obtain a financial benefit. 50 On 20 February 2015, Federal Agent Nicholson decided that a further search warrant should be applied for in respect of premises at 5 Wright Road, Harrisdale Western Australia. That task was allocated to Federal Agent van Tooren, who in due course swore an affidavit for the purposes of the application. That affidavit, which was sworn on 4 March 2015, annexed the affidavit earlier sworn by Federal Agent Szolnoki. It also contained additional information linking the premises at 5 Wright Road Harrisdale to Mr Caratti, Ms Bazzo and companies associated with them. 51 Each of the warrants issued by the magistrate was in relevantly the same terms. There are some differences in the list of persons or companies referred to in the second condition, though those differences ultimately do not bear in any material way on the issues raised by Mr Caratti in relation to either the validity of the warrants or the lawfulness of the search and seizure at particular premises. It is sufficient to set out, by way of example, the main operative parts of the warrant (omitting the notes concerning legal professional privilege and the statutory definitions of expressions such as "evidential material") that was issued in relation to Mr Caratti's residential premises. COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914: Section 3E SEARCH WARRANT FOR PREMISES TO: Gary Geza Stephen SZOLNOKI a constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant; AND TO any other constable whose name may be written on this warrant in accordance with section 3C(1) of the Crimes Act 1914, in which event that constable shall be the executing officer in relation to this warrant: WHEREAS I Kevin M. Tavener, an issuing officer within the meaning of the Crimes Act 1914, am satisfied by information on oath within the meaning of the Crimes Act 1914 that there are reasonable grounds for suspecting that there is) at premises located at: 2 Duncraig Road, Applecross, Western Australia 6153, further described as a large residential house. evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following THREE conditions, namely: FIRST CONDITION things which are: • Personal or laptop computers and peripheral devices; • Mobile telephones, Subscriber Identity Module (SIM) Cards, computer hard drives and equipment, faxes or any other electronic storage medium; • Identification documents; and • Emails, email addresses, user names and passwords. originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device: • Business records including general correspondence, invoice books, receipts, purchase orders, confirmation of orders, balance sheets, journals, ledgers, cash books, cash payment books, books of accounts, contracts, agreements, diaries, notes including handwritten notes, facsimile communications, address books, working papers, price lists, quotations, orders, invoices, commercial invoices, tax invoices, business cards, payment records, purchase records, sales records, sales orders, catalogues, delivery dockets, accounts payable, accounts receivable, minutes, telephone records, desk calendars and blotters, single transaction permissions, continuing permissions, computer files or records, electronic mail records and other records; • Banking and other financial institution records including bank statements, bank books, deposit books, bank vouchers, deposit and withdrawal slips, cheque books, cheque butts, or other correspondence with financial institutions; • Taxation records, including documents concerning the preparation and completion of business activity statements and taxation returns; • Notebooks, diaries, telephone numbers, handwritten notes; • Conveyancing files, including but not limited to contracts of sale, copies of payments, file notes, correspondence with vendor and purchaser, invoices and receipts detailing payments into solicitors trust accounts; • Trust documents and deeds; • Trust files; and • Land title documents. SECOND CONDITION and which relate to any one or more of the following: • Allen Bruce CARATTI; • Tina Michelle BAZZO; • Christina Marcia CARATTI; • Liang Ll; • Josephine Lynette BAZZO; • Rocla Pty Ltd; • Mammoth Nominees Pty Ltd ACN 101 717 177; • Mammoth Investments Pty Ltd ACN 008 735 797; • Joseph Catenacci Pty Ltd ACN 009 025 405; • Joseph CATENACCI; • Nicholas CHANDLER; • Stuart MACKINNON; • Andy LIU; • Nancy MUSGRAVE; • Ewing Consulting Engineers Pty Ltd; • Isaac Meyer ELLISON; • Henricus (Hank) SCHOKKER; • Bendigo Bank account number: [NUMBER REDACTED]; • Bendigo Bank account number: [NUMBER REDACTED] ; • National Australia Bank; • Suncorp Metway Bank; • Bank of Western Australia (Bank West); • Gucce Holdings Pty Ltd ACN 099 191 714; • Whitby Land Company Pty Ltd ACN 115 233 193; • Westend Asset Pty Ltd ACN 106 132 790; • Forrest Hope Pty Ltd ACN 122 459 554; • Starbrake Pty Ltd ACN 107 942 058; • Ashford Taxation; • Clayton Utz Commercial Law Firm; • Herbert Smith Freehills; • Wilson and Atkinson Law Firm; • I.M.E Nominees Pty Ltd; • allen@mammothgroup.com.au; • Gucce Group; • Admin4@mammothgroup.com.au; • catenacci@bigpond.com.au; • lsaac@guccegroup.com.au; • Nicholas CHANDLER; • Dfts99@gmail.com; • [PHONE NUMBER REDACTED] • [PHONE NUMBER REDACTED]; • Lot 3, Diagram 15871, Certificate of Title Volume 1267, Folio 569; • Lot 9029 Broadway, Aveley Western Australia 6069; • SLS Accounting; • 293 Nicholson Road, Forrestdale Western Australia 6112; and • 52 Callaway Street, Wangara, Western Australia 6065. THIRD CONDITION and as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth: In 2008 at Perth in Western Australia, Allen CARATTI by a deception, in that he reclassified royalty income paid to Starbrake Pty Ltd into a loan from Mammoth Nominees Pty Ltd, dishonestly obtained a financial advantage by not paying income tax, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Section 134.2(1) of the Criminal Code 1995 (Cth). In 2008 at Perth in Western Australia, Allen CARATTI did fail to pass on Goods and Services Tax collected by Starbrake Pty Ltd to the Australian Taxation Office, with the intention of dishonestly causing a loss to another person, namely Australian Taxation Office, which is a Commonwealth entity, contrary to Section 135.1(3) of the Criminal Code 1995 (Cth). In 2008 at Perth in Western Australia, Allen CARATTI by a deception, in that he falsified costs incurred by Westend Asset Ply Ltd, attempted to dishonestly obtain a financial advantage by not paying income tax, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Sections 11.1 and 134.2(1) of the Criminal Code 1995 (Cth). Between 1 July 2010 and 31 December 2013 at Perth in Western Australia, Allen CARATTI by a deception, in that he caused the Whitby Land Company Pty Ltd to withhold Goods and Services Tax, dishonestly obtained a financial advantage from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Section 134.2(1) of the Criminal Code 1995 (Cth). In December 2011 at Perth in Western Australia, Allen CARATTI and Tina BAZZO, by a deception, in that they falsified costs incurred by Gucce Holdings Pty Ltd, attempted to dishonestly obtain a financial advantage by overstating Goods and Services Tax input credits, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Sections 11.1 and 134.2(1) of the Criminal Code 1995 (Cth). Together with any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things. I HEREBY issue this warrant which authorises you to enter and search the premises described above. AND by virtue of section 3F(1) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following; -enter the premises described above; -search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; -search the premises for any evidential material that satisfies ALL of the THREE conditions specified above and to seize any such evidential material that may be found; -seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be: (i) evidential material in relation to an offence to which the warrant relates; (ii) evidential material in relation to another offence that is an indictable offence; or (iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act). if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and -seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be a seizable item, in that it is a thing that would present a danger to a person or that could be used to assist a person to escape from lawful custody. AND THIS WARRANT AUTHORISES the executing officer or a constable assisting to conduct an ordinary search and a frisk search of any person who is at or near the premises when this warrant is executed if the executing officer or the constable suspects on reasonable grounds that the person has in his or her possession evidential material or any seizable item, in that it is a thing that would present a danger to a person or that could be used to assist a person to escape from lawful custody, and to seize any such evidential material or other thing that may be found;] Note that, by virtue of section 3ZR of the Crimes Act 1914, an ordinary search or a frisk search of a person under this warrant must, if practicable, be conducted by a person of the same sex as the person being searched. AND, by virtue of section 3G of the Crimes Act 1914, in executing this warrant: - the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; - the executing officer, and any constable assisting in the execution of this warrant who is a police officer, may use such force against persons or things as is necessary and reasonable in the circumstances; and - any person who has been authorised by the executing officer to assist in the execution of this warrant, but who is not a police officer, may use such force against things as is necessary and reasonable in the circumstances; AND the executing officer or a constable assisting may exercise such other of the powers available under Division 2 of Part 1AA of that Act as are appropriate in the circumstances of the case; AND if you exercise the power under section 3L(4) of the Crimes Act 1914 to secure electronic equipment on the premises, and if you then leave the premises, this warrant authorises a further entry to the premises to allow an expert to operate the equipment, provided that the further entry is made within 24 hours or that period is extended under section 3L(7) of that Act. The offences to which this warrant relates are those specified above in the third condition. (Personal identification details redacted where indicated) 52 A number of matters may be noted concerning the content of the warrants. First, the first condition is drafted in extremely broad terms. It would encompass most electronic devices capable of storing documents or data in electronic form and almost every conceivable type of document. It would include, for example, any document which could be considered to be a business record, taxation record, notebook, diary, handwritten note or banking record. The documents and other things that are listed in the first condition are not limited or restricted by reference to any period of time. That is not to say that the first condition is necessarily impermissibly wide or oppressive: cf. Propend Finance Pty Ltd v Commissioner Australian Federal Police (1994) 35 ALD 25 at 31-33. The first condition must be read together with the other two conditions. The point is that, in practical terms, the first condition contains no effective limit on the types of documents or other items that could be searched for or seized pursuant to the warrant. 53 Second, the second condition is also in very broad terms. It comprises a very long list of not only persons and companies, but also bank accounts, email addresses and telephone numbers. It is sufficient that the "thing" to be searched for and seized "relate to" any one or more of the persons, companies or other things included in the list. The words "relate to" in that context are of potentially very wide import: see Williams v Keelty (2001) 111 FCR 175 at 211-212 [158]. The result is that, like the first condition, the second condition does not significantly define or confine the types of documents or items that can be searched for and seized pursuant to the warrant. 54 Third, given the apparent breadth of the first two conditions, it is really the third condition that does most of the work in terms of properly defining and confining the scope of the search and seizure pursuant to the warrant. But for the third condition, the warrants would effectively authorise the seizure of just about any document, and just about any electronic device capable of storing files and data, that was likely to be located in the relevant premises. 55 Federal Agent Nicholson's evidence was that the offences listed in the third condition accurately represented the allegations being investigated in respect of the conduct of Mr Caratti and Ms Bazzo. He expressed the view that the descriptions of the offences were sufficiently specific to restrict the search and seizure under the warrants to the matters under investigation. The main thrust of Mr Caratti's challenge to the validity of the warrants was that, contrary to Federal Agent Nicholson's view, the offences described in the third condition were so poorly drafted that they were not capable of properly defining or confining the scope of the search and seizure authorised by the warrants. In Mr Caratti's submission, the warrants therefore created no "intelligible search perimeter", or such perimeter as was created was broader than was justified or warranted by the information that was put before the issuing magistrate. Mr Caratti also contended that the poor drafting of the offences in the third condition of the warrants contributed to confusion and difficulties encountered by the Federal Agents and tax officers who were involved in the execution of the warrants.

The execution of the warrants 56 Most of the contentious evidence related to what was allegedly said or done by certain Federal Agents and tax officers in preparation for, or in the course of, the execution of the warrants. There was, however, no dispute about the basic facts and chronology concerning the execution of the warrants. Following is a brief summary of some of the basic facts, though it does not purport to be comprehensive. The affidavits filed by the parties contained excruciating, and in many respects largely unnecessary, detail in relation to the execution of the warrants. Most of the detail turned out to be largely irrelevant to the issues and contentions ultimately pursued by Mr Caratti. 57 Prior to the execution of the warrants, Federal Agent Nicholson decided that it would be beneficial to have tax officers who had some knowledge of the business and tax affairs of Mr Caratti, Ms Bazzo and their business interests to be present during the execution of the warrants. Federal Agent Nicholson believed that tax officers with that knowledge would be able to provide assistance to the executing officers in ascertaining what documents were covered by the three conditions in the warrant. He intended that the tax officers would be present under the direction and control of the executing officers and other Federal Agents who were involved in the execution of the warrants. 58 While that may have been Federal Agent Nicholson's intention and belief, Mr Caratti contended that in reality the executing officers and Federal Agents needed to and did defer to the tax officers during the execution of the warrants, at least when it came to deciding whether or not a document could or should be seized. He contended that it was probable, or there was at least a substantial risk, that the Federal Agents involved in the execution of the warrants simply accepted the advice of the tax officers and did not turn their minds to whether documents fell within the terms of the warrants. That extensive reliance on the tax officers was said to be one aspect of the excessive and improper execution of the warrants. 59 On 22 January 2015, Federal Agent Nicholson distributed a draft Standard Tactical Plan to Federal Agents who were rostered to participate in the execution of the search warrants. That document relevantly contained background information concerning Mr Caratti and Ms Bazzo and summarised the four groups of allegations or transactions (the Starbrake, Westend, Whitby Land and Gucce Holdings allegations) in terms similar to, though shorter than, the search warrant affidavit. It also included details of the "substantive offences" in terms relevantly identical to the terms of the third condition of the warrants. The draft Standard Tactical Plan was emailed to some tax officers. It also appears to have been discussed at a meeting between the tax officers who were to assist in the execution of the warrants. That meeting, which was arranged by Mr Eastaugh of the ATO, was held on 22 January 2015. 60 On 27 January 2015, Federal Agent Nicholson delivered a briefing to the Federal Agents and tax officers who were expected to be involved in the execution of the warrants. The briefing utilised a "PowerPoint" presentation. Much of the briefing concerned administrative and logistical arrangements. There was, however, some attention given to the allegations and suspected offences. That was no doubt because Federal Agent Nicholson was well aware that many of the Federal Agents and tax officers who were to be involved in the execution of the warrants had no previous knowledge of or involvement in the investigation concerning Mr Caratti and Ms Bazzo. Federal Agent Nicholson asked a tax officer who had been involved in the ATO audits, Mr Peter Irvin, to provide some "background information" derived from the audit activity to those present at the briefing. It would appear, however, that the treatment of the alleged offences at the briefing was fairly cursory. The PowerPoint slides provided the following information concerning the allegations. STARBRAKE: • A company owned by A. CARATTI • Granted Rocla Pty Ltd (ROCLA) a lease and exclusive licence to carry out extraction of sand on land located at Wangara, WA • ROCLA made payment of $7.7 million to STARBRAKE ($7,000,000 royalty and $700,000 GST) • STARBRAKE reclassified the payment in its books to show a loan from Mammoth Nominees Pty Ltd (MAMMOTH) - A.CARATTI's primary company. FORRREST HOPE: • FORREST HOPE is a registered company in Australia; BAZZO is recorded as a co-director. • Part owned by GUCCE P/L which is BAZZO's primary company • FORREST HOPE set up for a land development in Aveley, WA. GUCCE on behalf of FH engaged MAMMOTH to do development works • GUCCE and MAMMOTH overstated costs to support GUCCE claiming GST input credits WESTEND: • WESTEND relates to a property development in Darch, WA (historical 2003) • Legitimate work was completed on the WESTEND development totalling approximately $2,000,000 • WESTEND subsequently attempted to claim works for taxation purposes totalling $5,400,000 WHITBY: • Current land development in Armadale, Perth • At 31 December 2013, total sales identified for WHITBY were valued at $96,279,500 • There is an existing GST debt of about $4,600,000 • No taxes (GST or income tax) with respect to WHITBY have been paid by A. CARATTI or associated entities. 61 The oral briefing did not appear to add much of significance to the information in the slides. No witness was able to recount any information of significance in relation to the alleged offences that was imparted during the briefing. 62 There were apparently also "premises-specific" briefings conducted by certain "Team Leaders" prior to the execution of the warrants at some of the premises. It does not appear, however, that those briefings dealt in any substantive way with the offences in the third condition of the warrants. In that regard, the evidence suggested that the team leaders did little more than read out the third condition offences and, perhaps, emphasise that only documents that satisfied the warrant conditions could be seized. 63 Mr Caratti contended that such briefings as were given by Federal Agents and tax officers in relation to the execution of the warrants were insufficient and provided a "distorted" picture of the allegations. That was said to be another aspect of the excessive and improper execution of the warrants. The evidence said to support those contentions is addressed later.

Execution at the Wickham Street premises 64 The warrant in respect of the premises at Wickham Street was executed over three days on 28, 29 and 30 January 2015. It appears to have been the main warrant and the most complex search. It certainly took the longest to execute and involved the largest number of people assisting. Mr Caratti's case concerning excessive or improper execution mainly focused on events that occurred during the execution of the warrant at the Wickham Street premises. 65 The search warrant in respect of the Wickham Street premises was "signed-over" to Federal Agent Niranjan Jirasinha: which meant that Federal Agent Szolnoki, who was initially named as the executing officer in that warrant, wrote Federal Agent Jirasinha's name on the warrant as the executing officer. That process is permitted, or at least envisaged by, the definition of "executing officer" in s 3C of the Crimes Act. 66 More than 25 Federal Agents were involved at various times in the execution of the warrant at the Wickham Street premises. Those that featured in the evidence included Federal Agents Wealands, Johnson, Joss, Fullerton, Rae, Leigh, Pluss and Mills. Two employees of the AFP who specialised in computer forensics, Mr Keith Fell and Ms Casey Scott, assisted in respect of the search of computers and computer equipment and the copying of computer data. 67 A large number of tax officers also assisted in some way with the execution of the Wickham Street warrant. Despite some initial suggestions to the contrary, it ultimately appeared to be accepted by Mr Caratti that the tax officers were authorised to assist in executing the warrant and were therefore "constables assisting" for the purposes of Part IAA of the Crimes Act: see the definition of "constable assisting" in s 3C of the Crimes Act. It would appear that upwards of 30 tax officers were involved in assisting in the execution of the Wickham Street premises. The main tax officers who featured in the evidence included Mr Irvin, Ms Amanda Milner, Mr Michael Crawshaw, Ms Melissa Randhas, Mr Michael Dunstan, Ms Ingrid Simon and Mr Dave Koopu. Up to 8 employees of the ATO who appeared to specialise in computer forensics also assisted. They included Mr Steve Ilett, Mr Mohammed Khan, Mr Chris Andrews and Mr Octavian Grigore. 68 The involvement of Mr Irvin and, perhaps to a lesser extent, Ms Milner, in the execution of the warrant at the Wickham Street premises was important to Mr Caratti's case that the warrant was executed improperly. Mr Caratti contended that Mr Irvin was effectively the "team leader" in relation to the execution of the warrant at the Wickham Street premises. That was said to follow from the fact that he was apparently the person who possessed the most knowledge about the business and tax affairs of Mr Caratti, Ms Bazzo and their associated companies. He was a senior auditor at the ATO and plainly had an extensive involvement with and knowledge of the ATO audit of Mr Caratti and companies associated with him. 69 Mr Caratti claimed that Federal Agent Jirasinha and the other constables assisting who were involved in the execution of the warrant at the Wickham Street premises invariably accepted and deferred to the advice of Mr Irvin. Mr Caratti also contended that Federal Agents and tax officers involved in the execution also accepted, or at least had regard to, advice provided by Ms Milner and, perhaps to a lesser extent, Mr Crawshaw and Ms Ramdhas. It followed, so Mr Caratti submitted, that Federal Agent Jirasinha and the constables assisting did not (or at least probably did not) turn their minds to the terms of the search warrant when deciding what documents to seize. Rather, they treated Mr Irvin's advice (and to a lesser extent the advice of Ms Milner, Mr Crawshaw and Ms Ramdhas) as a direction to seize. The evidence said to support that contention is addressed later. 70 Importantly (at least for Mr Caratti's case), the evidence revealed that Mr Irvin created a document that was, according to Mr Irvin, intended to assist searchers by informing them of some of the background to the allegations that were the subject of the warrant. Curiously, and perhaps regrettably, it appears that he created that document without having read the search warrant, or at least without having read it in any great detail. Mr Irvin provided the document to Federal Agent Szolnoki who approved it for distribution to those who assisted in the execution of the warrant. The document was distributed to at least some of the officers who assisted in the execution of the warrant at the Wickham Street premises. Some reliance appears to have been placed upon it by those who were engaged in the search of those premises. The extent of that reliance is important. The evidence concerning that issue is dealt with later in the context of Mr Caratti's challenge to the execution of the warrants. 71 The content of the so-called "Search Relevances" document prepared by Mr Irvin and distributed to those responsible for the execution of the Wickham Street premises was of some relevance to Mr Caratti's case that the search and seizure at those premises was excessive and outside the terms of the warrant. He contended that the document was misleading and confusing and expanded the scope of the search and seizure beyond the terms of the warrant. It is accordingly necessary to set out the terms of the document in full. 1. Whitby (Whitby Land Company Pty Ltd & Whitby Trust) • Subdivision of land known as Lot 22 Nicholson Road, aka 293 Nicholson Road, Jandakot/Canning Vale/Piara Waters. • Previous owner was Maria Jabado. • Purchaser was Whitby Land Company Pty Ltd in Nov-2007; $28M • May be a bare trust deed, indicating land held for benefit or MN • Client also maintained land held on trust for The Whitby Turst • In-house contractor was Mammoth Nominees Pty Ltd. (MN). • Ewing/VDM/BCA involved in contract design & administration • Development finance with Suncorp (>$100M), but loan in name of MN. • Loan drawdowns go to MN. • $150M subdivision, marketed as "Riva Estate". • Client refers to it as "Riva" or "Lot 22 Piara Waters" or "293 Nicholson" • Development expenses all went to intercompany loan account, as liability owed to MN. Sales began in 2011 2. Westend (Westend Asset Pty Ltd) • Subdivision of 3 adjacent blocks known as Lot 1 Skeit Rd Landsdale, Lot 27 Landsdale Rd Darch, & Lot 28 Landsdale Rd Darch. • Sole Director was Josephine Bazzo (Tina's mother), but most decisions made by Allen Caratti & Tina Bazzo • Estate called "Ashdale Mews", in Darch. • Land acquired in 2003/2004 • Initial contractor was Mammoth Investments Pty Ltd (MI), who only removed topsoil. • Outside contractor Works Infrastructure (WI) was engaged to complete the job • Ewing/VDM engaged as supervising engineers; approved progress claims • WI submitted progress claims to Ewing for approval • MI submitted much higher progress claims to Westend Asset (bypassed Ewing) • Hermans & Rossi engged to build footpaths and bin pads • Development finance with Suncorp, in name of Westend Asset • Loan drawdowns go to Mammoth Nominees (MN) • Real development expenses to outsiders, paid by MI • MI development expenses went to Westend intercompany loan account as $7M owed to MI. • Loan drawdowns went to Westend intercompany loan account as $7.1M owed by MN • Planner was Gene Koltasz from RPS Koltasz Smith; involved in tenders and costings for Allen Caratti on this development • Sales began in 2005 • After bank loan paid off, settlements disbursed to MN. 3. Starbrake (Starbrake Pty Ltd, Starbrake Trust Pty Ltd, I.M.E. Nominees Pty Ltd) • Subject land is Lot 3 Calloway St, Wangara • Starbrake Pty Ltd acquired the land in Dec-2004 • Starbrake signed a lease with Rocla Pty Ltd, whereby Rocla were granted exclusive licence to carry out operations on the land, to mine sand. • Rocla agreed to pay a Royalty of $7M exclusive of GST, by 1 July 2008 as part of the lease • Starbrake issued a Tax Invoice to Rocla for $7.7M inclusive of GST, dated 01/07/2008 • Rocla paid $7.7M on 01/07/2008 • 03/07/2008 Starbrake transferred $7.2M to [M]ammoth Nominees • Starbrake GL treats Royalty payment as Contract Income, in a GL Summary titled "Starbrake Trust Pty Ltd" • Starbrake initially recorded a "distribution" of $6,479,740 to Mammoth Nominees (MN) • After a query from Nick Ashford (employees at tax agent Joseph Catenacci) on 24 Nov-2011, Mr Ashford reclassified $7.7M as a loan from MN. • On 20 Dec-2011, Mr Catenacci e-mailed Andy Liu confirming the tax invoice had now been treated as a loan account entry, so no profit to distribute. • Starbrake lodged 2009 ITR; omitting the Royalty income, and lodged Sep-2008 BAS; omitting the $700,000 GST payable. • On 16 Jan-2012, Allen Caratti wrote to Joseph Catenacci, advising the $7.7M should have been treated as a loan from MN, and the transaction was being adjusted in MN's accounts, and income tax and GST implications adjusted and paid as necessary • MN's records did not disclose any loan made to Starbrake, and we saw no evidence of any "adjustments" in MN's accounts • Starbrake Pty Ltd has since changed its name to I.M.E. Nominees Pty Ltd • Isaac Meyer Ellison (IME) has now replaced Allen Caratti as the sole Director 4. Forest Hope Gucce Holdings Pty Ltd ("Gucce")/ Forest Hope Joint Venture ("FHJV") • Development known as 'Aveley Green' in Aveley (near Ellenbrook) - 4 stage development • Master lot acquired was Lot 9029 The Broadway (Deposited plan 61233) -also known as 'Super Lot 1'. • Master lot acquired by Forest Hope Pty Ltd to be held by the FHJV. • JV participants include Gucce Holdings Trust (Gucce is trustee). Other JV's include Parto Trust, Farah Investment Trust with links to individual Pourzand • Gucce directed by Ms Tina BAZZO • FHJV engaged Gucce to develop the land. • Gucce subcontracted work to Mammoth Nominees Pty Ltd ("Mammoth"). Mammoth director is Mr Allen CARATTI • Westcoast Engineering Pty Ltd ("WCE") engaged as the site superintendent / certifying engineer. WCE certified progress claims for all work done per documentation submitted by Mammoth • Gucce involved the work to FHJV equivalent to the WCE certified progress claims • FHJV claimed GST credits - COMPLIANT • Gucce failed to report all sales on BAS - NON-COMPLIANT • Mammoth invoiced Gucce the development work. The transactions considered to be overstated / excessive compared to WCE certified work. Some work considered not to have happened on basis it was not certified or FHJV had no awareness. • Gucce inflated GST credit claims using the Mammoth documentation - NON-COMPLIANT 72 As will be seen, Mr Caratti contended that the Search Relevances document impermissibly extended the scope of the warrant and was treated as a de facto or surrogate warrant by seizing officers. 73 A very large number of documents and other items were seized during the execution of the warrant at the Wickham Street premises. The seizures are recorded in a property seizure record that was prepared by Federal Agents Pluss and Fullerton. The property seizure record is over 70 pages long. The items seized included a large number of documents (hard copy and electronic) and many items of computer and electrical equipment. Mr Caratti contended that a number of hard drives and other electronic storage devices that were seized at the Wickham Street premises were not lawfully seized under the warrant or in accordance with the specific provisions in the Crimes Act that deal with the seizure of electronic equipment.

The Duncraig Road premises 74 The search warrant in respect of the Duncraig Road premises was executed on 28 January 2015. Federal Agent Szolnoki was the executing officer. He was apparently assisted by Federals Agents Cook, Evans, Croft and Curavic and the computer forensics experts Mr Fell and Ms Scott. For reasons that remained unexplained, it would appear that an AFP "canine team" also attended the premises. 75 The tax officers who assisted included Mr Crawshaw, Mr Dunstan, Ms Ramhdas, Ms Amanda Conway, Ms Shezah Arif, Mr Shane Comerford and Mr Rick Owen. It would also appear that Mr Shaun Ellis and Mr William Elliot, computer forensics officers from the ATO, were also present, though they did not feature at all in the evidence. 76 A number of documents and items of equipment were seized during the execution of the Duncraig Road premises warrant. They are recorded in a property seizure record that was completed by Federal Agent Curavic and which runs to five pages. 77 Mr Carratti specifically contended that some electronic storage devices and two Blackberry mobile devices were unlawfully seized from the Duncraig Road premises.

The Cornish Turn premises 78 The warrant in respect of the Cornish Turn premises was signed over by Federal Agent Szolnoki to Federal Agent Nicholas Joss. It was executed on 28 January 2015. Federal Agent Joss appears to have been assisted by Federal Agents Lassiter, Baum, Bryce, Jowers, Standing and Bruhn. A computer forensics officer from the ATO, Mr Octavin Grigore, was apparently involved in or assisted the search. It would appear that there were other tax officers involved in the execution of this warrant, including Mr Jared Needham, Mr Nicholas Khoo, Mr Phillip Ryan, Mr Anand Gokhani and MrGraeme Walker. They did not, however, feature at all in the evidence. 79 The items seized during the execution of the warrant in respect of the Cornish Turn premises were recorded in a property seizure record created by Federal Agent Standing. The items seized included a number of folders containing documents and two computers. Mr Caratti contended that the two computers seized during the execution of the warrant were not lawfully seized under the warrant or in accordance with the specific provisions in the Crimes Act that deal with the seizure of electronic equipment.

The Osborne Park premises 80 The warrant in respect of the Osborne Park premises was signed over by Federal Agent Szolnoki to Federal Agent van Tooren. It was executed on 28 January 2015. Federal Agent van Tooren appears to have been assisted by Federal Agents Paynter, Stevens, Powers and Guarino, as well as three forensics officers from the ATO: Mr John Jensen, Mr Greg Thomas and Mr Ben White. 81 A number of items, including documents and computer hard drives, were seized during the execution of the Osborne Park premises warrant. They are recorded in property seizure records completed by Federal Agent Stevens. 82 There was very little evidence concerning the execution of the Osborne Park premises.

