Cassaniti v Croucher & Ors

Sam Peter Cassaniti (Claimant) Robert Ian Croucher (First Opponent) PARTIES : Peter Kepreotis (Second Opponent) Commissioner of Police (Third Opponent) State of New South Wales (Fourth Opponent) JUDGMENT OF : Mason P at 1; Heydon JA at 19; Foster AJA at 78

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 30123/96 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

COUNSEL : M Thangaraj (Claimant) D Cowan (1st, 3rd and 4th Opponents) SOLICITORS : Mark Rumore (Claimant) I V Knight, NSW Crown Solicitor (1st, 2nd, 3rd and 4th Opponents) - 2nd Opponent submitting appearance CATCHWORDS : VALIDITY OF SEARCH WARRANT - Requirement that Application for a search warrant specify the grounds upon which the warrant is sought - Search Warrants Act 1985 (NSW) ss 5, 11, 12A and 23 - Search Warrants Act 1985 - Regulation 1994 (NSW) Form 1 - Defect affecting the substance of a search warrant in a material particular - Strict legislative compliance in the issue of search warrants required to safeguard individual privacy - D Search Warrants Act 1985 (NSW) LEGISLATION CITED : Search Warrants Regulation 1994 Interpretation Act 1987 Trade Practices Act 1974 (Cth) Liversidge v Anderson [1942] AC 206 W A Pines Pty Ltd v Bannerman (1980) 41 FLR 175 Bartlett v Weir (1994) 72 A Crim R 511 George v Rockett (1990) 170 CLR 104 CASES CITED: Carroll v Mijovich (1991) 25 NSWLR 441 Haynes v Attorney-General of New South Wales (unreported, 9 February 1996, James J) Parker v Churchill (1985) 9 FCR 316 R v Tillett; ex parte Newton (1969) 14 FLR 101 Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 DECISION : 1. Grant leave to appeal. 2. Appeal upheld. 3. Declare that the search warrant issued to the first defendant on 1 November 1996 in relation to Suite 1, 106 Moore Street, Liverpool was invalid. 4. Remit Summons to the Common Law Division for hearing as to damages. 5. Respondent to pay appellant's costs of the appeal and of the proceedings in the Court below.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAM PETER CASSANITI v ROBERT IAN CROUCHER & ORS

VALIDITY OF SEARCH WARRANT - Requirement that Application for a search warrant specify the grounds upon which the warrant is sought - Search Warrants Act 1985 (NSW) ss 5, 11, 12A and 23 - Search Warrants Act 1985 - Regulation 1994 (NSW) Form 1 - Defect affecting the substance of a search warrant in a material particular - Strict legislative compliance in the issue of search warrants required to safeguard individual privacy. On the application of the first defendant/first opponent, a police officer, a search warrant directed to the business premises of the plaintiff/claimant was issued by the second defendant/second opponent, a chamber magistrate. Allegations of fraudulent misappropriation of moneys by the plaintiff were made in paragraph 4 of the first defendant's Application for a search warrant. However, contrary to the requirements of the Search Warrants Act 1985 - Regulation , the first defendant did not specify in paragraph 2 of the prescribed application form that he had reasonable grounds for believing that a particular indictable offence had been committed in connection with which the warrant was being sought. The plaintiff submitted that this omission was a material defect which invalidated the search warrant. The plaintiff sought declarations in the lower Court that the search warrant was invalid. The primary judge upheld the validity of the search warrant. On appeal the plaintiff contended that s 11 and s 12A of the Search Warrants Act 1985 required the first defendant to specify in paragraph 2 of the Application form prescribed by the regulations a particular indictable offence which he had reasonable grounds to believe was connected with the purposes for which the search warrant was sought. HELD (by Mason P and Foster AJA allowing the appeal with costs and remitting the Summons to the Common Law Division for hearing as to damages): 1. The search warrant was invalid because of a material non-compliance with the requirement in s 11(1) of the Search Warrants Act 1985 that the Application "must be in writing in the form prescribed." 2. It was not open to the authorised justice to issue the warrant because the Application did not include all of the information required by the regulations: s 12A(1)(f).

3. The information provided in paragraph 4 of the Application did not satisfy the separate and additional requirement of paragraph 2.

4. Substantial compliance with the prescribed form was sufficient: Interpretation Act 1987 (NSW) s 80(1). However, the defect in the subject application was one of substance and consequently made the issue of the warrant unlawful and void.

5. Strict compliance with the legislative requirements relating to the issue of search warrants is necessary because of the effect of search warrants on individual citizens' privacy and property. Per Mason P - A court should hesitate before inferring compliance with the statutory mandate in a case of admitted oversight. By Heydon JA dismissing the appeal with costs: 1. Section 12A(1)(e) did not require verification by the first defendant that he had reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence. It required only the inclusion in the Application of any other information required by the regulations. The Search Warrants Act 1985 - Regulation did not require any information beyond providing that Form 1 was the relevant form. 2. By reason of s 23 of the Search Warrants Act 1985, a search warrant is not invalidated by any defect (such as a defect in the Application) unless that defect affects the substance of the warrant in a material particular. Accordingly, an Application for a search warrant which fails to provide information required in paragraph 2, despite providing this information in a later part of the Application, does not affect the substance of the warrant in a material particular. Liversidge v Anderson [1942] AC 206 (discussed); WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 (discussed); Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 (discussed); Parker v Churchill (1985) 9 FCR 316 (discussed); Bartlett v Weir (1994) 72 A Crim R 511 (referred to); Carroll v Mijovich (1991) 25 NSWLR 441 (referred to); Haynes v Attorney-General of New South Wales (unreported, 9 February 1996, James J) (referred to); R v Tillett; ex parte Newton (1969) 14 FLR 101 (referred to); George v Rockett (1990) 170 CLR 104 (applied). ORDERS : 1. Grant leave to appeal.

2. Appeal upheld. 3. Declare that the search warrant issued to the first defendant on 1 November 1996 in relation to Suite 1, 106 Moore Street, Liverpool was invalid.

4. Remit Summons to the Common Law Division for hearing as to damages.

5. Respondent to pay appellant's costs of the appeal and of the proceedings in the Court below.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAM PETER CASSANITI v ROBERT IAN CROUCHER & ORS JUDGMENT

1 MASON P: The judgment of Heydon JA which I have had the benefit of reading sets out the facts, the statutory material and the arguments of the parties. 2 I disagree with his Honour's conclusion. In my view the warrant was invalid because of a material non-compliance with the requirement that the application "must be in writing in the form prescribed" (Search Warrants Act 1985, s11(1)). The materiality of the departure means that it was not open to the authorised justice to issue the warrant because the application did not include all of the information required by the regulations (s12A(1)(f)). 3 The Search Warrants Regulation 1994 (now repealed) provided, in reg 4, that for the purposes of s11 of the Act, Form 1 was the form for an application for a Part 2 search warrant. In both language and effect, this regulation treated the information to be inserted in an Application as "information required by the regulations" within s12A(1)(f) of the Act. Accordingly, the authorised justice was enjoined by s12A(1) not to issue a search warrant unless the application included that information. 4 The prescribed form of Application stipulates that it is to be verified by the oath, declaration or affirmation of the applicant. Paragraphs 1 and 2 require the applicant to state that he or she has "reasonable grounds for believing that" certain things exist, the grounds themselves being set out in par 3. 5 Paragraph 2(a) of the form requires the applicant to state that he or she has reasonable grounds for believing that the things identified in par 1 are "connected with" (cf s4) an indictable offence/firearms offence/narcotics offence within the meaning of s5(2) of the Act. 6 Unfortunately, and obviously by oversight, no offence is stated in par 2(a) of the particular Application. Nor is there any express cross reference (eg by an asterisk) to par 4. 7 So far as relevant par 4 of the Application states: The grounds which I rely on are: It has been alleged by 7 clients of SP CASSANITI that over several years of completing the taxation refunds for the clients he has Fraudulently Misappropriated the moneys collect [sic] for the clients.

