Customs - Customs Warrant under s.214 and Schedule V Customs Act (Cth) 1901 - ambit of power of seizure - whether confined to documents relating to goods the subject of the information - whether extends to documents relating to all other goods imported or exported within the previous 5 years - ambit of expression "relating to the goods" - whether power to seize at common law.

Search Warrant - Customs Warrant under s.214 and Schedule V Customs Act (Cth) 1901 - whether goods not covered by warrant can be seized on reasonable belief they constitute evidence of offences against the Act.

Customs Act (Cth) 1901: ss.214(1),(2),(2A),(2B),(3), Schedule V.

Ace Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463.

Barnett and Grant v Campbell (1902) 21 NZLR 484.

Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4; (1968) 2 QB 299.

Christie v Leachinsky [1947] UKHL 2; (1947) AC 573.

Crozier v Cundey (1827) 6 B and C 232[1827] EngR 289; , 108 ER 439.

Dillon v O'Brien and Davies (1887) 16 Cox CC 245.

Elias v Pasmore (1934) 2 KB 164.

Entick v Carrington (1765) 19 St Tr 1029, Wils KB 275[1765] EWHC J98; , 95 ER 807.

Ghani v Jones (1970) 1 QB 693.

G H Photography Pty Ltd v McGarrigle (1974) 2 NSWLR 635.

Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; (1980) AC 952.

Levine v O'Keefe [1929] VicLawRp 57; (1929) VLR 302 (Cussen J); [1930] VicLawRp 10; (1930) VLR 70 (Full Court).

McFarlane v Sharp (1972) NZLR 64.

MF1 v National Crime Authority [1991] FCA 662; (1991) 33 FCR 449.

Price v Messenger (1800) 2 Bos and Pul 158[1800] EngR 172; , 126 ER 1213.

Re O'Neil (unreported, NSW District Court, 18 August 1988).

Counsel for the applicant: P Willee QC with A K Panna

Solicitor for the respondent: Australian Government Solicitor

Liberty is reserved for counsel to bring in short minutes of

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

HEEREY J The applicant challenges the lawfulness of a seizure by the Collector of Customs of certain documents. The Collector claims authority under s.214 of the Customs Act 1901 (the Act) and alternatively under common law. Section 214 provides as follows:

"214. (1) Whenever information in writing has been given on

oath to the Collector that goods have been unlawfully

imported exported undervalued or entered or illegally dealt

with, or that it is intended to unlawfully import export

undervalue enter or illegally deal with any goods, or

whenever any goods have been seized or detained, the owner

shall immediately upon being required so to do by the

Collector produce and hand over to him all books and

documents relating to the goods so imported exported entered

seized or detained undervalued or illegally dealt with, or

intended to be unlawfully imported exported undervalued

entered or illegally dealt with, and of all other goods

imported or exported by him at any time within the period of

5 years immediately preceding such request seizure or

detention, and shall also produce for the inspection of the

Collector or such other officer as he may authorize for that

purpose and allow such Collector or officer to make copies

of or extracts from all books or documents of any kind

whatsoever wherein any entry or memorandum appears in any

way relating to any such goods.

Penalty: $1,000

(2) For the purposes of this section, the Comptroller or

the Collector of Customs for a State or Territory may issue

to any officer of Customs or officer of police a Customs

Warrant, in accordance with the form in Schedule V, marked

with a Customs stamp.

(2A) A Customs Warrant issued under the last preceding

sub-section remains in force for one month after the date of the

Warrant unless sooner revoked.

(2B) A Customs Warrant issued by a Collector of Customs for

a State has force only in the State and a Customs Warrant

issued by the Collector of Customs for the Northern

Territory has force only in the Northern Territory.

(3) If any person fails to comply with a requirement by the

Collector under this section, an officer of Customs or

officer of police, having with him a Customs Warrant in the

form of Schedule V hereto, may, at any time of the day or

night, break open and enter into any house, premises or

place in which any books or documents relating to the goods

are or are supposed to be, and search:

(a) the house, premises or place;

(b) any person therein or thereon; and

(c) any chests, trunks or packages therein or

thereon;

and take possession of, remove and impound any of those

books and documents which are found."

1. is the power of seizure under s.214(3) confined to documents

relating to goods which are the subject of the information

referred to in s.214(1) (to which I shall refer to as "the

information goods") or does it extend to documents relating to all

other goods imported or exported within the previous 5 years ("the

5 year goods")? (I use the term "documents" as comprehending

books as well as documents.)