The Irvin Street premises 83 The warrant in relation to the Irvin Street premises was executed on 29 January 2015. The warrant was apparently signed over by Federal Agent Szolnoki to Federal Agent van Tooren. Federal Agent van Tooren, as executing officer, was assisted by Federal Agents Cook, Curavic and Croft. Two AFP computer forensic specialists, Mr Fell and Ms Scott, assisted in the search of computers and computer equipment and the copying of data during the execution of the warrant. Two tax officers assisted in the search: Mr Crawshaw and Mr Michael Dunstan. 84 The Irvin Street premises were the offices of a firm of solicitors, Birman & Ride. It would appear that the solicitors were expecting a visit from the AFP. Search and seizure pursuant to the warrant appeared to proceed in a cooperative fashion. The solicitors facilitated access to the "information of interest", which appeared to be in the form of electronic or computer documents. The Federal Agents and tax officers considered each document and discussed whether it was inside or outside the terms of the warrant. Federal Agent van Tooren's evidence was that he generally accepted the views of the tax officers as to whether the documents were relevant. The documents that he decided to seize were copied onto a USB device by the solicitors. The property seizure record in relation to the Irvin Street premises (completed by Federal Agent Curavic) records that three USB devices containing files relating to Starbrake, Whitby Land Company and Mammoth Nominees were seized.

The Wright Road premises 85 Federal Agent van Tooren was the executing officer in respect of the warrant for the Wright Road premises. The warrant was executed on 5 March 2015. Federal Agent van Tooren was assisted by Federal Agents Perrot, Stevens, Sullivan, Mills and Evans and a computer forensics employee, Mr Thomas Waghorn. There were also a number of tax officers involved in the warrant execution, including Mr Eastaugh, Mr Irvin, Mr Dunstan, Mr Koopu and Mr Rimkus. 86 A number of documents were seized during the execution of the Wright Road premises warrant. They are recorded in a property seizure record completed by Federal Agent Stevens which runs to 10 pages.

Motor vehicles 87 There was very little, if any, evidence concerning the execution of the search warrants in respect of the two motor vehicles. Mr Caratti did not advance any specific complaints or claims concerning the execution of these warrants or any items seized from the two vehicles.

The AFP's undertaking 88 On 30 January 2015, the AFP undertook not to inspect any of the material seized under the warrants pending the resolution of proceedings challenging the validity of the search and seizure. That undertaking was later extended to cover the material seized at the Wright Road premises.

GROUNDS OF CHALLENGE AND RELEVANT ISSUES 89 Mr Caratti's challenge to the issue and execution of the warrants was initially wide-ranging. He initially alleged, for example, that the warrants were unlawful because they were sought for an ulterior purpose. He alleged that one of the purposes for applying for the warrants was to assist the ATO in relation to their audit and assessment activities relating to Mr Caratti and companies associated with him. He also appeared to allege that there was an ulterior and improper motive in executing the warrants. He contended, amongst other things, that the AFP intended to disseminate to the ATO items that were seized and information that was obtained in the course of the execution of the warrants. He also initially alleged that it was impermissible or unreasonable for the AFP to have tax officers present and assisting during the execution of the warrants. Those contentions were ultimately not pressed by Mr Caratti. 90 Mr Caratti amended his originating application and points of claim on a number of occasions. Despite those repeated amendments, the scope and nature of aspects of Mr Caratti's case continued to shift and remained somewhat unclear right up to the point of final submissions. In his final submissions, Mr Caratti identified three grounds of challenge to the issue and execution of the warrants, though the first ground in fact comprised three separate grounds (grounds 1A, 1B and 1C). Grounds 1A and 1B and 1C related to the validity of the search warrants. Ground 2 to the execution of the warrants generally. Ground 3 related specifically to the seizure of computer or electronic equipment. 91 Mr Caratti's final submissions summarised grounds 1A, 1B and 1C in the following terms: 1A. The search permitted by the warrants exceeded what was justified by the material before the issuing officer; the offences in condition 3 of the warrants (when taken together with other conditions) were broader than justified. 1B. No intelligible search permitter existed and the warrants did not sufficiently specify the perimeters within which materials were to be searched for and seized or to sufficiently inform the occupiers of the perimeters, because the descriptions of offences were ambiguous, unintelligible or not offences. 1C. The search permitted by the warrants exceeded what was justified by the material before the issuing officer, in that the three lines after the third condition purported to authorise that, wherever on a "storage medium or storage device" there exists a document or other information which is evidential material falling within the 3 conditions of the warrant, it follows that each such storage medium or storage device is itself evidential material. 92 Grounds 1A and 1B were closely related. Both effectively hinged on what Mr Caratti submitted was the defective and deficient wording of the offences that comprised the third condition in each of the warrants. 93 The crux of Mr Caratti's submission in relation to ground 1A was that the information before the issuing officer (the magistrate) was not capable of satisfying the issuing officer that there were reasonable grounds to suspect that items located at the premises would afford evidence of the commission of the offences in the third condition of the warrant. In Mr Caratti's submission, the information before the issuing officer may have provided reasonable grounds for suspecting the commission of certain offences that involved discrete transactions and discreet timing. The offences in the third condition, however, were drafted so broadly and ambiguously that they did not confine what could be searched for and seized to offences involving those discreet transactions and times. In short, Mr Caratti submitted that the broad terms of the offences in the third condition of the warrants meant that the warrants were broader in scope than the material before the magistrate justified. Mr Caratti also contended that the information before the magistrate suggested that the dates or date ranges specified in the alleged offences were incorrect. The information suggested that if the offences were committed, they were committed on dates different to those particularised in the offences. 94 Mr Caratti's basic contention in relation to ground 1B was to the effect that the warrants did not disclose the nature of the offences with sufficient clarity and particularity to define the permissible area of the search in terms capable of being understood by the occupier of the premises. In short, he submitted that the offences as described in the third condition were so unclear and ambiguous that the warrants were unintelligible. This was a challenge to the validity of the warrants on their face. 95 The critical issue in relation to both grounds 1A and 1B is the wording of the offences in the third condition. Were the offences in the third condition described in terms that were sufficiently clear and unambiguous to satisfy the requirements for the issue of a search warrant under the Crimes Act, both from the perspective of the sufficiency of the information before the issuing officer, and from the perspective of the matters that are required to be stated on the face of a warrant? 96 Ground 1C also appeared to raise issues concerning both the sufficiency of the information before the issuing officer and the validity of the warrants on their face. Each of the warrants contained the following paragraph after the description of the offences in the third condition of the warrant: Together with any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things. 97 While somewhat unclear, the inclusion of this paragraph appeared to suggest that a storage device, such as a computer, which contained an item that was "evidential material", as defined in the Crimes Act and having regard to the three conditions in the warrant, was itself evidential material. The upshot of the inclusion of these words was, in Mr Caratti's submission, that a computer containing an electronic file that might be evidence of any of the offences in the warrant could itself be seized, together with any manual or password needed to operate the computer. That would be the case even if the possibly thousands of other files on the computer were entirely irrelevant or unrelated to the suspected offences, and even if there were no reasonable grounds to suspect that the computer hardware itself would afford evidence of the commission of the offences. Was it open to the issuing officer to be satisfied that such a computer would itself be "evidential material"? Was a warrant that authorised the seizure of a computer in such circumstances contrary to the specific provisions in the Crimes Act dealing with the seizure of electronic equipment? 98 Mr Caratti's central contention in relation to ground 2, which challenged the lawfulness of the execution of the warrants, was that the warrants were executed unreasonably and excessively because the executing officers and the officers who assisted them acted outside the authority of the warrants: they searched for and seized documents outside the scope of the warrants. Mr Caratti contended that the officers were in fact confused as to what the warrants authorised and did not understand enough about the entities listed in the warrants, or their affairs or functions, to know the appropriate scope of the search and seizure pursuant to the warrants. He relied on evidence that he contended indicated that the officers involved in the search interpreted the third condition in the warrants differently; that the briefings given to the officers were deficient; that the Federal Agents relied extensively and excessively on the advice of tax officers (including the advice in Mr Irvin's "Search Relevances" document) that was not apparently constrained by the terms of the warrants; and that the tax officers themselves misunderstood the scope of the warrants. 99 On one level, the issues raised by this ground may be seen to be essentially evidential and factual: has Mr Caratti discharged his onus of proving that any or all of the executing officers and the officers who assisted them acted unreasonably, excessively or otherwise outside the authority conferred by the warrants? Mr Caratti relied on some general allegations, such as inadequate briefings, as well as a number of specific allegations concerning the actions of individual officers? The first question is whether any or all of those allegations has been made out. 100 There is, however, a more fundamental question. The relief sought by Mr Caratti included a declaration that "the execution of each of the Search Warrants was beyond power". He also sought orders which would have the effect of requiring the AFP to return all seized items. He contended that such orders would be warranted if the execution of the warrants was beyond power, even if the warrants themselves were valid. The fundamental issue that arises in this context is whether, if Mr Caratti made out any, or even all, of the factual allegations advanced by him concerning the execution of the warrants, it necessarily followed that the execution of all of the warrants was beyond power such that the return of all items seized was warranted? Or does Mr Caratti have to demonstrate that such failures that he was able to prove were so fundamental or systematic that they infected the execution of the warrants in their entirety? 101 For example (and hypothetically), if Mr Caratti successfully demonstrated that some (but not all) Federal Agents who assisted in the execution of the Wickham Street premises warrant misunderstood the terms of the warrant, or relied on Mr Irvin or his Search Relevances document instead of the warrant, does it follow that the execution of the Wickham Street warrant in its entirety was beyond power? That question must be considered in light of the fact that the execution of the Wickham street premises warrant involved many officers and took place over three days. Can it be inferred from the actions of some officers that the actions of all, or even a substantial number of the other officers involved in the execution of the warrant were also unreasonable or excessive? If not, why should the actions of only some officers effectively impugn the actions of all the officers? 102 An even more difficult question is whether, if only the execution of, for example, the Wickham Street warrant was successfully impugned, would it necessarily follow that the execution of warrants other than the Wickham Street warrant were also beyond power? Would it follow that items seized under the authority of all warrants should be returned? 103 Ground 3 related to the seizure of electronic items under the warrants. Mr Caratti contended that electronic equipment, computer material and digital storage media, such as computers, hard disks and USB devices containing data, were unlawfully seized. He contended that the devices (as opposed to the files or data stored on them) did not comprise evidential material as defined by the three conditions in the warrants and that the specific provisions of the Crimes Act that deal with the seizure of electronic items. Mr Caratti's case concerning the seizure of electronic equipment was initially put at a general level. He appeared to contend that there was a general misunderstanding or failure to comply with the relevant provisions. Ultimately, however, his contentions were directed to the seizure of specific items. 104 Mr Caratti's final written and oral submissions addressed only these three grounds (grounds 1A, 1B, 1C, 2 and 3). To the extent that Mr Caratti's originating application and points of claim (as amended) advanced grounds or contentions that extended beyond grounds 1A, 1B, 1C, 2 and 3, those grounds or contentions are taken to have been expressly abandoned.

THE VALIDITY OF THE WARRANTS - GROUNDS 1A, 1B, AND 1C 105 The main provision of the Crimes Act dealing with the issue of search warrants is s 3E. As is common with most modern Commonwealth legislation, however, to make sense of s 3E it is also necessary to go to a number of definitional provisions. Relevantly, ss 3E(1) and (5) of the Crimes Act are in the following terms: 3E When search warrants can be issued (1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that three are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises. … (5) If an issuing officer issues a warrant, the officer is to state in the warrant: (a) the offence to which the warrant relates; and (b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and (c) the kinds of evidential material that are to be searched for under the warrant; and (d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and (e) the time at which the warrant expires (see subsection (5A)); and (f) whether the warrant may be executed at any time or only during particular hours. 106 The expression "evidential material" which is used in ss 3E(1) and (5)(c), is defined in s 3C as meaning "a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form". The expression "thing relevant to an indictable offence" is defined in s 3 in the following terms: Thing relevant to an indicatable offence means: (a) either of the following: (i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; (ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or (c) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or (d) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence. 107 Perhaps not surprisingly, the expression "thing relevant to a summary offence" is defined in corresponding terms in s 3. 108 In simple terms relevant to the warrants in question in this matter, it was open to the issuing officer to issue the warrants in question under s 3E(1) if the information on oath before him (being the affidavit sworn by Federal Agent Szolnoki) was capable of satisfying him that: (a) there were reasonable grounds for suspecting that there was, at the relevant premises (the premises to which the warrants related, being the premises described in the warrants as required by s 3E(5)(b)); (b) anything with respect to which there were reasonable grounds for suspecting that those things would afford evidence as to the commission of the offences to which the warrants related (being the offences described in the warrant - relevantly in the third condition - as required by s 3E(5)(a) of the Act). 109 As already indicated, Mr Caratti contended that it was not open to the issuing officer to be satisfied of those two matters. That contention was not based so much on the sufficiency of the information in Federal Agent Szolnoki's affidavit in terms of providing reasonable grounds for suspecting the commission of offences by Mr Caratti, or reasonable grounds for suspecting the presence in the premises of documents or other items that would afford evidence of those offences. It appeared to be accepted by Mr Caratti, if not expressly then certainly implicitly, that there was sufficient information in the affidavit to satisfy the issuing officer that there were reasonable grounds to suspect that there were things at the relevant premises which would afford evidence of the commission of certain offences by Mr Caratti. Mr Caratti's point was that those offences (the offences supported by Federal Agent Szolnoki's affidavit) were not the same as the offences described in the third condition; or at least were offences materially narrower in scope than the offences described in the third condition. 110 Before addressing that issue (which was, in effect, Mr Caratti's ground 1A), it is convenient to consider Mr Caratti's broader criticisms of the description of the offences in the third condition (Mr Caratti's ground 1B). Those criticisms amounted to, in effect, a contention that the description of the offences in the third condition did not satisfy the requirement in s 3E(5)(a) that the issuing officer state in the warrant the offence to which the warrant relates. It is convenient to consider the issue concerning the sufficiency of the description of the offences first because that exercise will, to some extent, involve construing or interpreting the offences as described in the third condition. It is only when the offences as described have been considered and construed that it is possible to consider whether it was open to the issuing officer to be satisfied of the matters required by s 3E(1) of the Crimes Act.

Ground 1B - are the offences to which the warrants related sufficiently described to define the permissible area of the search? 111 Each warrant states that the offences referred to in the third condition of the warrants are the offences to which the warrant relates for the purposes of s 3E(5)(a). Even if that was not expressly noted in the warrant, a description of offences in the third condition of a three condition warrant is capable of amounting to compliance with s 3E(5)(a): Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 151B-C. 112 The real issue is whether the descriptions of the offences in the third condition were sufficient to not only comply with s 3E(5)(a), but also sufficient to provide "real and meaningful perimeters as to the area of search": Zhang v Commissioner, Australian Federal Police (2009) 111 ALD 123 at 127 718 [13]. Were the offences described in such broad and vague terms that a person affected by the warrant, in particular the occupier of the premises to which the warrant relates, could not know the object or area of the search authorised by the warrant? 113 The principles to apply in considering the sufficiency of the description of offences in a warrant under s 3E of the Crimes Act are now relatively well-settled. It was initially considered (in the context of the search warrant provisions in the Crimes Act that preceded s 3E) that a "warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search" (emphasis added): Parker v Churchill (1986) 9 FCR 334 at 348 (Jackson J, with whom Bowen CJ and Black J relevantly agreed at 335); Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153. 114 It is now generally accepted, however, that the test is not so exacting as to require the identification of the "exact object" of the search. Nor should an overly technical view of the description of the offences be taken. The statement of the offence in a search warrant need not be made with the precision of an indictment: Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 533 (Burchett J, with whom Sheppard J agreed at 525 and Pincus J relevantly agreed at 525-526). 115 In Beneficial Finance, Burchett J said (at 543): An approach which eschews overzealous technicality, while requiring the full measure of the substance to be observed, is also consistent with the fact that the legislature has entrusted to lay justices of the peace the task of issuing search warrants. If the courts were to insist upon the invalidation of a warrant for a legally incorrect formulation of an offence, although the substance of the offence could plainly be understood, they would not be interpreting the will of the Parliament but subverting it. For the Parliament cannot have intended lay justices to be held to such a standard, when it entrusted the task of issuing warrants to them. See Parker v Churchill (at 323). I have discussed the authorities dealing with the true test, for the sufficiency of the statement of the offence in a search warrant, at considerable length, because of the importance of the principle, and the difficulty which has arisen from the conflicting statements of it. In my opinion, the conclusion emerges clearly that there is no justification for an "exact object" test. The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals. See Re Church of Scientology (supra). 116 This broad and practical approach to the particularity required in the statement of the offence in a search warrant has been repeatedly followed and applied: see for example New South Wales v Corbett (2007) 230 CLR 606 at 630-631 [97]-[102] (per Callinan and Crennan JJ, with whom Gleeson CJ agreed at 607 [1]); Harts (1997) at 152A-C; Chong v Schultz [2000] FCA 582; (2000) 112 A Crim R 59 at 60-61 (Heerey J); Williams v Keelty at 206-206 [135]-[139]; Different Solutions Pty Ltd v Commissioner, Australian Federal Police [2008] FCA 1686; (2008) 190 A Crim R 265 at 289-294 [98]-[118] (Graham J); Zhang at 718 [12]. 117 In general terms, these authorities indicate that, in considering the sufficiency of the statement of the offence to which the warrant relates, the warrant as a whole must be read fairly and not perversely. The fact that the language used may be infelicitous or inelegant, or may not display a fine appreciation of the legislation relevant to the offences, is largely immaterial so long as the substance of the offence is sufficiently disclosed so as to indicate the area of the search. A warrant will not necessarily be invalidated even in circumstances where the description of the offence involves an error which would most likely invalidate an indictment (for example on the ground of duplicity: Williams v Keelty at 209 [142]; Chong v Schultz at 62 [11]); or a legally incorrect formulation of the offence (Chong v Schultz at 61 [9]; Ozzy Tyre & Tube Pty Ltd v CEO of Customs [2000] FCA 891, where the statement of the offence did not refer to the mental element); or an inaccurate statement of the general nature of the offence (Parker v Churchill at 340 per Jackson J, with whom Bowen CJ and Lockhart J agreed at 335; Different Solutions at 295-296 [124]-[137]); or the wrong citation of a section or incorrect description of the statute creating the offence (Parker v Churchill at 340; Different Solutions at 291 [104]). 118 Mr Caratti contended that the description of the offences in the third condition of the warrants was, in each case, so ambiguous and so lacking in appropriate particularity that there was no intelligible search perimeter. To address that contention it is necessary to closely consider the terms of the relevant offence provisions as well as the description of each of the offences in the third condition of the warrants. 119 The offences described in the third condition are all said to be offences against either s 134.2(1) or 135.1(3) of the Criminal Code Act 1995 (Cth). Those offence provisions are in the following terms: 134.2 Obtaining a financial advantage by deception (1) A person is guilty of an offence if: (a) the person, by a deception, dishonestly obtains a financial advantage from another person; and (b) the other person is a Commonwealth entity. Penalty: Imprisonment for 10 years. …. 135.1 General dishonesty (3) A person is guilty of an offence if: (a) the person does anything with the intention of dishonestly causing a loss to another person; and (b) the other person is a Commonwealth entity. 120 The elements of the offence against s 134.2(1) of the Code may be summarised as follows: The person: (a) acting intentionally (see s 5.6(1) of the Criminal Code) (b) by a deception; (c) dishonestly obtains a financial advantage; (d) from a Commonwealth entity 121 The elements of the offence against s 135.1(3) of the Code may be summarised as follows: The person: (a) does something (anything); (b) with the intention of dishonestly causing a loss; (c) to a Commonwealth entity.

The Starbrake offences 122 The first two offences in the third condition in the warrants relate to the Starbrake allegations. The offences are described in the following terms: In 2008 at Perth in Western Australia, Allen CARATTI by a deception, in that he reclassified royalty income paid to Starbrake Pty Ltd into a loan from Mammoth Nominees Pty Ltd, dishonestly obtained a financial advantage by not paying income tax, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Section 134.2(1) of the Criminal Code 1995 (Cth). In 2008 at Perth in Western Australia, Allen CARATTI did fail to pass on Goods and Services Tax collected by Starbrake Pty Ltd to the Australian Taxation Office, with the intention of dishonestly causing a loss to another person, namely Australian Taxation Office, which is a Commonwealth entity, contrary to Section 135.1(3) of the Criminal Code 1995 (Cth). 123 In relation to the first Starbrake offence, Mr Caratti contended that the description of the offence was deficient in three respects. First, he contended that the description of the offence lacked particularity because no royalty transaction (being the transaction that was alleged to have resulted in the royalty income) was specified. Second, he contended that the description was ambiguous because it did not make it clear whether the date on which this offence was allegedly committed (2008) was the date on which the deception was employed, or the date on which the financial advantage was received. Third, he contended that, whichever way the alleged ambiguity concerning the date of the offence was resolved, the information before the issuing officer indicated that neither the alleged deception nor the alleged obtaining occurred in 2008. 124 There is some merit in these criticisms of the wording of the first Starbrake offence. On just about any view, the description of the alleged offence was very poor having regard to the terms of the relevant offence provisions and the relevant provisions of the applicable tax legislation. The language used was infelicitous. The particulars were imprecise if not ambiguous in some respects. 125 There are at least four potential problems with the description of the first Starbrake offence. 126 First, strictly speaking income tax is not paid to the ATO. Generally speaking it is paid to the Commissioner of Taxation. In any event, the ATO is not a Commonwealth entity as defined in the Criminal Code: see the definitions of "Commonwealth entity" and "Commonwealth authority" in s 4 of the Criminal Code; see also Different Solutions at 295 [125]-[128] and 296 [136]-[137], where Graham J held that this deficiency was not sufficient to invalidate a warrant. 127 Second, such tax as may have been payable in respect of any royalty income received by Starbrake was payable under the applicable tax legislation by Starbrake, not Mr Caratti. There may accordingly be issues concerning the allegation that Mr Caratti obtained a financial advantage arising from the reclassification and non-payment of tax by Starbrake. At most, any financial advantage that may have been obtained by Mr Caratti was an indirect advantage. 128 Third, having regard to the terms of the applicable tax legislation, it would have been more appropriate to particularise both the alleged deceptive conduct and the alleged obtaining of a financial advantage in terms of a failure to include the royalty income in Starbrake's tax return, rather than in terms of an accounting reclassification. The ATO was relevantly deceived by Starbrake's tax return, rather than the accounting reclassification. Likewise, the alleged financial advantage to Mr Caratti arose from the non-declaration of the royalty income (on the allegedly false basis that it was a loan, not income) in Starbrake's tax return, not from the reclassification. 129 Fourth, there are potential issues with the date on which the offence is said to have been committed. It is somewhat unclear whether the particularised date (2008) refers to the date on which the alleged deceptive conduct (the accounting reclassification of the royalty payment, or perhaps the lodging of a false tax return that did not declare the royalty income) occurred, or the date the financial advantage was allegedly obtained. That date would be the date on which the tax would, but for the deception, have been assessed as payable. 130 There could be little doubt that an indictment containing a charge framed in these terms would either be struck down, or at the very least the prosecution would have been required to clarify and provide further particulars of the alleged offending conduct. 131 The difficulty for Mr Caratti, however, is that the question of the sufficiency of the description of the offences in the warrant is not to be approached as if the warrant was an indictment and the issue was the legal sufficiency of the pleading. The exercise involved in determining whether the description of offences in a search warrant is sufficient is not to be approached as if it was a demurrer. Nor is it a counsel of perfection. Rather, as already indicated, the question is whether, viewed broadly and not perversely or with undue technicality, the general nature of the offences is sufficiently disclosed so as to indicate the authorised area of search. 132 When viewed in that way, these deficiencies with the wording and description of the first Starbrake offence are insufficient to invalidate the warrants. 133 While the first Starbrake offence was poorly described, read fairly in the context of the warrant as a whole, and without overzealous technicality, the description was sufficient to enable an occupier to discern a search perimeter relevant to the offence. The description of the offence identified the accused (Mr Caratti), the relevant offence provision (s 134.2(1) of the Criminal Code), the date (or date range) that the offence was alleged to be committed (2008) and the gist of the conduct said to constitute the offence (that the offence involved the dishonest non-payment of an amount of income tax by Starbrake resulting or arising from a deceptive reclassification by Mr Caratti of royalty income received by Starbrake). 134 Mr Caratti's argument that the information before the issuing officer was insufficient to establish reasonable grounds for suspecting that the first Starbrake offence was committed in 2008 is considered later in the context of the next ground (ground 1A). For present purposes, however, it should be noted that while there may have been some ambiguity or uncertainty surrounding the date that the offence was alleged to have been committed (2008), it does not follow, as Mr Caratti submitted, that the search perimeter was effectively undefined as to date. In any event, the executing officers were not necessarily constrained by the date or date range during which the offence was said to have been committed. They could search for and seize documents bearing any date, so long as there were reasonable grounds to suspect that the documents would afford evidence of the commission of the offence suspected of having been committed in 2008. 135 There are similar issues concerning the wording of the second Starbrake offence. Mr Caratti contended that there were three specific deficiencies in the description of the second Starbrake offence. First, he contended that the description lacked particularity because it did not describe the transaction which led to the alleged collection of GST by Starbrake that should have been passed on to the ATO. Second, he contended that the description was ambiguous because it did not specify how it was alleged that Mr Caratti failed to pass on GST. Third, he contended that there was an error or deficiency in relation to the particulars of the date of the offence having regard to the information concerning this offence that was before the issuing officer. In Mr Caratti's submission, the information before the issuing officer was insufficient to establish reasonable grounds for suspecting that the offence was committed in 2008. 136 The third of these complaints is addressed later in the context of ground 1A. In relation to the first two complaints, those complaints would again no doubt have some considerable merit if the question was whether an indictment containing the second Starbrake offence was properly pleaded and adequately particularised. The problem for Mr Caratti is that that is not the question. The adequacy of the description of the offence should not be approached as if this was some form of demurrer. 137 As was the case with the first Starbrake offence, there could be little doubt that the second Starbrake offence was poorly described. The description displays a very poor appreciation of the terms and operation of the GST Act. Strictly speaking the GST Act does not refer to GST being "collected". Nor does it create or refer to an obligation to "pass on" GST that is collected. Rather, liabilities that arise under the GST Act arise upon the lodgement of a business activity statement that provides details of the GST payable in respect of taxable supplies less input tax credits. Amounts payable under the GST Act are also payable to the Commissioner of Taxation, not the ATO (see, for example, s 33-5 of the GST Act) and, in any event, the ATO is not a Commonwealth entity for the purposes of s 135.1(3) of the Criminal Code. 138 There is also some merit in Mr Caratti's complaint that the description of the offence, considered in isolation, provides no meaningful details of the circumstances in which it was apparently alleged that Starbrake had GST liabilities that it did not discharge. There is, for example, no details of the taxable supplies made by Starbrake in respect of which GST was allegedly payable. Nor are there any meaningful particulars as to why Starbrake's failure to discharge any such GST liability in that regard involved dishonesty on the part of Mr Caratti. 139 Nevertheless, the question is not whether the offence is pleaded and particularised in terms adequate to be included in an indictment. In considering whether the nature or substance of the offence was sufficiently described for the purposes of identifying the search area, the description must be read broadly and in the context of the warrant as a whole. It would be readily apparent to the occupier, or anyone else who read the warrant, that the first Starbrake offence was related to the second Starbrake offence. The two offences involved the same persons and entities (Mr Caratti and Starbrake) and were both allegedly committed in 2008. It would be readily apparent that the difference between the two offences was that the first offence related to the alleged non-payment of income tax and the second offence related to the alleged non-payment of GST. Read in that way, it would be apparent to the reader of the warrant that the gist of the second offence was that Starbrake's liability to remit GST was related to its receipt of royalty income, and that Mr Caratti's dishonest intention arose from the alleged reclassification of the royalty income. 140 It would again clearly have been preferable for the second Starbrake offence to have been described in terms that clearly and accurately reflected the operation of the relevant tax legislation. It would also have been preferable for the description to provide at least basic particulars of the key factual allegations that underlay the offence, so far as they were known, so that it was unnecessary to read it in conjunction with the first Starbrake offence. Nevertheless, while the second Starbrake offence was poorly drafted and lacked the clarity and particularity that would be necessary if it was to be included in an indictment, read fairly and in context, and without overzealous technicality, it was adequate to define an area of search relevant to the offence. It identified the accused (Mr Caratti), the relevant offence provision (s 135.1(3) of the Criminal Code), the date the offence was allegedly committed (2008) and the basic factual allegation: relevantly, that with the dishonest intention of causing loss to the ATO, Mr Caratti failed to pass on to the ATO GST that was properly payable by Starbrake. When read in conjunction with the first Starbrake offence, it would have been tolerably clear to the reader that the alleged GST liability related to the royalty income received by Starbrake, and that the dishonesty arose from the alleged reclassification of that income.

