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[2015] ACTSC 362
General information, not legal advice.
Supreme Court of the ACT
2015-12-02
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police
(a) a copy of the warrant was not made available to the occupier or a representative of the premises as soon as reasonably practicable as required by s 197 of the Crimes Act 1900 (ACT); and
(b) the occupier or representative of the occupier was improperly and unduly impeded in the exercise of the entitlement to observe the search of the premises as required by s 203 of the Crimes Act 1900 (ACT).
ADMINISTRATIVE LAW - Judicial review - declarations of non-compliance
POLICE - Search and seizure - warrants issue of search warrant - validity of warrant - application in person - necessary to prevent concealment, loss or destruction of evidence - relevant material not provided to issuing officer - warrant issued on false basis - warrant invalid
POLICE - Search and seizure - warrants - issue of search warrant - failure to complete search within time - issue of second warrant limit - validity of warrant - successive warrants - concurrent warrants - second warrant executed on same day - re-entry under new warrant
POLICE - Search and seizure - validity of search - procedural requirements - production of warrant - "as soon as practicable" - statutory obligation overrides evidentiary practices - failure to strictly comply with obligations - not a gross breach - no apparent prejudice - valid execution of warrant
POLICE - Search and seizure - validity of search - rights of occupier - right to observe - access restricted - purported operational and safety concerns - no request to observe - right to observe search impeded - no breach of entitlement - search valid
POLICE - Search and seizure - seizure of documents - delay providing copies - not copied during search - "as soon as practicable after the seizure" - copying required significant time
POLICE - Search and seizure - provision of receipt - as soon as practicable - failure to sign property seizure record does not invalidate receipt - items seized then brought back onto property - purported to re-seize - items already seized
POLICE - Search and seizure - seizure of documents - copying electronic documents -transfer of electronic material - seizure of all material or only evidential material - identification and separation of evidential material - seize material not equipment
Administrative Decisions (Judicial Review) Act 1989 (ACT), Dictionary
Crimes Act 1914 (Cth), s 3L
Evidence Act 2011 (ACT), ss 78, 138
A2 v Australian Crime Commission [2006] FCAFC 147; (2006) 155 FCR 456
Adler v Gardiner [2002] FCA 1141; (2002) 43 ACSR 24
Baker v Campbell (1983) 153 CLR 52
Carroll v Mijovich (1991) 25 NSWLR 441
Clifford v Nolan [1904] HCA 15; (1904) 1 CLR 429
Commissioner, Australian Federal Police v Oke [2007] FCAFC 94; (2007) 159 FCR 441
Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123
Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372
Dunesky v Elder [1994] FCA 1006; (1994) 54 FCR 540
Egglishaw v Australian Crime Commission [2006] FCA 819; (2006) 230 ALR 254
Fairfax Digital Australia and New Zealand v Ibrahim [2012] NSWCCA 125; (2012) 263 FLR 211
Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147
Galliard v Laxton [1862] EngR 474; (1862) 2 B & S 363; 121 ER 1109
Gant v Commissioner, Australian Federal Police (2006) 218 FCR 425
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Harts Australia Ltd v Commissioner, Australian Federal Police [2002] FCA 245; (2001) 117 FCR 358
Harts v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473
Kennedy v Baker [2004] FCA 562; (2004) 135 FCR 520
Lego Australia Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542
Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223
Martin v Commonwealth (1975) 7 ACTR 1
Phong v Attorney-General for the Commonwealth [2001] FCA 1241; (2001) 114 FCR 75
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15; (1949) 78 CLR 47
R v Adams [1980] 1 QB 575; Larsson v Commissioner for Police (NSW) (1988) 16 NSWLR 173 at 179
Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132
Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175
Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580
Dr Christopher Corns and Dr Steven Tudor, Criminal Investigation and Procedure (Lawbook Co: Sydney, 2009)
Construction, Forestry, Mining and Energy Union (Plaintiff)
Commissioner, Australian Federal Police (First Defendant)
Mr P Morrissey SC, Mr M Hosking & Mr S Whybrow (Plaintiff)
1. These proceedings are concerned with the execution of search warrants by police officers, persons under the direction of the first defendant, the Commissioner of Australian Federal Police.
2. A search warrant authorises persons, in this case, police officers, to enter, forcibly if necessary, private premises in a way that would otherwise be illegal as a trespass or an even more serious offence. It also authorises the police officers to search for and seize items for which the warrant authorises the police officers to search and which they may seize if the items fall within the description of items seizable under the warrant.
3. To describe that process is sufficient to explain why, in a society such as Australia, this power is regulated carefully and compliance with the relevant regulation is important and to be appropriately enforced. The balance between the proper investigation of crime and the rights of individuals and entities is struck by the legislature in the conditions provided for obtaining and then executing such a warrant.