2. Can documents "relate to" goods if they do not on their face refer

to those goods?

3. In the absence of authority under the Customs Warrant, could the

officers lawfully remove documents on the ground of a reasonable

belief that they constituted evidence of the commission of crimes

or offences against the Act?

3. The applicant is a manufacturer of soil waste and vent pvc pipes and fittings which it makes at its premises at 29 Industrial Drive, Braeside in Victoria. An associated company called Challenge Plastics Joint Venture Pty Ltd imports brass tap fittings and capillaries from China and elsewhere.

4. On Friday 26 June 1992 a Customs Officer, Mr Geoffrey Newmarch, together with other Officers, came to the Braeside premises and produced to the applicant's director Mr Rodney Beaumont a notice to produce documents in the following form:

" FORM 61

AUSTRALIAN CUSTOMS

STATE OF VICTORIA

NOTICE TO PRODUCE DOCUMENTS

To: CHALLENGE PLASTICS PTY LTD.,

29 INDUSTRIAL DRIVE, BRAESIDE, VICTORIA.

Whereas: Information in writing has been given on oath

that goods have by you been unlawfully imported,

undervalued or entered or dealt with on the

third day of January 1990;

Now, therefore, I, the Collector of Customs for the State of

Victoria by virtue of the powers conferred upon me by the

Customs Act 1901, do hereby require you to produce and hand

over to Geoffrey George Newmarch an Officer of Customs duly

authorized by me on my behalf to receive the same, all books

and documents relating to such goods and relating to all

other goods imported or exported by you at any time within

the period of five years immediately preceding this request,

and I further require you to produce for the inspection of

the said Geoffrey George NEWMARCH an Officer of Customs duly

authorized by me for that purpose or such other Officer as I

may authorize for the purpose, and allow such Officer to

make copies of or extracts from all books or documents of

any kind whatsoever wherein any entry or memorandum appears

in any way relating to any such goods.

Given under my hand this 25th day of June 1992

(sgd)

Collector of Customs

State of Victoria"

5. Affidavits sworn by Mr Beaumont and Mr Newmarch disclose considerably different versions as to what happened thereafter. However the parties did not ask me to resolve these disputes and neither deponent was cross-examined. It is sufficient for the purposes of the present application to say that the Customs Officers collected many documents and removed them from the premises without the consent of the applicant. Subsequently more documents were seized from the homes of Mr Beaumont and another director of the applicant, a Mr Vuong.

6. Later that day, on the application of the applicant, Olney J made an order that all documents seized be forthwith placed in the custody of the Australian Government Solicitor at Melbourne until further order. A list of the documents taken was tendered in evidence. It extends to 97 pages with approximately 20 items noted on each page. Many of those items in themselves appear to relate to more than one document. Some are noted as being in Chinese or Vietnamese.

7. At the time of the raid Mr Newmarch had with him a Customs Warrant in the form of Schedule V to the Act. The warrant was in the following terms (those parts italicised are additions to the statutory form):

" SCHEDULE V

THE COMMONWEALTH OF AUSTRALIA

CUSTOMS WARRANT

To: GEOFFREY NEWMARCH

OFFICER OF CUSTOMS

STATE OF VICTORIA

WHEREAS Information in writing has been given on oath to

me that goods have been unlawfully imported,

exported, undervalued or entered or illegally

dealt with or that it is intended to unlawfully

import, export, undervalue or enter or illegally

deal with goods.

YOU ARE HEREBY AUTHORISED, in the event of CHALLENGE

PLASTICS PTY LTD of 29 INDUSTRIAL DRIVE, BRAESIDE,

failing to comply immediately with any requirement made in

pursuance of section two hundred and fourteen of the Customs

Act 1901, to enter into, at any time of the day or night,

and search, any house premises or place in which any books

or documents relating to the goods are or are supposed to

be; and to break open any such house premises or place and

search any person therein or thereon; and to take possession

of, remove and impound any of those books and documents

which are found: And for so doing this shall be your

sufficient warrant:

This warrant has force throughout Victoria.

This warrant shall remain in force for a period of one month

from the date thereof unless revoked before the expiration

of that period.

Dated this 25th day of June 1992.

