Commissioner of the Australian Federal Police v Oke

BACKGROUND 6 The evidential material seized from Mr Oke's Birchgrove premises included various documents and items considered to fall within the terms of the warrant including Mr Oke's laptop computer. In respect to at least some of this material Mr Oke asserted, and continues to assert, a claim to legal professional privilege. 7 On 6 July 2004 Mr Oke filed an application seeking relief in respect of the execution of the search warrant at his Birchgrove premises. The application was amended pursuant to leave granted by the primary judge on 20 September 2005, 14 December 2005 and 20 January 2006. In its final form the application claimed extensive declaratory relief and also orders restraining the Commissioner from examining, or otherwise dealing with, the material seized from Mr Oke's premises and orders requiring the Commissioner to return that material to him. 8 The reasons for judgment of the primary judge note at [6] that three issues were required to be determined on the application concerning the validity of the execution of the warrant, namely: '1. Whether the execution of the search was invalid because it did not comply with s 3H of the Act, in that the copy of the warrant provided to Mr Oke at the commencement of the search did not contain the name of the issuing officer and the handwritten portion of the attestation clause; 2. Whether the execution of the search was invalid because the copy of the warrant provided to Mr Oke at the commencement of the search did not have attached a copy of the privilege notice; 3. Whether the seizure of the laptop computer was invalid because the executing officer did not have the requisite state of mind specified in s 3F of the Act or because it was the subject of a claim of legal professional privilege;' 9 His Honour further noted that '[s]ubmissions were also directed to the appropriate forms of relief if any of those claims were made out.' 10 On 25 January 2007 his Honour pronounced the following orders: '2. The respondent deliver to the applicant the documents seized from the premises at 49 Ballast Point Road Birchgrove in the State of New South Wales on 24 June 2004 and any copies of those documents including any copies of the hard drive of the Toshiba laptop computer TE2100 serial number Y2017532V and all electronic records obtained by the respondent from that laptop computer. 3. The respondent cause to be destroyed any records of the contents of any documents seized and inspected pursuant to the search warrant issued on 23 June 2004 in respect of premises at 49 Ballast Point Road Birchgrove in the State of New South Wales, other than a sufficient description of the documents to record the documents which were seized. 4. Liberty to apply.' 11 On 14 February 2007 the appellant filed a notice of appeal from the whole of the judgment of the primary judge. The grounds of appeal were that his Honour misconstrued the words 'make available' and 'copy' in s 3H(1) of the Crimes Act and erred in finding that the execution of the warrant was invalid because the name of the issuing officer and the time at which the warrant expired were missing from the copy of the warrant provided to Mr Oke. On 16 February 2007 the Court ordered by consent that the operation of orders 2 and 3 set out in [10] above be stayed until the determination of this appeal or further order. 12 On 8 March 2007 Mr Oke filed a purported notice of cross-appeal. Both parties accept that as Mr Oke did not seek to have any order made by the primary judge set aside or varied, but rather proposed to contend that the judgment should be affirmed on grounds other than those relied on by the primary judge, the appropriate course was for him to file and serve a notice of contention (O 52 r 22(3) of the Federal Court Rules). The Commissioner did not oppose the purported notice of cross-appeal being treated as a notice of contention.