8 The learned primary judge, Dunford J, concluded that this portion of par 4 provided all the information required by the prescribed form and therefore by s12A(1), although not in the proper place, ie in par 2. Likewise, Heydon JA construes the portion of par 4 set out above as a statement from which it can be inferred that the applicant had reasonable grounds for believing that the things identified in par 1 were connected with fraudulent misappropriation, thereby providing the information required by par 2 of the prescribed form. 9 I agree with their Honours that the search is for substantial compliance. Whether or not s23 of the Act extends to defects in an application as distinct from defects in warrants (a point on which I would reserve my position), I readily accept that substantial compliance with the prescribed form is sufficient (see Interpretation Act 1987, s80(1)). 10 Paragraph 2(a) of the prescribed form goes beyond presenting to the authorised justice the grounds upon which the applicant relies. Presentation of those grounds is the function of par 3. Paragraph 2(a) has a different role. It is the means whereby the applicant - who must appear in person (see s11(1)) - makes an assertion about his or her own state of mind. The compendious phrase "I have reasonable grounds for believing" makes two verified statements:

• I the applicant hold the requisite belief; and • I assert that my belief is based on reasonable grounds. 11 The famous dissenting speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 involved a regulation conferring certain powers "if the Secretary of State has reasonable cause to believe" certain matters. Lord Atkin was at pains to demonstrate why good faith was not sufficient. But he did not state or imply that it was unnecessary. He said (at 228, emphasis added) that: …the plain and natural meaning of the words 'has reasonable cause' imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed, I proceed to show that this meaning of the words has been accepted in innumerable legal decisions for many generations, that 'reasonable cause' for a belief when the subject of legal dispute has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal.

12 In WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 the Federal Court was considering s155(1) of the Trade Practices Act 1974 (Cth) which armed the Chairman of the Trade Practices Commission and others with power to require the production of information "where … the Chairman … has reason to believe [various] matters". The Court comprising Bowen CJ, Brennan J and Lockhart J held that the condition of the Chairman's power was that he had reason to believe and actually believed the relevant matters (see Bowen CJ at 176, Brennan J at 182 and Lockhart J at 184-6). Lockhart J referred to a number of earlier authorities discussing the expression "has reason to believe". His conclusion (at 186) was that the words implied actual belief but did not make conclusive the Chairman's own opinion that he had reason for the requisite belief. See also Bartlett v Weir (1994) 72 A Crim R 511 at 522. 13 It is because of these authorities that I have construed the compendious phrase "I have reasonable grounds for believing" in the manner already stated. 14 In George v Rockett (1990) 170 CLR 104 at 115 the High Court emphasised that suspicion and belief are different states of mind. So too are reliance and having reasonable grounds for believing. Accordingly, the reference in par 4 of the Application cannot do the work required by par 2. 15 In George the High Court referred (at 110-111) to the common law relating to search warrants and its protection of the private right of the individual to enjoy privacy and property. The Court continued: Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

See also Carroll v Mijovich (1991) 25 NSWLR 441. 16 In light of these principles, a court should hesitate before inferring compliance with the statutory mandate in a case of admitted oversight. In my view the information in par 4 of the Application stands alone as an averment of no more than the grounds relied upon by the applicant. It would be an act of resuscitation rather than implication to treat the information provided in par 4 as satisfying the separate and additional obligation to aver what is required by par 2(a). 17 I agree with Heydon JA as to the rejection of the defendant's alternative basis for upholding the warrant. 18 I would make the following orders: 1. Grant leave to appeal.

3. Declare that the second warrant issued to the first defendant on 1 November 1996 in relation to Suite 1, 106 Moore Street, Liverpool was invalid. 4. Remit Summons to Common Law Division for hearing as to damages. 5. Respondent to pay appellant's costs of the appeal and of the proceedings in the Court below. 19 HEYDON JA

On 1 November 1996 the first defendant, a police officer, applied by means of an "Application for a Search Warrant" to the second defendant, a chamber magistrate, for the issue of a search warrant. The Application was granted. The search warrant related to Suite 1, 106 Moore Street, Liverpool. It was executed that day. 20 The judgment of the primary judge records that by his Amended Summons the plaintiff claimed declarations that the warrant was invalid and that the execution of it was contrary to law, an order for the return of the items seized, consequential orders, damages and costs. 21 On 21 August 1997 the primary judge decided that the warrant was valid. However, he decided that the description of some of the things specified in it was too wide, though those parts were severable. He also decided that the execution of the warrant was lawful, though he placed some qualifications on this conclusion in relation to the manner of execution. 22 The primary judge stood over the matter for the parties to bring in Short Minutes of Order. As a result, on 3 December 1997 the primary judge made various declarations and orders. Paragraph 13 of the Short Minutes provided that the plaintiff's claim for damages should be stood over generally with liberty to restore on seven days' notice. 23 The plaintiff's claim for damages was resolved by a consent order on 4 May 1999 to the following effect: "The first, third and fourth defendants pay to the plaintiff the sum of five thousand dollars ($5,000.00) in full and final settlement of the claim for damages and costs."

Despite the words "full and final settlement", that order related only to the respects in which the primary judge had found illegality on the part of the police officers in executing the warrant on 1 November 1996. It did not relate to the wider claim for damages which had been foreclosed by the primary judge's conclusion as to the validity of the warrant but which would be available once again if this Court found that conclusion to be wrong. 24 The primary judge's conclusion as to the validity of the warrant was reflected in paragraph 1 of the Short Minutes of Order: " DECLARATION that the search warrant to enter and search the premises known as Suite 1, 106 Moore Street, Liverpool issued on 1 November, 1996 by the second defendant upon the application of the first defendant save for the words 'Details of all bank accounts held by S.P. Cassaniti and accounts held under variation of personal details. S.P. Cassaniti & Associates and any other business accounts.' (sic) where appearing in the said search warrant which words may be severed is valid."

Procedural Problems 25 This is an application for leave to appeal brought by an Ordinary Summons for Leave to Appeal dated 3 September 1999. Initially the Ordinary Summons raised a number of procedural problems, but in the course of the oral argument and otherwise a number of matters, including some of those set out above, were clarified in such a fashion as to remove these problems.