(sgd)

Collector, Victoria

Issue 1 - Whether 5 Year Goods Covered by the Warrant

8. In my opinion s.214(3) only authorises the seizure of documents relating to the information goods.

9. Sub-section (1) draws a clear distinction between documents relating "to the goods" - ie the information goods - and documents relating to "all other goods". (To be precise, the preposition used is "of". "Relating ... of all other goods" is a somewhat awkward expression but counsel treated it, correctly in my view, as equivalent to "relating to".) Therefore when ss.(3) speaks of documents "relating to the goods" it is referring to "the goods" the subject of the information and not the "other goods".

10. Confidence in this conclusion increases when one turns to the form of the Customs Warrant in Schedule V which, it must be stressed, is part of the statute itself and not prescribed by way of delegated legislation. The recital in the statutory form makes it clear that it is only the information goods that are referred to. When the body of the warrant speaks of documents relating to "the goods", it can only mean the goods referred to in the recital.

11. Considerations of policy point in the same direction. It is a serious infringement of common law rights to enter forcibly on a person's premises and remove documents without that person's consent. It is one thing to impute to Parliament an intention that such a power can be exercised when the documents relate to particular goods which have been identified by information on oath as being the subject of dealings or possible dealings in breach of the Act. It is a very different thing to contemplate forceful removal of documents relating to any goods imported or exported over a period of 5 years. While the statute clearly gives the Collector the power to require the handing over of documents in the latter category, it does not in my opinion authorize the further and serious step of seizure and removal. The removal of documents concerning goods dealt with over 5 years and the detention of such documents for an indefinite time would be vastly disruptive to any business, to an extent quite possibly compelling its virtual closure.

12. The point was the subject of a brief comment by Davies J in Ace Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463 at 471-472. The question was apparently not raised in argument but his Honour reached the same conclusion as I have, principally by reference to the terms of the Customs Warrant. An unreported judgment of Judge Dunford in the District Court of New South Wales, In the matter of the appeal of O'Neill (unreported, 18 August 1988), is to the same effect.

13. The Collector conceded that documents other than those which on their face refer to the particular importation of 3 January 1990 had been removed. But counsel argued that the power conferred by s.214(3) extended to documents which were relevant to the importation, within the broad concept of relevance as applied to investigatory enquiry. Reliance was placed on the statement of Ryan J in MF1 v National Crime Authority [1991] FCA 662; (1991) 33 FCR 449 at 471 where his Honour said:

"I agree with the learned primary judge that the principles

to be applied in determining relevance in the context of an

investigatory enquiry are those enunciated by the Full Court

in Melbourne Home of Ford Pty Ltd v Trade Practices

Commission [1980] FCA 94; (1980) 47 FLR 163 at 173-175. Those principles

recognise a much broader concept of relevance than the

notion which is applied to determine the admissibility of

evidence in adversary litigation."

14. Counsel argued that, for example, documents showing a similar course of conduct (or a different course of conduct) would be relevant as rebutting (or supporting) a defence of accident, mistake and the like.

15. But a careful examination of the actual terms of s.214 is called for, in the light of the law's concern that substantial interference with common law rights must appear in clear and unambiguous language.

16. It is perhaps revealing that the written submissions of the Collector's counsel stated that "all the documents taken are documents 'relating' to the importation of 3 January 1990." That is not the criterion of the statute. Section 214(1) speaks of documents "relating to the goods so imported etc". The documents in question must relate to the goods themselves. The statute does not prescribe a test of relevance to the transaction of importing, exporting etc.

17. Section 214(1) itself draws a distinction between, on the one hand, documents relating to the information goods and the 5 year goods and, on the other hand, "all books or documents of any kind whatsoever wherein any entry or memorandum appears in any way relating to any such goods". The former category of documents are to be produced and handed over to the Collector. The latter category are only to be produced for inspection and copies or extracts can be made. If "relating to the goods" had the wide meaning contended for by the Collector, there would seem to be no point in specifying the latter category because any book or document in which an entry or memorandum appears in any way relating to goods, would be "relevant" to the importation or exportation of those goods within ordinary notions of investigative enquiry, or indeed even in terms of adversary litigation.

18. I conclude therefore that documents must "relate to" the goods in the sense that there must be some explicit or implicit connection with the goods themselves, for example invoices, order forms, bills of lading or correspondence which touches or concerns the goods.