APPLICATIONS TO AMEND THE NOTICE OF APPEAL 13 On 8 May 2007 the Commissioner attempted to file a document entitled 'Amended Notice of Appeal' and on 10 May 2007 a further document entitled 'Further Amended Notice of Appeal'. It appears that copies of these documents were served on Mr Oke on or about the days that they were respectively received by the Court's Registry. No application was made to the Court before the attemptedfiling and service of either of these documents for leave to amend the notice of appeal (see O 52 r 21(3) of the Federal Court Rules). 14 When the appeal was called for hearing the Commissioner sought leave to amend his notice of appeal in terms of the document entitled 'Further Amended Notice of Appeal'. Having regard to the events outlined in [22] below, it is necessary to refer only to proposed grounds 5 and 6 of that document. 15 Grounds 5 and 6 constituted new grounds of appeal. They were expressed as follows: '5. The primary judge erred in law in determining that an order for the return and destruction of evidential material seized under the search warrant was the necessary consequence of a declaration that the execution of the search warrant was invalid. 6. In the alternative to paragraph 5, the primary judge erred in the exercise of his discretion in the circumstances of this case in ordering the return and destruction of evidential material seized (including the technical nature of the breach and the lack of any suggestion that the breach was a result of deliberate design and the lack of injustice demonstrated by the respondent).' 16 Senior counsel for the Commissioner, who also appeared for him before the primary judge, informed this Court that her client had submitted to the primary judge that, in the event that a finding was made that the execution of the search under the warrant was unlawful, the Court was not empowered to order the Commissioner to return to Mr Oke the material seized from his premises. She acknowledged, however, that the Commissioner had not submitted to the primary judge that, in the event of such a finding, the Court had a discretion not to order that the seized material be returned. 17 No evidence was placed before the Court to explain why it had not been submitted to the primary judge that, if his Honour found that the warrant was not lawfully executed, he should exercise a discretion not to order the return to Mr Oke of the material seized. Nor was evidence placed before the Court touching on the issue of whether it was expedient in the interests of justice to allow the Commissioner to argue on appeal an issue not argued before the primary judge (see Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2006] FCAFC 48 at [53]; MZXHY v Minister for Immigration and Citizenship [2007] FCA 622). 18 Senior counsel for the Commissioner told the Court that she was taken by surprise by the orders made the primary judge on 25 January 2007 in that she had expected a further opportunity to address his Honour as to the appropriate orders to be made. We note, however, that the Commissioner had not adduced any evidence before the primary judge upon which his Honour could have exercised a discretion not to order the return of the seized material. Before this Court the only evidence upon which the Commissioner placed reliance in this regard was the following exchange during the cross-examination of Federal Agent Capaldo by senior counsel for Mr Oke: '[Senior counsel] In fact the charges were laid and then withdrawn? --- Well, I would suggest that that is because of this on-going debacle with agreements and not agreements and LPP and so forth. The charges were laid on 24 June? --- Yes. And withdrawn within a week? --- Yes. I can't remember the date, but yes, they were withdrawn. Since then, have any other charges been laid? --- No, because I still do not have access to the majority of the potential evidence.' 19 Senior counsel for the Commissioner acknowledged that no application was made to his Honour in the period between 25 January 2007 and 28 March 2007, the date when the orders earlier pronounced by his Honour were entered, for the orders, or any of them, to be set aside to allow further submissions to be made to his Honour (see O 35 r 7(1) of the Federal Court Rules). Nor did the Commissioner include in his notice of appeal, or in any proposed amended notice of appeal, an allegation that his Honour erred in pronouncing orders 2 and 3 of his orders of 25 January 2007 without hearing further submissions from the parties. 20 Mr Oke read an affidavit sworn by his solicitor Geoffrey Keith Brennan on the Commissioner's application to amend the notice of appeal. Mr Brennan deposed to a belief that, as a result of the late provision of the further amended notice of appeal, Mr Oke would be prejudiced if the Commissioner were granted leave to amend his notice of appeal because: (a) senior counsel had not been able to be instructed to revisit the transcript of the hearing at first instance and the exhibits to determine what further material should be included in the appeal papers which had been settled on the basis of the notice of appeal; (b) the further amended notice of appeal raised significant new grounds; (c) the case had been prepared on the basis of the notice of appeal and Mr Oke's representatives had not been able to prepare the case in response to the new grounds raised; (d) no notice was given that the appellant was seeking to amend the notice of appeal; and (e) the manner in which the appellant sought leave created uncertainty which prejudiced the preparation of Mr Oke's case. 21 We concluded that the Commissioner should be allowed to amend his notice of appeal only if grounds 5 and 6 were deleted from the proposed amended notice of appeal. In reaching this conclusion we placed only limited weight on the affidavit of Mr Brennan. The alleged prejudice identified therein could largely have been rectified by an adjournment. In our view, having regard to the circumstances outlined in [17]-[19], it was not expedient in the interests of justice to allow the Commissioner to raise for the first time on appeal an issue not raised before the primary judge. Not only were other and more appropriate procedural options available to the Commissioner: it does not appear that either party sought below to adduce evidence of the kind appropriate to inform an exercise of the discretion which the Commissioner wished to contend that his Honour should have exercised. 22 The Commissioner indicated that he nonetheless pressed his application for leave to amend his notice of appeal. It was therefore ordered that the Commissioner have leave to amend his notice of appeal in terms of the document entitled Further Amended Notice of Appeal but not so as to include proposed grounds 5 and 6. 23 The leave so granted was not exercised. During the course of argument on the appeal the Commissioner made a further application to amend his notice of appeal by reducing the grounds of appeal to a single, and new, ground of appeal expressed as follows: 'The primary judge erred in finding that the execution of the search warrant was invalid on the basis of non-compliance with s 3H(1) of the Crimes Act 1914 (Cth).' 24 This further application was allowed by consent.