(a) Was there an order? 26 Paragraph 3 of the Ordinary Summons was in the following terms: "The Claimant claims an order granting leave to appeal from the decision of Mr Justice Dunford of 21 August 1997 that the search warrant issued by the Second Opponent on the application of the First Opponent was valid."

The reference to "the decision" was inapt. After some debate between the court and counsel on both sides, it emerged that the intention of the claimant/plaintiff ("the plaintiff") was to seek leave to appeal from paragraph 1 of the Short Minutes of Order dated 3 December 1997. The first, third and fourth opponents/defendants ("the defendants") did not express any difficulty in the application proceeding on that basis. The position of the second opponent/defendant is discussed below.

(b) Did an appeal lie as of right? 27 The plaintiff's legal advisers had formed the view that: "the question involved in this case, being the validity of the search warrant executed on the Claimant's business premises by several police officers over a period of several hours, and under which a large quantity of the business and personal records of the Claimant had been removed, was a question respecting property or a civil right of the value of $100,000 or more, and therefore that per s 101(2)(r) of the Supreme Court Act, an appeal lay without leave."

On the basis of that view, a Notice of Appeal was filed after 4 May 1999 within time on the basis that an appeal lay as of right. The Registrar expressed views to the contrary at call-overs on 12 and 26 August 1999, and the plaintiff did not at the hearing of the Ordinary Summons either contend that the Registrar's views were wrong, or seek to rely on any evidence of value pursuant to Pt 51 r 8 of the Supreme Court Rules.

(c) Should time to apply for leave to appeal be extended? 28 The Ordinary Summons, paragraph 2, was to the following effect: "The Claimant claims an order under Part 51 rule 4(6) extending time in which to institute this application for leave to appeal."

It was said by the defendants that the extension of time needed was an extension from 18 May 1999 (fourteen days after the declaration made in paragraph 1 of the Short Minutes of Order dated 3 December 1997 unquestionably became final in consequence of the damages order being made on 4 May 1999) until 3 September 1999 (when the Ordinary Summons was filed). In fact the extension needed was 28 days from 4 May 1999: Supreme Court Rules Pt 51 r 4. The defendants eventually withdrew any opposition to the grant of leave to appeal based on delay.

(d) Second defendant's submitting appearance 29 The second defendant filed an appearance submitting to any orders save as to costs. The argument then proceeded between the plaintiff on the one hand and the defendants on the other. The third defendant was the Commissioner of Police and the fourth defendant was the State of New South Wales.

(e) Notice of Contention 30 The defendants supported the primary judge's conclusion on two bases. The first rested on an adoption of the reasoning he employed. The second turned on an argument he did not employ which, if sound, would have afforded an independent support for his conclusion. Strictly speaking, the latter argument required a notice of contention if leave were granted. The argument before the Court of Appeal, though put in relation to an application for leave to appeal, was developed as on an appeal. Though no notice of contention was filed, ample notice was given in the defendants' written submissions and the plaintiff did not complain about having to meet the argument.

The Reasoning of the Primary Judge 31 The argument centred on only one of the questions pursued before the primary judge. It arose in this way. 32 The "Application for a Search Warrant" on 1 November 1996 was in the following form: "Search Warrants Act 1985 - Form 1 APPLICATION FOR A SEARCH WARRANT PART 2 APPLICATION (INDICTABLE, FIREARM AND NARCOTIC OFFENCES, STOLEN PROPERTY, ETC) On the 1st day of November 1996, I, Robert Ian Croucher a Detective Senior Constable of Fraud Enforcement Agency apply for a search warrant to enter and search the premises known as suite 1, 106 Moore Street, Liverpool, in the State of New South Wales, being a Business, Accountants Office .

I say on oath that: (1) I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in these premises, the following things:(1) Documentation relating to Tax Returns, Assessments, Error and Omission forms, Letters of Authorities, copies of any refund cheques or forms completed by the firm S.P. CASSANITI & ASSOCIATES for the clients named below. Robert DE LUCCHI, Aldo MINUTI, Maria DI DONATO, Peter CUNEEN, Rod TRUEMAN, Bruce STONE, Robert FRIJO. Details of all bank accounts held by S.P. Cassaniti and accounts held under variation of personal details. S.P. Cassaniti & Associates and any other business accounts. Details of Trust Accounts held by or on behalf of Cassaniti. Letters of Retainer and invoices in respect to services rendered and any documentation that would support or contradict the matters disclosed on the invoices. Documentation of any meetings with the stated clients including Diaries. (2) I have reasonable grounds for believing that - (a) the things are connected with the following indictable offence/firearms offence/narcotics offence(3) within the meaning of the Search Warrants Act 1985 (s.5(2)) (3) (To be completed if a previous application for the warrant has been made and refused) (5) The following are details of the refusal of the previous application: (The following need not be completed if the previous application was made to an authorised justice who was not a magistrate and this application is made to a Magistrate) The additional information which I consider justifies the making of this further application is: (4) The grounds which I rely on are:(4) It has been alleged by 7 clients of S.P. CASSANITI that over several years of completing the taxation refunds for the clients he has Fraudulently Misappropriated the moneys collect [sic] for the clients. This was achieved by the clients either attending the offices of CASSANITI & Associates and completing their returns or having their returns posted out to them for signing. In some cases, not all, the clients would sign a blank Authority to Deduct Fees form, for the firm to deduct it's [sic] annual fee. In all cases the fee was either never discussed or the clients were under the belief that they were being charged a fee between the amounts $50 to $500 depending on whether the client was a PAYEE or the size of their small business. Records obtained from the Australian Taxation Office shows that the clients were receiving the Refund amounts of between $1,500 to $7,500. S.P. CASSANITI was deducting whole thousands of dollars from the Return and would forward a Trust Account cheque to the client for the remainder or would retain the whole amount of the Return. To conceal misappropriation of offences the offender would not forward the Taxation Assessment form with any cheque he did forward. On several occasions the offender would verbally inform the clients that they did not have to pay any tax and there was a nil return. It is also suspected that the offender has lodged Error and Omission forms on the [sic] behalf of the clients without their knowledge and they have not received any further refunds from these forms."

At that point the following handwritten material appeared: "Further information given orally - statement of one of victims read. All but one, statements available."

Below the handwritten material appeared the following: "Sworn before me on the 1st day of November 1996 at Liverpool in the State of New South Wales.

(1) Here list items to be searched for. If exact location of items is known, include that information.

(2) Delete whichever is inapplicable. [There is no footnote reference in the text to which this relates.]

(4) Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient use a separate sheet.

(5) Attach copy of previous application to this form.

(6) This may be sworn before the authorised justice to whom the application is made for the issue of the warrant. Any alterations, deletions and annexures should be initialled or signed by the applicant and witnessed by the justice of the peace.