19. Counsel for the Collector argued that, independently of the powers conferred by the Customs Warrant, removal of documents was authorised if the seizing officer reasonably believed that they constituted evidence of the commission of other crimes. Since this argument assumes the Customs Warrant did not confer power, the authority claimed must of necessity come from the common law: Entick v Carrington (1765) 19 St Tr 1029 Wils KB 275[1765] EWHC J98; , 95 ER 807.

20. Mr Newmarch deposed that he believed the documents constituted evidence of other offences. For example the documents seized included a large number of blank invoices from overseas firms said to have been suppliers to the applicant.

21. At this point I should note that during the course of the hearing it emerged that there was some misunderstanding between the parties as to the basis on which the application was being dealt with. I was told at the outset that it involved some short points of construction. However counsel for the applicant objected to the tender of the list to which I have already referred if it was to be taken as a description of the actual contents of the many documents referred to. After discussion with counsel I indicated that I would deal with the case without prejudice to the parties' rights to contest hereafter the issue whether Mr Newmarch's belief was in fact reasonable, or at least not so unreasonable that no reasonable person in his position could form it (if that be the appropriate test). I therefore refer to the blank invoices simply as an example of the kind of document which the Collector's argument postulates, without expressing any view that in fact these blank invoices, or blank invoices as a category of document, do or do not form a reasonable basis for such a belief.

22. Counsel for the Collector referred to a number of English authorities and in particular Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4; (1968) 2 QB 299, Ghani v Jones (1970) 1 QB 693 and Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; (1980) AC 952. The last concerned a statutory warrant and needs to be considered separately.

23. At common law a search warrant could be granted for the recovery of stolen goods but for no other purpose. The reach of a common law warrant was progressively extended to cover goods which the constable executing the warrant reasonably believed to have been included: Price v Messenger (1800) 2 Bos and Pul 158[1800] EngR 172; , 126 ER 1213; goods likely to provide evidence of the identity of the goods mentioned in the warrant: Crozier v Cundey (1827) 6 B and C 232[1827] EngR 289; , 108 ER 439 and goods not mentioned in the warrant but which would afford evidence of the charge in respect of which the warrant was issued: Pringle v Bremner (1867) 5 Macph HL 55. See generally Chic Fashions (1968) 2 QB at 307-311.

24. Warrants of arrest were of course not limited to larceny. When a person was arrested on warrant, goods in that person's possession could be seized if they would "form material evidence in his prosecution for that crime": Dillon v O'Brien and Davies (1887) 16 Cox CC 245. In Elias v Pasmore (1934) 2 KB 164 a warrant was issued for the arrest of one Hannington. When executing it police seized documents from the premises, some of which were used at the subsequent trial of the plaintiff Elias, who then sued for their recovery and damages for detention. Horridge J held the documents could be seized if it appeared that they were "evidence of a crime committed by any one". His Lordship said (at 173):

"In my opinion the seizure of these exhibits was justified,

because they were capable of being and were used as evidence

in this trial. If I am right in the above view, the

original seizure of these exhibits, though improper at the

time, would therefore be excused."

25. The decision was criticised by Lord Denning MR in Chic Fashions on the ground that the seizure must be justified at the time, irrespective of whether the case goes to trial or not ((1968) 2 QB at 312). His Lordship returned to the attack in Ghani, this time on a different ground (1970) 1 QB at 706:

"I confess that I think those words 'by any one' go too far.

The decision itself can be justified on the ground that the

papers showed that Elias was implicated in the crime of

sedition committed by Hannington. If they had only

implicated Elias in some other crime, such as blackmail or

libel, I do not think the police officers would have been

entitled to seize them. For that would be a flat

contradiction of Entick v Carrington (1765) 19 St Tr 1029.

The common law does not permit police officers, or anyone

else, to search for papers or articles therein, or to search

his person, simply to see if he may have committed some

crime or other."

26. Police executing a search warrant for stolen goods on the plaintiff's premises found other goods, not described in the warrant, which they believed, reasonably but incorrectly, were stolen. The Court of Appeal upheld the validity of the seizure. After referring to the earlier cases, Lord Denning MR said (at 313):

"We have to consider, on the one hand, the freedom of the

individual. The security of his home is not to be broken

except for the most compelling reason. On the other hand,

we have to consider the interest of society at large in

finding out wrongdoers and repressing crime. In these

present times, with the ever-increasing wickedness there is

about, honest citizens must help the police and not hinder

them in their efforts to track down criminals. I look at it

in this way: So far as a man's individual liberty is

concerned, the law is settled concerning powers of arrest.