SIGNIFICANCE OF NON-COMPLIANCE WITH SECTION 3H(1) 25 As mentioned above, the Commissioner ultimately conceded on appeal that the document made available to Mr Oke in purported compliance with s 3H(1) of the Crimes Act was not a copy of the warrant. It is thus unnecessary for this Court to give consideration to the extent to which a document may fail accurately to reproduce every aspect of a warrant before it loses the character of a copy of that warrant within the meaning of s 3H(1). We doubt, however, that s 3H(1) calls for a facsimile of the warrant to be made available to the occupier of the premises. Whether a document is a copy of a warrant within the meaning of s 3H(1) is a question of fact to be determined in the light of the purpose of the Act following a comparison of the two documents and an assessment of the significance of any unauthorised differences between them. 26 The consequence of the above concession made by the Commissioner is that he is to be taken to accept that the obligation imposed upon those executing the warrant by s 3H(1) was not complied with. Nothing in the Crimes Act suggests that a copy of a warrant can be made available to an occupier wholly or partly orally. As a warrant is a document a copy of a warrant must also be a document. 27 It is therefore necessary to determine whether the execution of the warrant was rendered unlawful because of the non-compliance with s 3H(1). 28 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court gave consideration to whether a program standard determined by the Australian Broadcasting Authority under the Broadcasting Services Act 1992 (Cth) was invalid because the Authority failed to comply with the requirement of s 160(d) of that Act. Section 160(d) required the Authority to perform its functions in a manner consistent with any agreement between Australia and a foreign country. It was common ground between the parties that the program standard in question was in conflict with articles in the Protocol on Trade in Services to the Australian New Zealand Closer Economic Relations Trade Agreement. 29 In the majority judgment of the High Court, McHugh, Gummow, Kirby and Hayne JJ at [91] stated: 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.' (footnote omitted) 30 The majority judgment at [93] described the distinction between directory and mandatory requirements, and the division of directory acts into those which have substantially complied with statutory command and those which have not, as classifications that are no longer useful because they deflect attention from the real issue which is whether an act done in breach of a legislative provision is invalid. 31 The approach adopted by the majority of the High Court in Project Blue Sky 194 CLR 355 is applicable in this appeal. It is thus appropriate to turn first to the Crimes Act, and particularly s 3H(1), to see whether the language of the Act, the subject matter and objects of its relevant provisions, and the consequences of holding void every execution of a warrant undertaken in breach of s 3H(1) indicate a legislative purpose to render unlawful an execution conducted in breach of s 3H(1). 32 Weight, although not compelling weight, is to be given to the use of the word 'must' in s 3H(1). It is plain that those executing the warrant were under a legal obligation to make available to Mr Oke a copy of the warrant. To the extent that the Commissioner may have argued to the contrary, the argument should be rejected. 33 Additionally, weight, but again not compelling weight, is to be given to the fact that there are other sections of the Crimes Act which provide expressly that a failure to comply with the section does not affect the validity of what is done under the section. For example, s 15N(1) provides that a certificate authorising a controlled operation 'must' be in writing and signed by the authorising officer. Section 15N(2) provides that the certificate 'must' state various things and give a brief description of the operation that includes nominated details. Yet s 15N(5) provides: 'A failure to comply with this section does not affect the validity of a certificate authorising a controlled operation.' Section 15Q which requires that the Chief Executive Officer of Customs be notified of certain certificates authorising a controlled operation is similarly drafted. Some significance may be attached to the absence in s 3H of a subsection providing that failure to comply with the section, or with subsection (1), does not affect the lawfulness of the execution of the warrant. 34 Other relevant considerations are that the obligation imposed by s 3H(1) is relatively easily complied with and that it serves an important purpose. Unless the occupier of the premises has available to him or her a copy of the warrant it will be extremely difficult for the occupier to monitor the conduct of those executing the warrant for the purpose of ensuring that nothing is seized in purported compliance with the warrant that is not authorised to be so seized. This point may be illustrated by reference to the terms of the warrant in this case. The warrant authorised the seizure only of evidentiary material that satisfied all of three conditions. The first of the conditions required that the evidentiary material be originals or copies of one or more of 26 different categories of things. It is fanciful to think that an occupier who was only shown the warrant, or only had the warrant read to him or her, could memorise the conditions and categories for the purpose of challenging any particular seizure. 35 Moreover, a finding that a warrant was executed unlawfully does not foreclose the issue, and lawful execution, of another warrant with respect to the same premises or another place to which evidentiary material therefrom may have been moved. 36 Additionally, as the Full Court observed in Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at [66], a strict approach to the construction of, and compliance with, statutory provisions authorising the issue and execution of search warrants has repeatedly been enjoined by the courts. The Full Court at [66] quoted the following passage from the judgment of the High Court in George v Rockett (1990) 170 CLR 104 at 110-111: '… in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. 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.' 37 The conclusion in Hart at [68] that there is no requirement to approach the task of construing statutes authorising the issue of warrants 'armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers' was not intended, in our view, to undermine the significance of the considerations identified in the above passage from George v Rockett. 38 The Commissioner contended that a factor which suggested that failure to comply with s 3H(1) was not intended to render unlawful the execution of the warrant was the continuing operation of the common law obligation to show the original warrant to the occupier of the premises. This is not an appropriate case, in our view, for a determination to be made as to whether that common law obligation survived the enactment of Part IAA of the Crimes Act, which relates to search warrants and powers of arrest. We note, however, the following passage in the relevant Explanatory Memorandum: 'The Bill replaces the existing provisions of the Crimes Act dealing with the issue of search warrants and powers of arrest and spells out details of the manner in which these powers may be exercised. Much of this detail is currently dealt with under common law, State and Territory law or in police instructions, general orders and practice and hence generally unavailable to the public. The Bill is designed to make public the powers of police and the rights of individuals in the important areas of police investigation with which it deals. The unavailability of the details is incompatible with modern concepts of open administration and access to justice.' (Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) Explanatory Memorandum) 39 As the majority judgment in Project Blue Sky (see [29] above) recognises, a finding that a statute does or does not disclose a purpose that an act done in breach of one of its requirements should be invalid or unlawful will often reflect a contestable judgment. It is necessary to make such a judgment in this case. Having regard to the matters outlined above, and accepting (but without deciding) that the common law obligations to show the original warrant to the occupier may have survived the enactment of Part IAA, our judgment is that the Crimes Act discloses an intention that non-compliance with s 3H(1) renders unlawful the execution of the warrant. 40 We note that while the requirement of s 15(3) of the Search Warrants Act 1985 (NSW) is not in the same terms as s 3H(1) of the Crimes Act, its requirement that the 'occupier's notice' for which s 15 provides be served on the occupier has been treated as being of such a kind that non-compliance with it has rendered execution of a search warrant unlawful, even though s 15 does not expressly provide for that consequence: see Black v Breen [2000] NSWSC 987 at [36]; Ballis v Randall [2007] NSWSC 422 at [111] -[127]. Because of the different legislative régimes, the two cases cited are not on all fours with the present case, but the approach taken to the requirement of service of an occupier's notice conforms to that which we take to the requirement that a copy of the warrant be made available to the occupier.