The Westend offence 141 The third offence in the third condition in the warrants related to the Westend allegations. The offence was described in the following terms: In 2008 at Perth in Western Australia, Allen CARATTI by a deception, in that he falsified costs incurred by Wesend Asset Pty Ltd, attempted to dishonestly obtain a financial advantage by not paying income tax, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Sections 11.1 and 134.2(1) of the Criminal Code 1995 (Cth). 142 While again drafted in somewhat cumbersome and infelicitous terms, the substance and nature of the alleged offence was tolerably clear: it was alleged that Mr Caratti falsified costs incurred by Westend in an attempt to reduce the amount of income tax properly payable to the ATO by Westend. It would have been readily apparent to the reader that the allegation was that the falsified costs would have reduced Westend's taxable income and hence the amount of tax payable by it. It was alleged that non-payment of income tax properly payable by Westend would result in a financial advantage to Mr Caratti. That was said to constitute an offence pursuant to s 11.1 and 134.2(1) of the Code. Section 11.1 of the Code provides, in essence, that a person who attempts to commit an offence is taken to be guilty of the offence of attempting to commit that offence. The offence was alleged to have been committed in 2008. 143 Mr Caratti contended that the description of the Westend offence lacked proper particularity, was ambiguous and included the wrong date. The description was said to lack particularity because there were no particulars of the costs that were allegedly falsified. It was said to be ambiguous because it was unclear whether the date on which the offence was alleged to have been committed was the date that Westend's income tax return was lodged, the date that the costs were falsified, or the income year to which the falsified costs were said to be referable. The date was in any event said to be wrong because the information before the issuing officer did not provide reasonable grounds for suspecting either that the Westend's return was lodged in 2008, or that the costs were falsified in 2008. 144 There is again some merit in these complaints of lack of particularity and ambiguity. If this description of the offence was included in an indictment, the prosecution would undoubtedly be required to provide further particulars of the costs that were alleged to have been falsified. It is also likely that the prosecution would be required to clarify exactly what was alleged to have occurred in 2008: the falsification of the costs, or the lodgement of the relevant income tax return, or whether 2008 simply referred to the relevant income year. 145 For the purposes of a search warrant, however, there was sufficient particularisation, and sufficient clarity, to define the area of search. While it would clearly have been preferable for the description of the offence to include further and better particulars, the relevant offence provision was identified (ss 134.2(1) and 11.1 of the Criminal Code), as was the name of the accused (Mr Caratti) and the date (or date range) that the offence was allegedly committed (2008). While the offence was particularised in broad, sparse and somewhat imprecise terms, nevertheless the gist or substance of the key factual allegations that underlay the offence were sufficiently apparent to identify the object or area of the search. 146 Mr Caratti's contention that the date on which it was alleged that the offence was committed (2008) was not supported by the information before the issuing officer is considered in the context of ground 1A.

The Whitby Land Company offence 147 The Whitby Land Company offence was described in the third condition of the warrants in the following terms: Between 1 July 2010 and 31 December 2013 at Perth in Western Australia, Allen CARATTI by a deception, in that he caused the Whitby Land Company Pty Ltd to withhold Goods and Services Tax, dishonestly obtained a financial advantage from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Section 134.2(1) of the Criminal Code 1995 (Cth). 148 On just about any view, this statement of the relevant offence was very poorly drafted. It is possible to discern, in very general terms, that the allegation against Mr Caratti was that in the period 1 July 2010 to 31 December 2013 he dishonestly and deceptively caused Whitby Land Company to "withhold" GST that was properly payable to the ATO. There are, however, a number of difficulties and deficiencies in the offence description. 149 First, the description again shows a very poor appreciation of the terms of the underlying tax legislation. It is not entirely clear what is meant by "withholding" GST. As already briefly touched on, in very simple terms, the GST Act provides that an enterprise that makes a taxable supply of a good or service must pay GST on that supply. The amount ultimately payable by the enterprise for a given period (the "net amount") is determined by calculating the sum of the amounts of GST which the enterprise is liable to pay for that period, less input tax credits. Input tax credits essentially comprise the GST paid by the enterprise in respect of creditable acquisitions. Creditable acquisitions are, in general terms, acquisitions of things for the purpose of carrying on an enterprise. While in a broad sense it might be able to be said that GST payable by an enterprise in respect of a taxable supply is withheld until it is factored into the calculation of the net amount for the relevant GST period, there is otherwise no relevant concept of "withholding" GST in the GST Act. It may be, in the context of the description of the offence, the reference to "withholding GST" was intended to mean no more than not paying GST that should otherwise have been paid. 150 Second, and even accepting that "withholding" may be loosely taken to be a reference to Mr Caratti not paying to the ATO (and therefore "withholding") GST properly payable by Whitby Land Company in respect of taxable supplies made during the relevant period, it is unclear what supplies were made. How or why did Whitby Land Company become liable to pay GST? Perhaps more significantly, there are no particulars of how or why Mr Caratti's actions in not paying Whitby Land Company's GST liability involved deception and dishonesty. The link between Mr Caratti and Whitby Land Company and, more importantly, why the alleged non-payment of GST owed by Whitby Land Company was a financial advantage to Mr Caratti, is also not explained or otherwise apparent from the description of the offence. 151 Mr Caratti contended that the description of the Whitby Land Company offence lacked appropriate particularity, was ambiguous and included an incorrect date. It lacked particularity because it did not describe how it was alleged that Mr Caratti caused Whitby Land Company to withhold GST. It was ambiguous because it was unclear what "withholding GST" meant and unclear how it was alleged that the withholding of GST payable by Whitby Land Company was a financial advantage to Mr Caratti. 152 Mr Caratti's contentions concerning lack of particularity and ambiguity in respect of the description of the Whitby Land Company offence have some merit for the reasons already given. But is the description, poor and imprecise as it may be, sufficient to satisfy the requirement that it define or provide a meaningful or intelligible search perimeter? 153 The answer to that question is yes, though only barely so. The description of the offence specifies the name of the accused (Mr Caratti), the relevant offence provision (s 134.2(1) of the Criminal Code), the date range during which the offence was alleged to have been committed (between 1 July 2010 and 31 December 2013) and the barest particulars of the factual allegations: that Mr Caratti deceptively and dishonestly caused Whitby Land Company to withhold GST properly payable by it and thereby obtained a financial advantage. The absence of any, or any meaningful, particulars of how Whitby Land Company's GST liability arose and why Mr Caratti's withholding of amounts payable by Whitby Land Company was deceptive and dishonest is unfortunate and problematic. On balance, however, that deficiency is insufficient to result in invalidity. 154 If, contrary to this conclusion, the statement of the Whitby Land Company offence was found to be deficient and defective, it would be necessary to consider whether that part of the warrants could properly be severed. The applicable principles in relation to severing invalid portions of a warrant are considered later in these reasons in the context of ground 1C (the ground relating to the paragraph in the warrants relating to the seizure of storage devices). Given the conclusion that has been reached, it is unnecessary to decide whether it would have been appropriate to sever this description of the Whitby Land Company offence from the warrants. There is, however, much to be said for the proposition that an invalid statement of one offence in the third condition of the warrants could appropriately be severed without doing violence to the balance of the warrants. Thus, even if it had been found that the statement of the Whitby Land Company offence was deficient, it would not necessarily follow that the warrants as a whole would be declared invalid.

The Gucce Holdings Offence 155 The final offence referred to in the third condition of the warrants related to the Gucce Holdings allegations. The offence is described in the following terms: In December 2011 at Perth in Western Australia, Allen CARATTI and Tina BAZZO, by a deception, in that they falsified costs incurred by Gucce Holdings Pty Ltd, attempted to dishonestly obtain a financial advantage by overstating Goods and Services Tax input credits, from another person, namely the Australian Taxation Office, which is a Commonwealth entity, contrary to Sections 11.1 and 134.2(1) of the Criminal Code 1995 (Cth). 156 It can readily be seen that the Gucce Holdings offence is again described in unfortunately broad, inelegant and somewhat opaque terms. The essential allegation would appear to be that Mr Caratti and Ms Bazzo falsified costs incurred by Gucce Holdings and thereby attempted to obtain a financial advantage from the ATO. No particulars of the falsified costs are provided. Nor is it entirely clear how the falsification of costs incurred by Gucce Holdings could secure (or attempt to secure) a financial advantage for Mr Caratti and Ms Bazzo. 157 A reader of the warrant who had some familiarity with the GST Act and the concept of input tax credits would perhaps have been able to discern that the falsification of costs would, if the costs were said to relate to a creditable acquisition, ultimately result in an overstatement of input tax credits and a consequent reduction of the amount payable to the ATO by Gucce Holdings in respect of GST. If the costs were dishonestly falsified, the consequent reduction in GST payable could then be seen to involve dishonesty. That could conceivably be seen to amount to the dishonest obtaining of a financial advantage by Gucce Holdings. 158 The point is, however, that these links between falsified costs, overstated input tax credits and a reduced GST liability, would not necessarily be readily apparent to someone not familiar with the operation of the GST Act. An occupier of promises who was not well-acquainted with the GST Act might encounter difficulties in understanding the offence. There could be little doubt that an indictment containing this offence would be liable to challenge. At the very least, it is likely that the prosecution would be required to provide further and better particulars of the offence. 159 Nevertheless, as with the other offences, on balance there is sufficient particularity and clarity in the description of the Gucce Holdings offence to indicate the area of search permitted by the warrants, though again only barely so. The description includes the name of the accused (Mr Caratti and Ms Bazzo), the relevant offence provision (ss 11.1 and 134.2(1) of the Criminal Code) the date (or date range) when the offence was alleged to have been committed (December 2011), and the general gist of the offending conduct (the falsification of costs resulting ultimately in the dishonest reduction of the amount payable to the ATO in respect of GST). 160 The Gucce Holdings offence clearly could have been described in clearer, fuller and more precise terms. In all the circumstances, however, the description was sufficient, albeit only barely so, for the purposes of a valid warrant.

Conclusion in relation to ground 1B 161 To say the very least, the description of each of the offences in the third condition of the warrants left a lot to be desired. In each case the language used was infelicitous, in some respects ambiguous or unclear, and generally showed a lack of appreciation of the terms of the underlying tax legislation. The descriptions lack the particularisation that would be expected if the offences as described were included in an indictment. Nevertheless, it is necessary to approach the description of the offences to which a search warrant relates broadly and without overzealous technicality. The offence descriptions must be considered fairly and in the context of the warrant as a whole. The question is whether in all the circumstances the nature of the offence to which the warrant relates is sufficiently disclosed so as to indicate the area of search. 162 When considered in that light, the descriptions of the offences in the third condition of the warrants in question are sufficient to avoid a finding of invalidity, though perhaps only barely so in relation to some of the offences. While the area of search defined by the offence descriptions (read together with the first two conditions) was undoubtedly very broad, nonetheless the degree of particularity was in all the circumstances adequate. While the language used was less than ideal and in some respects vague and ambiguous, nonetheless the deficiencies were not such as to render the warrants invalid on the basis that the persons affected by them would be unable to know or ascertain the authorised area of search.

Ground 1A - was the information before the issuing officer sufficient to ground the issue of the warrants? 163 The issue to be resolved in the context of ground 1A is whether the information before the issuing officer (the affidavit of Federal Agent Szolnoki) was capable of satisfying the issuing officer (the magistrate) that there were reasonable grounds for suspecting that there was or would be evidential material at the premises to which the warrants related. Relevantly, the evidential material comprised things as described in the first and second conditions in the warrant and with respect to which there were reasonable grounds for suspecting that those things would afford evidence as to the commission of the offences referred to in the third condition of the warrants. 164 A suspicion in this context is a "state of conjecture or surmise" or a "slight opinion without sufficient evidence": George v Rockett (1990) 170 CLR 104 at 115, citing Shaaban bin Hussien v Chong Fook Kam [1970] AC 942, 948 and Queensland Bacon v Rees (1966) 115 CLR 266, 303. There must, however be some factual basis for the conjecture, surmise or opinion: George v Rockett at 115. Where a statute prescribes that there must be "reasonable grounds" for a state of mind, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett at 112. The requirement of "reasonable grounds for suspicion of guilt" has, albeit in a different context, been described as a very limited requirement: Shaaban bin Hussien v Chong Fook Cam [1970] AC 942 at 949; Williams v Keelty at 213 [165]. 165 The issuing officer need not entertain the relevant suspicion; it is only necessary for the issuing officer to be satisfied that there are reasonable grounds for entertaining the suspicion: Williams v Keelty at 213 [167]. The requirement of "reasonable grounds for a suspicion" imports an objective test, though a decision concerning whether grounds are reasonable invariably involves a value or normative judgment about which there may be legitimate differences of opinion: Williams v Keelty at 213 [166]. An issuing officer's finding that there were "reasonable grounds" for entertaining the relevant suspicion is only impeachable if the finding was one which could not lawfully be reached on the information before the issuing officer: Williams v Keelty at 213 [166], 214-215 [172]. 166 An applicant who challenges an issuing officer's decision to issue a warrant bears the onus of proving that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion: Williams v Keelty at 225 [236]; Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. That is a "difficult and exacting task": Wong at [4]. A court is not entitled to substitute its own opinion on whether there were reasonable grounds for the opinion of the issuing officer: Williams v Keelty at 213 [166]. The applicant must establish that there was an absence of "foundational facts" from which the issuing officer might entertain the relevant suspicion on reasonable grounds: Wong at [4]; Williams v Keelty at 213-215 [168]-[173]. 167 The relevant "foundational facts" before the issuing officer in this matter were the facts deposed to by Federal Agent Szolnoki in relation to the Starbrake, Westend, Whitby Land Company and Gucce Holdings allegations. Those facts have already been summarised. There could be little doubt that those facts were capable of establishing that there were reasonable grounds for suspecting that Mr Caratti had committed certain offences and that there was, or would be, things at the premises to which the warrants related which would afford evidence of those offences. So much so appeared to be conceded by Mr Caratti: at least he did not expressly contend otherwise. 168 Mr Caratti's contention that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion focused on the description of the offences in the third condition of the warrants. He advanced two related arguments for why the information was not capable of satisfying the issuing officer that there were reasonable grounds for entertaining the relevant suspicion in relation to the offences described in the third condition. Mr Caratti's first argument was based on the proposition that the offences in the third condition were broader than justified by the information before the issuing officer. The second argument involved the contention that the information before the issuing officer could not support the dates included in the offences as drafted in the third condition.

Were the offences broader than justified by the information? 169 Mr Caratti contended that the "foundational facts" in Federal Agent Szolnoki's affidavit related to single or discreet transactions. In Mr Caratti's submission, while there may have been reasonable grounds for suspecting offences concerning those discreet transactions, the offences in the third condition of the warrants were expressed in very broad terms. Mr Caratti contended that the warrants were in that respect "broader than justified". It was, he submitted, "wrong" to issue a warrant authorising a "general" search by reference to broad offences where the reasonable grounds for suspicion related to discreet transactions. 170 In advancing that argument, Mr Caratti relied heavily on the obiter dicta of Fox J in The Queen v Tillett; Ex parte Newton (1969) 14 FLR 101. In that case, Fox J quashed a warrant issued under the former s 10 of the Crimes Act on the basis that it suffered from a number of defects. Having determined that the warrant should be quashed on the basis of those defects, his Honour went on to make the following observation as to the area of search permitted by the warrant (at 125); As to the area of the search, I believe that the requirements are flexible. If, as is now likely to be the case, the issue of the warrant rests on statutory authority, the content of the warrant is governed by the statute and must not only comply with the more specific requirements thereof, but it should not be wider than is necessary to carry out the manifest legislative purpose. In a case under s 10 (b), for example, it would be wrong to issue a warrant which authorized a general search of bank premises, when the information pointed to one forged cheque. Even a search for all documents relating to a particular account may be too wide. There should be no limitation on an adequate search, but it is a function of the information to show how wide that search may have to be, and the function of the justice to ensure that his warrant does not authorize anything wider. Each case must depend upon its own facts. 171 It should be noted that the search warrant in question in Tillett purported to permit the search of bank premises and the seizure of "books, papers, documents or other things" as to which there were "reasonable grounds for believing that the same will afford evidence of the commission of an offence against the Commonwealth Crimes Act". No specific offence was specified. There was effectively no limitation on the books, papers, documents and things that could be searched for and seized. It is not surprising, in those circumstances, that the warrant was found to be defective. The observations of Fox J should be considered in that context. 172 It is readily apparent that Fox J was not intending to lay down any rigid test concerning the issue of search warrants or the permitted area of search and seizure. As his Honour said, the "requirements are flexible", the "content of the warrant is governed by the statute" in question and that "each case must be governed by its own facts". His Honour's reference to the warrant not being "wider than necessary", and the issuing officer's function being to ensure that the warrant does not authorise "anything wider", must be read as meaning anything wider than permitted under the relevant statutory provision, properly construed. Contrary to Mr Caratti's submission, Tillet is not authority for the much broader proposition that the offence specified in a search warrant must be particularised in the narrowest possible terms supported by the information before the issuing officer. 173 The question is whether the information before the issuing officer was capable of satisfying the officer, in simplified terms, that there were reasonable grounds to suspect that there were things at the premises that would afford evidence of the commission of the offences specified in the warrants. It may readily be accepted that the more broadly that a warrant describes the kinds of evidential material to be searched for (including the description of the offences), the more difficult it may be for the information before the issuing officer to satisfy this requirement: George v Rockett at 117. By the same token, it is not impermissible to describe the object of the search in a broad non-specific fashion: Dunesky v Elder (1994) 54 FCR 540 at 555E-F (per Lockhart, Beaumont and Hill JJ, with whom Black CJ agreed at 541F and Lindgren J agreed at 558D). 174 While the object of the search is unquestionably described in very broad terms in the warrants in question here, it cannot be concluded that there information before the issuing officer was not capable of satisfying the issuing officer that there were reasonable grounds to suspect that there were things at the premises that would afford evidence of the commission of the offences specified in the third condition of the warrants. 175 Mr Caratti's characterisation of the information before the issuing officer as involving "discreet transactions" is neither fair nor accurate. Each of the four allegations involved relatively complex facts and conduct that extended over a period of time. There is no merit in Mr Caratti's contention that the information before the issuing officer only supported the issue of search warrants that related to discreet transactions. 176 The Starbrake allegations and offences do not concern a single or discreet transaction. While the focus of the allegations and offences may have been on the reclassification of the royalty income received by Starbrake, it was also necessary to have regard to a broader course of conduct relevant to the alleged offences. That conduct allegedly included the receipt of the royalty payment, the initial accounting for that receipt, the subsequent direction by Mr Caratti to the accountant to change the accounting for the receipt and the subsequent conduct in lodging Starbrake's income tax returns and business activity statement. There is no basis for Mr Caratti's apparent contention that the information before the issuing officer only permitted the issue of a warrant which specified an offence particularised in terms of a single or discreet transaction, being the reclassification of the royalty payment. 177 It may be accepted, for the reasons already given, that the first Starbrake offence as particularised in the third condition of the warrant could have been drafted with a greater degree of particularity and clarity. It does not follow, however, that the warrants authorised a "general search", or a search which was wider than justified by the information that was before the issuing officer. 178 Much the same can be said in relation to the other allegations and corresponding offences described in the third condition of the warrants. 179 The Westend offence may at first blush appear to focus primarily on the falsification of costs supposedly incurred by Westend. It does not follow that the offence related to a single transaction. The offence also involved other conduct and circumstances that provided necessary context and background to the alleged falsification of costs. The additional factual allegations included the development and subsequent sale of the land to which the costs allegedly related, the non-declaration of income derived from the sale of the land, the ATO audit and the provision to the ATO of allegedly falsified invoices. There is no basis for the contention that, for the purposes of the warrants, the Westend offences were required to be particularised in terms of a single or discreet transaction. While the Westend offences could have been drafted with more precision and particularity, it does not follow that the warrants permitted a general search, or a search that was wider than justified by the information before the issuing officer, or wider than permitted under s 3E of the Crimes Act. 180 The Whitby Land Company allegations and offence also do not involve a single discreet transaction. The description of the Whitby Land Company offence focused largely on the allegation that Mr Caratti caused Whitby Land Company to withhold GST that should have been paid to the ATO. The information before the issuing officer included details of a course of conduct whereby Whitby Land Company allegedly became liable to pay GST in respect of supplies it made over a period of time which extended over three and a half years. The alleged withholding of GST over that period was central to the offence. The issuing officer was not required to issue a warrant which only authorised a search by reference to an offence particularised in terms of a single or discreet transaction. 181 The Gucce Holdings allegations and offence raise somewhat different considerations. The allegations identified in Federal Agent Szolnoki's affidavit revealed a course of conduct which apparently occurred over a period of time whereby Gucce Holdings overstated input tax credits. There was no single or discreet transaction. Indeed, if anything, the Gucce Holdings offence in the third condition was particularised in terms that were narrower than the allegations in Federal Agent Szolnoki's affidavit would have warranted. That is because the offence as drafted was limited to the date December 2011. As will be seen, Mr Caratti's second argument in support of ground 1A concerned the date in the Gucce Holdings offence. For present purposes, it is sufficient to state that Mr Caratti's submission that the Gucce Holdings offence was particularised in terms broader than justified by the information before the issuing officer has no merit.

Were the dates in the offences wrong? 182 Mr Caratti contended that the information on oath before the issuing officer was not capable of providing reasonable grounds to suspect that the offences in the third condition were committed on the dates or date ranges particularised in offences. In short, he submitted that, on any proper interpretation of the offences as drafted, the foundational facts in Federal Agent Szolnoki's affidavit suggested that the alleged offences were committed on dates different to those particularised. It followed, in Mr Caratti's submission, that the issuing officer could not lawfully have been satisfied in accordance with s 3E of the Crimes Act in respect of the offences in the warrant. 183 When close consideration is given to the information in Federal Agent Szolnoki's affidavit, together with the details of the offences in the third condition of the warrants, it can be seen that there are indeed a number of issues and ambiguities with the dates or date ranges particularised in the third condition offences. The question is whether those issues and ambiguities are sufficient to impugn the issuing officer's decision to issue the warrants. 184 The first Starbrake offence as drafted alleges that the offence was committed in 2008. It is permissible for an offence to be particularised by reference to a date range, even a broad date range, particularly for the purposes of a search warrant. It might be alleged or suspected, for example, that the conduct constituting the offence occurred by a course of conduct over a period of time. Equally, it may be difficult for the investigators, at that stage of the investigation, to pinpoint exactly when the relevant conduct constituting the offence occurred or was suspected of having occurred. It was therefore not impermissible for the first Starbrake offence to be particularised in terms of having been committed either throughout, or on some day or days during, 2008. 185 That said, there is a potential problem or difficulty with the particularisation of the date in the first Starbrake offence. That difficulty is that the conduct constituting the offence appeared to be either the alleged deception (the reclassification of the royalty income, or perhaps the lodging of a false tax return) or the dishonest obtaining of an advantage (the non-payment of income tax properly payable by Starbrake). The information in Federal Agent Szolnoki's affidavit tended to suggest that the alleged reclassification occurred in late 2011 or early 2012, shortly before Starbrake's income tax return for the relevant financial year was lodged. As for the obtaining of an advantage, strictly speaking, Starbrake (and therefore Mr Caratti) could not be said to have obtained any financial advantage from the deception until the tax return that (by reason of the reclassification) did not include or disclose the income derived from the royalty was lodged. Only then would Starbrake's taxable income and liability for income tax be assessed on the allegedly false basis. The only apparent relevance of the year 2008 would appear to be that the royalty payment occurred in July 2008, so any tax liability referable to it would have related to the financial year 1 July 2008 to 30 June 2009. 186 This analysis of the relevant information and offence is, however, overly technical and narrow where the issue is whether the information was capable of supporting the issue of a search warrant relating to the offence. It is an analysis that would perhaps be appropriate if the relevant question was whether a charge in these terms had been made out on the evidence. It might equally be appropriate if the question was whether an indictment containing this charge was properly pleaded and particularised. Such a narrow and technical analysis of the first Starbrake offence is not appropriate in considering whether it was open to an issuing officer to issue a warrant under s 3E of the Crimes Act relating to that offence. 187 As Burchett J pointed out in Beneficial Finance (at 543), in the passage extracted earlier, the legislature has entrusted the task of issuing search warrants not only to magistrates, but also to lay justices of the peace. Also relevant is the fact that, in deciding whether or not to issue a warrant, an issuing officer is acting administratively, not judicially, although the discretion is to be exercised in a judicial fashion: Baker v Campbell (1983) 153 CLR 52 at 70 (per Gibbs CJ). Just as it would be inappropriate to insist upon the invalidation of a warrant for a legally incorrect formulation of an offence, even if the substance could be understood, so too would it be inappropriate to impose an overly technical or exacting standard on issuing officers in considering the particularisation of offences specified in search warrants. 188 That point was recently emphasised by the New South Wales Court of Appeal in Polley v Johnson [2015] NSWCA 256. In that case, Simpson JA (with whom Beazley P and McColl JA agreed at [1] and [2]) said (at [44], [46] to [49]): 44 In determining whether or not to issue a warrant, an eligible issuing officer is acting administratively, or ministerially, although the discretion to do so is to be exercised judicially: Baker v Campbell [1983] HCA 39; 153 CLR 52 at p 70, per Gibbs CJ (noting that his Honour was in dissent as to the principal issue in that proceeding). It is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence upon which reliance is placed by the police officer seeking the issue of a warrant. … 46 I accept that, in this case, it was reasonably clear to Ms Smith, from the information in the application, that there was then no current relevant judicial proceeding. But it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence identified in the application. The question for that officer is whether that material provides "reasonable grounds" for the issue of a warrant, which may yield relevant evidence or information. 47 Nor is it the role of the eligible issuing officer to engage in the construction of the legislation in question; particularly is that so, where, as here, there existed an unresolved (unresolved until the decision of the primary judge in this very case) issue of the construction of that provision. Ironically, it was the very absence of certainty about the construction of s 326(2) upon which the applicant relied to advance her claim for leave to appeal. 48 In a very different context (the extent of the application of legal professional privilege) Mason J (as he then was) and others in the High Court have commented on the undesirability of committing the determination of complex legal issues to individuals exercising administrative functions: Baker v Campbell, at p 75-76; O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 at 26. A similar approach was taken by Brennan J (as he then was) in relation to s 155(1) of the Trade Practices Act 1974 (Cth), which required the provision of information which might have exposed the person supplying the information to the risk of penalty: Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 at 355. Yet that is the very nature of the exercise, it was implicit in the applicant's argument, upon which Ms Smith ought to have embarked. 49 The guidance to be obtained from these cases is limited, but not non-existent. In each case, the argument concerned an implicitly asserted obligation on a non-judicial officer to make decisions that are essentially judicial, and of some legal complexity. 189 While it is not entirely clear, it would appear that the first Starbrake offence was particularised as having been committed in 2008 because the royalty payment was received in 2008. If, as alleged, that payment comprised income and was not a loan, it should have been returned as forming part of Starbrake's assessable income for the financial year 1 July 2008 to 30 June 2009. While an overzealous and technical analysis might suggest that the charge could or should have been particularised with different dates, it was nevertheless open to the issuing officer to be satisfied that there were reasonable grounds for suspecting that the first Starbrake offence was properly particularised by reference to 2008. It was open to the executing officer to be satisfied that there were reasonable grounds for suspecting that at least some of the factual or legal elements of the alleged offence were referable to the year 2008. It was not the role of the issuing officer to explore fine legal distinctions or arguments that might suggest that the offence could or should have been particularised by reference to different dates. 190 Mr Caratti's contention that the information before the issuing officer did not permit the issue of a warrant containing the second Starbrake offence has no merit for the same reasons. The second Starbrake offence was also particularised as having been committed in 2008. For the reasons already given, the second Starbrake offence should be read as relating to the non-payment of GST referrable to the royalty payment that was made in mid-2008. Starbrake was required to lodge a business activity statement and pay GST referable to the supply to which the royalty payment related in 2008. Accordingly, the alleged failure to "pass on" GST also arguably occurred in 2008. Whilst it may have been possible (and perhaps even preferable) to particularise the offence by reference to a particular date (for example the date the business activity was in fact lodged, or was required to be lodged) that level of particularisation was not required for the purposed of a valid search warrant relating to the alleged offence. It was open to the issuing officer to be satisfied in accordance with s 3E of the Crimes Act in relation to the second Starbrake offence as particularised. 191 The Westend offence concerned the allegation that Mr Caratti falsified costs in a dishonest attempt to reduce tax otherwise payable by Westend. The offence was particularised as having occurred in 2008. The information before the issuing officer, however, suggested that the alleged falsification of costs involved false invoices that were allegedly created in 2009, not 2008. 192 It is unclear why the Westend offence was particularised by reference to 2008. There are, however, some possible explanations. The information before the issuing officer suggested, for example, that some of the work to which the false invoices related may have occurred during 2008. That is because the developed land was sold between 2003 to 2008. As land sales were made during 2008, it would also appear that some of the income earned by Westend, against which the allegedly "falsified costs" were presumably allocated for income tax purposes, was earned during 2008. That might also provide a basis for suspecting that the offence was committed, at least in part, in 2008. 193 That said, there is no doubt a degree of uncertainty and ambiguity concerning the date period during which it was alleged that the Westend offence was committed. It no doubt would have been preferable for there to have been more clarity and particularity in relation to the date of the Westend offence. The particularisation of the offence as having been committed in 2008 would no doubt have been problematic if the question was whether an indictment containing the Westend offence should be struck down or dismissed having regard to the evidence. That, however, is not the question here. Such a technical and narrow approach to the particularisation of the offence is unwarranted where the relevant question is the sufficiency of the information before an issuing officer for the purposes of issuing a search warrant. It was at the very least open to the issuing officer to be satisfied that there were reasonable grounds to suspect that the Westend offence was referable, at least in part, to 2008. 194 The Whitby Land Company offence was alleged to have been committed over a three and half year period between 1 July 2010 and 31 December 2013. That would appear to be the period during which it was alleged that Mr Caratti caused Whitby Land Company to "withhold" GST that was properly payable to the ATO and thereby obtained a financial advantage. It would appear from the information before the issuing officer that the relevant supplies in respect of which it was alleged Whitby Land Company was liable for GST, the sales of the Nicholson Road land, occurred at various times during the period 2010 and 2012. The GST payable in respect of those supplies should have been brought to account in business activity statements lodged, or required to be lodged, during the latter part of 2010 and perhaps into 2013. 195 The dates in the Whitby Land Company offence would appear to relate to specific dates when business activity statements were required to be lodged, and GST paid, in respect of the taxable sales of land. It may be, as Mr Caratti effectively contended, that strictly speaking this period was slightly broader than the period during which taxable sales were made and GST liabilities incurred based on the information before the issuing officer. The information before the issuing officer concerning the dates of the relevant supplies was somewhat lacking in clarity and particularity. Again, however, the narrow and technical analysis inherent in Mr Caratti's contentions is, in all the circumstances, not the appropriate analysis to adopt in considering whether it was open to the issuing officer to issue the warrants. In all the circumstances it was open to the issuing officer to be satisfied as required by s 3E of the Crimes Act in respect of the Westend offence particularised in terms of the period 1 July 2010 to 31 December 2013. 196 The central allegations in the Gucce Holdings offence were that Mr Caratti and Ms Bazzo falsified costs incurred by Gucce Holdings, with the result that Gucce Holdings overstated input tax credits properly claimable by it. In so doing, it was alleged that Mr Caratti and Ms Bazzo obtained a financial benefit by deception. The date on which the offence was alleged to have been committed was December 2011. 197 It is somewhat of a mystery why the offence was particularised by reference to December 2011. On one view of the information before the issuing officer, it would have been open to suspect, on reasonable grounds, that overstated input tax credits were or may have been claimed over a much longer period. The relevant works in respect of which the costs were allegedly falsified extended from about July 2011 to about November 2012. The apparently legitimate invoices in relation to the works extended over the period August 2011 to December 2012. There appears to have been a reasonable basis to suspect that the allegedly false invoices (and corresponding overstated input tax credits) covered the same periods. 198 Despite this apparent disjunct between the information, which suggested a broad offence period, and the offence, which was particularised in terms of a relatively narrow period, it was open to the issuing officer to issue warrants containing the Gucce Holdings charge as particularised. The particularised date, December 2011, was within the broader period during which the offences might reasonably have been suspected of having been committed.