4. The context of the issue and execution of the search warrants in this particular case is to be found in the establishment by Letters Patent made on 13 March 2014 of a Royal Commission to inquire into Trade Union Governance and Corruption, including:
(b) without limiting the matters in paragraph (a), activities relating to the establishment or operation of any relevant entity as it relates to the following employee associations or any of their branches:
...
(ii) the Construction Forestry Mining and Energy Union.
5. The Commonwealth Government established a joint Federal-State Police Task Force on 31 October 2014 to work in conjunction with the Royal Commission.
6. Relevantly for these proceedings, a search warrant was obtained by police and executed at the offices of the ACT Branch of the plaintiff, the Construction, Forestry, Mining and Energy Union, in Dickson on 25 August 2015. That is the union referred to in the extract from the Letters Patent referred to above (at [4]). I shall, for the purposes of these proceedings, refer to the ACT Branch of the plaintiff also as "the plaintiff", unless the context otherwise requires.
7. Police seized a number of items but were unable to complete the search before 9.00pm, when the warrant expired or at which time search and seizure under it had to cease. A second warrant was obtained at about 8.30 pm that evening, which permitted a search after that time and the police executed that warrant later in the evening.
8. Copies of seized documents were provided to the plaintiff on 9 September 2015.
9. The plaintiff has now sought judicial review of various decisions in connection with these activities.
10. The first defendant is the Commissioner, Australian Federal Police, the only defendant who took an active part in the proceedings.
11. The second defendant was the Magistrate who issued the second warrant. Her Honour filed a submitting appearance. The third, fourth, fifth and sixth defendants also appeared by the same solicitor and counsel for the first defendant. They were all police officers involved in the search. They were, however, removed from the proceedings with the filing of an Amended Originating Application on 18 September 2015 with leave of the Court granted for that purpose. Although clear in the transcript that this leave was granted, albeit inferentially, the bench sheet, perhaps because of that, does not record it. I am nevertheless satisfied that such leave was given.
12. I shall proceed on the Amended Originating Application.
13. The proceedings were brought on at short notice and, on 17 September 2015, an interim injunction was issued by Robinson AJ pending the hearing of the judicial review application.
14. The proceedings were then listed for hearing commencing on 12 October 2015. On that day, however, the plaintiff sought to adduce further evidence, being a record of part of the search captured on the internal CCTV of the plaintiff at its Dickson premises.
15. In the event, I permitted the plaintiff to do so, but that required, in fairness to the defendants, an adjournment of the proceedings for one week.
16. When the proceedings resumed, I heard evidence and submissions over three days and, on 21 October 2015, reserved my decision.
17. Because of the speed with which a decision is required in these proceedings and personal circumstances, it is not possible, nor necessary, for me to detail all the evidence given in the proceedings, but I have done my best to ensure that the relevant and important findings are adequately based on the evidence, including as tested by cross-examination.
18. Thus, there were nine affidavits made by four deponents read for the plaintiff, of whom two deponents gave oral evidence and were cross-examined. For the first defendant, fifteen affidavits made by twelve deponents were read, of whom five deponents gave oral evidence and were cross-examined.
19. The Amended Originating Application was for judicial review under the Administrative Decisions (Judicial Review) Act 1989 (ACT), to review the following decisions:
• of the second defendant to issue the second search warrant;
• of the officers of the first defendant to copy data from the plaintiff's premises onto storage devices and then to remove those devices from the premises.
20. A number of declarations were sought which may be summarised as follows:
• that the second search warrant was invalid as s 194 of the Crimes Act 1900 (ACT) did not authorise the second defendant to issue a second warrant for the same premises where a warrant had already been issued and that the seizure of the items under it was unlawful;
• that the seizure of documents under the first warrant was unlawful for failure to comply with relevant provisions of the Crimes Act regulating the execution of such search warrants;
• that the copying of certain material onto electronic storage devices was unlawful as unauthorised by the search warrant;
• that the officers of the first defendant are not entitled to examine the items seized.
21. Orders were also sought for the return of the materials seized and the destruction of all electronic data downloaded, copied or imaged at the plaintiff's premises and of any copies subsequently made of items seized.
22. On 24 August 2015, the Deputy Registrar of this Court, an issuing officer under s 185 of the Crimes Act, issued a search warrant to a police officer for search of the plaintiff's premises for evidential material which satisfied three conditions set out in the warrant.
23. The first condition was that the material was originals or copies of certain specified documents stored on a computer, a computer storage device or "on any other type of storage medium or storage device".
24. The second condition was that the evidential material relate to any person on a list of nine persons, five locations, four names, apparently of firms or businesses and "Class/Four" which may be a firm or business, but which, on the evidence was otherwise unidentified.