NOTICE OF CONTENTION 41 Mr Oke's notice of cross-appeal which, as mentioned above, is to be treated as a notice of contention, identified eight grounds of cross-appeal. Some of these grounds were not properly particularised. However, the respondent's outline of submissions made clear that the notice was intended to raise four issues. Three of these issues were explicitly abandoned by Mr Oke. They related to the primary judge's acceptance of the evidence of Federal Agent Capaldo concerning her state of mind when Mr Oke's laptop computer was seized. 42 The remaining issue challenged his Honour's conclusion that the omission of the privilege notice from the copy document provided to Mr Oke did not of itself mean that a copy of the search warrant was not made available to Mr Oke. His Honour's conclusion in this regard was based on his finding at [61] that the privilege notice was subsequently provided to Mr Oke's legal representative - 'at a sufficiently early point in the process of the execution of the Birchgrove warrant that its earlier absence has not affected adversely any claim for legal professional privilege Mr Oke made or the way in which his claim for legal professional privilege was treated.' 43 The concession made by the Commissioner for the first time during the course of argument on the appeal that a copy of the warrant was not made available to Mr Oke as required by s 3H(1) renders it unnecessary to determine whether the primary judge erred in the approach taken by him to the privilege notice. 44 We consider it appropriate to record, however, that we doubt the correctness of the contention of the Commissioner that the obligation arising from s 3H(1) is an obligation that may be fulfilled at any time during the period that the warrant 'is being executed'. Acceptance of this contention would mean that the copy warrant could lawfully be made available to an occupier who was present at the premises throughout the execution of the warrant only minutes before the execution was completed. Such a construction of s 3H(1) would largely undermine the apparent purpose of the subsection (see [34] above). 45 Although we do not express a concluded view on the question, we incline to the view that the obligation to make a copy of the warrant available to an occupier who is present at the premises arises at the commencement of the execution of the warrant; that is, immediately the warrant 'is being executed'. The obligation then arising, as we are inclined to think, is one that must be satisfied as soon as reasonably practicable. If the executing officer faces violence or other serious difficulties at the commencement of the execution of the warrant, it may not be reasonably practicable for a copy of the warrant to be made available to the occupier ahead of responding to the violence or other difficulties. However, whether or not a copy of the warrant has been 'made available' to an occupier is ultimately a question of fact. At least in circumstances where there is a reasonable apprehension that the occupier may respond violently there seems to be no reason to conclude that a copy of the warrant is not 'made available' to the occupier if it is placed in a position where he or she may pick it up.