Conclusion in relation to ground 1A 199 Mr Caratti's contention that the search and seizure authorised by the search warrants in question exceeded what was justified by the information before the issuing officer is rejected. The warrants were not in any relevant sense wider than justified on the basis that the offences in the third condition could possibly have been drafted in narrower terms. Nor can it be concluded that the information before the issuing officer required the offences in the third condition to contain different dates or date ranges. While there was again a certain lack of clarity and particularity in the third condition offences, the information before the issuing officer was nevertheless capable of satisfying the officer that there were reasonable grounds to suspect that there was or would be evidential material at the relevant premises in respect of the offences specified in the third condition of the warrants.

Ground 1C - the "storage medium" paragraph 200 Ground 1C concerns the following paragraph which appears immediately after the third condition in each of the warrants. Together with any storage medium or storage device which contains any of the above things and any manual, instruction, password, or other thing which is needed to gain access to or interpret or decode any of the above things. 201 Mr Caratti contended that this "storage medium" paragraph had the result that the warrants as a whole "exceeded what was justified by the material before the issuing officer". In Mr Caratti's submission, the information before the issuing officer did not provide reasonable grounds for suspecting that a "storage medium or storage device" comprised evidential materials simply because a "thing" stored on or in the device may otherwise have fallen within the terms of the warrant. He also contended that the storage medium paragraph impermissibly subverted the requirements of s 3L of the Crimes Act. 202 There is merit in Mr Caratti's contentions concerning the operation and validity of this paragraph in the warrants. 203 It would appear that the storage medium paragraph was intended to deal with the seizure of computers and computer related devices, such as hard drives and USB storage devices. Section 3L of the Crimes Act contains detailed provisions that concern, in general terms, the use of electronic equipment during the execution of a warrant to access data on the equipment to determine if the data constitutes evidential material. Perhaps more significantly, it provides for the copying of the data and specifies the circumstances in which, instead of copying the data, the equipment itself can be seized. Section 3L (1), (1A), (2) and (3) are of particular relevance to this ground. Those subsections provide as follows: (1) The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material. Note: A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA. (1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may: (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or (b) if the occupier of the premises agrees in writing--copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises; and take the device from the premises. (2) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can, by using facilities at the premises, be put in documentary form--operate the facilities to put the material in that form and seize the documents so produced. (3) A constable may seize equipment under paragraph (2)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or (b) possession by the occupier of the equipment could constitute an offence. 204 The meaning of the storage medium paragraph, read as it must be in the context of the warrant as a whole, is somewhat obscure. Like other parts of the warrant, it is poorly drafted. The reason for including it in the warrant is unclear given that the first condition of the warrant specifically referred to "computers and peripheral devices" and specifically adverted to documents and things "stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device". The need for including this additional paragraph is also questionable given the detailed provisions in the Crimes Act relating to the search and seizure of electronic equipment. 205 There are at least two available interpretations of the paragraph. One interpretation would be potentially problematic in terms of the validity of the warrant (subject to questions of severance), the other would not. 206 The interpretation embraced by the Commissioner was, in effect, that the storage medium paragraph does no more than clarify or confirm that an item falling within that paragraph, for example a "storage medium or storage device", such as a USB device or "memory stick", can be seized if it otherwise satisfies all three conditions in the warrant. If that was the extent of the operation of the paragraph, it would not be problematic. The question is, however, whether that is the extent of the intended and actual operation of the paragraph. 207 There is no reason to doubt that an electronic device containing data could itself constitute evidential material and therefore be seized under the warrant. That would be the case even without the storage medium paragraph. A hypothetical example of such an item would be if a searching officer located a USB storage device which was labelled "Starbrake accounts, tax returns and BAS-2008 to 2012". Such an item would appear to satisfy each condition in the warrant. It would satisfy condition one because it could be considered to be an "electronic storage medium" in respect of which there were reasonable grounds to suspect that it contained "business records" and "tax returns", all of which are things referred to expressly in condition one. It would satisfy condition two because it would be reasonable to suspect that it related to Starbrake, one of the listed entities in the second condition. Most importantly, it would be likely to satisfy condition three because there would most likely be reasonable grounds for suspecting that the device itself would afford evidence of the commission of the two Starbrake offences in the third condition. 208 The important point to emphasise in respect of this hypothetical example is that the device itself, not just the data on it, could constitute evidential material. Given the label on the USB device, there would be reasonable grounds to suspect that all of the data stored on it would be potentially relevant to the offences in the warrant. It would also be reasonable to suspect that the physical item itself (as distinct from the data on it) might be relevant. For instance, the label on the USB device itself might be evidence of the nature and provenance of both the device and its contents. It might be open, for example, to an executing officer to suspect that the handwriting on the label would assist in identifying who was responsible for compiling the data on the device. That scenario is analogous, in some respects, to the situation where a search officer located a single relevant document within a larger book, file or folder. If it was reasonable to suspect that the book, folder or file would assist in establishing the nature, authorship or provenance of the single document within it, the book, file or folder itself could be seized as evidential material: Harts Australia v Commissioner of Australian Federal Police (2002) 117 FCR 358 (Harts (2002) (First instance)) at 370 [39]; Adler v Gardiner [2002] FCA 1141; (2002) 43 ACSR 24 at 29-20 [21]-[22]. 209 In such circumstances, it would be unnecessary to utilise any of the provisions in s 3L of the Act. There would be reasonable grounds to suspect that the device itself would comprise evidential material as defined by the three conditions in the warrant, even without the storage medium paragraph. Section 3F(1)(c) of the Crimes Act provides that an executing officer or constable assisting is authorised to seize "the kinds of evidential material specified in the warrant". The hypothetical USB device itself could therefore be seized under the terms of the warrant and s 3F without resort to s 3L(2)(a) of the Crimes Act. That would be the case even without the storage medium paragraph. 210 The difficulty for the Commissioner is that the interpretation of the storage medium paragraph advocated by him is not supported by either the text of the paragraph or the context in which the paragraph appears in the warrants. A fair reading of the storage medium paragraph in context suggests that it purports to authorise more than the seizure of items, like the hypothetical USB device, that would otherwise meet each of the three conditions in the warrant and be able to be seized under s 3F(1)(c). The words "together with" at the beginning of the paragraph suggest that the paragraph purports to operate outside of, or in addition to, the three conditions in the warrant. It would also be unnecessary to add a paragraph to simply confirm or clarify that computers or other electronic equipment or devices that otherwise meet all conditions in the warrant could be seized. As indicated earlier, computers and storage devices are already expressly included in the first condition of the warrant. 211 When read in context, what the paragraph in fact purports to do is to authorise the seizure of an item (for example a storage device) if it contained anything which met the three conditions in the warrant, even if the storage device itself, as distinct from its contents, did not meet or satisfy each of the three conditions. It also purports to authorise the seizure of the storage device itself in circumstances which would not necessarily be permitted by s 3L of the Crimes Act. Another hypothetical example might serve to illustrate how the impugned paragraph purports to extend the authority to seize storage devices, such as computers, beyond what would otherwise be permitted by s 3F(1)(c) and the three conditions in the warrant or s 3L of the Act. 212 If a searching officer located an unlabelled laptop computer in the television room of Mr Caratti's residential premises, it is doubtful that the officer could reasonably form a view, absent further information, that the computer fell within all three conditions of the warrant. Arguably it would satisfy the first condition because it was a "laptop computer", which is amongst the long list of items in the first condition. Perhaps more contentiously, given that the computer was located in Mr Caratti's house, it could possibly be said to "relate to" Mr Caratti, who is listed in the second condition. As an aside, this serves to demonstrate the breadth of the first two conditions in the warrants. 213 It is, however, difficult to see how it could reasonably be concluded that the computer would satisfy the third condition. There would not appear to be any reasonable grounds to suspect that it would afford evidence of any of the offences listed in the third condition. For all the officer knew, the computer might contain nothing more than recordings of Mr Caratti's favourite episodes of "The Simpsons". That might be evidence of an offence under the Copyright Act. It could not reasonably be suspected of being evidence of any of the third condition offences. Without more the computer could not be seized. 214 If however, there was something to suggest that the computer contained data that might be relevant to the third condition offences, the officer could operate the equipment pursuant to s 3L(1) of the Act. Let it be assumed that the officer had reasonable grounds to suspect that there may be data stored on the computer that might constitute evidential material and that, upon operating the computer, the officer found that thousands of documents (in the Microsoft "Word" electronic format) were saved to the computer's hard drive. Those documents comprised personal correspondence that, with one exception, had nothing whatsoever to do with any of the condition three offences. Assume that the exception was a letter that contained admissions relevant to one of the offences. Assume also that there was nothing to suggest that the position, location or provenance of the relevant "Word" version of the letter as stored or saved on the computer was relevant, or that the computer itself would assist in proving the authorship or provenance of the electronic version of the letter. 215 In such circumstances, the officer could take one of two courses of action under s 3L. 216 First, the officer could utilise the provisions of s 3L(1A) of the Crimes Act and copy the data stored on the computer onto another disk, tape or associated device and then take that device (the device containing the copied data) from the premises. Second, the officer could utilise the provisions in s 3L(2) and either seize the computer itself (s 3L(2)(a)) or, using a printer at the premises, print the data in documentary form and then seize the printed document (s 3L(2)(b)). Section 3L(3) provides, however, that the computer can only be seized in such circumstances if either it was not practicable to copy the data on the computer to a device as provided for in s 3L(1A), or possession of the computer by the occupier could constitute an offence. 217 The important point is that, in this hypothetical scenario, the officer would have no authority to seize the computer other than as provided for in s 3L(2)(a) and (3). That is because, as already indicated, without more the officer would have no reasonable grounds for suspecting that the computer itself, as opposed to any data stored on it, would satisfy all three conditions of the warrant. The computer could therefore not be seized pursuant to s 3F(1)(c). At the very least the officer would have to turn his or her mind to the question whether it was or was not practicable to copy the data pursuant to s 3L(1A). If it was practicable to copy the data, the computer could not be seized. 218 The storage medium paragraph in the warrants would, however, appear to authorise the executing officer to seize this hypothetical computer (as a storage medium or storage device) on the basis that it contained a "thing" (the data file containing the relevant letter) because that data file or letter satisfied each of the conditions in the warrant. It would appear to authorise the seizure of the computer in the circumstances where there were no reasonable grounds to suspect that the computer itself, as distinct from the single relevant data file stored on it, satisfied the third condition of the warrant and therefore comprised evidential material. It would also appear to purport to authorise the seizure of the computer even if the conditions or circumstances in s 3L(3) were not satisfied. 219 In these circumstances, the impugned storage medium paragraph would appear to have the capacity to subvert or override the operation of s 3F(1)(c) and s 3L(2)(a) and (3) of the Act. It purports to permit the seizure of electronic equipment and storage devices that would otherwise not be able to be seized. 220 The Commissioner's submissions concerning the operation of this paragraph of the warrant appeared to proceed on a false premise. The Commissioner submitted, in effect, that if a computer contained a file (even a single file) relevant to an offence in the warrant, the computer itself could be seized, without recourse to s 3L, if the first condition of the warrant included computers amongst the list of "things" that satisfied that condition. This submission appeared to be based on the premise that if a single file saved on the computer might be relevant to the offence, and would therefore satisfy the third condition, it necessarily followed that there would be reasonable grounds to suspect that the computer itself, as distinct from the single file, would afford evidence of the commission of the offence. That is wrong. Of course, there may be cases (such as the hypothetical labelled USB device considered earlier) where there computer or device itself could reasonably be suspected of comprising evidential material. That may be because the device itself may assist in proving the nature, identity or provenance of the files stored on it. There may, for example be labels or identification marks on the computer hardware itself which might be potentially relevant because they might tend to prove who used the computer. But that is not every case. The impugned paragraph purports to authorise seizure of a computer in any case where a relevant file is saved on the computer. 221 The Commissioner also contended that s 3L was facultative, not limiting, and simply supplemented the broader search and seizure powers in s 3F. That may be so. If a computer or other storage device satisfies the conditions in the warrant that define the relevant evidential material, it may be seized pursuant to s 3F(1)(c) of the Act. It does not need to be seized under s 3L(2)(a). That is the case even where it may have only became apparent that the computer itself satisfied the conditions in the warrant, and was therefore able to be seized under s 3F(1)(c), after the procedure provided for in s 3L(1A) was utilised and the computer was operated and the data stored on it examined. In circumstances where the computer is able to be seized under s 3F(1)(c), the question whether or not the condition or circumstance specified in s 3L(3) was satisfied does not arise. In this sense, s 3L(2)(a) provides an additional or alternative basis for seizing a computer. 222 However, the Commissioner's submission that s 3L was facultative also proceeded on the premise that the mere presence of a relevant saved file on a computer would necessarily mean that the computer itself, as opposed to that relevant file, would satisfy the conditions in the warrant and could therefore be seized under s 3F(1)(c). For the reasons already given, that is not always the case. The computer in the hypothetical example just discussed provides an example of a case where the presence of a file on a computer would not necessarily justify seizure of the computer under s 3F(1)(c). 223 The Commissioner's construction of the operation of ss 3F and 3L would effectively denude s 3L(2)(a) and (3) of any operation. On the Commissioner's construction, an executing officer would almost never have to turn his or her mind to whether it was practicable to copy the data on a computer, as opposed to seizing the computer, other than perhaps in circumstances where the first condition of the warrant does not include computers or electronic equipment in the list of "things" that might be seized. Having regard to the way search warrants are almost invariably drafted these days, that will almost never be the case. 224 Contrary to the Commissioner's submissions, the impugned storage medium paragraph impermissibly authorises seizure in circumstances not otherwise permitted by either s 3F or s 3L. The impugned paragraph purports to authorise seizure of a computer or other electronic device, which may not itself be evidential material, simply because it contains a file that may constitute evidential material. The very point of s 3L(2)(a) is to permit the seizure of such a computer (one that is not otherwise able to be seized under s 3F(1)(c) or any of the other paragraphs of s 3F), but only if the circumstances provided in s 3L(2)(a) and (3) are satisfied. The impugned paragraph purports to permit seizure even if those conditions are not satisfied. 225 It follows that there is merit in Mr Caratti's contention that the storage medium paragraph (the paragraph immediately after the third condition in the warrants) operated, or purported to operate, so as to authorise the seizure of items that did not comprise evidential material and were not otherwise able to be seized under the relevant provisions of the Crimes Act. To the extent that it authorised seizure of items not otherwise able to be seized under s 3F or s 3L of the Crimes Act, it was beyond power and invalid. It was not open to the issuing officer to issue warrants containing the storage medium paragraph. 226 It does not necessarily follow, however, that the warrants (or the decisions to issue them) were void and of no effect and should be quashed. That is because in certain circumstances parts of a search warrant that have been found to be invalid may be severed from the balance of the warrant. The question is whether severance of the offending paragraph in the warrants is, in all the circumstances, warranted.

Severance 227 In Parker v Churchill, Jackson J found that significant parts of a search warrant that purported to describe the offences to which the warrant related were invalid. His Honour declared those parts of the warrant to be invalid, but ordered that the invalid parts could be severed from the warrants. His Honour declared the warrants to be otherwise valid. His Honour said (at 350): There is no reason why a search warrant granted under s 10 may not include in respect of the same place a number of quite different matters and there is nothing in the section itself to suggest that if one of the matters so included exceeds the powers conferred by s 10, the warrant necessarily fails as to the other matters. It is possible, of course, that the good and bad parts of the warrants may be so interlinked that one cannot stand without the other but that would usually mean no more than that the parts, as a matter of construction of the warrant, were not truly separate. Further, as the primary judge said, the authorities suggest that a search warrant, being an order of a justice is divisible and when good in part and bad in part, the good may be divided from the bad, and the good affirmed and the bad quashed: see R v Johnson & Franklin Wholesale Distributors Ltd (1971) 3 CCC (2d) 484; Adler v Attorney-General of Alberta (supra) at 139-140; Abou-Assale v Bourden JSP (1978) I CR (3d) 213 at 231; Coward v Allen (1984) 52 ALR 320 and Brewer v Castles (No 3) (1984) 52 ALR 581. 228 Bowen CJ and Lockhart J agreed with Jackson J, other than in respect of one part of the warrant that Jackson J had declared invalid. It is readily apparent that Bowen CJ and Lockhart J agreed with Jackson J in relation to the question of severance. They declared that certain parts of the warrant were invalid, but that the warrants were otherwise valid. 229 In Beneficial Finance, Burchett J (with whom Sheppard J agreed at 525) considered that it was open to sever parts of a warrant which incorrectly recited the language of the former s 10(1)(a) of the Crimes Act. His Honour said (at 545). The severability of a search warrant has some importance for the present case because of the argument, further consideration of which I deferred earlier in these reasons, that the warrants contain an inaccurate reproduction of the language of s 10(1)(a) of the Crimes Act, and thus purport to authorise inappropriately the seizure of things "in respect to which there are reasonable grounds for suspecting that [the suspected offences] have been committed". In my opinion, if this portion of the warrants is invalid, it is readily severable. As there has been no suggestion that any particular document has been, or is likely to have been, seized in reliance upon this portion of either of the warrants, it is unnecessary to decide whether the failure to follow precisely the wording of the statute did have any vitiating effect. I am unable to imagine anything in this case which could be a thing "in respect to which" the offence had been committed, yet would not fall within the terms of that part of the warrant which accurately reflects s 10(1)(b). That has already been made clear in the discussion of the true meaning of the word "and" in this very special context. The reflection of s 10(1)(a) in the drafting of the document cannot, in the circumstances, have made any practical difference to the search or the seizure. It would be an apotheosis of pedantry to refuse to sever the warrant, and to invalidate it on this ground. 230 Pincus J agreed "substantially" with the reasons of Burchett J, including that severance of invalid portions of a warrant is appropriate in some circumstances. His Honour took issue, however, with Burchett J's view that it was relevant, in the context of severance, that there had been no suggestion that documents had been seized in reliance on the invalid parts. Pincus J expressed the view (at 526) that it "cannot be incumbent upon the party challenging an executed warrant to show which documents were seized in reliance on particular parts of it". 231 In Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24, McHugh JA followed Parker v Churchill and held that the doctrine of severability applied to warrants that were issued in excess of power. His Honour noted (at 41D-E), however, that "it is not possible to sever a warrant where the invalid provision forms part of an inseparable context, or would operate differently or produce a different result from that which was intended". Perhaps even more importantly, his Honour found that, because warrants are instruments for the purposes of provisions such as s 32 of the Interpretation Act 1987 (NSW), they are to be read and construed to the extent that they can be read as valid instruments. The result was to throw the burden upon the person attacking an entire warrant to prove, in effect, that if the invalid part of the warrant was severed, the warrant would have operated differently, or would have produced a different result to that intended. 232 In all of the circumstances of this case, it is appropriate to sever the storage medium paragraph. That is so for a number of reasons. 233 First, the invalid storage medium paragraph forms only a very small part of the warrants. As already noted, properly construed, the paragraph purports to operate independently of the three conditions in the warrants. It is not at all intertwined with, or inseparable from, any other part or parts of the warrants. It only purports to authorise the seizure of storage media, storage devices and associated items. It only operates impermissibly in respect of devices that would not otherwise satisfy the three conditions of the warrant or be able to be seized pursuant to s 3L(2) of the Act. It does not impact at all on the authority to seize any other items under the warrant. 234 Second, since the paragraph could only operate to impermissibly authorise the seizure of a very narrow category of items (storage media and storage devices that would not otherwise be able to be seized under the warrant or s 3L(2)), it is readily apparent that the vast bulk of items that were seized under the authority of the warrants could not have been seized under the purported authority of the storage media paragraph. That is apparent irrespective of which, if any, party bore the onus, in this context, to prove which documents were seized in reliance on which particular parts of the warrants (cf. Pincus J in Beneficial Finance at 526). 235 Mr Caratti contended that if the paragraph in question was invalid, it invalidated the entire warrant and all items seized under the warrant should be returned. That submission is rejected. It would not, in all the circumstances, be appropriate to order the return all of the seized items in circumstances where the vast bulk of the seized items could not on any view have been seized under the authority of the impugned paragraph and were therefore validly seized. 236 Third, to the extent that Mr Caratti submitted, based on the observations of Pincus J in Beneficial Finance, that the invalid portion should not be severed if the Commissioner did not prove that no items were seized pursuant to the invalid portion, that submission is rejected. While it may not have been incumbent on Mr Caratti, in opposing severance, to prove that items were seized pursuant to the invalid portion, it does not follow that the Commissioner bore the onus of proving that no items were seized under that part of the warrant. The observations of McHugh JA in Peters suggest that Mr Caratti bore the onus of showing, at the very least, that if the invalid portion was severed, the warrant would have operated differently, or would produce a different result to that intended. Mr Caratti has not discharged that onus. 237 Fourth, Mr Caratti claimed that executing officers seized certain computers and hard disks without complying with the procedures mandated by the Crimes Act. Evidence was led specifically to make good that contention. Tax officers and employees of the AFP who were involved in seizing computer equipment were called by the Commissioner and cross-examined by Mr Caratti about the seizure of computer related items. That evidence and Mr Caratti's contentions concerning the seizure of computer equipment is considered later in the context of Mr Caratti's ground three. The appropriate and preferable course is to sever the storage medium paragraph and consider the lawfulness of the seizure of the computer related items in the context of ground three.

Conclusion in relation to the validity of the search warrants 238 The search warrants are not invalid on the basis that the offences to which they related did not sufficiently define, or permit the occupiers of the premises to comprehend, the authorised search perimeter. Nor are the warrants invalid on the basis that it was not open to the issuing officer to be satisfied that there were reasonable grounds to suspect that evidential material referable to the third condition offences would be at the premises. The storage medium paragraph is invalid, but is severable and does not invalidate the balance of the warrants. 239 While it follows that the Commissioner has successfully defended the validity of the warrants in question, other than the storage medium paragraph, something more should be said about the drafting of the warrants in question. It should not be thought for a moment that, by upholding these warrants, the Court has somehow sanctioned, let alone encouraged, broad and poorly drafted "three conditions" warrants like those in question in this matter. 240 Search warrants under s 3E of the Crimes Act are now almost invariably drafted and issued in the "three conditions" format. The origins of the three condition warrant are somewhat unclear. It appears to have been adopted as a drafting device or tool since about 1994 when s 3E (and associated provisions) were inserted in the Crimes Act to replace the former s 10. It may be accepted that a warrant framed in terms of three conditions is not, for that reason alone invalid: see generally, Dunesky v Elder; Grollo v Macauley (1995) 56 FCR 533; Harts (1997) at 154B; Williams v Keelty at 211 [155]. That said, nothing in s 3E, or the previous s 10, of the Crimes Act, compels or requires warrants to be drafted in such terms. 241 If carefully and thoughtfully drafted, a three condition warrant may be an appropriate and useful vehicle pursuant to which a search warrant may be applied for and issued under s 3E of the Crimes Act. Such a warrant may be particularly appropriate at the early stages of an investigation involving complex and technical offences, particularly offences relating to commercial and taxation matters, when it is not known precisely what types of evidential material may be at the subject premises. A three condition warrant may in such cases appropriately meet the requirements of s 3E and still permit a broad and extensive search. Considerable care must, however, be taken when drafting a three condition warrant. As was pointed out in Harts (1997), a three condition warrant will more readily be open to attack on the basis that the issuing officer did not (or could not have had) the relevant satisfaction than would a warrant more carefully and less broadly framed. The Commissioner appears intent on ignoring this warning. The warrants issued in this matter clearly reveal the issues and difficulties that may arise if appropriate care is not taken in the drafting of three condition warrants. 242 There appears to be an unfortunate tendency, in the drafting of three condition warrants, to draft the first condition in such broad terms that it provides no effective filter or guide to the search. The warrants in this case are a good example of this tendency. Often the first condition contains an extensive and broadly drafted list of just about every type of document or electronic device that could possibly exist. When it comes to executing a warrant drafted in such terms, there would be little point in executing officers having regard to the first condition when making search and seizure decisions. That is because, whatever item is located, it will almost inevitably fall within the extensive list in the first condition. 243 Equally, there is a tendency to draft the second condition so as to include the longest possible list of persons, entities, addresses, email addresses, telephone numbers and bank accounts that it is possible to compile. "Things" will meet the condition if they "relate to" any one or more of the persons or entities or address included in that long list. As already indicated, the expression "relate to" in this context is not only extremely wide, but also potentially vague and indefinite: Williams v Keelty at 211-212 [158]. It follows that often the second condition is also not a particularly effective filter or guide to what may constitute evidential material. In most cases, just about everything located at the subject premises is likely to relate to one or more of the persons, entities or other things listed in the second condition. 244 What that means is that frequently the third condition of the warrant is the only effective filter in the warrant. That may not be a problem in circumstances were the third condition is drafted with care and the greatest degree of precision and particularity that is possible at the stage that the investigation may be at. In the past, the AFP frequently sought the advice and assistance of experienced lawyers and prosecutors at the Office of the Commonwealth Director of Public Prosecutions in relation to the drafting of search warrants in complex matters. Regrettably that no longer seems to be the case. It does not appear to have happened in this case. If it had, many of the issues that have arisen in relation to the issue and form of the warrants in question would probably not have arisen. 245 If appropriate care is not taken in the drafting of the third condition in a warrant, one likely result is a challenge to the warrant, similar to the challenge that has occurred in this case. While the warrants in question in this case have been found to be valid (other than the one severed paragraph), for the reasons already given, the third condition offences were very poorly drafted. Mr Caratti's complaints concerning the drafting of the warrants were by no means frivolous or entirely baseless. 246 Throughout the proceedings the Commissioner maintained a stoic and somewhat blinkered position that there was no problem with the drafting of the third condition in the warrants. Mr Caratti's complaints concerning the third condition were met by the constant refrain that the statement of the offence in a warrant need not meet a "high bar". The Commissioner's suggestion that there was no problem with the drafting of the warrants was unrealistic, if not fanciful. While a warrant must be approached in a practical and common sense way, and not with overzealous technicality, that does not mean, as the Commissioner effectively suggested, that s 3E created only a "low bar". 247 Poorly drafted three condition warrants serve only to invite controversy and judicial review challenges. As these proceedings show, such challenges can end up being long, complex and drawn out affairs. They result in an unfortunate fragmentation and delay of criminal investigations. 248 The second likely result of poorly drafted warrants is that the execution of the warrants is almost invariably rendered more difficult. To determine if an item is able to be seized, executing officers are required to consider and comprehend the offences listed in the third condition of the warrant. As executing officers and constables assisting are unlikely to be legally trained, that may not always be an easy task, particularly where the offences relate to complex commercial or tax-related affairs. The task is rendered even more difficult where, as is often the case, the executing officers and persons assisting have not had any or any extensive involvement in the relevant investigation. The task is rendered more difficult still where the third condition offences are not drafted with appropriate care, precision and particularity. 249 There was some evidence that suggested that some of the officers involved in the execution of the warrants may have had an imperfect appreciation of the meaning and scope of the search warrants. Perhaps not surprisingly, Federal Agents who had not been involved in the investigation appeared to have sought the assistance of tax officers and, in some instances, appeared to use extrinsic aids to assist them to make appropriate search and seizure decisions. Mr Caratti's contentions concerning the execution of the warrants are the subject of grounds 2 and 3 of his application. The validity of the warrants is to be determined on the basis of the contents of the warrants in question and the information before the issuing officer. The evidence of what occurred during the execution of the warrants is not relevant or admissible in relation to Mr Caratti's challenge to the validity of the warrants: Williams v Keelty at 211 [157]. Nevertheless, the evidence concerning the execution of the warrants in issue in this matter serves to illustrate the difficulties and complexities that may arise where warrants concerning complex investigations are not drafted with sufficient care and precision.