A constable may arrest him and deprive him of his liberty,

if he has reasonable grounds for believing that a felony

(now an 'arrestable offence') has been committed and that he

is the man. I see no reason why goods should be more sacred

than persons. In my opinion, when a constable enters a

house by virtue of a search warrant for stolen goods, he may

seize not only the goods which he reasonably believes to be

covered by the warrant, but also any other goods which he

believes on reasonable grounds to have been stolen and to be

material evidence on a charge of stealing or receiving

against the person in possession of them or anyone

associated with him."

27. Police officers entered a house without a warrant enquiring after the disappearance of a woman whom it was thought had been murdered. At the request of the police the plaintiffs, the owner of the house (who was the father-in-law of the missing woman) and his wife and daughter handed passports and other documents to them. The plaintiffs later sued for the return of the documents. It was held that the documents should be returned because the police had not shown reasonable grounds for believing that the documents were material evidence to prove the commission of a murder nor for believing that the plaintiffs were in any way implicated in or accessory to a crime. On the view of the Court of Appeal took, the police would have succeeded had they in fact had reasonable grounds for such belief. Lord Denning MR (at 708) formulated the law in the following terms:

"First: The police officers must have reasonable grounds

for believing that a serious offence has been committed - so

serious that it is of the first importance that the

offenders should be caught and brought to justice.

Second: The police officers must have reasonable grounds

for believing that the article in question is either the

fruit of the crime (as in the case of stolen goods) or is

the instrument by which the crime was committed (as in the

case of the axe used by the murdered) or is material

evidence to prove the commission of the crime (as in the

case of the car used by a bank raider or the saucer used by

a train robber). (There had been mention in argument of

police taking, for fingerprint purposes, a saucer used to

give milk to a cat by one of the participants in the Great

Train Robbery when they were in hiding at a farm.)

Third: The police officers must have reasonable grounds to

believe that the person in possession of it has himself

committed the crime, or is implicated in it, or is accessory

to it, or at any rate his refusal must be quite unreasonable.

Fourth: The police must not keep the article, nor prevent

its removal, for any longer than is reasonably necessary to

complete their investigations or preserve it for evidence.

If a copy will suffice, it should be made and the original

returned. As soon as the case is over, or it is decided not

to go on with it, the article should be returned.

Finally: The lawfulness of the conduct of the police must

be judged at the time, and not by what happens afterwards."

28. While the earlier cases up to and perhaps including Chic Fashions might fairly be described as incremental developments of the common law relating to search warrants and arrest warrants (see however the criticism of Chic Fashions by Professor Pearce (1970) 44 ALJ 467 at 473-475), Ghani involved a major departure in a number of respects. There was no search warrant. There was no arrest warrant. There was no arrest, whether with or without warrant (cf Christie v Leachinsky [1947] UKHL 2; (1947) AC 573). The case did not involve stolen goods or goods suspected (whether reasonably or otherwise) of being stolen.

29. The extension of the law made by Ghani is perhaps even the more surprising in the light of Lord Denning's reservations about Elias v Pasmore. The requirement of a warrant is a practical safeguard which both common law and statute provide against arbitrary inference with the personal liberty and property of the individual. The state official wishing to seize a person or his or her property must swear on oath before an independent judicial officer as to the need for that interference. The law will scrutinise warrants carefully, both as to the validity of their issue and the power they confer. The invalidity of general warrants has since Entick v Carrington in 1765 been regarded as a bulwark of liberty. Yet if Ghani is right, state officials are better off without a warrant at all.

30. Ghani appears to be inconsistent with the Victorian case of Levine v O'Keefe [1929] VicLawRp 57; (1929) VLR 302 (Cussen J); [1930] VicLawRp 10; (1930) VLR 70 (Full Court), a case which was cited in argument in both Chic Fashions and Ghani but not mentioned in the judgments.