NOTE: IT IS AN OFFENCE UNDER SECTION 12B OF THE SEARCH WARRANTS ACT 1985 TO GIVE INFORMATION IN THIS APPLICATION KNOWING IT IS FALSE OR MISLEADING IN A MATERIAL PARTICULAR. THE MAXIMUM PENALTY IS A $10,000 FINE AND 2 YEARS IMPRISONMENT." 33 The Application contained an additional page headed "Authorised Justice's Record of Application for a Search Warrant". The contents of this page did not form any relevant part of the primary judge's reasoning, but did form part of the defendants' second argument, to be considered below. 34 Paragraph (3) of the Application was not completed, but it only had to be completed if there had been a previous unsuccessful application for the warrant. There had not been. 35 The plaintiff's complaint turns on the fact that paragraph (2) was not completed: that is, the first defendant did not identify a particular offence within the three categories referred to as defined in s 5(2) of the Search Warrants Act 1985 (NSW). Part of the defendants' answer to that complaint turns on the words in paragraph (4): "he has Fraudulently Misappropriated the moneys collect [sic] for the clients." 36 The primary judge set out certain provisions of the Search Warrants Act 1985 as follows: "5. (1) A member of the police force may apply to an authorised justice for a search warrant if the member of the police force has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises: (a) a thing connected with a particular indictable offence … 6. An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force: (a) to enter the premises; and (b) to search the premises for things of the kind referred to in section 5(1) … 11. (1) An application for a search warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person. … 12A. (1) An authorised justice must not issue a search warrant unless the application for the warrant includes the following information: (a) details of the authority of the applicant to make the application for the search warrant; (b) the grounds on which the warrant is being sought; (c) the address or other description of the premises the subject of the application; (d) if the warrant is required to search for a particular thing, a full description of that thing and, if known, its location; (e) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 12C; (f) any other information required by the regulations. (2) An authorised justice when determining whether there are reasonable grounds to issue a search warrant is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information; (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence. (3) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the warrant is being sought … 23. A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular." 37 Section 11(1) refers to the "form prescribed by the regulations". The Search Warrants Act 1985 - Regulation 1994, reg 4(a) provides: "For the purposes of section 11 of the Act: (a) Form 1 is the form for an application for a Part 2 search warrant …"

A "Part 2 search warrant" is defined in reg 3(1) as meaning: "a search warrant issued under Part 2 of the Act with respect of an indictable offence, a firearms offence, a narcotics offence or a thing stolen or otherwise unlawfully obtained."

Form 1 was in the same form as the Application save that paragraph (3) of the Application appears on Form 1 as paragraph 4, and paragraph (4) of the Application appears on the form as paragraph 3. This re-ordering did not go so far as to alter the footnote numbering. Thus the reference in the text to the footnote numbered (4) which relates to paragraph (3) in Form 1 (paragraph (4) in the actual Application) appears after the reference in the text to the footnote numbered (5), which relates to paragraph 4 in Form 1 (paragraph (3) in the actual Application). Since the actual Application appears to be a standard form it is unclear why this change occurred. However, the plaintiff expressly stated that he took no point in relation to the change. 38 The essence of the primary judge's reasoning was as follows: "In the present case, although para 2 of the application was not completed, para 4 of such application clearly specified the indictable offence to which it was believed the items to be searched for would relate, namely Fraudulent Misappropriation and so all the information required by the form and therefore by s 12A(1) was contained in the application, although not in the proper place, i.e., in para 2. Accordingly, there was no failure to comply with s 12A(1) and the Justice was not deprived of jurisdiction to issue the warrant. Even if, as would appear likely, a breach of s 11, including a failure to complete the form prescribed by the regulations, would generally render any subsequent search warrant invalid, in this case where the relevant information appears elsewhere in the application, the defect should not be regarded as one of substance and consequently s 23 would operate to preserve the validity of the warrant. It would appear that the requirement for the applicant to specify a particular offence to which it is believed the items to be searched for will relate, and also the requirement to specify the address of the premises to be searched and the items to be searched for is to avoid the issue of anything in the nature of a general warrant not related to any offence or premises in particular, and of which the common law has, at least since the latter part of the eighteenth century, had an abhorrence … It is therefore essential that these things be specified in the application, and they should be specified in the space provided in the form prescribed by the regulations; but the essential thing is that they be specified and identified in the application, and that was done in the present case."

The Plaintiff's First Argument 39 The question propounded by the plaintiff was described as being the: "effect in law of failing to include in the prescribed application form for a search warrant the nomination under paragraph (2) of the suspected offence, and thereby failing to state on oath in writing that the applicant has reasonable grounds for suspecting the commission of particular offences."

In fact the argument turned on whether the first defendant had failed to state on oath in writing that he had reasonable grounds for suspecting that there was or, within 72 hours, would be on the relevant premises a thing connected with a particular indictable offence. The argument was put in two ways. The first was put in writing and further developed orally. The second emerged in the course of oral argument. 40 The plaintiff's first argument was put as follows. Section 5(1)(a) of the Search Warrants Act 1985 only permitted the first defendant to apply for the search warrant if he had reasonable grounds for believing that there was, or within 72 hours would be, on the premises a thing connected with the particular indictable offence. Section 11(1) required the Application to be in writing in the form of Form 1. Form 1 required its content to be sworn to by the first defendant, and s 11(2) provided that the second defendant was obliged not to ("must not") issue the search warrant unless the information given by the first defendant was verified on oath or affirmation or by affidavit. Further, s 12A(1)(b) required the second defendant not to issue the search warrant unless the Application contained the grounds on which the warrant was being sought. 41 The written argument continued as follows. "12. Thus the effect of paragraph 2 of the prescribed form is to require the applicant to state on oath that he has reasonable grounds for believing that the objects for which the warrant is sought are connected with a specified offence. This cannot be regarded as a mere technicality. It is, to the contrary, a solemn formality, requiring that the applicant record, in writing on oath, the essential condition which must be fulfilled before there can be an entitlement to apply for such a warrant. …. 14. In the present case, paragraph 2 of the prescribed form was not filled in at all. That creates three problems. First, it constitutes a failure to comply with the Act, in that an application cannot be considered to have been made in writing in the prescribed form if a whole section of the form is not filled in at all. But second, and a consequence of greater importance, is that the applicant did not record in writing on oath that he had reasonable grounds for his requisite belief. Third, he did not record the specific offence which was believed to have been committed. 15. At first instance His Honour found (page 12) that the material provided later in the application form, in paragraph 4, clearly specified the relevant indictable offence. But this cures, if it does, only one of the three problems created by the failure to fill in paragraph 2. 16. The failure to record in writing on oath the existence of the belief on reasonable grounds is a defect which affects the substance of the warrant in a material particular (s.23), as was the defect in Carroll v Mijovich (1991) 25 NSWLR 441." 42 In oral argument the plaintiff submitted that the reason why paragraph (2) had to be filled in was that it required the first defendant to swear that he had a reasonable basis for believing that a specified indictable offence had been committed by the plaintiff. By putting the reference to the indictable offence in paragraph (4), the first defendant had abrogated his duty to swear that he had a reasonable basis for believing that the things referred to in paragraph (1) were connected with an offence. Thus it was on the second of the three "problems" referred to in paragraph 14 of the written argument that the oral argument concentrated. 43 The plaintiff also submitted that paragraph (4) should be read as though everything in it was prefaced by the words "It has been alleged", which appear at the start of the first paragraph in paragraph (4). The paragraph (2) requirement of having "reasonable grounds for believing" was a much higher test than which the paragraph (4) material, comprising only allegations, was able to meet. 44 The plaintiff relied on three authorities. 45 He referred to Carroll v Mijovich (1991) 25 NSWLR 441. In that case the authorised justice, in breach of s 13(1) of the Search Warrants Act 1985, had failed to cause a record to be made of all relevant particulars of the grounds the authorised justice had relied on to justify the issue of a warrant. By majority (Kirby P and Handley JA, Meagher JA dissenting), the Court of Appeal held that the failure rendered the search warrant invalid. The plaintiff referred to the following remarks of Kirby P at 449B: "Parliament has certainly not expressly provided for the consequence of a failure to comply with s 13(1). Accordingly, it is necessary for the court to extract a presumed legislative 'intent' from the words of the provision in question, construed in the context of the Act as a whole and for the purpose of achieving the objects which may be imputed to Parliament in providing as it did in s 13(1) … ".