GROUND 2 - WERE THE WARRANTS LAWFULLY EXECUTED? 250 Mr Caratti claimed that, even if the search warrants were found to be valid, the execution of the search warrants was nevertheless beyond power. He sought a declaration to that effect, as well as a writ of mandamus or order that the Commissioner deliver up all of the items seized pursuant to the warrants. 251 As with other aspects of Mr Caratti's case, his claims concerning the lawfulness of the execution of the warrants have shifted markedly over time. In general terms he contended that the executing officers were confused as to what the warrants authorised. He claimed that the officers did not understand enough about the entities listed in the warrants, their affairs, or their functions, to be able to ascertain the appropriate scope of the searches that were permitted, or to make informed decisions about what items fell within the terms of the warrants. He claimed, in effect, that executing officers abdicated their duties in relation to the making of seizure decisions to tax officers. 252 More specifically, Mr Caratti relied on evidence that he contended demonstrated the following matters. 253 First, the briefings given to the executing officers and constables assisting were insufficient. In particular, insufficient information was given about the third condition to enable the officers to understand the warrants. In any event, not every searching officer attended the briefings. 254 Second, executing officers and constables assisting had inconsistent and incorrect understandings as to what the conditions in the warrants meant. 255 Third, some executing officers and constables assisting did not have copies of the warrant, or copies of the whole warrant. 256 Fourth, executing officers and constables assisting relied heavily on the advice of four tax officers who had knowledge of or involvement in the audit of Mr Caratti and companies associated with him. Those tax officers were Mr Irvin, Ms Milner, Mr Crawshaw and Ms Ramdhas. A procedure was adopted whereby documents were seized if one or other of those tax officers said it was relevant. As a result, decisions to seize documents were made on the basis of what the tax officers believed might be relevant to the investigation, not by reference to the terms of the warrants. 257 Fifth, the tax officers who did give advice about the relevance of documents had a "misguided understanding" of the offences in the third condition of the warrants. This was said to flow, amongst other things, from an early briefing provided by a tax officer about the referral of the investigation to the AFP. 258 Sixth, executing officers and constables assisting relied on Mr Irvin's "Search Relevances" document. That document was not based on, or prepared by reference to, the warrants. In Mr Caratti's submission, it was misleading and confusing and, in any event, broader than the warrants. 259 Seventh, some executing officers and counsel assisting took photos of some documents. 260 Eighth, at some stage "sniffer dogs" were used by the AFP for purposes outside the warrants. 261 Ninth, at one of the premises, AFP "proceeds of crime" officers gave directions to executing officers and constables assisting about the seizure, or possible seizure, of items pursuant to the Proceeds of Crime Act 2002 (Cth). Those items may not have fallen within the terms of the warrants. 262 Before addressing the question whether the evidence established all or any of those matters, a number of points can and should be made concerning the way Mr Caratti advanced his case concerning the execution of the warrants. Mr Caratti's case was very much put on a global basis. He generally made little attempt to distinguish between the execution of the different warrants. A total of eight warrants were executed. Mr Caratti's case seemed to proceed on the basis that if some unauthorised or improper conduct occurred during the execution of a warrant at one of the premises, that could somehow have a bearing on the lawfulness of the execution of the warrants at other premises. It is however, somewhat difficult to see how that could be the case unless it could be demonstrated that the improper conduct was the product of systemic problems or directions that applied in respect of all of the warrant premises. 263 Mr Caratti's case was also advanced on a global or general level in another respect. It appeared to proceed on the basis that if it could be shown that, for example, two or three officers had an incomplete or inadequate understanding of the warrant conditions, it necessarily followed that other officers must also have had the same inadequate understanding. Again, however, it is difficult to see how or why that inference would necessarily be available, unless perhaps the evidence showed that this was a systemic problem. 264 At times Mr Caratti's case also appeared to proceed on the basis that if he established that the execution of the warrants was deficient or excessive in one respect, it would necessarily follow that the warrants as a whole were unlawfully exercised. For example, Mr Caratti appeared to proceed on the basis that if he proved that some officers relied on Mr Irvin or his Search Relevances document on some occasions during the execution of the Wickham Street warrant, it necessarily followed that the execution of that warrant in its entirety was excessive. Indeed, he appeared to argue that this would support a finding that the execution of all of the warrants was excessive. Ultimately, however, Mr Caratti appeared to accept that it was necessary for him to prove that the evidence as a whole demonstrated that the execution of the warrants was excessive. 265 In what appeared to be an alternative argument, albeit one advanced effectively for the first time in closing submissions, Mr Caratti contended that if one aspect of the execution of the warrants was found to be unreasonable or excessive, the burden of proof shifted to the Commissioner. That contention appeared to be based on the observations of Pincus J in Beneficial Finance, albeit that those observations were made in the context of severance. In Mr Caratti's submission, the Commissioner was, in those circumstances, effectively required to prove that no documents were seized pursuant to the aspect of the execution that had been found to be wanting. For example, if it was found that some executing officers searched for or seized documents by reference to Mr Irvin's Search Relevances document, rather than the terms of the warrant, Mr Caratti submitted, in effect, that the Commissioner was required to prove that each document that was seized was not seized as a result of that procedure. 266 It should, in this context, be emphasised that, with the exception of some computer and electronic equipment the subject of ground three, Mr Caratti did not attempt to prove that any specific documents or other items, let alone any significant number of documents, were seized despite the fact that they did not fall within the scope of the warrants. His case was put no higher than that it was "probable" that a substantial number of items not properly caught by the warrants were seized.

Relevant provisions and principles 267 The starting point is that, when a warrant has been issued and is in force under s 3E of the Crimes Act, s 3F(1) provides the primary authority for the executing officer and any constables assisting to enter the premises and to search for and seize evidential material. Section s 3F(1) is in the following terms: (1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting: (a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and (b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and (c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and (d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be: (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence that is an indictable offence; or (iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and (e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and (f) if the warrant so allows - to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession. 268 For present purposes, the important point to note is that the executing officer and constables assisting are only relevantly authorised to search for and seize the "kinds of evidential material specified in the warrant": section 3F(1)(c). There was no suggestion in this matter that any "things" were seized pursuant to s 3F(1)(d) and (e). It follows that the executing officers and constables assisting were required to be aware of and to comprehend the kinds of evidential material that were specified in the warrants in question. If they seized things that were not of that kind, they acted outside the authority of s 3F and therefore unlawfully. 269 Having regard to the definition of "evidential material", in both the Crimes Act and the search warrants, before seizing a document or other item, an executing officer had to consider, amongst other things, whether there were reasonable grounds for suspecting that the item would afford evidence as to the commission of the offences to which the warrant related (the offences in the third condition). That judgment must be made at the time of seizure. An executing officer is not authorised to seize a thing without forming that judgment, with a view to examining the thing subsequently to determine if it is in fact evidential material: Adler at 30 [22]; Harts (2002) (First instance) at 366 [24]; Harts v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 196 ALR 1 (Harts (2002) (Full Court)) at 71-73. 270 The notion of reasonable grounds for a suspicion imports an objective test, but "reasonable" is a value or normative judgment about which there may be legitimate differences of opinion: Adler at 33-34 [39]. A court is not entitled to merely substitute its own opinions, as to whether that test was satisfied, for the opinion of the executing officer: Adler at 33-34 [39]. An executing officer's decision to seize a particular item is only impeachable if the decision was one which the officer could not lawfully reach on the available information: Zhang at 133 [31], citing Different Solutions at 294 [121] (per Graham J). 271 There will be reasonable grounds for a suspicion that a thing "will afford evidence" if it "implicates" the person in the commission of an offence, even if it may not be at admissible in evidence: Propend Finance at 95: Dunesky v The Commonwealth [1996] FCA 624; (1996) 33 ATR 491 at 501, Crowley v Murphy [1981] FCA 26; (1981) 34 ALR 496 at 151. The thing need not be sufficient to achieve a conviction: "it is sufficient that it has relevance or probative connection with the issue arising upon an allegation of the offence alleged": Dunesky v The Commonwealth at 501; Parker v Churchill at 350-351. 272 There are other provisions in the Crimes Act that authorise executing officers and constables assisting to do certain things in certain circumstances in the course of executing a warrant. Many of them relate to the examination or seizure of electronic equipment or the data stored on or in such equipment. Those provisions include s 3L, which has already been considered, and will be addressed further in the context of ground 3. Most of the other provisions are not presently relevant. 273 Beyond the express authority conferred by s 3F, it is generally accepted that a warrant must be exercised reasonably and not excessively. In Crowley v Murphy, Lockhart J (with whom Northrop J relevantly agreed at 505) provided the following "general guidance" in relation to the execution of warrants under the former s 10 of the Crimes Act (at 521): I will not attempt to state exhaustively the procedures that policemen should follow when executing search warrants. That would be both unnecessary and undesirable. What should be done must vary according to the circumstances of each case. But I shall endeavour to give some general guidance. First, like most statutory powers, the power of enforcing a search warrant must be exercised in good faith. Second, the power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose. Third, the power must be exercised fairly, having regard to all the circumstances. Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons. I shall return to this later. Fifth, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority it confers. 274 Those principles apply equally to the execution of a s 3E search warrant. 275 Mr Caratti did not ultimately contend that the warrants were executed in bad faith or for an improper purpose. He did, however, contend that the warrants were not executed fairly and reasonably. He also contended that the executing officers did not strictly follow the directions contained in the warrants and exceeded the limits of the authority conferred by them. 276 In considering the reasonableness of the execution of a warrant, it is important to keep "practical considerations steadily in mind": Baker v Campbell at 83 (per Mason J). As Lockhart J said in Dunesky v The Commonwealth (at 500): A search warrant is a severe intrusion into a person's privacy, home or place of business. The law takes care to ensure, that the powers of police officers entrusted with the task of executing a search warrant are not exceeded; but at the same time it must be borne in mind that execution of a search warrant is a practical exercise carried out by police officers who, though trained in their task of law enforcement, are generally not qualified lawyers. Just as a person's privacy must be respected so must the investigation of criminal offences not be unreasonably impeded. 277 Likewise, in Harts (2002) (Full Court) the Full Court emphasised the need to recognise the "operational realities in which warrants are executed" (at 16 [68]). In that regard, in assessing the reasonableness of the actions of executing officers and constables assisting, it may be appropriate to have regard to information provided in the course of briefings, or advice received from expert agencies such as the ATO: Parker v Churchill at 350; Dunesky v The Commonwealth at 501.

Evidence and findings in relation to the execution of the warrants 278 A good deal of evidence was adduced in relation to the execution of the warrants. Much of it ultimately went nowhere. 279 Mr Caratti relied, in particular, on the evidence of the following witnesses: his solicitors, Mr Daniel Romano and Mr James Marzec, who were present at times during the execution of the Wickham Street warrant; Ms Bazzo, who was present at times during the execution of the Wickham Street and Duncraig Road warrants; Mr Kipping, a solicitor who operated out of an office within the Wickham Street premises and who was present at times during the execution of the warrant in respect of that part of the Wickham Street premises; and Mr Schokker, who was present during the execution of the Cornish Turn warrant. Each of those witnesses swore affidavits and was cross-examined. 280 The Commissioner relied on the evidence of a large number of Federal Agents, employees of the AFP, and tax officers in relation to the execution of the warrants. That evidence included evidence from the executing officers in respect of the warrants executed at the Wickham Street premises (Federal Agent Jirasinha), the Duncraig Road premises (Federal Agent Szolnoki), the Cornish Turn premises (Federal Agent Joss), and the Osborne Park, Irvin Street and Wright Road premises (Federal Agent van Tooren). Evidence was also led from other Federal Agents or members of the AFP who assisted in the execution of some of the warrants (Federal Agents Nicholson, Wealands, Bryce, Johnston, Leigh and Fullerton and Mr Fell) and tax officers who assisted in the execution of the warrants, including in relation to computer forensics (Mr Crawshaw, Mr Irvin, Mr Khan, Mr Ilett, Mr Andrews, Ms Milner and Ms Ramdhas). Those witnesses swore affidavits and, for the most part, were cross-examined. Mr Caratti relied on some of the evidence of those witnesses elicited during cross examination. 281 It is not intended to summarise all of the evidence in relation to the execution of the warrants. As already indicated, the evidence was extensive and wide-ranging. Much of the evidence ultimately had little or no relevance to the issues that arose, on final analysis, having regard to the way Mr Caratti ultimately put his case in relation to the execution to the warrants. Only the evidence relevant to the contentions pressed by Mr Caratti will be considered in any detail. 282 Before addressing the evidence relating to Mr Caratti's specific contentions, it is worthwhile recording some general impressions and findings concerning the evidence considered as a whole. 283 The execution of the search warrants was an extremely large and complex logistical and operational exercise. The execution of the warrant at the Wickham Street premises occurred over three days. It involved upwards of 70 AFP and tax officers. The Duncraig Road warrant involved more than 20 officers. The execution of the Irvin Street, Cornish Turn and Harrisdale warrants were smaller exercises, but even so they involved a relatively large number of officers: eight in the case of the Irvin Street premises; fifteen in the case of the Cornish Turn premises; and twelve in the case of the Wright Road premises. Mr Caratti's contentions concerning certain aspects of the execution of the warrants must be considered in the context of the size and complexity of the overall operation. 284 This large and complex operation was overseen by Federal Agent Nicholson. He delivered the main operational briefing that was the subject of one of Mr Caratti's complaints. Federal Agent Nicholson was an impressive and credible witness. There is no reason whatsoever to doubt that Federal Agent Nicholson genuinely intended to ensure that all warrants were executed fairly and in accordance with their terms and the relevant provisions of the Crimes Act. There is also no reason whatsoever to doubt the he did what he considered was necessary and desirable to ensure, as best he could, that the warrants were properly and reasonably executed. 285 One of the operational difficulties faced by Federal Agent Nicholson was that, given the size and complexity of the operation, it was necessary for him to engage the services of a large number of Federal Agents who had not had any, or any significant, prior involvement in Operation Caballus or the investigation into the offences allegedly committed by Mr Caratti and Ms Bazzo. That difficulty was compounded by at least two other matters. 286 First, the investigation and the warrants concerned matters of considerable factual and legal complexity. In short terms, the offences to which the warrants related involved allegations concerning the income tax and GST affairs of several companies over a number of years. It might reasonably be inferred that a number of the Federal Agents involved in the execution of the warrants were not particularly well-versed in the fine detail of the tax legislation that underlay the various alleged offences. 287 Second, as has already been pointed out at length, the search warrants were drafted in terms that did not make the task faced by the officers who were to execute the warrants any easier. For the reasons already given, the warrants were validly issued and complied with the requirements of the Crimes Act. They were, however, in a number of respects poorly drafted and difficult to understand. In practical terms, it was always going to be difficult for Federal Agents who had no previous involvement in the relevant investigation, or who had no significant knowledge or experience in tax related matters, to make the required search and seizure decisions without some assistance. 288 Federal Agent Nicholson sought to deal with those operational difficulties in two ways. First, he distributed a detailed tactical plan and conducted a briefing in relation to the execution of the warrants. Second, he arranged to have a large number of tax officers, including some with direct knowledge and involvement in the tax affairs of Mr Caratti and companies associated with him, to assist in the execution of the warrants. 289 Mr Caratti's criticism of the briefing conducted by Federal Agent Nicholson is specifically addressed later. For present purposes, it is sufficient to note that there could be no doubt that Federal Agent Nicholson genuinely believed and intended that the tactical plan and briefing would assist officers who had little or no previous experience in the investigation to execute the warrants reasonably and in accordance with their terms. 290 Mr Caratti's contentions in relation to the use of tax officers were somewhat schizophrenic. Initially he contended that the warrants were invalid because the AFP applied for the warrants for an unlawful purpose, being to obtain material that the ATO could use in assessing the tax payable by Mr Caratti or the relevant companies. That contention was effectively withdrawn, or at least not pressed. He also contended that it was unreasonable to use tax officers as constables assisting because they would inevitably become aware of information that they could then use in performing their assessment duties. That contention was also not pressed. 291 Ultimately, Mr Caratti's main contention concerning the use of tax officers to assist in the execution of the warrants was, in effect, that the executing officers and other Federal Agents placed too much weight on the views of tax officers and effectively abdicated their duties and responsibilities. The suggestion appeared to be that the Federal Agents who were involved in the execution of the warrants should not have relied on or accepted the views and advice of the tax officers who had prior knowledge and involvement in the ATO audits of Mr Caratti and companies associated with him. That contention flew in the face of the following observations of Lockhart J in Dunesky v The Commonwealth (at 502): The facts and circumstances that surround this matter are complex and have involved years of investigation by the ATO into the activities of the applicants. In my view it is not only permissible under s 10 of the Crimes Act for ATO officers to accompany the police officers on the search; but it is probably in the interests of both the prosecuting authorities and the applicants that they do so. Who better to assist in the identification of relevant documents (ie relevant according to the terms of the warrant) than the ATO officers who are intimately conversant with the subject matter of their audits? It is true that the ATO officers cannot take over the role of the police officers in the conduct of the search and seizure of documents; but plainly they were retained for the purpose of distinguishing between relevant and irrelevant material, that is material which would or would not answer the description of the documents in the warrants themselves. 292 The observations of Lockhart J in Dunesky v The Commonwealth are apposite to the circumstances of this matter. 293 Mr Caratti's also argued that the involvement of tax officers contributed to the unreasonable execution of the warrants because some tax officers did not have copies of the warrants, or had a flawed understanding of the offences to which the warrants related. He also claimed that certain tax officers effectively directed the executing officers to seize certain documents. The evidence relied on to support those assertions is considered later. 294 For present purposes, it is sufficient to note that the overall impression conveyed by the evidence as a whole was that the tax officers who assisted in the execution of the warrants were well aware that their role was limited to assisting Federal Agents. They knew that they were not authorised to seize or make decisions concerning the seizure of documents. When searching for documents and when giving advice and assistance to the executing officers, the tax officers genuinely acted on the basis that only documents that fell within the terms of the warrants could be seized by the executing officers. They also genuinely acted on the basis of their understanding of the offences in the third condition of the warrants. There is no basis to conclude that any material number of tax officers did not have a copy of, or access to, the relevant search warrant. Nor is there any basis to conclude that any of the tax officers proceeded on the basis that the search was a search "at large", or that they could search for or seize items because they might be useful for tax assessment purposes. 295 The same can be said of the Federal Agents who executed or assisted in the execution of the warrants. The overall impression gained by the evidence, considered as a whole, was that the executing officers and constables assisting genuinely and diligently endeavoured to ensure that the warrants were executed in accordance with their terms, and that only documents that fell within the three conditions of the warrants were seized. There is no basis to conclude that any Federal Agent, let alone a significant number of them, did not have a copy of, or access to, the relevant search warrant, or knowingly or intentionally ignored or disregarded the directions contained in the warrant. 296 The real question, in general terms, is whether, despite the best intentions of the executing officers and constables assisting, the warrants were not lawfully or reasonably executed as a result of mistakes, incompetence, or other inadequacies. Most of Mr Caratti's complaints concerning the execution of the warrants stemmed, in one way or another, from the wording of the third condition of the warrants.

Sufficiency of the briefings 297 Mr Caratti contended that the main search warrant briefing conducted by Federal Agent Nicholson was insufficient to ensure that officers had a proper understanding of the warrants. He contended that, in any event, not all of the executing officers attended the briefing, or received the tactical plan, and that no record was kept of the attendees. 298 Those contentions are rejected. The evidence demonstrated that the briefing conducted by Federal Agent Nicholson, with the assistance of Federal Agent Szolnoki and Mr Irvin, was adequate in all the circumstances, or at least was not inadequate. In any event, any inadequacies with the briefing were not such as to lead to a finding that the search warrants were unreasonably or excessively executed. 299 While no formal record was kept of the attendees at the general briefing which was conducted on 27 January, it is tolerably clear that it was attended by all of the executing officers and most of the other Federal Agents and tax officers who were involved in the execution of the warrants. The evidence indicated that approximately 80 officers attended the briefing. The officers who provided affidavits or gave evidence in the proceeding all attended the briefing. Mr Caratti was unable to point to a single officer who made any material search or seizure decision, or did anything of any relevance during the execution of the warrants, who did not attend the briefing. 300 The briefing covered the general nature of the offences to which the warrants related. Perhaps not surprisingly, the witnesses who attended the briefing no longer had any detailed recollection of that aspect of the briefing. The likelihood is that the briefing in relation to the nature of the offences, which appears to have been given with assistance of Mr Irvin, did not extend much beyond what was contained in the PowerPoint slides. It may perhaps be accepted that the description of the offences in the slides was fairly cursory and really did not add much to the detail, such as it was, that was contained in the warrants themselves. 301 Nevertheless, the content of the briefing must be considered in the context of other information that was made available to the officers who were to be involved in the execution of the warrants. That information included the information in the standard tactical plan, which included more detailed information concerning the relevant allegations. It also included information conveyed at other briefings. At least some of the tax officers had some days earlier attended a separate ATO briefing conducted by a tax officer, Mr Nicholas Eastaugh. That briefing included an overview of the offences likely to be included in the warrants, together with an indication of the evidence that might be relevant to those offences. Each of the executing officers also conducted separate "field briefings" immediately before the execution of the warrants at each of the premises. Federal Agent Jirasinha's evidence, for example, was that in his briefing before the execution of the Wickham Street warrant, he "went through the offences" in the warrant and asked the officers who were assisting in the execution of the warrant if they had any questions. 302 It should be added, in this context, that the evidence, considered as a whole, indicated that the Federal Agents and the tax officers who were involved in the execution of the warrants were either provided with copies of the warrant, or at least had access to a copy of the warrant for the purposes of the execution. The evidence indicated that most of the people who attended Federal Agent Nicholson's briefing were provided with copies of the warrant conditions. Even if the evidence did not go so far as to prove that every single person had a copy of the warrant, that would not support a finding that the execution of the warrants was unlawful. Nor would the fact that there was evidence that some officers at some times were seen not to have the warrant with them. 303 Counsel for Mr Caratti cross-examined a number of Federal Agents and tax officers about their recollection of the briefings. As already indicated, it is fair to say that none of the officers had a detailed recollection of what was said during the briefings. That is, in many respects, not at all surprising given the time that had elapsed since the briefings. It does not follow that the briefings were deficient. There is no basis to conclude that the briefings were insufficient to ensure that the officers understood the warrants, or that the briefings were in any other respect unreasonable. 304 It should also be noted that, even if any or all of the briefings were insufficient or inadequate, it does not necessarily follow that the warrants were unreasonably or excessively executed. There may be cases where it would be unnecessary for any detailed briefings to be conducted, other than perhaps in relation to purely operational matters. That would be the case where the offences to which the warrant related were fairly straightforward and the warrants were expressed in clear and comprehensible terms. For the reasons already given, the warrants in question in this matter could hardly be characterised as clear and easy to understand. The warrants were lengthy and complex and the offences in the third condition were poorly drafted. For that reason alone, the briefings may have been important. Even so, the primary focus of the inquiry into the reasonableness of the execution of the warrants should be the decisions made and actions taken by the executing officers and constables assisting in relation to the search and seizure of the premises. It would only be if any deficiencies of the briefing fed through into the actual execution of the warrants that the briefings would be of any particular significance.

Federal Agents' understanding of the warrants 305 Mr Caratti contended that the evidence revealed that the Federal Agents who were involved in executing the warrants misunderstood and had inconsistent understandings of the terms of the warrants, in particular in relation to the third condition. He relied, in particular, on evidence that suggested that Federal Agent van Tooren understood that the reference to 2008 in the Starbrake and Westend offences referred to the 2008 income year, whereas Federal Agent Jirasinha apparently understood the date to refer to the calendar year. There was also evidence that indicated that officers had somewhat inconsistent understandings concerning what was alleged to have relevantly occurred in 2008 in relation to the Starbrake offences. Federal Agent van Tooren, for example, appeared to consider that the relevant event that occurred in 2008 in respect of the Starbrake offences was the receipt of the royalty income, whereas Federal Agent Bryce understood that the non-payment of tax occurred in 2008. Mr Caratti also relied on the evidence of Mr Kipping that tended to show that some unnamed officers who were involved in the search of his office may have had an inadequate or incomplete knowledge of the entities relevant to the offences. 306 It may be accepted that there was some evidence that suggested that there may have been some confusion amongst some of the officers at some times about what the particulars of the dates in some of the offences referred or related to. That is perhaps understandable. As addressed in detail in the context of the validity of the warrants, there was a degree of ambiguity or lack of clarity in the drafting of the offences in the third condition, particularly in relation to the dates of the offences. Likewise, there may well have been some isolated incidents that suggested that some officers may have had a somewhat incomplete or imperfect understanding of the fine details of the offences in question. 307 It does not, however, follow that the warrants were unreasonably or excessively executed. That is so for a number of reasons. 308 First, there were around 50 Federal Agents who were involved in executing the warrants. Even if it was shown that a handful of the Federal Agents had an imperfect or incomplete understanding of some aspects of the offences, it cannot necessarily be inferred that all or even a majority of the officers had the same or a similar imperfect understanding. 309 Second, an imperfect understanding or appreciation of the dates of the offences and the conduct referable to those dates would not necessarily lead to the seizure of documents not properly sizeable under the warrants. The particulars of the offences, including the dates or date ranges, did not fix a rigid or immutable restriction on the documents that could be seized. Documents dated outside the date ranges in the offences could, for example, be seized if it was nonetheless reasonable to suspect that they were relevant to the offences. The evidence does not go so far as to demonstrate that any of the officers involved in the execution of the warrants did not adequately understand the key allegations that underlay the offences such as to allow them to make informed decisions about search and seizure. 310 Third, Mr Caratti's submission that the confusion surrounding the dates of the offences meant that the search and seizure was effectively "unlimited as to time" is rejected. The evidence does not go that far. The evidence does not support an inference that the majority of the officers, or even a material proportion of them, were confused about the dates. More importantly, it does not support a finding that, as a result of any confusion surrounding the dates, officers searched for or seized documents without a reasonable basis for suspecting that the documents would afford evidence of the offences as particularised, or that this was likely or even probable. 311 There was, it must be said, an element of unreality in Mr Caratti's submissions concerning the officers' understanding of the offences in the warrants as a basis for impugning the reasonableness of the search and seizure. The submissions ignored the important point, referred to by Lockhart J in Dunesky v The Commonwealth, that a search warrant is a practical exercise carried out by police officers who, though trained in their task of law enforcement, are generally not trained lawyers. Just as he approached the offences in the warrants as if they were a statement of a charge in an indictment, Mr Caratti approached the execution of the warrants as if the executing officers were required to exercise the fine legal skills and judgment of experienced counsel in the conduct of a court proceeding. Were such a counsel of perfection to be imposed on officers executing search warrants, search warrants would cease to be an effective tool in the investigation of criminal offences involving any degree of complexity. 312 On the whole of the evidence, Mr Caratti has not demonstrated that a material number of Federal Agents did not have a sufficient understanding of the warrants such as to result in a finding that the warrants were unreasonably or excessively executed.