31. The plaintiff sued for the return of goods seized without warrant by the defendant, a member of the Victorian CIB. The defence and particulars given thereunder pleaded in substance that the defendant in the course of his duty was investigating an insurance fraud alleged to have been committed by the plaintiff and one White and that the defendant wished to investigate whether the goods in question really belonged to White. By the time the defence was delivered (although not at the time of seizure) the plaintiff and White had been charged with conspiracy to defraud the insurers. The plaintiff's application to strike out those paragraphs of the defence succeeded before Cussen J and on appeal. For the purposes of the striking out application the reasonableness of the defendant's belief was not in question.

32. Before the Full Court counsel for the defendant, in words which precisely foreshadowed the reasoning of Ghani, argued

"In the course of investigations made bona fide in

connection with a suspected crime, a police officer may

seize property in the possession of the person suspected,

even though there is no arrest, in order that evidence may

be preserved and furnished to the tribunal ...

There is no other way in which that evidence can be produced

if the suspect is brought to trial. A search warrant

obviates the necessity of proving reasonableness or bona

fides."

33. The Full Court (Mann, McArthur and Lowe JJ) said counsel for the defendant

"... has been driven by the authorities to base his argument

very largely, on considerations of public convenience. But

considerations of public convenience are altogether

insufficient to justify so important an extension of the

criminal law as we are now asked to sanction.

The authorities which have been laid before us show, we

think, the law to be in this position - there are two ways

in which the seizure of goods in circumstances like the

present can be justified. One is by showing that they were

seized being in the possession of a person at the time of

his arrest either for felony or misdemeanour. The authority

for that is the Irish case of Dillon v O'Brien (1887) 20 LR

Ir 300, which has been cited. The other way in which such a

seizure can be justified is under a search warrant lawfully

issued.

In the present case the person in possession of the goods

was not arrested. There was not even any charge against him

at the time of the seizure of the goods. Nor was there any

search warrant. The authorities therefore offer no support

to the contention made here on behalf of the defendant; nor

is that contention supported, so far as we have been able to

find, by any dicta in cases on the subject." ((1930) VLR at 72)

34. In my opinion, the Collector has not made out a case at common law to justify the seizure of those documents which I have held are not covered by the Customs Warrant. I would respectfully follow Levine in preference to Ghani.

35. Such a course is all the more called for where Parliament has already laid down, in s.214 and the terms of the Customs Warrant, the terms under which powers of search and seizure are to be exercised in respect of suspected offences against the Act. This is not an area where common law rules should be developed, indeed very substantially extended, to plug up inconvenient gaps in the legislative scheme.

36. In G H Photography Pty Ltd v McGarrigle (1974) 2 NSWLR 635 Mahoney J followed Ghani in a case where there had been an ineffective attempt to follow a statutory procedure for seizure. His Honour conceded (at 640) that Ghani "may be inconsistent with the principle upon which are (sic) based such decisions as Levine v O'Keefe" but felt it "proper" to follow two unreported New South Wales decisions at first instance in accepting Ghani.

37. However, in McFarlane v Sharp (1972) NZLR 64 Sharp J declined to follow Ghani, considering it to be inconsistent with an earlier decision of the New Zealand Court of Appeal in Barnett and Grant v Campbell (1902) 21 NZLR 484.

38. Ghani has been critised by Dr Leigh (1970) 33 MLR 268 and the editorial comment in (1970) 44 ALJ 454 which referred to it as "an interesting example of law reform by judicial pronouncement". This last aspect was the subject of a perceptive comment by Aronson, Hunter and Weinberg in Litigation: Evidence and Procedure (4th Ed) at 429. The learned authors say:

"Until the enactment of the Police and Criminal Evidence Act

1984 (UK), there were relatively few situations in England

where the police could obtain search warrants. For example,

no search warrant was obtainable to assist in the

investigation of a murder. The only search warrant employed

by common law was for stolen goods. The 1984 Act has

granted enormous extensions of power to the English police.

(It is worth noting that many of these extensions have been

accompanied by detailed and wide ranging statutory

provisions and Codes of Conduct, setting down outer limits

to police powers, and providing positive assistance and

protection to some suspects.) Australia has long made

statutory provision for search warrants for all serious

offences. Until the passage of the 1984 Act, therefore, one

could well understand English courts being very generous to

the police when interpreting common law powers of search and

seizure. The rather uncritical acceptance by some

Australian judges of these English cases is less

understandable."