25. The third condition was that the evidential material relate to five offences of blackmail alleged to have been committed by three persons. The description of the offences in the warrant complied with the requirement for such a description as set out by the court in Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at 206; [140].
26. The warrant itself was four pages long. It was, under s 194(9) of the Crimes Act, to be executed during the period from 6.00 am to 9.00 pm on the day on which it was executed. While police could have ceased searching, left the premises and later returned, this could only have been for the short period referred to in s 198(2) of the Crimes Act and this would not permit them to leave at 9.00 pm on the day the search commenced, at which time they were required to leave the premises, and return after 6.00 am the next day. The warrant ceased to have effect on 31 August 2015.
27. At about 8.30am on 25 August 2015, a briefing was conducted for the police officers who were to be involved in the search of the plaintiff's premises.
28. During that briefing, police were advised of the operation. They were to be supported by specialist units, including digital forensics examiners, video operators and Bomb Technicians who advised those briefed of what they would need for their tasks.
29. A summary was provided, by reference to the search warrant, of what and who were the subject of the search and the documents and items that may be of interest, as well as the current investigations.
30. The senior officer, who performed the role of operational commander, was Sergeant Scott Utteridge. He told the briefing, in words to the following effect:
Our first priority will be to clear the building by identifying all those present. To do this I think we should initially ask all those present to move into the public reception area. Whilst most of you will be doing that, Greg Adams and Mark McGruddy will deliver the rights to occupier and go through the warrant. That will be carried out in the front conference room.
31. This permits me to infer that police had at least some knowledge of the premises. That was not entirely surprising as, without going into operational details that might have been subject to some kind of immunity from disclosure, I was told that there had been intelligence gathered before the search warrant was obtained, including from telephone intercepts.
32. The team of police then went to the plaintiff's premises in Dickson. Those premises are a single storey office complex. The entry from the direction where most police appeared to enter on the day in question is into a reception area which has publicly accessible toilets at the left front, a conference room at the left back, another entry straight ahead, a reception desk on the right centre and at the right front a doorway to the offices where employees and officials are located to do their work. There were, in this inside area, open plan work stations, about five offices, a kitchenette area and a storage room.
33. Police entered the plaintiff's premises at about 10.45am. As a member of staff of the plaintiff, Mr Zachary Smith, left the inner office area, through a door that was originally secured electronically, police entered and directed all staff to move out of the area into the foyer.
34. Detective Senior Constable Adams spoke to Mr Smith, showing him his police badge and said words to the following effect: "I have a search warrant for the premises. Could I please speak to Dean Hall." Detective Senior Constable Adams clearly knew who Mr Hall was.
35. While Detective Senior Constable Adams said in his affidavit that this occurred in the foyer, it appears, from the CCTV that I saw, that it probably occurred in the inner office area. This is consistent with the affidavit of Jason O'Mara, Divisional Branch Assistant Secretary of the plaintiff, who said that the police officers approached his office and spoke to the Divisional Branch Secretary, Dean Hall, and himself. He said that they introduced themselves and this is consistent with the affidavit of Detective Senior Constable Adams who deposed that he said words to the following effect:
I'm an Australian Federal Police Officer. I have been issued with a search warrant for these premises. Is there somewhere we could sit down while I give you some information and a copy of the warrant?
36. Mr O'Mara deposed that Mr Hall asked to see the warrant. Mr O'Mara said that the officer, presumably Detective Senior Constable Adams, said words to the effect:
I cannot show you the warrant now as you may attempt to destroy it. You will be shown it at an appropriate time. Can we move somewhere else to discuss this matter?
37. Mr O'Mara said that Mr Hall stated they could go into his office but that the officer, presumably Detective Senior Constable Adams, said that they had to leave the office area and move into the reception area. He also directed Mr Hall and Mr O'Mara to place their mobile phones on the office desk and not to touch them. He appears to have had authority under the warrant to do so, but only under the warrant and not otherwise.
38. Mr Gary Hamilton, solicitor employed by the plaintiff to advise on industrial issues, said that he was in his office when he was escorted out by three female officers into the foyer. He then asked for the warrant and one of the officers indicated to him that he should go into the conference room where Mr O'Mara and Mr Hall were with Detective Senior Constable Adams.
39. What happened was then recorded by police from 10.52 am when a copy of the warrant was handed to Mr Hall who read part of it out loud and then read the rest of it to himself. A copy of the warrant was also given to Mr O'Mara and Mr Hamilton, who also read it.