The involvement of tax officers 313 Mr Caratti advanced a number of distinct contentions concerning the involvement of tax officers in the execution of the warrants. Perhaps most significantly, he contended that the evidence showed that Federal Agents, and specifically the relevant executing officers, deferred to advice given by tax officers about whether specific documents should be seized. Advice from tax officers, in particular Mr Irvin and Ms Milner, was, in Mr Caratti's submission, effectively treated as a de facto "direction to seize". Accordingly, Mr Caratti contended that it was probable, or there was at least an "unacceptable risk", that the executing officers decided to seize documents without themselves turning their minds to whether there were reasonable grounds for suspecting that the documents would afford evidence of the commission of the offences to which the warrants related. 314 Mr Caratti's submission to that effect is rejected. The evidence does not show that, when deciding to seize documents, the executing officers simply followed the directions of the tax officers and did not turn their minds to whether the documents properly satisfied the conditions in the warrant. Nor does it show that there was an "unacceptable risk" of that happening. Indeed, the evidence demonstrated quite the contrary. 315 It was both permissible and reasonable for Federal Agent Nicholson to request the assistance of tax officers in executing the warrants. As Lockhart J said, in analogous circumstances in Dunesky v The Commonwealth: "[w]ho better to assist in the identification of relevant documents (ie relevant according to the terms of the warrant) than the tax officers who are intimately conversant with the subject matter of their audits?" And, while the tax officers were not permitted to "take over the role of police officers in the conduct of the search and seizure", equally an executing officer's "reasonable grounds for suspecting" in terms of s 3E may include what the officer had been told by other Federal Agents or by other tax officers: Dunesky v The Commonwealth at 501. 316 That is all that occurred in this matter. The evidence showed that the assistance and advice of tax officers, in particular Mr Irvin and Ms Milner, was frequently sought, and their advice was often followed. That does not mean that the executing officers did not consider the documents themselves and form the requisite suspicion. It just meant that the grounds upon which the suspicion was based included the views of the tax officers. Nor did it mean that the grounds upon which the suspicion was based were not reasonable, even if the advice from the tax officers was, as Mr Caratti submitted, given substantial weight or even invariably followed. Given that the tax officers had detailed background knowledge of the investigation and experience in relation to the application of the relevant tax laws, it would not at all be surprising if the executing officers gave considerable weight to their views. If they did, that would not have been unreasonable. 317 Mr Caratti's submission in relation to the supposedly dominant role of the tax officers relied heavily, if not almost exclusively, on some short evidence concerning one episode relating to the search of Mr Kipping's office, which was one small part of the Wickham Street premises. That evidence indicated that Ms Milner appeared to play a leading role in deciding which documents were relevant and which were not. A number of witnesses gave evidence concerning that small aspect of the search, including Mr Kipping, Ms Milner and Federal Agents Joss and Bryce. 318 It is unnecessary to refer to that evidence in detail. While there may have been some minor differences in the various accounts of this incident, which appeared to come down more to matters of impression than anything else, the evidence at its highest established no more than that Ms Milner's advice concerning the relevance of some documents was important, if not decisive, in determining whether certain documents were placed in a "relevant" pile or a "not relevant" pile. The "relevant" pile of documents was, according to Mr Kipping, "boxed up and processed by the two AFP officers that were there". 319 That evidence did not established that any documents were seized at the direction of Ms Milner, or that the Federal Agents who were involved did not themselves form a suspicion on reasonable grounds in respect of the documents which Ms Milner had said were relevant. In any event, it was one small event in one small part of the premises of one warrant that was executed over 3 days and involved almost 80 officers. It could not possibly be reasonably inferred that this particular procedure was followed by other Federal Agents, let alone all or a majority of Federal Agents in respect of all of the warrants. 320 The only other specific evidence relied upon by Mr Caratti in support of this aspect of his case was the evidence of Mr Marzec that on a few occasions he observed Federal Agent van Tooren seek "clarification of relevant issues" from Mr Irvin. It would appear, however, that on the occasions when clarification was sought, the information provided by Mr Irvin in response ultimately resulted in documents not being seized. Otherwise, Mr Marzec's evidence appeared to suggest no more than that if Mr Irvin pointed out a particular document to Federal Agent van Tooren, Federal Agent van Torren would consider it. Needless to say, that evidence does not support Mr Caratti's sweeping submission that executing officers simply acted as directed by tax officers, including Mr Irvin. 321 The tactical plan that Federal Agent Nicholson caused to be disseminated to the executing officers clearly provided that the role of tax officers was to assist with searching, and that they were to defer to the AFP team leader or warrant holder during the execution of the warrants. It is apparent that this point was also emphasised during Federal Agent Nicholson's briefing. There is no basis to conclude that this instruction or direction was not complied with. Indeed two specific incidents that occurred during the execution of the Wickham Street warrant indicated that it clearly was. 322 The first incident involved Federal Agent Wealand countermanding an apparent direction given by Mr Irvin to another tax officer to seize an entire computer or electronic storage device. Federal Agent Wealand instructed the tax officers that they could only seize the items on the computer or storage device that met the conditions of the warrant. The second incident involved Federal Agent Szolnoki exerting authority when he observed some tax officers seizing an entire box of documents. Federal Agent Szolnoki stepped in and directed the tax officers that they were only permitted to seize specific items that met the conditions in the warrant. They subsequently went through the documents in the box. The result was that only two documents were seized. 323 In an operation the size and complexity of the execution of the Wickham Street warrant, it is not surprising that isolated incidents such as those two incidents occurred. The evidence does not suggest that those types of incidents were common or widespread. The evidence does, however, suggest that the AFP team leaders and executing officers sought to ensure, as best they could, that the warrants were executed in accordance with their terms and not unreasonably or excessively. It also indicated, contrary to Mr Caratti's contention, that the executing officers did not simply defer to the tax officers. 324 Mr Caratti's contention that the executing officers and other Federal Agents generally acted at the direction of tax officers is rejected. So too is any suggestion that the tax officers sought to, or were permitted to, seize anything that they wanted to.

The tax officers' understanding of the warrants 325 Mr Caratti contended that the advice given by tax officers during the execution of the warrants concerning the seizure of documents was based on a "misguided" understanding of the offences to which the warrants related. While put as a global contention, the evidence relied on by Mr Caratti in support of it related essentially only to Mr Irvin, Mr Crawshaw and Ms Milner. 326 In relation to Mr Irvin, Mr Caratti contended that the advice given by Mr Irvin was based not on the offences in the third condition of the warrant, but on his background knowledge of the ATO audits and the ATO referral to the AFP. Mr Caratti went so far as to contend, in effect, that Mr Irvin was not aware of the content of the warrants. Those contentions are rejected. They were not supported by the evidence. 327 There was no doubt that Mr Irvin was one of the most senior tax officers involved in the execution of the search warrants. He had a detailed knowledge and understanding of the ATO audits of Mr Caratti, Ms Bazzo and the companies associated with them. He no doubt relied on that knowledge when providing advice during the execution of the warrants at the two premises at which he was present. It does not follow that Mr Irvin did not base his advice on the warrant conditions. 328 While Mr Irvin's evidence was that he did not think that he saw the warrant before it was executed at the Wickham Street premises, it does not follow that he was not aware of its contents. Mr Irvin was present at the briefing given by Federal Agent Nicholson. Mr Irvin's evidence was that the briefing covered the offences to which the warrants related. Federal Agent Jirasinha also gave a "field briefing" to the officers who were involved in executing the Wickham Street warrant. That would have included Mr Irvin. There was no suggestion that Mr Irvin was not present during that briefing. During the briefing Federal Agent Jirasinha read out parts of the warrant, including the offences. It may be inferred, therefore, that Mr Irvin was well aware of the offences of the warrant. It was not suggested to him in cross-examination that he was not. 329 There is also nothing to suggest that there was any material disjunct between Mr Irvin's background knowledge of the ATO audit and referral to the AFP and the offences in the warrants. Nor was there any evidence that, if there was any disjunct, Mr Irvin somehow conflated or confused the audit and referral information with the warrant offences. It was never put squarely to Mr Irvin in cross examination that the advice he gave during the execution of the warrants was not based on his knowledge or understanding of the offences in the warrant. 330 As for Mr Crawshaw, Mr Caratti also contended that the advice Mr Crawshaw gave to others during the execution of the warrants at the Duncraig Road and Wickham Street premises was based on information relating to or arising from the ATO audits or the ATO referrals to the AFP, not the warrant conditions. That contention was again premised on there being some material difference between the detail of the ATO's referral to the AFP and the offences in the warrants. Even if there was some material difference, which was at best somewhat unclear or doubtful, Mr Caratti's contention that Mr Crawshaw's advice was based on the referral information not the content of the warrant has no merit. 331 Mr Crashaw's affidavit evidence was that he had an understanding of each of the alleged offences listed in the search warrant. He appeared to agree in cross-examination to the proposition that he took the view that the conduct that constituted the offences in the warrants was "effectively" the same as the conduct that was the subject of the ATO referral. His evidence was, however, that when giving advice during the execution of the warrants, he relied not only on his knowledge of the referrals, but also on the conditions in the warrants. Mr Caratti contended that Mr Crawshaw only relied on the first two conditions in the warrants in that context. That contention was based on two questions in cross-examination that were so ambiguous and unclear that no reliance can be placed on Mr Crawshaw's answers to them. 332 Ms Milner's evidence was that, when she provided advice during the execution of the warrant, her views were based upon all three conditions of the search warrant. While she also relied on information provided during the briefing conducted by Mr Eastaugh, a fair reading of her evidence indicates that she relied on that information as mere background information. Mr Caratti's contention that it should be inferred that Ms Milner relied on Mr Eastaugh's briefing, not on the warrants, has no basis and is rejected. In any event, Mr Caratti did not establish that there was any material disjunct between the information given at Mr Eastaugh's briefing and the terms of the warrants. 333 It should also be noted in this context that a number of other tax officers were cross-examined about the content of Mr Eastaugh's briefing. None of them said that they relied on the information conveyed to them at that briefing, instead of the conditions in the search warrant, when assisting in the execution of the warrants. It was readily apparent that, whatever information was conveyed to the tax officers during the briefing given by Mr Eastaugh, it was treated as no more than background information when it came to executing the warrants. 334 A fair reading of the evidence as a whole reveals that Mr Caratti's global contention that the advice provided by tax officers during the execution of the warrants was somehow incorrect and based on a misunderstanding of the offences in the warrants has no basis. His submissions were based on snippets of evidence, often taken out of context, which simply do not support the broad proposition he advanced.

Mr Irvin's Search Relevances Document 335 The contents of Mr Irvin's "Search Relevances" document has already been set out in full. It is apparent that it contained considerably more detail concerning the allegations that were the basis of the offences in the third condition of the warrants than was contained in the warrants themselves. Mr Irvin's evidence was that his purpose in creating the document was to assist the officers involved in the search by informing them of some of the background to the matters which were the subject of the warrant. He considered that the document was more prescriptive and detailed than the offences in the third condition, and thus would narrow the focus of the search. 336 While it may have been Mr Irvin's intention that the Search Relevances document would assist the search officers and narrow the scope of the search, it is at least debatable whether the document in fact achieved, or was likely to achieve, that objective. It does not follow, however, that it resulted in the unreasonable or excessive execution of the warrants. 337 Federal Agent Szolnoki's evidence was that the Search Relevances document was a good "supplement" and was likely to improve the searching officers' "overall knowledge" of the alleged offences. It was no doubt for that reason that the document was included in the "warrant packs" that were distributed to the AFP team leaders and executing officers. Federal Agent Szolnoki also permitted the document to be distributed to other Federal Agents and tax officers who assisted in the execution of the Wickham Street and Wright Road warrants. 338 The distribution of the Search Relevances document was unfortunate and potentially problematic. The executing officers and constables assisting were required to execute the warrants in accordance with the terms of the warrants, considered in conjunction with s 3F and other relevant provisions of the Crimes Act. While there is nothing wrong with officers being briefed with additional background information to enable them to better understand and comprehend the conditions in the warrant and the scope of the authorised search and seizure, there is an inherent risk in disseminating a document like the Search Relevances document. That risk is that the document will be given undue prominence and perhaps even become a surrogate for the warrant itself. That risk is intensified where, as here, the warrant is not particularly well drafted. A warrant which is in clear, concise and readily comprehensible terms should not need to be supplemented by a document that purports to provide additional background information, or information that may narrow the focus of the search. 339 Mr Caratti contended that, contrary to the views of Federal Agent Szolnoki and Mr Irvin, the Search Relevances document was misleading and confusing and expanded the scope of the search. He submitted that it should be inferred that it was relied upon by Federal Agents and tax officers who assisted in the execution of the warrants. Perhaps more significantly, he submitted that the evidence demonstrated that it was "probable", or that there was a "real and unacceptable risk", that officers relied on the terms of the Search Relevances document rather than the terms and conditions of the warrant. 340 A search and seizure conducted pursuant to criteria or conditions different to those contained in a warrant issued pursuant to s 3E is not authorised by s 3F of the Crimes Act. Depending on the precise circumstances, search and seizure by reference to a document which was materially different to the issued search warrant would most likely be held to be unreasonable and excessive and therefore unlawful. The Search Relevances document was in materially different terms to the warrants. That is so whatever may have been the views or intentions of Federal Agents Szolnoki and Mr Irvin. It is also doubtful that it was accurate to characterise the documents as only providing "background information" or as narrowing the scope of the search. The document does not say, in terms, that it only contained background information. Its title suggested that it contained information that would assist in determining what relevant items should be searched for and seized. Nor does it state that searching officers should regard the document as narrowing the scope of the warrant. Nor is that readily apparent from its terms. Needless to say, the document contained significantly more information than the warrants. 341 If the evidence demonstrated that a significant number of the executing officers and constables assisting made search and seizure decisions pursuant to the terms of the Search Relevances document rather than the warrant that would potentially provide a basis for declaring the search and seizure to be unreasonable and excessive. Contrary to the Commissioner's submission, Mr Caratti would not in such circumstances necessarily have to demonstrate any direct causal connection between the use of the Search Relevances document and the seizure of any particular item. 342 The difficulty for Mr Caratti is that, on balance, the evidence as a whole reveals that while some officers may have had some regard to the Search Relevances document, ultimately search and seizure decisions were conducted by reference to the warrants, not that document. That is likely to be because Federal Agent Nicholson, at the main briefing, and the AFP team leaders at the field briefings, emphasised that search and seizure was to be pursuant to the terms of the warrant. While the Search Relevances document was provided to some officers, fortunately it does not appear to have been given any, or any undue prominence. The preferable inference is that it was treated as no more than background information and was certainly not treated as a surrogate for the warrants. 343 None of the Federal Agents or tax officers who gave evidence said that they made search and seizure decisions pursuant to the Search Relevances document rather than the warrants. Certainly none said that they relied exclusively or even predominately on the Search Relevances document. Nor was it squarely put to any officers in cross-examination that they made search and seizure decisions on that basis. The closest that the cross-examination came to that proposition was the following question put to Federal Agent Johnson. Now, my question relates to the search relevancies document. And is it the case that if an item appeared to be related to something that appeared in the search relevancies document, you would regard that it falls within the conditions of the warrant?--- No. That's not entirely true. My policy would be to use that as a guide. Ultimately, in doing jobs such as search warrant assists and certainly in this case, my guideline for ultimate level of deciding whether to seize something falls within the warrant - has to fall within the conditions of the search warrant. 344 A similar question was put to Federal Agent Bryce. He indicated that while he had seen the Search Relevances document, he didn't use it during the search. 345 To the extent that the Search Relevances document was put to others in cross-examination, the evidence was either that the officer had not seen the document (Federal Agents Leigh and Fullerton), or that the officers did not have the document and did not have regard to it when giving advice in relation to search and seizure (Ms Milner). 346 The evidence accordingly does not support Mr Caratti's submission that the dissemination and use of the Search Relevances document meant that the warrants were unreasonably or excessively executed.

Other aspects of the execution 347 Mr Caratti's remaining complaints concerning the execution of the warrants were barely touched on in the evidence or submissions. They were: first, evidence that an unnamed Federal Agent took a photograph of a document during the execution of the Duncraig Road premises; second, evidence of the presence of "sniffer dogs" during the execution of the warrants at various premises; and third, the presence of so-called "proceeds of crime" officers during the execution of the warrants at certain of the premises. 348 None of those incidents, considered individually, collectively, or together with any of the other factual findings concerning the execution of the warrants, is capable of supporting a finding that the warrants were unreasonably, excessively or unlawfully executed. That is not to say that these incidents were justifiable, let alone appropriate. The Commissioner effectively conceded that they were not justified or appropriate. The Commissioner's main point, which has merit, is that these somewhat isolated incidents had no material bearing on the overall reasonable and proportionate execution of the warrants. 349 As for the photographing of a document, Ms Bazzo's evidence was that she observed a Federal Agent taking a photograph of a document during the execution of the warrant at Wickham Street. That evidence went effectively unchallenged. No attempt was made to justify this action. If a document falls within the conditions of a warrant, it can be seized. There is no need or occasion to photograph a document unless, perhaps, something may turn on the place or position in which the document was located. There was nothing to suggest that this was the case in relation to the document that Ms Bazzo observed being photographed. The Commissioner led no evidence to explain why the document was photographed. 350 Nevertheless, Mr Caratti did not seek any specific relief in relation to any material that had or may have been photographed. This incident, in the context of a very large operation, involving the execution of multiple search warrants at many premises, was insufficient to impugn the execution of the warrants as a whole. 351 Much the same can be said about the involvement of sniffer dogs. The Commissioner did not dispute that sniffer dogs were deployed during the initial stages of the execution of some of the warrants. There may be some circumstances where the use of sniffer dogs would be warranted, such as where the search warrant related to drugs or some other prohibited item that sniffer dogs are trained to locate. Likewise, safety and security concerns may in some circumstances warrant the use of sniffer dogs. The Commissioner conceded, however, that having regard to the kinds of evidential material identified in the warrants, the warrants did not authorise the use of sniffer dogs. The use of sniffer dogs was not appropriate or justified. 352 There was, however, very little evidence concerning the use of sniffer dogs. They appeared to have played a very minor role in the overall operation. The dogs appeared to be used in an initial "sweep" of some of the premises. They appear not to have remained at the premises. There was no suggestion that any item was seized as a result of the use of sniffer dogs, or that they had any impact on the authorised search and seizure. Mr Caratti did not seek any relief specifically directed at the use of sniffer dogs. He barely touched on the involvement of sniffer dogs either in cross-examination or submissions. In all the circumstances, while the unjustified use of sniffer dogs was unfortunate, it does not support a finding that the warrants were unreasonably or excessively executed. 353 Finally, there was some, albeit again fairly limited, evidence concerning the involvement of certain Federal Agents during the execution of the Duncraig Road warrant who were said to have been present to search for evidential material in relation to "proceeds of crime". Those officers apparently told Mr Crawshaw of the ATO, or others in his presence, that they should "keep an eye out" for documents such as trust deeds or bank statements that might be relevant to "proceeds of crime matters". These officers suggested that any such items could be seized even if they did not fall within the terms of the search warrants. In that regard, the officers may have been relying on the fact that s 3F(1)(d)(iii) of the Crimes Act provides that executing officers and constables assisting are, in certain circumstances, authorised to seize evidential material or "tainted material" as defined in the Proceeds of Crime Act. 354 The involvement of the so-called proceeds of crime officers remained a mystery at the conclusion of the evidence. The Commissioner did not challenge or seek to clarify Mr Crawshaw's evidence concerning this issue or incident. The Commissioner did not attempt to explain or justify the involvement of these officers, or the basis for their apparent claim that items could be seized even if they did not fall within the terms of the warrant. By the same token, Mr Caratti barely touched on the involvement of these officers in his cross-examination of the executing officers or Federal Agent Nicholson. 355 The extent of the Commissioner's engagement with this issue was a submission that this complaint by Mr Caratti was not connected to any of the relief sought. That is not entirely correct, because the evidence concerning the involvement of these officers, like the evidence relating to sniffer dogs, could, in combination with other evidence relating to the execution of the warrants, lead to a finding that the overall execution of the warrants was unreasonable or excessive. The incident was relevant at least to that extent. 356 Nevertheless, like the involvement of sniffer dogs, the involvement of these proceeds of crime officers was a very small incident in the overall execution of the warrants. It would appear that they were only present for the first hour of two of the execution of one of the warrants. It is unclear if they were present at any other premises. There was no evidence that any documents were in fact seized on the basis that, while falling outside the terms of the search warrant, they comprised evidential material or tainted property under the Proceeds of Crime Act. The involvement of these officers seems to have had no real impact on the execution of the Duncraig Road warrant, or indeed any other warrant. Mr Caratti did not contend otherwise. His submissions concerning the involvement of these officers were, perhaps understandably, minimal.

Burden of proof 357 It remains to say something briefly about Mr Caratti's contentions concerning the onus or burden of proof. Mr Caratti submitted that if a particular procedure adopted by executing officers during the execution of the warrants was found to be unreasonable or excessive, the burden effectively shifted to the executing party (here the Commissioner) to prove that no items were seized pursuant to that procedure, or that particular items were not seized pursuant to that procedure. In Mr Caratti's submission, if the Commissioner did not discharge that burden, the execution of the warrants in their entirety must be declared to be unlawful. This submissions was said to be supported by the observations of Pincus J in Beneficial Finance, referred to earlier in these reasons in the context of severance. 358 It is not strictly necessary to deal with that argument. That is because no material aspect of the execution of the warrants has been found to be wanting. In any event, Mr Caratti's submissions concerning the burden of proof have no merit and are rejected. The relevant observations of Pincus J in Beneficial Finance were obiter, were made in the context of the issue of severance, were not supported by either Burchett or Sheppard JJ, and in any event do not support the broad proposition advanced by Mr Caratti. A party seeking a declaration that a search warrant was executed unreasonably or excessively, and that accordingly items purportedly seized pursuant to the warrant were seized unlawfully, bears the burden of proving that seizure of the items under the search warrant was not authorised by the terms of the warrant and the relevant provisions of the Crimes Act: Williams v Keelty at 225 [235]-[236]; Adler at 34 [41]. 359 That is not to say that there may not be cases where the evidence is such that, as a practical matter, the party executing a warrant may effectively have to lead evidence to support the seizure of certain items. The party challenging the execution of a warrant may, for example, lead evidence which was capable of supporting the inference that the officers who executed the warrant seized certain items indiscriminately and without reference to the conditions in the warrant. To rebut the inference that all items were seized in that manner, the executing party may effectively have to lead evidence from the executing officer, or constables assisting, that justified the lawful seizure of items pursuant to the terms of the warrant. It does not follow that the burden of proof shifted to the executing party. A party that challenges the lawfulness of the seizure of an item or items under a search warrant bears the onus of proving that the seizure was unlawful.

Conclusion in relation to the execution of the warrants 360 Mr Caratti has not discharged his onus of proving that the warrants were not executed in accordance with their terms, or in accordance with s 3F of the Crimes Act. Nor has he demonstrated that the evidence relating to the execution of the warrants established that the execution of the warrants was unreasonable or excessive. 361 While there was some evidence of some fairly isolated events or incidents which may have given some cause for concern, overall the evidence suggested that the Federal Agents and tax officers executed the warrants fairly and reasonably. The evidence indicated that overall the Federal Agents and tax officers knew their respective duties and roles and the extent of their authority; knew that only items that fell within the terms of the warrants could be searched for and seized; had sufficient understanding of the terms of the warrants to enable them to fulfil that task; and genuinely endeavoured to ensure that only items that fell within the terms of the warrants were seized. There was certainly no evidence to suggest that the officers involved in the search and seizure knowingly or intentionally searched for or seized items that did not fall within the terms of the warrants. The reliance placed by the executing officers and other Federal Agents on the advice and assistance of tax officers was not unreasonable. The use of the "Search Relevances" document was perhaps unfortunate, but it appears to have played little role in the making of seizure decisions and was not treated as a de facto or surrogate warrant.

GROUND 3 - WAS ANY ELECTRONIC EQUIPMENT UNLAWFULLY SEIZED? 362 Mr Caratti's case was that the following specific items of electronic equipment were unlawfully seized: A Compaq laptop and a Toshiba laptop seized by Federal Agent Bryce at the Cornish Turn premises; Three portable USB hard drives seized by Mr Andrews, an ATO computer forensics officer, at Wickham Street. An external hard drive seized by Mr Khan, an ATO computer forensics officer, at Wickham Street; A Seagate storage device and an Imation storage device seized by Mr Ilett, an ATO computer forensics officer, at the Wickham Street premises; A Strontium storage device which was examined by Ms Ramdhas during the execution of the Duncraig Road premises (it is unclear who formally decided to seized this item); A TDK storage device which was seized in the course of the execution of the Duncraig Road premises. Two Blackberry mobile devices apparently seized by Federal Agent Szolnoki at the Duncraig Road premises. 363 Mr Caratti's primary submission was that the seizure of these items was not authorised by s 3L(2)(a) of the Crimes Act because the requirement in s 3L(3)(a) was not satisfied. Mr Caratti's submitted, in effect, that the seizure of these items, despite the fact that the requirement in s 3L(3)(a) was not satisfied, was consistent with a general view that computer equipment could be seized if it was ascertained that there was some relevant data stored on the device. Mr Caratti also contended that the computers and storage devices themselves, as opposed to the files on them, were not seizable under s 3F(1)(c) because they did not satisfy the conditions in the warrants. Nor did the seizing officers turn their minds to that question. 364 The operation of ss 3F and 3L was discussed earlier in these reasons in the context of ground 1C (the validity of the additional "surrogate medium" paragraph in the warrants) and ground 2 (the lawfulness of the execution of the warrants). Two questions effectively arise in respect of the seizure of each of the items challenged by Mr Caratti. First, did the seizing officer turn his or her mind to whether the equipment or device itself, as opposed to the data stored on it, satisfied the three conditions in the warrant and was able to be seized under s 3F? Second, did the seizing officer turn his or her mind to whether it was practicable to copy the data rather than seize the device itself? Was there anything to suggest that it was not practicable to copy the data? 365 It is necessary to separately consider the evidence in relation to each of these seizures in order to determine whether Mr Caratti's contentions have any merit.