The plaintiff also drew attention to the words "shall cause" in s 13(1), and compared them to the words "must be" in s 11(1), "must not" in s 11(1), "must not" in s 11(2) and "must not" in s 12A(1), submitting that the language of s 11 and s 12A was of at least equal force to that in s 13(1). 46 The plaintiff extracted one further particular point and one general point from Carroll v Mijovich. The particular point was the passage of Kirby P at 453C-E, which was cited to justify a narrow construction of s 23. The general point was the stress to be found in Kirby P's reasons for judgment on the importance of controlling the issue of search warrants and of ensuring that interference with the liberty and convenience of citizens only occurs if there is strict compliance with the statutory provisions authorising that interference. 47 The plaintiff also relied on George v Rockett (1990) 170 CLR 104. In that case the High Court gave consideration to s 679 of the The Criminal Code (Qld). Section 679 provided: "If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft or place - (a) Anything with respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or (b) Anything whether animate or inanimate and whether living or dead as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence; or (c) Anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence; he may issue his warrant directing a police officer … to enter, by force if necessary and to search such house, vessel, vehicle, aircraft, and place, and to seize any such thing if found, and to take it before a justice to be dealt with according to law …"

The High Court held that before issuing a warrant a justice had to satisfy himself that there were reasonable grounds for suspecting and reasonable grounds for believing the respective matters mentioned in s 679. The Court further held that the justice need not in addition to being satisfied that there were reasonable grounds for suspicion and belief also entertain the relevant suspicion and belief. The Court held that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief mentioned in s 679. The Court held that the grounds for the issue of a warrant could not be made to appear from the statements made by an applicant otherwise than by complaint on oath. Finally, the Court held that the existence of the thing to which s 679(b) referred was to be the subject of suspicion rather than belief. 48 The plaintiff referred to several passages in the joint reasons for judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. He cited a passage at 110-111 pointing out that a statutory provision like s 679 authorised the invasion of interests which the common law valued highly, that the enactment of conditions which must be fulfilled before a search warrant could be issued and executed lawfully reflected legislative concern to give a measure of protection to those interests, and that insistence on direct compliance with the statutory conditions governing the issuance of search warrants was simply to give effect to the purpose of the legislation. 49 The plaintiff cited the following sentence at 119: "The critical question is whether there was sufficient material in the sworn complaint to satisfy the magistrate that there were reasonable grounds for believing that those documents 'will … afford evidence as to the commission of' the two offences set out in the sworn complaint with which Lewis had been charged."

The plaintiff then submitted that the purpose of paragraph (2) was to achieve the same goal as that identified in that passage. The plaintiff also referred to passages on 114, 118 and 120. 50 The plaintiff also cited Haynes v Attorney-General of New South Wales (unreported, 9 February 1996, James J). The principal point of the citation was a quotation from the following passage in Maxwell's Interpretation of Statutes, 11th ed, 1982, at 364: "Where powers rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature." Consideration of the Plaintiff's Primary Argument 51 The conclusion of the primary judge is correct, essentially for the reasons given by him. They may be expanded as follows. 52 It is desirable first to note five aspects of the legislation. First, contrary to the plaintiff's submission, though by reason of s 5(1)(a) the first defendant could only have applied for the warrant if he had reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence, it was not necessary that that belief be that the offence had been committed by the plaintiff. And s 5(1)(a) did not itself create a statutory requirement that the belief be expressed in writing or be verified. Secondly, s 11(1) did not in terms require that the first defendant's reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence be in writing. It required only that the Application be in writing in the prescribed form. Thirdly, s 11(2) did not in terms contain any requirement that the first defendant's reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence be in writing. It merely required that the information given by the first defendant in or in connection with the Application be verified on oath or affirmation or by affidavit. Fourthly, s 12A(1)(b) did not require verification by the first defendant that he had reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence. It required only that the Application indicate the grounds on which the warrant was being sought. Fifthly, s 12A(1)(e) did not require verification by the first defendant that he had reasonable grounds for believing that there was or within 72 hours would be in any premises a thing connected with a particular indictable offence. It required only the inclusion in the Application of any other information required by the regulations. The Search Warrants Act 1985 - Regulation did not require any information beyond providing that Form 1 was the relevant form. 53 The structure of the Act, then, is to abstain from creating any duty to make a statement about reasonable grounds except by the force of Form 1. This makes the language and structure of Form 1 important. For the present purpose, it is convenient to analyse Form 1, not the reorganisation of it in the relevant Application. Form 1, including its footnotes, is relevantly as follows: " Form 1 APPLICATION FOR A SEARCH WARRANT (SEARCH WARRANTS ACT 1985) APPLICATION FOR A PART 2 SEARCH WARRANT(1) On the ……………. day of …………………. 19…… I, ………….(name) (rank) of ………….. (place of work) apply for a search warrant to enter and search the premises known as ………………………………………………………… ……………………………..(address)………………………….. in the State of New South Wales, being a …………………… …………………(description of premises: e.g. dwelling house)

I, swear/solemnly, sincerely and truly declare and affirm(2) that:

1. I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in the premises, the following things:(3)

(a) the things are connected with the following indictable offence/firearms offence/narcotics offence(2) within the meaning of the Search Warrants Act 1985 (s. 5 (2)).

(b) the things were stolen or otherwise unlawfully obtained.

4. ( To be completed if a previous application for the warrant has been made and refused) (6) The following are details of the refusal of the previous Application:

( The following need not be completed if the previous application was made to an authorised justice who was not a Magistrate and this application is made to a Magistrate).

The additional information which I consider justifies the making of this further application is:

Sworn/declared and affirmed(2) before me on the …………day of

(1) This form is to be used for warrants in relation to firearms, narcotics and indictable offences and for stolen goods. Form 2 should be used for other warrants.

(2) Delete whichever is inapplicable. (3) Here list items to be searched for. If exact location of items is known, include that information.

(4) Insert description of offence. (5) Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient use a separate sheet.

(6) Attach copy of previous application to this form.

(7) This may be sworn before the authorised justice to whom the application is made for the issue of the warrant. Any alterations, deletions and annexures should be initialled or signed by the applicant and witnessed by the justice of the peace.