39. The House of Lords was concerned with s.20C of the Taxes Management Act 1970 (UK) which relevantly provided:

"(1) If the appropriate judicial authority is satisfied on

information on oath given by an Officer of the Board (of

Inland Revenue) that - (a) there is reasonable ground for

suspecting that an offence involving any form of fraud in

connection with, or in relation to, tax has been committed

and that evidence of it is to be found on premises specified

in the information; ... the authority may issue a warrant in

writing authorising an officer ... to enter the premises, if

necessary by force, at any time within 14 days from the time

of issue of the warrant, and search them ...

(3) On entering the premises with a warrant under this

section, the officer may seize and remove anything

whatsoever found there which he has reasonable cause to

believe may be required as evidence for the purposes of

proceedings in respect of such an offence as is mentioned in

subsection (1) above."

40. The House of Lords held that on the strict terms of the statute the officers were entitled to search without informing the occupiers of the offences suspected or the "reasonable ground" found to exist by the judge issuing the warrant. Nor was the warrant invalid because it did not particularise the alleged offence. Lord Wilberforce was "unable, therefore, to escape the conclusion, that adherence to the statutory formula is sufficient" (at 999). As his Lordship pointed out:

"The warrants, being valid, confirm authority to enter and

search: see s.20C(1). This being in terms stated in the

Act, I do not appreciate the relevance of an inquiry into

the form of search warrants at common law (which in any case

admitted of some flexibility in operation) still less into

that of warrants of arrest."

41. In a passage relied on by the counsel for the Collector, Lord Diplock dealt with the argument that the warrant should have specified the offence which the judge issuing the warrant was satisfied there had been reasonable grounds for suspecting had been committed. His Lordship said (at 1010):

"... this would not help the persons whose premises were

searched to know what documents were liable to be seized,

since the right of seizure under subsection (3) is not

limited to documents that may be required as evidence in

proceedings for that offence alone but, on the true

construction of the subsection, extends to documents that

may be required as evidence in proceedings for any other

offence that falls within the genus of offences 'involving

any kind of fraud in connection with, or in relation to,

tax.' This, as it seems to me, is the plain meaning of the

words 'such an offence as is mentioned in subsection (1)

above'. Nor do I find it surprising that Parliament should

grant a power of search under the warrant wider in its scope

than those things which it was already suspected would be

found on the premises when the warrant was issued. Even at

common law as it had developed by the time the Act was

passed a warrant to search premises for stolen goods

particularised in the warrant justified seizure of other

goods found upon the premises at the time the warrant was

executed if there were reasonable grounds for believing that

those other goods were stolen: Chic Fashions (West Wales)

Ltd v Jones [1967] EWCA Civ 4; (1968) 2 QB 299."

"The only warrant required by the statute is one authorising

entry and search. Clearly it must specify the premises to

be entered and searched. But that is the limit of the

authority given by the warrant. The judge's warrant is not

the authority for seizing and removing things found on the

premises. That power is conferred by the statute, i.e.,

subsection (3). As the Divisional Court well said, the

warrant is only the key of the door, it does not confer the

power to seize and remove, although, until and unless it

opens the door, the power to seize and remove does not

arise."

43. There is a critical distinction between s.214(3) and the legislation considered in Rossminster. In that case, as the passage quoted from Lord Diplock's speech emphasised, the statute gave the officer, once he had entered the premises, express power to seize "anything whatsoever found there which he has reasonable cause to believe may be required as evidence for the purpose of proceedings in respect of such an offence as is mentioned in subsection (1) above", that is to say "an offence involving any form of fraud in connection with or in relation to tax". The warrant was, it is true, the "key to the door", but once inside the door the officers' power to remove goods was expressly conferred by the statute. In contrast, s.214(3) confers only power to remove and impound "any of those books and documents which are found", that is to say books or documents "relating to the goods". Subsection (3) would be meaningless if once on the premises the officers could remove and impound other documents.

44. Rossminster does not assist the Collector's case. On the contrary, it shows that the power of search and seizure under a statutory warrant is that conferred by the statute, no more and no less: Barnett and Grant v Campbell (1902) 21 NZLR 484.

45. The applicant therefore has succeeded on the three issues raised. However the validity of the Customs Warrant itself was not challenged. Therefore documents which fall within the terms of s.214 as construed in this judgment can be lawfully retained. Directions will be necessary to give practical effect to the terms of the judgment. I will reserve liberty for counsel to bring in short minutes of orders.