The Compaq and Toshiba laptops 366 The evidence concerning the seizure of these two computers was, regrettably, confused and unsatisfactory. The decision to seize these computers was made by Federal Agent Bryce. Federal Agent Bryce's affidavit evidence concerning the seizure of these computers should be set out in full. It was as follows (at [16] and [17] of his affidavit): About 1.05pm on the same date, I seized one Compaq Presario Laptop Computer with serial number CND815OWPQ. I seized this Laptop Computer following a conversation I had with ATO Digital Forensics Member Octavian Grigore (Grigore). Grigore said to me words to the effect that he had examined the computer and there were files on the device which appeared to be within the conditions of the search warrant. Grigore then referred to some of the names of those files which I recognised as being company names listed in the warrant. I do not specifically recall the names to which he referred. I believed, as a result of the conversation with Grigore, that the Laptop Computer contained evidential material of the kind referred to in the warrant. I accepted Grigore's advice because I understood, from my dealings with him and other ATO Digital Forensics members, that he had been present at the briefings that he was aware of the kinds of things which were covered by the warrant and that he had been searching for things of that kind. I seized the whole computer because, based on previous experience, the physical device provides the best evidence. Additionally, it was unknown to me at that point in time whether there was further evidential material on the device which may have been an offence to possess. The seizure was recorded on AFP PSR 339568 and was given item number 0149795. A copy of that PSR is annexed to this affidavit and marked NDB-4. About 1.30pm on the same date, I seized one Toshiba Computer, with model number PX30t and serial number 4E012700Q, which was located in the study on the desk. I seized this computer following a conversation with ATO Digital Forensics Member Graeme Walker. Mr Walker said to me words to the effect that he had examined the computer and there were files on it which appeared to fall within the search warrant. He referred to specific companies that were referred to in the files that he had found on computer. I do not recall the specific companies to which he referred, but I recognised them to be companies referred to in the search warrant. Mr Walker also said to me he had downloaded material from the Toshiba computer and handed me one CD of downloaded material he had obtained from the Toshiba Computer. He told me the CD could be used by a digital forensics member to support any subsequent device examination. What I thought he meant by this was that the CD showed a snapshot of evidential material that was located on the computer, but there could also be more evidential material on other storage locations within the computer which would require further examination at another time. I believed as a result of the conversation with Mr Walker that the Toshiba Computer and the CD contained evidential material referred to in the Search Warrant. I accepted Mr Walker's advice because I understood, from my dealings with him and other ATO Digital Forensics members, that he had been present at the briefings, that he was aware of the kinds of things which were covered by the warrant and that he had been searching for things of that kind. I therefore formed the belief that part of what was on the computer was evidential material and consequently seized the whole computer. I seized the whole computer because, based on previous experience, the physical device provides the best evidence. Additionally, it was unknown to me at that point in time whether there was further evidential material on the device which may have been an offence to possess. The Toshiba Computer seizure was recorded on AFP PSR 339568 and was given item number 0149799. The CD of downloaded material from the Toshiba Computer was recorded on AFP PSR 339568 (annexed at NDB-4) and was given item number 0149800. 367 The following points may be made about Federal Agent Bryce's evidence. 368 First, he did not himself look at any files stored on these computers. He relied on the advice of ATO digital forensic officers. 369 Second, the advice that Federal Agent Bryce received from the tax officers concerning the existence of relevant files on the computers was that some files on the computers contained or referred to the names of some of the companies "listed" in the search warrant. It may be inferred that this was a reference to the names listed in the second condition of the warrant. There is no indication in Federal Agent Bryce's evidence that he personally turned his mind to whether any of the files that contained or referred to company names related in any way to any of the offences in the third condition of the warrants. 370 Third, Federal Agent Bryce's evidence that he relied entirely on the advice of the tax officers that some files referred to relevant company names must be considered in light of his evidence during cross-examination. That evidence revealed that he had no prior involvement in the investigation and no real background knowledge concerning the third condition offences. 371 Fourth, Federal Agent Bryce relied on the advice of the tax officers because he understood that they had been at the briefing and therefore would have been aware of the "kinds of things" which were covered by the warrant. This rather confirmed that Federal Agent Bryce relied entirely on the tax officers and did not himself have any real insight into the investigation or the condition three offences. He does not suggest that he quizzed the tax officers about their views. In particular, he does not appear to have asked them if any of the files which referred to the second condition entities satisfied the third condition of the warrants. It should also be noted, in this context, that these were ATO forensic officers, not tax officers who had any prior involvement in or knowledge of the investigation. 372 Fifth, Federal Agent Bryce's decision to seize the computers, as opposed to having the data on them copied onto another device (in accordance with s 3L(1A) of the Crimes Act) was based on the fact that, based on his previous experience, "the physical device provides the best evidence". His evidence does not suggest that he properly turned his mind to whether the two computers, as opposed to the files on them, in fact satisfied the three conditions in the warrant. There is no indication that he turned his mind to whether, in fact, there were reasonable grounds to suspect that the computers themselves would afford evidence of the third condition offences. He acted on the basis of a blanket approach that it was always better to seize the device in question. 373 Sixth, there was no suggestion in his affidavit that Federal Agent Bryce turned his mind to whether he was authorised to seize the computers pursuant to s 3L(2)(a) of the Crimes Act. There is no evidence in Federal Agent Bryce's affidavit to suggest that he turned his mind to whether the circumstances or condition in s 3L(3)(a) had been satisfied. There is no indication that he turned his mind to whether or not it was practicable to copy the data on the computers to another device. It is readily apparent that he did not turn his mind to that question because his view, supposedly based on previous experience, was that the "physical device provides the best evidence". 374 Seventh, Federal Agent Bryce's evidence that another consideration that he took into account in deciding to seize the computers was that he did not know whether there may have been further evidential material on the computer does not assist. That consideration did not provide a proper basis for seizing the computers themselves. As indicated earlier, an executing officer is not authorised to seize a thing with a view to examining the thing subsequently to determine if it (or its contents) comprises evidential material. In any event, if Federal Agent Bryce had utilised the power in s 3L(1A), it would have been permissible to copy all of the data on the computer onto another device pursuant to s 3L(1A): see Different Solutions at 298-299 [154]; Kennedy v Baker (2004) 135 FCR 520 at 535-541 [48]-[78]. 375 Federal Agent Joss, who was the warrant holder for the Cornish Turn warrant, gave the following affidavit evidence concerning the seizure of a computer at the Cornish Turn premises (at [26] - [31] of his affidavit). Mr Schokker and I then returned to our conversation outside. Before we left the study the Digital Forensics members stated to Mr Schokker they would be having a look at the computers. I was not present whilst the ATO Digital Forensics members operated the computers, however I believe they had with them search terms relating to all four AFP referrals as this was shown to me at the rendezvous point. A short time later, Digital Forensic Member, Octavin Grigore from the ATO, said to me words to the effect that there were relevant files on the computer and asked me whether I would like the computer imaged or seized outright. I did not view the material, but I was informed by the digital forensics officers that there was material present on the computer that matched the conditions of the warrant. Mr Grigore stated that it may take 4-5 hours to copy the data from the computer to a device. I then contacted Senior Investigating Officer Alex Nicolson and told him the above information and said words to the effect of "would you prefer the item to be imaged, or seized?" Nicolson replied with words to the effect of "seize the computer outright, if it contains evidential material relevant to the warrant." I then said to Mr Schokker that the computer would be seized outright. It was my intention to seize the computer under section 3L(2), due to the time constraints involved in imaging the computer and because further follow on warrants were required to be executed that day. Subsequently, an AFP member, Federal Agent Nicholas Bryce, seized the computer. I have read paragraph 10 of Mr Schokker's affidavit. I recall saying words to the following effect: "We intend to seize your computers, rather than imaging the relevant data, because it will take 4 to 5 hours to image it all." I did not say that we would return them in one to two days after they had been imaged offsite. After I said to Mr Schokker that we intended to seize his computers, I provided him with my contact details so as to be a contact point. 376 Paragraph 10 of Mr Schokker's affidavit was in the following terms: At around 2:00pm, an officer informed me to the effect "we intend to seize all of the data contained on your computers". I did not see the officers search any of my computers before they unplugged them and took them away. An officer told me to the effect: "It will take 4 hours to take an image of the computers. We will return them in one to two days after they have been imaged off site." 377 The following points may be made about this evidence. 378 First, it is not entirely clear that Federal Agent Joss's evidence relates to the seizure of either the Toshiba or the Compaq computer. Given the apparent involvement of Mr Grigore, however, it might perhaps be inferred that his evidence related to the Compaq computer. It does not appear to relate at all to the seizure of the Toshiba computer. 379 Second, Federal Agent Joss does not suggest that he was responsible for making the decision to seize the Compaq computer. That decision was taken by Federal Agent Bryce. Federal Agent Bryce, in his evidence, did not suggest that Federal Agent Joss played any role in relation to his decision to seize the computer. He did not refer to any discussion or consultation with Federal Agent Joss. In these circumstances, Federal Agent Joss's vague reference to his "intention" to seize the computer should be given little or no weight. 380 Second, the fact that the ATO forensic officer, Mr Grigore, indicated that it may have taken four to five hours to copy the data on the computer does not amount to evidence that it was not practicable to copy the data. The fact that Mr Grigore asked Federal Agent Joss if he would like the computer imaged or seized outright tends to suggest that Mr Grigore had the necessary equipment to copy the data on the equipment and could have copied it if so requested. 381 No evidence was led from Mr Grigori. There was no evidence that it was in fact impracticable to copy data from the Compaq computer. There was no evidence at all about the practicability of copying the data on the Toshiba computer. There was no evidence that the necessary equipment was not available at the premises, or that there were insufficient forensic officers to attend to the copying, or that the time that would have been taken to copy the data would have created any difficulties. 382 Third, Federal Agent Joss's vague evidence of his intention to seize the computer under s 3L(2) because of "time constraints" does not, in all the circumstances, greatly assist. As already indicated, the involvement of Federal Agent Joss in the decision to seize the Compaq computer was at best unclear. He sought and obtained instructions from Federal Agent Nicholson concerning whether the data should be copied or the computer seized. Federal Agent Nicholson simply instructed Federal Agent Joss that the computer should be seized "outright". The basis of that instruction was unclear. While Federal Agent Joss's reference to "time constraints" may reasonably be taken to be a reference to the fact that, based on Mr Grigore's advice, it might have taken 4 to 5 hours to copy the data, he does not explain why that meant that it was not practicable to copy the data in all the circumstances. 383 Federal Agent Joss also does not say that he relayed Federal Agent Nicholson's instruction to Federal Agent Bryce. Nor does he suggest that he told Federal Agent Bryce about Mr Grigore's advice that it may have taken four to five hours to copy the data, or his intention to seize the computer due to time constraints. That perhaps may account for why Federal Agent Bryce did not suggest, in his evidence, that he took any such information into account in deciding to seize the computers. As already noted, Federal Agent Bryce said nothing in his evidence about taking into account the time that it would take to copy the data, or about any discussion or consultation with Federal Agent Joss about time constraints. 384 What conclusions can be drawn from this evidence? It may readily be accepted that the evidence should not be considered in isolation or in a vacuum. It must be considered in the context of a large and highly complex operation involving the execution of multiple search warrants by many officers. Operational realities and practicalities cannot be ignored. Executing officers and those that assisted them were required to make many complex and difficult search and seizure decisions, often in a dynamic and challenging environment. The facts and circumstances must be examined and analysed in a practical and common sense way with those considerations firmly in mind. Nevertheless, on balance, three conclusions may be drawn from the evidence concerning the seizure of the Compaq and Toshiba computers. 385 First, Federal Agent Bryce, who was the officer who decided to seize the computers, did not properly turn his mind to whether any files on the computers satisfied all three conditions in the warrant. At most he relied on advice from forensic officers that some files referred to companies listed in the second condition. He had no reasonable basis to believe, or even to suspect, that the forensic officers had satisfied themselves that the files satisfied the third condition in the warrant. Federal Agent Bryce made no attempt to look at the files himself. 386 Second, Federal Agent Bryce did not properly turn his mind to whether the computers, as opposed to the files on them, satisfied the three conditions in the warrant. At most he relied on a general view, apparently based on past experience, but not the particular facts and circumstances relating to the two computers, or the terms of the warrant, that the physical device provided the "best" evidence. That highly generalised view, even if genuinely held, was not sufficient to satisfy the requirement of reasonable grounds to suspect that the computers themselves would afford evidence of the third condition offences. Seizure of the computers was therefore not authorised by s 3F(1)(c) of the Act. 387 Third, Federal Agent Bryce did not turn his mind to whether the computers could be seized pursuant to s 3L(2)(a). He did not turn his mind to whether or not it was practicable to copy the data on the computes as required by s 3L(3)(a). In any event, he had no reason to believe, or even suspect, that it was not practicable to copy the data. Whatever may have been discussed between Mr Grigore and Federal Agent Joss, or between Federal Agents Joss and Nicholson, there is nothing to suggest that any advice or opinion that it was impracticable to copy the data was conveyed to Federal Agent Bryce. In any event, Federal Agent Bryce did not suggest that any such information or consideration played any role in his decision to seize. Likewise, whatever Federal Agent Joss's intention may have been, it played no role in the decision by Federal Agent Bryce to seize the computers. There is no sound basis to conclude that the condition in s 3L(3)(a) was satisfied and that seizure of the computers was authorised under s 3L(2)(a) of the Act. 388 It follows from these three conclusions that the computers were not lawfully seized pursuant to the warrants, s 3F or s 3L of the Crimes Act.

The portable hard drives seized by Mr Andrews 389 Mr Andrews's affidavit evidence concerning the seizure of the portable hard drive labelled "16/7" was as follows (at [6] and [7] of his affidavit): About 12:40pm I received from forensics officer Mohammed KHAN a portable USB hard drive s/n 320VT61JTQ11 labelled "16/7" from desk 2 office 4, who asked me to examine the hard drive because he was already examining another computer system. I connected the above hard drive to my forensic laptop and searched the contents using keywords based on the conditions of the warrant. I found financial and other document files relating to Mammoth Nominees, Gucce Holdings and Starbrake Holdings. I discussed with AFP warrant holder Niranjan JIRASHINA and ATO team leader Peter LEIGH who confirmed the files met the conditions of the warrant and the hard drive should be seized to allow further searching later. On the basis of this discussion I seized the hard drive. 390 Mr Andrew's affidavit evidence concerning seizure of the other two portable hard drives (labelled "Mirror 1 Gucce" and "Mirror 2 Gucce") was relevantly the same. 391 In his oral evidence, Mr Andrews elaborated on and clarified this evidence in a number of important respects. The files that were stored on the relevant devices were all "back-ups" of financial information in the format of well-known accounting software (MYOB). Mr Andrews was able to verify that the financial and accounting data related to companies referred to in the warrants and related to the relevant dates, being the dates referred to in the third condition offences. Mr Andrews examined, but did not seize, two other hard drives (labelled "External 1" and "Mirror 3 Gucce") because the data related to dates outside the date ranges referred to in the warrants. 392 Mr Andrews' evidence was that he was not able to actually access the content of the accounting files (as opposed to the file names) because he did not have the necessary forensic software. He advised Federal Agent Jirasinha of that fact. It would also appear tolerably clear that the person identified by Mr Andrews in his affidavit as Peter Leigh was in fact Peter Irvin. Mr Andrews discussed his examination of the MYOB files with both Federal Agent Jirasinha and Mr Irvin and they confirmed that the accounting files fell within the conditions in the warrant. 393 Importantly, in his oral evidence Mr Andrews explained that his reference to seizing so as to "allow further searching later" was a reference to the fact that he was unable to actually open the MYOB files. The reference to searching later was a reference to later searches by someone who was able to open the files with the appropriate forensic accounting software. It was not a reference to searching the files later to see if they fell within the terms of the warrants. 394 In light of that elaboration and clarification, there is no merit in Mr Caratti's contention that Mr Andrews did not, and had no reasonable grounds to, form a suspicion that the data on the relevant hard drives satisfied the three conditions in the warrant. Mr Andrews relied on his own examination of the files and his discussions with both Federal Agent Jirasinha and Mr Irvin. Given the nature of the offences, there were reasonable grounds to suspect that accounting records of relevant companies for periods coinciding with the date ranges in the third condition offences would afford evidence of the commission of the offences. 395 In his oral evidence, Mr Andrews also explained why he, in consultation with Federal Agent Jirasinha, decided to seize the devices rather than copy the data. His evidence was as follows: And did you also discuss with him, meaning Federal Agent Jirasinha, whether the hard drive should be seized?---I did, yes. That was my recommendation, based on it would take a number of hours to make a full copy of it. Later on in the day we did make a copy of one hard drive, and that was because it had similar backup software on there, or backup files. But that was currently in use on the server and we didn't want to take their current backups. These ones had been found somewhere in an office and weren't currently in use, so we deemed it was much more worthwhile to take them, rather than waste many hours copying them, when we could use those hours to copy the one they did need back. So we left that one copying and it finished overnight, before we came back the next day. 396 Mr Andrews also referred in his evidence to the "slow copying process" and indicated that it could have taken four or five hours to take an entire image of the data on each of the hard drives. That would have amounted to a total copying time of around 15 hours in respect of the three hard drives in question. That was in addition to the copying of the other "current back-up" that was in fact undertaken. During that extensive period of copying, Mr Andrews would not have been able to use his forensic laptop to engage in any other forensic activities. 397 It was suggested to Mr Andrews that other forensic officers may have been available to undertake that copying exercise. Mr Andrews' evidence was, in essence, that those officers were using their equipment to undertake other tasks. He also indicated that no additional equipment was available. Even putting those considerations aside, to a certain extent Mr Caratti's suggestions appeared to ignore the operational realities and practicalities of such a complex operation. 398 It is tolerably clear that Mr Andrews turned his mind to whether it was practicable to copy the three hard drives. There was a reasonable basis for his view that it was not, in all the circumstances, practicable. From a purely objective viewpoint, Mr Andrews' evidence also established that it was not, in all the circumstances, practicable to copy the data. The condition in s 3L(3)(a) was therefore satisfied and the three hard drive devices were able to be seized pursuant to s 3L(2)(a) of the Crimes Act. Mr Caratti's contention that they were unlawfully seized is rejected.

The external hardware seized by Mr Khan 399 Mr Khan's affidavit evidence concerning the seizure of this storage device, which was located at the Wickham Street premises, was as follows (at [10]) of his affidavit): I connected the Ext HDD to my Forensic Analysis laptop via a hardware write blocker and I then viewed the contents of the EXT HDD. The EXT HDD contained a Microsoft Outlook PST file "All Mammoth captured 010709 to 300611" with around 56402 emails for "Allan Caratti - allen@mammothgroup.com.au". The email address allen@mammothgroup.com.au was listed in the second condition of the warrant. I showed the emails to ATO Officer Peta Kelly and the warrant holder (Federal Agent Jirasinha) who confirmed relevance to the conditions of the search warrant. I then obtained approval form Federal Agent Jirasinha to seize the Ext HDD. In seizing the Ext HDD I relied on Federal Agent Jirashinha's approval. I then completed an evidence slip and handed the Ext HDD and slip to the AFP property officer. 400 In cross-examination, Mr Khan confirmed that he analysed a list of emails stored on the device in question. The details in the list included the sender, the recipient and the subject matter of the email. While Mr Khan did not expressly refer to the dates of the emails, it is open to infer that it would also have been possible to see the dates on which each of the emails were sent or received. It was not put to Mr Khan that he did not or could not see the dates. Mr Khan indicated that it was possible to select and view each individual email, though he did not recall having done so. Nor did he recall whether either Ms Kelly or Federal Agent Jirasinha opened any of the emails when he discussed the emails with them. 401 Mr Caratti appeared to contend that it was not open to Mr Khan or Federal Agent Jirasinha to form a view about whether the emails fell within the three conditions of the warrant without opening and reading the emails. That submission ignored operational realities and practicalities. 402 The emails were sent by or to Mr Caratti using a "Mammoth group" email address. Companies within that group were central to a number of the condition three offences. The file appeared to include emails between the dates 1 July 2009 to 30 June 2011. That date range overlapped with the dates or date ranges in a number of the offences. It is simply unrealistic, in those circumstances, to suggest that Mr Khan or Federal Agent Jirasinha had to read each of the emails before deciding that they fell within the terms of the warrant. 403 The problem for the Commissioner, however, is that it does not appear that Mr Khan turned his mind to whether he could or should have copied the data on the device instead of seizing the device itself. It certainly appears that Mr Khan did not turn his mind to whether or not it was practicable to copy the data before deciding to seize the device. Indeed, Mr Khan effectively confirmed in his evidence that he had the equipment that enabled him to take an image of the device, that it would have taken three to three and a half hours to take an image, and that he could "easily" have taken an image of the file. There was certainly no evidence that it was impracticable to copy or take an image of the data. 404 Mr Khan did not indicate that he discussed with Federal Agent Jirasinha whether he could or should take an image of the device. His discussions with Federal Agent Jirasinha appeared to be limited to whether the emails were relevant or not. In any event, Federal Agent Jirasinha's evidence was that he was of the view that if any relevant files were found on an electronic storage device, he understood that he could seize the equipment without further ado. It was apparent that Federal Agent Jirasinha was unaware of s 3L of the Crimes Act and did not realise that he needed to turn his mind to whether it was practicable to take a copy of the data on a device before deciding to seize the device. 405 It follows that the hard drive seized by Mr Khan was not lawfully seized under s 3L of the Crimes Act. Nor was there any suggestion that anyone turned their mind to whether the device itself, as opposed to some of the data on it, satisfied the three conditions in the warrant and was therefore were able to be seized pursuant to s 3F of the Crimes Act. There was nothing in the evidence to indicate that there were reasonable grounds to suspect that the hard drive itself, as opposed to the data stored on it, would afford evidence of the commission of any of the third condition offences.

The Seagate and Imation storage devices seized at Wickham Street 406 The Seagate storage device was either seized by Mr Ilett, an ATO forensics officer, or by Federal Agent Jirasinha as a result of discussions or consultation with Mr Ilett. Mr Ilett's evidence concerning the seizure of this device was as follows (at [8] of his affidavit): I then commenced an examination of a Seagate FreeAgent GoFlex hard drive with serial number NA0CLB6V taken from the bag by connecting it via a write-blocker to my forensics laptop. I had a copy of the conditions of the search warrant from which I had compiled a list of key words and/or phrases that would be indicative of relevancy. The hard drive contained multiple MYOB financial data files with names matching this list. For example, there were files named "Whitby Land Company (v11).MYO" from 2011, "Whitby Land Company (vl9).MYO" from 2012, "Westend Asset (v10).MYO" from 2008 and a variety of .MYO files with names commencing "Mammoth Nominees" from 2008. Relevancy was confirmed with the warrant holder and I completed a property slip for this item and handed it to the AFP property officer and they recorded the details of those items on a property seizure record. 407 Mr Ilett's reference to the fact that he "confirmed relevancy" with the warrant holder, who was Federal Agent Jirasinha, must be considered in the context of other evidence that suggested that Federal Agent Jirasinha did not himself examine any material to determine whether it fell within the terms of the warrant. That was the substance of Federal Agent Jirasinha's evidence. His evidence was that he himself did not personally search for or seize any items. Mr Ilett's evidence in cross-examination was to the effect that it was his decision to tell Federal Agent Jirasinha that he believed that there were relevant files stored on a storage device, and it was Federal Agent Jirasinha's decision to seize the item. It could not be suggested in light of that evidence that Federal Agent Jirasinha played any material role in deciding whether a file or files on a device in fact satisfied the conditions in the warrant. He just relied on the advice of others. 408 Mr Caratti contended that Mr Ilett could not have properly formed a view that the data on the Seagate device satisfied the three conditions of the warrant because he understood the third condition to simply provide a date range. That submission was based on the following oral evidence of Mr Ilett: Is that the only purpose for which you reviewed the warrant or did you consider it for any other purpose?---There are three conditions on the warrant. There's the location - sorry, there's the types of documents that they are that are of interest, there's particular names and phrases that appear on those documents. And by "documents" I mean electronic records or whatever they may be. And there's also a date range. So they are the three conditions of the warrant that are used to determine if something is likely to be relevant or not. And so is it the case you read it to understand it or just to pull out names for search terms?---It's search terms that are fed into the forensic software that I use to perform the searches. And the purpose of reading the warrant, given what you intended to do at the premises, was to pull out the search terms from those warrant conditions, was it?---Pull out - yes. That's correct. The second conditions of the warrant, I believe, has a list of keywords and phrases in there, what my software uses. I see. And to the extent there weren't any in the second condition, if there were any words in the third condition you could put those names into your relevancy sheet, couldn't you?---I would probably need to see the warrant if there were any names that appeared in the third conditions that were relevant or not, but I'm almost certain my - the search terms I used would have purely been the second conditions of the warrant. I see?---Apart from the date range which further narrows down the results and, I think, the third condition. Like I said, once again, I would probably have to see the warrant again to be sure. 409 While there are some indications that Mr Ilett viewed the third condition as providing no more than a date range, ultimately that issue was not fully pursued in cross-examination. Mr Ilett expressed some uncertainty about that issue and said that he would have to see the warrant again. He was not shown the warrant and the point was not pursued further in cross-examination. Based on the limited cross-examination, Mr Caratti has not discharged his onus of proving that Mr Ilett did not properly turn his mind to the third condition of the warrant. 410 Mr Caratti also contended that Mr Ilett could not have properly formed a view about the relevance of the files because they were MYOB files and Mr Ilett was unable to open them. That proposition was not put to Mr Ilett in cross-examination and appears to have been based on the evidence of Mr Andrews. The proposition is rejected on the basis that it was not put to Mr Ilett. In any event, the fact that the MYOB files could not be opened would not preclude a view reasonably being taken that the files satisfied the three conditions for the reasons given earlier in the context of the device seized by Mr Andrews. 411 The question whether the Seagate device itself was properly able to be seized under either s 3F or s 3L is difficult to resolve. On the one hand, Mr Ilett was not cross-examined about whether it was practicable or otherwise to copy the data on the device. He was not expressly asked how long it would have taken to copy the files, or whether equipment to copy the files was available. 412 On the other hand, Mr Ilett's evidence as a whole indicated that he simply did not turn his mind to whether it was or was not practicable to copy the files on the device. Rather his evidence during cross-examination revealed that, having found that some files on the device were relevant, he advised Federal Agent Jirasinha and Federal Agent Jirasinha told him that the device should be seized "to allow further searching later". That evidence must also be considered in the context of Federal Agent Jirasinha's evidence that he understood that if relevant files were found on a computer, seizure of the computer was justified without anything further. Federal Agent Jirasinha plainly was not aware of s 3L of the Crimes Act. 413 Perhaps more importantly, there was no evidence that it in fact was not practicable to copy the files. In these circumstances, it matters not that Mr Ilett was not cross-examined on this issue. Seizure of the device was not authorised by s 3L of the Act. 414 The evidence indicates that the seizure of the Seagate device itself was also not authorised by s 3F. Nobody turned their mind to whether the device itself, as opposed to the files on it, met the three conditions of the warrant. There was nothing in the evidence to suggest that there were reasonable grounds to suspect that the device itself, as opposed to the data stored on it, would afford evidence of the commission of any of the offences. 415 Much the same can be said about the Imation storage device. Mr Ilett's evidence was that the Imation device was "deemed" relevant by Federal Agent Jirasinha and "seized because it contained files concerning entities listed in the key word search as well as within the date range". The evidence referred to in the context of the Seagate device suggests that Mr Ilett's reference to the date range was a reference to the third condition of the warrant. That evidence also indicates that Federal Agent Jirasinha's involvement in "deeming" the item relevant amounted to no more than an acceptance of Mr Ilett's view. Federal Agent Jirasinha did not himself look at the files to determine their relevance. 416 As with the Seagate device, there was nothing in the evidence to suggest that Mr Ilett, or anyone else, turned their mind to whether the device itself, as opposed to the files on it, met the three conditions in the warrant, and that the device was therefore seizable under s 3F. Nor was there anything to suggest that anyone turned their mind to s 3L and the issue whether or not it was practicable to copy the data on the device rather than seize it. 417 The situation is perhaps clearer in relation to the Imation device because it was plainly practicable to copy the data. In cross examination, Mr Illet effectively conceded as much. His evidence was: MR BRUCKNER: Yes. And that USB stick would have taken only a couple of minutes to copy the contents of, wouldn't it?---Eight gig USB stick, depending on the speed of the stick itself - I mean, as I say, less than half than [sic] hour, probably closer to 15 minutes. And in relation to that stick that you seized, you could easily have copied - taken an image of that, taking into account all your other duties and things you had to do, didn't you?---Yes. I think that's fair to say. 418 Seizure of the Imation device was not authorised by s 3L. It was not impracticable to copy the data on the device. Seizure was also not authorised by s 3F. Nobody asked themselves the right question: were there reasonable grounds to suspect that the USB stick itself, as opposed to the data on it, would afford evidence of the commission of any of the third condition offences?

The Strontium storage device 419 The Strontium storage device was seized during the execution of the Duncraig Road warrant. It is unclear who formally decided to seize the item. It is, however, tolerably clear that Ms Ramdhas examined the data on it and formed the view that one document on the device fell within the terms of the warrant. In her affidavit, Mr Ramdhas stated as follows (at [26] and [27] of her affidavit): After this, I perused the second laptop, which was a laptop belonging to Digital Forensics, to open and read electronic storage devices including USB/thumb drives and discs. The AFP digital forensics staff said to me that the thumb drives and discs had been located at the premises. The process was the same as I have described in respect of the first laptop in paragraph 24. That is, an AFP digital forensics officer identified relevant documents by search terms, which I then perused for relevance. At about 3.15pm, while I was using this laptop, I identified a document which I believed met the first condition of the search warrant, being a spread sheet containing details of property settlements of various lots relating to entities listed on the second condition of the search warrant which were also the subject of the third condition of the search warrant as it related to the offences, namely the non-payment of income tax and GST from property sales relating to those entities. I advised the Digital Forensic staff of the document and I saw that they proceeded to take the item to the AFP Property Officer who recorded the details of the item on a property seizure record. 420 In her oral evidence, Mr Ramdhas confirmed that the document she was referring to in this part of her affidavit was located on the Strontium device. Ms Ramdhas' evidence that she formed the view that a document on the device fell within the terms of the warrant was not challenged. 421 The AFP digital forensic officer referred to by Mr Ramdhas appears to have been Mr Fell. In his affidavit, Mr Fell stated as follows concerning the seizure of the Strontium device (at [34] of his affidavit): On page 1 of those notes, I refer at 1456 to an ATO member, Melissa, seizing a Strontium 4GB. I do not recall the details of this. I do recall that the ATO officer I know as only Melissa saying words to the effect that she had completed her preview and that a decision had been made to seize it. I note that to "preview" a thing is to bring up data on the device on AFP equipment in a forensically sound environment which prevents writing to the device for the purpose of data review. 422 The difficulty again is that there was nothing in the evidence of either Ms Ramdhas or Mr Fell to suggest that either of them or anyone else, turned their mind to whether or not it was practicable to copy the data on the device rather than seizing it. Nor did anyone apparently turn their mind to whether the device itself, as opposed to the documents or files on it, satisfied the conditions in the warrant. The evidence of Ms Ramdhas' suggested that there was only one document on the device, a spreadsheet, which was relevant. It is difficult to see how, in those circumstances, it could be said that there were reasonable grounds to suspect that the storage device itself, as opposed to the file or files stored on it, would afford evidence of the commission of any of the third condition offences. It is even more difficult to see why it would not have been practicable to either copy the data on the device, or print the single relevant document that was stored on it. 423 The Commissioner correctly pointed out in his submissions that Ms Ramdhas was not cross-examined about whether it was impracticable to copy the data, or whether she turned her mind to that issue. Nor, it might be added, was Mr Fell, who perhaps would have been the more appropriate officer to question on that point. In circumstances where neither Ms Ramdhas nor Mr Fell said anything about whether or not they ever turned their mind to that issue, however, there was no need to put anything to them in cross examination on that point. 424 The property seizure record for the Duncraig Road warrant does not suggest that the data on any devices was copied during the execution of the warrant. The available inference is that the equipment to copy the data was available, given the presence of forensic officers, and was not otherwise being utilised. There is nothing in the evidence to suggest that copying was impracticable, or that anyone turned their mind to that issue. 425 Seizure of the Strontium device was accordingly not authorised under s 3L. Nor did anyone form the view that the device itself, as opposed to the documents on it, fell within the terms of the warrant and was therefore seizable under s 3F of the Crimes Act.

The TDK storage device 426 The evidence concerning the seizure of this device was unsatisfactory. The TDK storage device was also seized at the Duncraig Road premises. It is unclear who seized it. All that can be said is that it was seized at the same time as the Strontium device. It appears immediately beneath the Strontium device in the property seizure record for the Duncraig Road premises. The property seizure record reveals that the Strontium device and the TDK storage device were seized at the same time. Mr Fell's forensic notes record the following concerning the examination of two TDK storage devices that match the description of the seized item in the property seizure record. 1518 Gold TDK 8GB previewed. Details were TDKMedia Gold Flash and S/No: 07B30A0705D26331 Device previewed using Tableau T8R2 000ecc02 000830c1 and AFP asset number 90243276 (SOE Version 2013/3) / EnCase V6.19.4. Nothing of interest present. Tableau disk report taken. 1526 Gold TDK 8GB previewed. Details were TDKMedia Gold Flash 0703C215F9229A0E Device previewed using Tableau T8R2 000ccc02 000830c1 and AFP asset number 90243276 (SOE Version 2013/3) / EnCase V6.19.4. Tableau disk report taken. Nothing of interest present. 427 Both references indicate that nothing of interest was present in the devices tested by Mr Fell. In the absence of any evidence concerning the basis upon which this item was seized, it is difficult to see how it could be concluded that it, or the files stored on it, fell within the terms of the warrants. In light of the findings made in relation to the Strontium device, it can also be inferred that nobody turned their mind to whether seizure of the device was authorised by s 3L of the Crimes Act. The evidence suggested that it would not have been impracticable to copy the data on it.

The Blackberry mobile devices 428 Two Blackberry mobile devices were seized during the execution of the Duncraig Road warrant. Federal Agent Szolnoki and Mr Fell gave evidence concerning the seizure of one Blackberry device. That evidence was effectively unchallenged. Mr Fell initially had problems starting the device, apparently because it was not charged. Eventually a charger was located and the device was sufficiently charged to enable Federal Agent Szolnoki to conduct a preliminary review of its contents. Federal Agent Szolnoki confirmed that there were names recorded in the contact lists on the phone that gave him reason to suspect that the device contained data that satisfied the warrant conditions. 429 Federal Agent Szolnoki's evidence was that he considered that the device was able to be seized under s 3L(2)(a) and (3) because the difficulties in charging the device meant that it was not practicable to copy the data on it. That evidence was corroborated by the evidence of Mr Fell, including the contents of his forensic notes. 430 Mr Caratti submitted, in effect, that Federal Agent Szolnoki's evidence about it being impracticable to copy the data on the Blackberry devices should be rejected because a charger was available. The difficulty with that submission is that Federal Agent Szolnoki's evidence was not challenged in cross-examination. It would, in such circumstances, not be fair to reject it. Taking a realistic and practical approach to the issue, and taking operational issues into account, it could not be concluded that the view taken by Federal Agent Szolnoki was not a view reasonably open to him. 431 As for the other Blackberry device that was seized at the premises, Mr Caratti did not advance any submissions as to why it was unlawfully seized. It would appear that the circumstances in which the other device was seized were similar. There is no basis to find that it was unlawfully seized.