IT IS AN OFFENCE UNDER SECTION 12B OF THE SEARCH WARRANTS ACT 1985 TO GIVE INFORMATION IN THIS APPLICATION KNOWING IT IS FALSE OR MISLEADING IN A MATERIAL PARTICULAR. THE MAXIMUM PENALTY IS A $10,000 FINE AND 2 YEARS IMPRISONMENT …" 54 Both paragraph 1 and paragraph 2 provide for the statement of "reasonable grounds for believing" various matters. Paragraph 1 relates to reasonable grounds for believing that itemised things are or will be on the premises. Paragraph 2(a) relates to reasonable grounds for believing that the things are connected with identified offences. Paragraph 2(b) relates to reasonable grounds for believing that the things were stolen or otherwise unlawfully attained. Paragraph 3, commencing "The grounds on which I rely are", calls for particularisation of what the reasonable grounds are - both the paragraph 1 reasonable grounds and the paragraph 2 reasonable grounds. The conclusion that paragraph 3 calls for particularisation of reasonable grounds, and the conclusion that it calls for particularisation of the reasonable grounds referred to in both paragraph 1 and paragraph 2, both flow from the following considerations. The first is the structure of Form 1 in the light of s 5(1). Section 5(1)(a), for example, calls for the first defendant to have had reasonable grounds for believing two matters: the first matter is that there was or within 72 hours would be on any premises a thing, and the second matter is that that thing was connected with a particular indictable offence. The second is the fact that paragraph 1 and paragraph 2 match the two matters identified in s 5(1): paragraph 1 requires a statement of reasonable grounds for believing in the location of certain things, and paragraph 2 requires a statement of reasonable grounds for believing in a connection between those things and an indictable offence. The third is that where paragraph 3 mentions "grounds", and appears after paragraphs 1 and 2, each of which mentions "reasonable grounds", the grounds relied on which are to be set out in paragraph 3 are those in both paragraph 1 and paragraph 2. The fourth is that what is to be stated in paragraph 3 must be something additional to what has already been stated in paragraph 1 and paragraph 2. If that were not so, there would be no point in paragraph 3. Paragraph 1 and paragraph 2 each state that the applicant has reasonable grounds, but not what they are. Paragraph 3 calls for a statement of what the reasonable grounds actually are. Finally, note (5) supports the conclusion that the paragraph 3 grounds are to be amplifications or particularisations of each of the paragraph 1 and paragraph 2 grounds. It provides: "Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient use a separate sheet."

Its use of the words "reasonable grounds" plainly relates back to the reasonable grounds for believing the matters stated in paragraph 1 and paragraph 2, and suggest a degree of amplitude in the answer as being appropriate by reason of the reference to a separate sheet. 55 Assume that in a particular case paragraph 2 deposed to the existence of reasonable grounds for belief in a connection between the things identified in paragraph 1 and a particular indictable offence, and that paragraph 3, while describing the grounds relied on, mentioned an "offence", without specifying what it was. It would be likely, as a matter of construction, that the offence referred to generally in paragraph 3 was the one which had been identified specifically in paragraph 2. 56 Assume further that no offence was mentioned in paragraph 2, but that paragraph 3, while discussing the grounds relied on, mentioned an indictable offence, located the offence at the particular premises described in the opening words of Form 1, stated that the things described in paragraph 1 were used in the commission of the offence, and expressly averred a belief that the applicant had reasonable grounds for believing that the things were connected with the offence. On those assumptions, all the material which Form 1 requires to be contained in it would be contained in it even though paragraph 2 had been left blank. There would have been an express statement that the applicant had reasonable grounds for believing that there was a connection between the things and the offence, even though it only appeared in paragraph 3, not paragraph 2. 57 If one turns to the present case, the only difference between it and the preceding example is that paragraph (4) (i.e. paragraph 3 in Form 1) does not contain an express statement that the first defendant has reasonable grounds for believing that the things mentioned in paragraph (1) are connected with the indictable offence of fraudulent misappropriation. But the Application as a whole is an implied statement by the first defendant on oath that he had reasonable grounds for believing that the things in paragraph (1) were connected with the indictable offence of fraudulent misappropriation. Paragraph (4) states grounds which go beyond those referred to in paragraph (1). Paragraph (1) refers only to reasonable grounds for believing that there was, or within 72 hours would be, in Suite 1, 106 Moore Street, Liverpool, various documents. Very little of paragraph (4) particularises the reasonable grounds for that belief, except that paragraph (4) refers to the offices of Cassaniti & Associates (which by inference are Suite 1, 106 Moore Street, Liverpool) and refers to documents being prepared there (tax returns, Trust Account refund cheques and Error and Omission forms) or found there (blank Authority to Deduct Fees forms), being documents referred to in paragraph (1) (which includes references to "Tax returns", Error and Omission forms", "Letters of Authorities" and "refund cheques"). What the bulk of paragraph (4) does is to set out various matters of historical fact, being actions taking place at the offices of Cassaniti & Associates and actions by Mr Cassaniti. Those matters can be fairly characterised in law as fraudulent misappropriation. As the defendants submitted, when the first defendant swore at the start of paragraph (4) "The grounds on which I rely are", and then set out the balance of paragraph (4), he was swearing to the fact that he had reasonable grounds for believing that fraudulent misappropriation had occurred in relation to the premises and that the documents referred to in paragraph (4) were among the things referred to in paragraph (1). He did not swear, in a mechanically accurate fashion, au pied de la lettre, that he had reasonable grounds for believing that the "things" were connected with the indictable offence of fraudulent misappropriation. But in substance that is what he swore. 58 Another way of putting the point is that paragraph (4) supplies the detailed "grounds" for belief - i.e. "reasonable grounds" - which the first defendant swore to in paragraph (1) and which he would have sworn to in paragraph (2) but for an oversight (the plaintiff never suggested that the failure to fill in paragraph (2) was anything else). Had paragraph (4) contained a statement of grounds which were manifestly not reasonable, the Application would have been defective. An applicant swearing to Form 1 and describing the grounds mentioned in paragraph 2 (and indeed in paragraph 1) as "reasonable" could not make them reasonable merely by calling them so: in that sense that part of paragraphs 1 and 2 are unimportant - they merely identify grounds, while leaving to paragraph 3 in Form 1 the demonstration of their reasonableness. What is important is that the grounds set out in paragraph 3 of Form 1 and paragraph (4) of the Application as being the reasonable grounds the existence of which had been in general terms asserted in paragraph (1) (and should have been asserted in paragraph (2)) be in truth reasonable. If, in the course of the description of the grounds in paragraph (4), which is necessary, by recourse to particularity and concreteness, to establish reasonableness, the applicant makes statements from which can be inferred his having reasonable grounds for believing that the paragraph (1) things are connected with the fraudulent misappropriation, the Application is valid despite the applicant's failure to state explicitly in paragraph (2) that he had those grounds. The first defendant did make statements in paragraph (4) from which can be inferred his having reasonable grounds for believing that the paragraph (1) things were connected with the fraudulent misappropriation. 59 Section 80 of the Interpretation Act 1987 provides: "(1) If an Act or statutory rule prescribes a form, strict compliance with the form is not necessary but substantial compliance is sufficient. (2) If a form prescribed by an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information."