CONCLUSION 46 We would dismiss the appeal with costs, including the costs, if any, thrown away by reason of the amendments to the notice of appeal. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and Lindgren.

BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

REASONS FOR JUDGMENT BESANKO J 47 I have had the advantage of reading in draft the reasons for judgment of Branson and Lindgren JJ. I agree that the appeal should be dismissed and, subject to one matter, I agree with their Honours' reasons. The one matter relates to the appellant's application to amend his notice of appeal insofar as the amendment seeks to introduce grounds 5 and 6. Those grounds are in the following terms: '5. The primary judge erred in law in determining that an order for the return and destruction of evidential material seized under the search warrant was the necessary consequence of a declaration that the execution of the search warrant was invalid. 6. In the alternative to paragraph 5, the primary judge erred in the exercise of his discretion in the circumstances of this case in ordering the return and destruction of evidential material seized (including the technical nature of the breach and the lack of any suggestion that the breach was a result of deliberate design and the lack of injustice demonstrated by the respondent).'

48 Leaving aside the fact (which could no doubt be remedied) that the grounds misstate the effect of his Honour's orders insofar as they refer to the destruction of evidential material which had been seized, I would have heard the appellant's full submissions in support of those grounds before ruling on the application to amend. That seemed to me to be an appropriate course in circumstances where it was not clear (at that point at least) that the respondent would have conducted his case any differently had the matters been clearly raised before the primary judge. However, by a majority, the Court decided that it would not allow the further amended notice of appeal to include grounds 5 and 6, and the hearing of the appeal proceeded accordingly. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 26 June 2007 Counsel for the Appellant: Ms S J Maharaj QC, Mr R Prince and Ms L Chapman

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr M L Abbott QC and Ms C Iles