Conclusion in relation to seizure of electronic devices 432 Mr Caratti has demonstrated that the following electronic devices were not lawfully ceased pursuant to either s 3F or s 3L of the Crimes Act: the Compaq and Toshiba laptops seized at the Cornish Turn premises; the external hard drives seized by Mr Khan at the Wickham Street premises; the Seagate and Imation storage devices seized by Mr Ilett at the Wickham Street premises; and the Strontium and TDK storage devices seized at the Duncraig Road premises. 433 The question remains, however, whether it follows, as Mr Caratti contended, that the Court should order the unlawfully seized items to be returned. Is that the appropriate remedy? More particularly, does the Court have the discretion not to order the return of items that have been found to be unlawfully seized pursuant to a search warrant? If so, should that discretion be exercised in the particular circumstances of this case?

REMEDIES 434 In his application, Mr Caratti sought various declarations, as well as the issue of writs certiorari and mandamus. 435 The declarations sought by Mr Caratti included declarations that the "search warrant decisions" were void and of no effect; that the execution of each search warrant (or alternatively the Irwin Street warrant alone) was invalid; and that the Commissioner is "not entitled to possess things seized pursuant to each of the warrants". For the reasons already given, declarations along the lines sought by Mr Caratti should not be made. The decisions to issue the search warrants were not void or of no effect. The search warrants were not invalid on their face. The execution of the warrants, as a whole, was not beyond power. The Commissioner is entitled to retain possession of the items seized pursuant to the terms of the Crimes Act, subject to appropriate orders being made in relation to the items of electronic equipment that have been found to have been unlawfully seized. 436 Mr Caratti did not seek any declaratory relief in respect of the seizure of individual items, including electronic devices. The writ of certiorari sought by Mr Caratti was directed at quashing each of the search warrant decisions. For the reasons already given, such a writ should not issue. 437 The writs of mandamus sought by Mr Caratti were directed at causing the Commissioner to "deliver up" all of the items seized pursuant to the warrants and to destroy any "material" derived from the seized materials. Such writs should not issue for the reasons already given. 438 Mr Caratti initially sought, but did not press for, the issue of writs of prohibition against the Commissioner of Taxation. 439 Mr Caratti did not seek writs of mandamus in relation to specific items, including electronic storage devices, which would have had the effect of requiring the Commissioner to return any specific items. Mr Caratti's submissions, however, proceeded on the basis that the Court should order the return of any electronic devices which are found to have been unlawfully seized. 440 The Commissioner did not appear to take issue with the fact that Mr Caratti's application did not seek any specific orders, or the issue of any writs, directed at any specific items. He contended, however, that the Court should decline to grant any such relief. 441 The issue of a writ of mandamus is discretionary. So too is the making of an order requiring the Commissioner to return items which have been found to have been unlawfully seized, either because the warrant has been found to have been invalid, or because the seizure was outside the terms of the warrant or any statutory authority. Mr Caratti conceded as much in his submissions. 442 It appears to be generally accepted that the relief that may be granted upon a finding that items purportedly seized pursuant to a search warrant were in fact unlawfully seized is discretionary. There is, however, an issue in the authorities concerning the nature and scope of the discretion. The debate, at least in the earlier authorities, to an extent centred around the decision of Court of Appeal of the United Kingdom in Ghani v Jones [1970] 1 QB 693 concerning the common law power of search and seizure without a warrant. That appears to have been because in some cases where a warrant was declared invalid, it was argued that the seizure of some items was nonetheless legal on the basis of the common law power to seize. 443 It is worth noting that the Commissioner did not contend that, if the warrants were declared to be invalid or not lawfully issued, the items purportedly seized pursuant to the warrants were nonetheless lawfully seized pursuant to the principles in Ghani v Jones. Nor did the Commissioner contend that, if it was found that the individual items of electronic equipment were not lawfully seized under either s 3F or s 3L of the Act, the seizure of those items was nevertheless authorised pursuant to the common law principles. It is in these circumstances at the very least doubtful that Ghani v Jones provides a particularly useful guide to the principles that should be applied in determining whether the Court should order that the items found to have been unlawfully seized should be returned. 444 It is unnecessary to conduct a review of the early authorities. They were reviewed at length by Hill J in Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393. The circumstances in which items were unlawfully seized in Puglisi were, as Hill J pointed out, a clear demonstration of the operation of Murphy's law. The items were initially seized pursuant to invalid warrants. The police sought to rectify that problem by applying for and obtaining a second set of warrants, but they too were ineffective. A third set of warrants were issued, and the items were then "re-seized" pursuant to those warrants from the back of a police car. His Honour found that the items were not lawfully seized for a number of reasons, including that items held by the AFP without authority cannot be seized by the AFP from the AFP. Having found that the items were unlawfully seized, his Honour considered whether he should order the return of the items. Having reviewed the authorities at length, his Honour concluded as follows (at 405): I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice. Should the court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated. Of course, the question whether the items in the present case, if otherwise admissible, should be admitted in evidence in the pending prosecution, despite the fact that they were obtained without lawful authority, will be a matter for the judicial officer hearing the prosecution: Bunning v Cross (1978) 141 CLR 54; 19 ALR 641. The existence of this discretion suggests to me that I should not interfere with the pending prosecution by requiring the documents seized to be returned but leave instead to the judicial officer presiding on that prosecution the question whether the material illegally obtained should be admitted into evidence in the prosecution. 445 Hill J declined, in the circumstances, to order that the items be returned. The circumstances included that, following the purported execution of the third set of warrants, criminal proceedings were commenced against Mr Puglisi. His Honour noted that at least some of the seized items could be "expected to be used" in the prosecution. There is, however, no indication that Hill J actually considered the seized items and concluded that they had any evidentiary relevance. 446 A similar view in relation to the existence and nature of the discretion was reached, at about the same time, by Dunford J in Cassaniti v Croucher (1997) 37 ATR 269. In Cassaniti, Dunford J rejected arguments that a search warrant was invalid, but upheld a complaint that certain items were unlawfully seized because the seizing officer did not, at the time of seizure, turn his mind to whether seizure could be justified under the warrant. Rather, he seized them for the purpose of taking them away to determine, at a later time, whether seizure could be justified. As to whether he should order the unlawfully seized items to be returned, his Honour said as follows (at [280]): Seizure of documents without a valid warrant or unlawful execution of a valid warrant does not necessarily mean the return of the documents and items seized, but there is a discretion to permit the police to retain items illegally seized which appear to provide evidence of the commission of criminal offences and which are required for the prosecution of such offences: Ghani v Jones [1970] I QB 693 at 706; Walker v West [1981] 2 NSWLR 570 at 584; Parker v Churchill (1985) 9 FCR 3I6 at 330-333; Rowell v Larter (1986) 24 A Crim R 222 at 230-2 citing Marinko v Rames (unreported, 13 August 1971, Hope J). In some of those cases there is reference to existing prosecutions and here no prosecution has yet been instituted but subject to the outcome of these proceedings, the police have completed their investigations and are in a position to seek the advice of the Director of Public Prosecutions on whether the evidence is such as to justify the commencement of criminal proceedings. In those circumstances and bearing in mind that the police had a valid warrant and were acting in purported execution of such warrant, I consider that sufficient grounds have been shown and the police should be permitted to retain any relevant material seized for the purpose of obtaining that advice. 447 His Honour held that the seizing officer was entitled to retain the unlawfully seized items for the purpose of obtaining advice from the Director of Public Prosecutions and any criminal prosecutions arising from that advice. No criminal proceedings were on foot at the time his Honour made that order. There is also no indication that his Honour himself turned his mind to whether the unlawfully seized items would afford evidence of any offence. 448 In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J found that a search warrant purportedly issued pursuant to an Act was invalid. His Honour found, however, that it did not necessarily follow that he should order the return of the items seized pursuant to the invalid warrant. His Honour referred to the authorities, including both Puglisi and Cassaniti. It is important to note that criminal proceedings had already been commenced. Not surprisingly, therefore, his Honour's review of the authorities included cases where courts had refused to order the return of unlawfully seized items in circumstances where criminal proceedings were already on-foot. Having reviewed the authorities. Holmes J concluded as follows (at 683-684 [57]): The overwhelming weight of persuasive authority, in my opinion, supports the existence of a discretion to be exercised in considering an application for the return of illegally seized items; and moreover points to a refusal to exercise that discretion where criminal proceedings are on foot. On balance in this case, the greater interest lies in preserving the evidence; the question of admissibility may properly be left to the trial judge. Accordingly, I would not be prepared to make any order for the return of items seized pursuant to the invalid warrant if they are required for the prosecution of the first applicant, nor for the delivery of the videotape of the search if it affords evidence of the commission of the alleged offence. There is however, no material presently before me as to the evidentiary value of the seized items. I would be prepared to receive further material and hear argument, should the parties so wish, as to whether any or all of the material seized does in fact afford evidence of an offence. It may be that the question can be resolved between the parties. 449 Mr Caratti accepted that the relief sought by him, in particular the order in the nature of mandamus requiring the return of unlawfully seized items, was discretionary. He advanced two submissions in relation to the exercise of the discretion. 450 First, he submitted that if he established that the warrants were invalid on their face (ground 1A) or that the decision to issue the warrants was invalid (ground 1B) the authorities established that the discretion can only be exercised one way: the items seized pursuant to the invalid warrant must be ordered to be returned. Second, Mr Caratti submitted, in effect, that the Court retained a discretion not to order the return of unlawfully seized items in only two circumstances: first, where criminal proceedings were already on foot; and second, where it had been shown that the items seized may afford relevant evidence of the commission of the alleged offence. In support of those submissions, Mr Caratti relied primarily on the decision of Commissioner Sleight in CC v Rayney (2012) 42 WAR 498. 451 In Rayney, the police intercepted Mr Rayney's motor vehicle and arrested him for the murder of his wife. He was charged later that day with murder. Also later that day, the police seized items from Mr Rayney's motor vehicle. The police did not have search warrants. The Criminal Investigation Act 2006 (WA), however, gave the police power to seize items if they had reasonable grounds to suspect that the items were "things relevant to an offence". That expression was defined in terms relevantly the same as the definition of the equivalent expression in the Crimes Act. The problem for the police was that a magistrate subsequently found that the police officers who seized the items did not, at any time prior to or at the time of seizure, reasonably suspect that the items were things relevant to an offence. Nor was there any evidence before the magistrate which would have allowed the court to make an objective assessment of whether it was reasonable to suspect that the items were things relevant to an offence. The magistrate ordered that the items be returned. Commissioner Sleight dismissed an appeal from the magistrate's decision. 452 In dismissing the appeal, Commissioner Sleight referred to the judgment of Hill J in Puglisi and expressed the following opinion (at 511 [49]): In my opinion, the authorities reviewed by Hill J, in reaching the conclusion that he had a discretion, do not suggest that a discretion can arise in a situation where the invalidity of the warrant arose because there were no reasonable grounds for suspecting that the material provided evidentiary material in support of the commission of an offence by the suspect person. 453 Commissioner Sleight then referred to the judgment of Homles J in Wright. He then concluded as follows (at 512 [52]): I conclude from these decisions that at common law the discretion not to make an order that items seized unlawfully be returned to the owner only arises where there is material suggesting that the items may afford relevant evidence to the commission of the alleged offence. 454 A number of points should be made about the findings and reasoning of Commissioner Sleight in Rayney. 455 First, Commissioner Sleight's opinion that the discretion not to order the return of items seized does not arise where "the invalidity of the warrant arose because there were no reasonable grounds for suspecting that the material provided evidentiary material in support of the commission of an offence by the suspected person" is obiter dicta and should not be followed. The matter before Commissioner Sleight did not concern items seized pursuant to an invalid search warrant. It concerned the seizure of items by the police in circumstances where they did not turn their minds to the matter that the relevant statute required them to turn their minds to: whether there were reasonable grounds to suspect that the items would afford relevant evidence of the commission of the alleged offence. 456 Nothing said by Hill J in Puglisi or Holmes J in Wright indicates that the discretion does not arise where the invalidity of the warrant arose from the fact that the information before the issuing officer was not capable of satisfying the officer that there were reasonable grounds for suspecting that there was evidential material (as defined) at the premises to which the warrants relate. The judgments of both Hill J and Wright J support the proposition that the discretion arises in any case where it is found that items were illegally seized: whether the illegality arose from the fact that the warrant was found to be invalid, or was invalidly issued, or because seizure of the item was found to be illegal for some other reasons. So too does the judgment of Dunford J in Cassaniti, which involved facts and circumstances not dissimilar to Rayney: seizure by a police officer in circumstances where the police officer did not have reasonable grounds to suspect that the items would afford evidence of the commission of an offence. The fact that none of the authorities referred to by Hill J in Puglisi directly concerned the circumstance where a warrant was declared invalid because the statutory precondition for its issue was not satisfied does not mean that the discretion not to order the return of an illegally seized item does not extend to that circumstance. 457 The precise circumstance which gave rise to the finding of illegality would no doubt be a relevant consideration in the exercise of the discretion whether or not to order the return of the unlawfully seized items. Depending on the particular circumstances of the case, it may well be the case that considerable weight should be given to the reason why the seizure had been found to be unlawful. That would particularly be the case where the illegality arose from the fact that the warrant pursuant to which the item was purportedly seized should never have been issued because the material before the issuing officer was insufficient to satisfy the statutory preconditions for the issue of the warrant. However, that may be only one of a number of relevant considerations to be weighed in the balance. The effect of Mr Caratti's submission is that it would be the only consideration. 458 Second, Commissioner Sleight's conclusion that the discretion not to order the return of an illegally seized item only arises where there is material suggesting that the item may afford evidence of the commission of the alleged offence is not supported by authority and should not be followed. The authorities do not establish that there is any such rigid or immutable rule. In Puglisi, Hill J declined to order the return of the illegally seized items in circumstances where it would appear that there was no evidence before the court which positively established that the seized items would afford evidence against Mr Puglisi. His Honour proceeded on the basis that the items "may" be "expected" to be used in the prosecution. Both Holmes J in Wright and Dunford J in Cassaniti also declined to make orders returning the goods in circumstances where it appears that there was no material suggesting that the seized items would necessarily afford evidence of the commission of the alleged offence. Their Honours did, however, allow the parties to lead further evidence, or present further arguments, on that issue. 459 A number of difficulties would arise if the discretion not to order the return of illegally seized items only arose where there was positive evidence that the items would or may afford evidence of the alleged offence. One difficulty would be that it may not be possible for the police to put such material before the court in a case, like the present one, where the police have effectively been prevented from inspecting the seized items. A second difficulty is that such a rigid requirement or restriction would in many cases impose a significant and difficult burden on the Court. It would effectively require the Court to put itself in the shoes of an executing officer and decide, in relation to each item seized, whether there are reasonable grounds to suspect that the item may afford evidence of the suspected offences. That may well be a very difficult exercise where the alleged offences are complex and the investigation is at an early stage. The burden would be particularly onerous in a case where a particularly large volume of material was seized. 460 It is generally for the issuing officer (in relation to the issue of the warrant) or the police (in relation to the seizure of the item) to determine whether there were reasonable grounds to suspect that there may be evidential material at the relevant premises (in the case of the issue of a warrant) or that the item would afford evidence of the commission of an offence (in the case of the decision to seize an item). It is not for the court to substitute its own opinion for the opinion of the issuing officer, in relation to the issue of the warrant (Williams v Keelty at 213 [166]) or the executing officer, in relation to the seizure of an item (Adler at 33-34 [39]). The effect of Mr Caratti's submission, based on Rayney, is that in every case where the seizure of an item has been found to be unlawful, the Court has to effectively stand in the shoes of the executing officer and decide whether there are reasonable grounds to suspect that reach unlawfully seized item would afford evidence of the commission of the offence. Only if such grounds were found to exist could the Court exercise its discretion not to order the return of the item. 461 The better view is that the discretion not to order the return of illegally seized items is not necessarily restricted to cases where it has or can be shown that the seized items may afford evidence of the suspected offences. That would no doubt be a relevant consideration, and in many cases would be a very weighty consideration, to be taken account in the exercise of the discretion. Much will, however, depend on the particular facts and circumstances of the case. Where, for example, it is apparent that the executing officer suspected, on apparently reasonable grounds, that the seized items could afford evidence of the commission of the offence, but the seizure was found to be invalid because there was a technical deficiency in the warrant, the genuinely held views of the officer may be sufficient to show that the seized item may be relevant. It would not, in such circumstances, be necessary for the Court to consider for itself the potential relevance of the seized item. The position may well be different in a case, like Rayney, where the police seized the items without turning their minds to whether there were reasonable grounds to suspect that the items would afford evidence of the commission of the offence. In such a case, the absence of any evidence that the seized item may afford evidence of the commission of the offence may well be a very weighty consideration in the exercise of the discretion. Even in such a case, however, it may well be appropriate for the Court to give the parties a further opportunity to lead evidence or advance arguments on that issue, as was done in both Cassaniti and Wright. 462 Third, Rayney provides no support for Mr Caratti's contention that the discretion not to order the return of an illegally seized item only arises where there are criminal proceedings on foot. Nor is that contention supported by either Puglisi or Wright. In each of those cases criminal proceedings were on foot. It does not follow that the discretion only arises, or should only be exercised, in such circumstances. 463 There is no basis in principle for limiting the exercise of the discretion to cases where criminal proceedings are already on foot. That would be a particularly significant limitation, given that many, if not most, search warrants in complex matters are executed before charges are laid. Often charges cannot be laid until the seized material is considered by the police or the relevant prosecuting authority. Often that cannot occur until the proceedings challenging seizure of the material are heard and determined. That is because interlocutory relief is often granted, or undertakings are frequently given, that have the effect of preventing the police from inspecting the seized material until the search warrant proceedings are resolved. 464 Dunford J in Cassaniti did not consider that the discretion not to order the return of illegally seized items only arose only if criminal proceedings were on foot. His Honour was, with respect, correct in not limiting the discretion to that circumstance. 465 If criminal proceedings are on foot, that would no doubt be a relevant consideration, perhaps a highly relevant consideration, in deciding whether or not to order the return of unlawfully seized items. That does not mean, however, as Mr Caratti effectively contended, that the Court's discretion not to order the return of unlawfully seized items only arises if criminal proceedings have already commenced. 466 It follows that the discretion whether or not to order the return of unlawfully seized items is not as narrow as Mr Caratti would have it. 467 What then is the nature of the discretion? What are the relevant considerations that should be taken into account in deciding whether unlawfully seized items should be returned? 468 The starting point, perhaps, is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods. That consideration would support the return of the unlawfully seized goods. That is not, however, the end of the matter. Weighed against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The result is that a number of additional considerations would ordinarily come into play. 469 The list of relevant considerations is not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. All of the facts and circumstances surrounding the unlawful seizure must be considered. Relevant considerations may include: was the unlawful seizure deliberate, reckless or contumelious, or was it the product of mere technical deficiency or less serious conduct on the part of the seizing officer or agency; what is the nature of the items seized (for example, are they items that the party from whom they were seized requires to conduct their business); is there a risk that, if returned, the seized items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced (as in Cassaniti); and the possible importance and probative value, if any, of the seized material. That is not intended to be a complete list of potentially relevant considerations. It is intended to be no more than indication of the types of matters that might be relevant. 470 Ultimately the question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained. Or, put in another way, whether the undesirability of a person being unlawfully deprived of their goods is outweighed by the public interest in the police or investigating agencies being permitted to investigate and prosecute serious criminal conduct without undue interference. In that regard, the discretion is somewhat similar to the discretion to admit unlawfully obtained evidence under s 138 of the Evidence Act. That is not to suggest that the discretion is the same as the discretion in s 138 of the Evidence Act. That discretion arises in a different context and at a different stage of the administration of criminal justice. The point is that the exercise of the discretion, like the exercise of many discretionary powers, ultimately involves an exercise of balancing competing private and public interests. 471 In the present case, the unlawful seizures appear not to have been deliberate, contumelious or even reckless. They appear to have been the product of an inadequate understanding, or perhaps a misunderstanding, of the circumstances in which an electronic storage device can be seized. Officers appeared to proceed on the basis that if the electronic device contained relevant files, that was sufficient to justify seizure. They did not appear to appreciate, or know about, the terms of s 3L of the Crimes Act. They also did not appear to appreciate the difference between the contents of the device meeting the conditions of the warrant, and the device itself satisfying those conditions. 472 Another relevant consideration is that it appears that the officers responsible for seizing the particular items genuinely formed the view that there were reasonable grounds to suspect that the files or data on the devices would afford evidence of the commission of the offences in the warrant. The possible exceptions to this are the seizure of the Compaq and Toshiba computers and the TDK storage device, where the evidence tended to suggest that the consideration given to the third condition of the warrants was at best cursory. In the case of the computers, for example, it appeared to be believed that it was sufficient for files on the computers to refer to one or more of the condition two entities. Even in that case, however, the officers genuinely believed that the files on the computers were properly seizable under the warrants. 473 In all the circumstances, it would be reasonable to infer that there are files or data on the devices that may afford evidence of the third condition offences, though it is not possible to say how important the evidence might be. Criminal proceedings are not on foot against Mr Caratti or Ms Bazzo. It may be inferred, however, that the AFP may need access to the seized material before considering and possibly taking advice on the question whether there are grounds to commence criminal proceedings. The alleged offences are serious offences. 474 Another relevant consideration is that the exercise of the discretion in the circumstances of this case does not involve a stark choice between returning or not returning the items. There is an available alternative course which allows for the retention of evidential material and the return of the electronic equipment that was unlawfully seized. That alternative course is to permit the AFP to do what they should have done, or considered doing, in the first place: to copy or take an image of the data or files on the unlawfully seized devices to the extent that that is practicable. The computers and devices can then be returned. That course would ensure that any evidential material is retained and preserved, but the devices themselves are returned. 475 On balance, and taking into account all the relevant facts and circumstances surrounding the unlawful seizure of the electronic devices, it would not be appropriate to simply order the return of the unlawfully seized equipment. The more appropriate course would be to permit the Commissioner to further inspect or interrogate the seized electronic items in order to confirm that there is data stored on them that satisfies the three conditions in the warrant. If that is confirmed to be the case, the Commissioner should be permitted to take an image of the device, or copy the data, in accordance with s 3L(1A) of the Crimes Act. The further inspection, and any forensic imaging or copying, should take place within a reasonable time (perhaps 28 days would be appropriate) and should occur in the presence of Mr Caratti's representatives, if that is what he requests. Once the further inspection and any copying or imaging has taken place, the relevant devices should then be returned. There is no evidence to suggest that the devices themselves have any evidential value. 476 In the event of any dispute arising between the parties as a result of, or in the course of, the further inspection and copying, the parties should have leave to relist the matter for further argument concerning the process. Such a dispute may arise, for example, if upon further inspection of the devices, Mr Caratti contended that there could be no reasonable basis for a suspicion that any data or file on one or more of the devices fell within the terms of the warrant. 477 The exercise of the court's discretion in this way is, to a certain extent, consistent with the approach taken by Holmes J in Wright and Dunford J in Cassaniti. It is also consistent with the view expressed by Burchett J in Parker v Churchill, where his Honour indicated (at 332) that had he found that documents were illegally seized "by reason of matters not involving deliberate or reckless disregard of the law", he would have permitted inspection of the documents to enable more detailed argument to be advanced upon any claims that particular documents ought be retained. 478 Contrary to Mr Caratti's apparent contention, the course that has been proposed would not undermine the need to ensure that warrants are lawfully executed. Mr Caratti has achieved some measure of success. He will have the electronic devices returned to him. He will have the right to advance an argument that there could be no reasonable basis for suspecting that any data on the devices falls within the terms of the warrant. He will also have the benefit of the Court's findings that the electronic devices were, in the first instance at least, unlawfully seized. If criminal proceedings are ever commenced against him, he may be able to argue that the data copied from these electronic devices was, at least in the first instance, unlawfully obtained evidence. He could argue on that basis that the evidence should therefore be excluded pursuant to s 138 of the Evidence Act. 479 Subject to entertaining further submissions on this point, if necessary, Mr Caratti's success in relation to this aspect of the matter should also probably be reflected in the costs order or orders made in these proceedings. 480 Finally, and perhaps most significantly, it should be emphasised that the Commissioner and the AFP should not approach this aspect of this proceeding as providing some sort of precedent for what will occur in cases where electronic equipment is seized in circumstances where the requirements in either s 3F or s 3L are not satisfied. The fact that the Court has permitted the devices to be further inspected and copied in the particular circumstances of this case does not mean that the same approach will necessarily be taken in every case. Much will depend on the particular facts and circumstances of the case. The message that the Commissioner and the AFP should take from this matter is that they should pay closer attention to the relevant provisions of the Crimes Act, complex as they may be, because there may in due course come a case where the Court will order the return of unlawfully seized electronic devices where the relevant provisions are either ignored or overlooked.

SUMMARY OF FINDINGS AND CONCLUSIONS 481 Following is a brief summary of the findings and conclusions relevant to Mr Caratti's challenge to the issue and execution of the search warrants. 482 The search warrants were validly issued. The information before the issuing officer was sufficient to support a finding that there were reasonable grounds for suspecting that there was, at the relevant premises, things with respect to which there were reasonable grounds for suspecting that they would afford evidence as to the commission of the offences set out in the third condition of the warrants. Mr Caratti has not proved otherwise. The search permitted by the warrants did not exceed what was justified by the material before the issuing officer. These findings are subject to the finding in relation to the storage medium paragraph. 483 The search warrants were valid on their face. The warrants sufficiently specified the perimeters within which materials were able to be searched for and seized. They were capable of sufficiently informing the occupiers of the relevant premises of the authorised area of search and seizure. While the descriptions of the offences to which the warrants related, in the third condition of the warrants, were poorly drafted and, to a certain extent, lacked clarity and particularity, they were nonetheless sufficient for the purposes of a search warrant under s 3E of the Crimes Act. These findings are also subject to the finding in relation to the storage medium paragraph. 484 The storage medium paragraph in the warrants (the three lines after the third condition) was invalid. It purported to authorise the seizure of electronic devices (as opposed to the data stored on them) that did not comprise evidential material and in circumstances where the condition in s 3L(3)(a) was not satisfied. The storage medium paragraph is, however, able to be severed from the warrants. That paragraph did not form part of an inseparable context and, if the paragraph was severed, the warrants would not operate differently or produce different results from that which was intended. To the extent that any items may have been seized in reliance on this paragraph, the seizure of those items was appropriately dealt with in the context of Mr Caratti's specific challenge to the seizure of those items. 485 The warrants as a whole were lawfully executed in accordance with their terms. They were not unreasonably or excessively executed by the executing officers or constables assisting. These findings are subject to the findings concerning the seizure of individual items comprising computers or electronic storage devices or equipment. 486 A number of items of electronic equipment were unlawfully seized. Those items were the Compaq and Toshiba laptops seized at the Cornish Turn premises; the external hard drives seized by Mr Khan at the Wickham Street premises; the Seagate and Imation storage devices seized by Mr Ilett at the Wickham Street premises; and the Strontium and TDK storage devices seized at the Duncraig Road premises. Those items (as opposed to the data stored on them) did not constitute evidential material as specified in the warrants. There were no reasonable grounds for suspecting that the items (as opposed to the data stored on them) would afford evidence of the offences specified in the warrants. No seizing officer formed the view that there were such reasonable grounds. Seizure was therefore not authorised by s 3F(1)(c) of the Act. Nor were the items able to be seized under s 3L(2)(a) because the condition or circumstances in s 3L(3)(a) was not satisfied. There was nothing to suggest that it was not practicable to copy the data on these devices. No seizing officer formed the view that it was impracticable to copy the data. 487 The Court should not, in the exercise of its discretion, order the return of the items of electronic equipment that have been found to have been unlawfully seized until the Commissioner, through his officers, is given an opportunity to further inspect and, if satisfied in terms of s 3L(1A), copy the data pursuant to s 3L(1A)(a) of the Act. The items should then be returned. The further inspection and copying of the data should occur within a reasonable time and (if Mr Caratti so requests) in the presence of Mr Caratti or his representatives. The parties should have leave to have the matter relisted if any dispute arises in relation to the further inspection of the equipment and the copying of the data.

DISPOSITION 488 The parties should confer in an endeavour to agree on the appropriate orders to give effect to the relevant findings and conclusions in this judgment. Those orders should include an order or orders in relation to costs. The parties should bring in short minutes of the proposed orders within 14 days of the publication of this judgment. In the event that the parties are unable to agree on the appropriate orders, the parties should each file written submissions, not exceeding 5 pages (excluding the attachment) attaching the proposed orders. The submissions should address why the orders advocated by the party should be made and why the orders proposed by the opposing party are not appropriate. The written submissions should also indicate if an oral hearing is requested or required to resolve any issue concerning the proposed orders. I certify that the preceding four hundred and eighty-eight (488) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.