Form 1 did not in its terms require that it be completed in a specified manner. While it required specified information to be included in it by reason of paragraph (2), that information was, in the Application which the first defendant held out, included in paragraph (4). Hence s 80(2) does not apply and s 80(1) does. While the first defendant did not achieve "strict compliance" with Form 1, he did achieve "substantial compliance". Thus the Application was "in the form prescribed by the regulations" and it complied with s 11(1). 60 Even if all the preceding arguments for the validity of the Application fail, the ultimate issue is whether the search warrant is invalid. By reason of s 23 of the Search Warrants Act 1985, it is not invalidated by any defect (such as a defect in the Application) unless that defect affects the substance of the warrant in a material particular. A defect which only results in non-compliance with the Search Warrants Act because of a failure to comply with Form 1 by failing to provide information in paragraph (2) of the Application does not affect the substance of the warrant in a material particular if that information has been provided in a later part of the Application. 61 It is convenient to return to the plaintiff's arguments. 62 It may be accepted that the material which paragraph (2) sought - a recording in writing on oath or affirmation that the first defendant had reasonable grounds for believing that things were connected with an indictable offence - is not "a mere technicality", is a "solemn formality", and is material the absence of which might arguably affect "the substance of a warrant in a material particular". But it is a mere technicality, a mere formality and an immaterial particular, if it were a decisive criticism that that material had not been located in answer to paragraph (2) as distinct from being located a few lines further on in paragraph (4). If that criticism were valid, the law would have moved from a concentration on the important to a concern with the trivial. In George v Rockett (1990) 170 CLR 104 at 111 the court approved the following remarks of Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322: "The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs." 63 The first defendant's conduct in leaving out of paragraph (2) what he put into paragraph (4) did not prevent the second defendant from standing between the police and the plaintiff. It did not prevent the second defendant from giving real attention to the question whether the information proffered by the first defendant justified the intrusion the police desired to make into the plaintiff's privacy and inviolate security. If the first defendant's conduct in leaving out a general averment from paragraph (2) whilst swearing to detailed particulars which necessarily communicated that general averment in paragraph (4) were fatal to the warrant, Form 1, while having substantive functions, would also be a quaint ritual of the law, requiring, among important things, a perfunctory recitation of the right formal phrases in the right order. This would not achieve the purposes underlying the Search Warrants Act 1985. 64 The plaintiff's contentions sought to equate the most trivial of oversights in one part of the document, remedied immediately afterwards, with the constitutional breaches of the Hanoverian monarchs. This is a wholly unrealistic comparison. 65 The plaintiff's submission that the material in paragraph (4) was only an allegation, and could not meet the higher test called for by paragraph (2) of "reasonable grounds" is invalid. Allegations are capable of amounting to reasonable grounds, depending on their source and their inherent probability. The plaintiff did not launch any independent criticism of the material in paragraph (4) as not constituting reasonable grounds. 66 The citation of Carroll v Mijovich, George v Rockett and Haynes v Attorney-General of New South Wales does not advance the plaintiff's argument. Carroll v Mijovich was a case on a different provision of the Search Warrants Act. Further, the case is different from the present in that there, unlike here, the non-compliance involved was not remedied in another way. George v Rockett was a case on different legislation. Apart from the warnings of the High Court that the conditions precedent to the issuing of warrants must be strictly complied with, the case contains nothing material to the present controversy. What the conditions precedent are and how they are to be complied with depends on the terms of the particular legislation in each case. Haynes v Attorney-General of New South Wales concerned different legislation and a different issue. The holding that a failure of a warrant to eavesdrop to identify which person was authorised to do so was not to be remedied merely by the circumstance that that person's identity could readily be ascertained from the documents used in the Applications for the warrants.

The Plaintiff's Second Argument 67 The plaintiff's second argument came to be put by degrees in the course of oral submissions in response to suggestions by members of the court. The argument corresponds with one element in the majority reasoning. 68 At pages 12-13 of the transcript of oral argument the following appears: "PRESIDENT: Has it been held that the words 'I have reasonable grounds for believing' mean 'I believe and I have reasonable grounds for doing so'? THANGARAJ: It has to be more than suspicion. PRESIDENT: No, but do you have to actually have that sense of belief as well as having grounds for it? THANGARAJ: I wouldn't say - there's no authority directly on that point. I can't say you would have to have that belief because if that belief is based on the evidence, then theoretically you don't need any more documents to support your case. The applicant needs to have a reasonable belief that the offence - an offence has been committed - and that that offence is specified. PRESIDENT: If you don't submit that actual belief is necessary - and I'm surprised you concede that - but if you don't submit that, I have difficulty in seeing what [paragraph (2)(a) of the 1 November 1996 Application] adds to [paragraph (4)]. THANGARAJ: I don't think the applicant would have to believe necessarily that the documents - sorry, we say that the applicant should believe that an offence has been committed, and if he suspects, reasonably suspected, that is material to support that conviction, will be found at the premises in concert with paragraph [(1)]. … FOSTER AJA: Paragraph [(2)] doesn't say, 'I have reasonable grounds for believing that the things are connected with the following indictable offence', where he could have no doubt put in fraudulent misappropriation. It doesn't go on to say, 'which I believe has been committed'. THANGARAJ: It doesn't, your Honour, but we say it is implicit. It has to be. Otherwise, surely a search warrant would require some belief as to an offence having been committed. It must because of what it does to people's property and privacy rights. That's what the authorities have always said. It's got to disclose an offence somewhere. We say it should be in paragraph [(2)]. But it certainly has to disclose a belief that an offence has been committed and that's what we say one of the effects of paragraph [(2)] is. It is just a neat way of doing it. … FOSTER AJA: You say contrary to what I thought you said to the President, that you have to read in [(2)], 'I have reasonable grounds for believing and I in fact believe'. THANGARAJ: Sorry, I did misspeak earlier. That is what we are saying. You have to believe that the documents in paragraph [(1)] will support - firstly, will be found in the premises and secondly, will support the belief of the offence having been committed as specified in paragraph [(2)]. PRESIDENT: Speaking for myself, if you can make good that proposition, I can see what [(2)] adds to [(4)]." 69 Paragraph 2 of the Form requires a statement by the applicant of reasonable grounds for believing that there is a connection between the things mentioned in paragraph 1 and an offence. Paragraph 2 does not expressly require a statement that the applicant actually holds that belief. The plaintiff argued that paragraph 2 impliedly required a statement that the applicant actually holds that belief. Let it be assumed, without deciding, that that argument is correct. It follows that when the applicant swears in paragraph 2 that there were reasonable grounds for believing that the things mentioned in paragraph 1 of the Form are connected with an offence, the applicant is satisfying the implied requirement that that applicant put an oath to an actual belief in that connection. The applicant is thus swearing, impliedly, that that applicant has an actual belief in that connection. When the applicant swears in paragraph 3 that the grounds on which the applicant relies are as set out, the applicant is expressly swearing that those grounds are reasonable grounds for a belief in a connection between the paragraph 1 things and the offence, but the applicant must also be impliedly swearing that the applicant actually believes in those grounds as being reasonable grounds for a belief in a connection between the paragraph 1 things and the offence. 70 Hence, on the particular facts of the present case, the statement of the grounds set out in paragraph (4) of the Application (the reasonableness of which as a basis for a belief in a connection between the paragraph (1) things and the offence of fraudulent misappropriation was not challenged) satisfies paragraph (2)(a) both as to its express requirement that there be reasonable grounds for believing in the connection and as to its implied requirement of the statement of actual belief in that connection. Thus the defendants were correct when in oral argument they submitted as follows: "Paragraph [(4)] is merely a paragraph that enables the applicant to state with some degree of particularity, if he chooses, the precise grounds or some of them upon which he relies. It is clear, in my submission, from a reading of what appears under those words in paragraph [(4)] that there are not only grounds but reasonable grounds, and also an implicit belief in the allegation involving or including fraudulent misappropriation of monies." 71 If the reasoning just set out is not adequate to establish compliance by the applicant with the legislative requirements in this particular case, s 80 of the Interpretation Act 1987 or s 23 of the Search Warrants Act 1985 would apply in the same manner as indicated in relation to the plaintiff's first argument.

The Defendants' Supplementary Argument 72 The defendants' primary argument was that the primary judge was correct. They also put an alternative argument. That alternative argument is, however, invalid. 73 The argument drew attention to the handwritten words near the end of the material set out in paragraph (4): "Further information given orally".

The defendants also pointed out that the authorised justice's record pursuant to s 13 (which is part of Form 1) noted: "Information is recent and given to applicant or members of team with whom applicant liaises closely. Allegation that suspect has omitted to account supported by each 'victim' and in that sense information pf reliable. Items and documents sought are connected with indictable offence . Those items and documents are at or likely to be at target premises. Nexus established." (emphasis added)

The defendants also drew attention to the following words in the Occupier's Notice: " Basis for the issue of the Warrant The warrant was granted on the basis that the authorised justice found that there were reasonable grounds for the issue of the warrant and, in particular, that the applicant police officer had reasonable grounds to believe that there were on the premises, the things listed above which were: Things connected with the following offence(s) of: Fraudulently Omit to Account s 178 Crimes Act, 1900 NSW."

The Occupier's Notice was signed by the authorised justice. 74 The defendants argued that though s 11(1) required the Application itself to be in writing, s 11(2) permitted the authorised justice to act on information given "in or in connection with the application", and information given "in connection with the application" did not have to be in writing so long as it was verified on oath. It was submitted that the references to "omitted to account", "connected with indictable offence" and "s 178A Crimes Act" constituted information on oath which remedied the failure to answer paragraph (2). 75 This submission fails for the following reasons. First, the first defendant in an affidavit read to the primary judge described what happened before the second defendant on 1 November 1996. His description did not suggest that the material just referred to was provided on oath. Secondly, none of the contemporary documents mentioned suggests that the material just referred to was provided on oath. Thirdly, the probabilities are against the first defendant having sworn to the truth of the material referred to. Since he swore to the truth of the Application, which had doubtless been prepared in large part in advance, it is unlikely that he swore to oral statements he made while presenting the Application. Fourthly, though the maxim omnia praesumuntur rite esse acta was relied on, - the presumption of regularity - no authority was cited to support the proposition that the maxim applies to the issue of search warrants. The proposition that it does was denied by Fox J in R v Tillett; ex parte Newton (1969) 14 FLR 101 at 106. In Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 at 514 Hope JA (Samuels and Priestley JJA concurring) said: "the true rule is that the presumption [of regularity] may reasonably be drawn where an intention to do some formal act is established, when the evidence is consistent with that intention having been carried into effect in a proper way, the observance of the formality has not been proved or disproved and its actual observance can only be inferred as a matter of probability …"

Here the oral information is not itself a formal act, there is no evidence of an intention to swear to it, the evidence is not consistent with swearing and swearing is against the possibilities. 76 The defendants argued that the onus was on the plaintiff to prove invalidity, and a lack of evidence on the question of whether the first defendant swore to the material under discussion must lead to the issue being resolved against the plaintiff. The matter is complicated by the fact that the swearing issue was raised by the defendants in answer to the plaintiff's contentions turning on the fact that paragraph (2) was not filled in. Some onus must rest on the defendants, and the fact that the first defendant's affidavit did not provide the evidence favourable to the defendants on this issue which it might have provided had he in fact sworn the oral material he supplied is suggestive of the conclusion that had the affidavit turned to that matter, its contents would not have favoured the defendants.

Orders 77 The following orders are proposed: 1. Leave to appeal granted.

3. The claimant/appellant is to pay the costs of the first, third and fourth opponents/respondents of the application for leave to appeal and of the appeal. 4. The appellant/claimant is to pay the costs of the second respondent/opponent of the application for leave to appeal and of this appeal on a submitting basis. 78 FOSTER AJA: I have had the benefit of reading in draft form the judgments of Mason P and Heydon JA. With respect, I agree with the reasons of Mason P and with the orders that he proposes. I agree with Heydon JA that the alternative ground propounded by the respondent for the upholding of the validity of the warrant is not made out and that the submissions in relation thereto should be rejected. 79 I am satisfied that, although George v Rockett, (1990) 170 CLR 104 was a case dealing with different statutory provisions, it nevertheless gives a clear indication of underlying policy considerations in relation to search warrants. The passage referred to in the judgment of the President clearly shows that, because of the effect of such warrants on individual citizens' privacy and property, strict compliance with prescribed conditions relating to their issue is required, to give effect to "the legislature's concern to give a measure of protection to these interests." 80 Although the omission of the reference to the posited offence from the second paragraph of the application form can readily be seen as a mere oversight, it, nevertheless, in my view, resulted in the issue of the warrant being unlawful. Section 12A of the Search Warrants Act 1985 specifically prohibits the issue of a search warrant unless the application for it includes certain stipulated information. That information includes, pursuant to s12A(1)(f) "any other information required by the regulations". The regulations prescribe the form of application used in respect of the issue of the subject warrant. Paragraph 2 of that prescribed form requires that the applicant state on oath or affirm that he or she has "reasonable grounds for believing that the things referred to in paragraph 1 were connected with" a stipulated indictable offence. 81 The prescribed form, therefore, requires that the applicant swear, or affirm, not only as to the existence of reasonable grounds but also to his belief, on those grounds, that the things in question are connected with the stipulated offence. I agree with the President that the mention of the posited offence in paragraph 3 cannot supply the deficiency in the application, which arises from the failure to swear or affirm the necessary belief. This requirement of the application is, in my view, one of the safeguards provided by the legislature in accordance with the policy referred to in Rockett. Its absence from the application, and consequently from the material required to be considered by the Magistrate pursuant to s12A(1)(f), makes the issue of the subject warrant unlawful and of no effect. 82 I also agree with the President that the defect is one of substance and not capable of being cured by the application of s80 of the Interpretation Act 1987. **********

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