40. A copy of what was known as the "Rights of the Occupier" was then handed to Mr Hall.
41. It is a somewhat curious document. It refers to provisions of the Crimes Act which are said to "set out the rights of an occupier of premises searched pursuant to a warrant under that Act". It reproduces some of the sections and summarises others. The sections it sets out are ss 197, 201, 202, 203 and 204; it summarises ss 199 and 200.
42. I have to say that for a person whose premises have just been entered by police with a search warrant, it is not the easiest of documents for a non-lawyer to understand and appreciate. If it was felt necessary, and there may be good reasons for that, to reproduce sections of the Crimes Act, it would have been helpful to provide a plain English summary, which could easily and sensibly be done without losing accuracy. It may be preferable if a statutory notice in plain English were provided as in some jurisdictions.
43. Nevertheless, it appears the document was left with Mr Hall and he was able to communicate then with Mr Hamilton, an admitted lawyer, and later with the external solicitors advising the plaintiff, if he had any doubt about its contents.
44. During the course of the conversation, Mr Hamilton pointed out that there were police officers in the office area of the plaintiff's premises and suggested that they should vacate the office until the formal preliminaries had been completed. Detective Senior Constable Adams indicated that police had the authority to enter and did not have to wait. He clearly understood that execution of the powers authorised under the warrant were being exercised.
45. Detective Senior Constable Adams then asked whether there were any documents or other items as identified in the warrant on the premises and Mr Hamilton indicated that there were. Mr Hall indicated that there was nothing in relation to some of the items but there was in relation to others, at least probably. Detective Senior Constable Adams did not invite any of the three to identify for him any of the documents they said would have come within the items seizable under the search warrant. It is not clear why he asked that question if he was not going to follow up on the answer.
I will now suspend the record of conversation for the purpose of conducting a search of the premises.
47. The time was agreed at that point to be 11.08am.
48. Detective Senior Constable Adams then left the conference room and closed the door.
49. Mr Hamilton, in cross-examination, agreed that he had read the Rights of Occupier document, that he understood it, that he noted that it included, in specific terms, the right of the occupier to observe the search, a right that made sense to him.
50. The staff of the plaintiff remained in the reception area for the most part after this. It appears that Mr Hall and Mr O'Mara remained, for most of the time, in the conference room. Mr Hamilton joined them from time to time but was also present in the reception area.
51. The search itself was, apart from the searching of persons, conducted in the inner office. I did not see any of it on the CCTV. None of Mr Hall, Mr O'Mara and Mr Hamilton actually asked to observe the search. They all gave evidence that they felt, from the circumstances, that they were not permitted to do so. No-one suggested they were offered the chance to exercise this right.
52. During the day, police officers remained in the foyer area and, although I did not look at the whole of the CCTV, those parts that I did see showed police officers at or about the door to the inner office area. In particular, First Constable Monique Faccin, was, for the most part, at that door.
53. The searching of staff members of the plaintiff did not all occur at one time, indeed, Mr Hamilton was not searched until 11.30 am by Senior Constable Scott Vandervalk. Curiously, Constable Vandervalk said, in his affidavit, that he was in the front reception area when Mr Hamilton entered the building. Mr Hamilton was, of course, in the building at all times and the CCTV showed that. The CCTV showed that he entered the foyer area from the conference room and then showed him in conversation with Constable Vandervalk and later being searched. Constable Vandervalk was not cross-examined on this mistake.
54. A good deal of evidence was directed towards the activities of Constable Faccin, for the plaintiff relied on much of what she was doing to base its claim that it was denied the right to observe the search.
55. It was clear that, for much of the time, Constable Faccin was at or around the door to the inner office area where the major part of the searching appeared to be taking place. She was shown, from time to time, putting her hand up to bar staff and officials of the plaintiff from entering the inner office area.
56. On a number of occasions, she would enter the office area, for example, to obtain a glass of water from the kitchenette or to place items on a desk rather than invite or suggest the staff member or official do that himself or herself. While that has an element of politeness and co-operation, it also, in the circumstances, re-enforces a view that entry to the inner office was unauthorised to staff and officials.
But before that, no CFMEU official was allowed to go through unless that was cleared by Mr Utteridge or Mr Adams, correct? --- Correct, but there were specific reasons in my affidavit why I was advised that those CFMEU members should remain out of that area while the bomb members were in the performing their specialised duties.
I understand what you say about that, but let's just go step by step through. When a CFMEU member did go through that door with permission, they were always in the company of a police officer, correct? --- Correct.
When one sought to go through without permission, you stopped, correct? --- Correct.
And that was pursuant to the instructions of Mr Utteridge and Mr Adams, correct? --- Correct.
Now, so the fact is that you guarded that door at the instructions of Adams and Utteridge? --- No, I did not.
58. On those occasions when officers did go into the inner office, they were escorted in and out.
59. That they were escorted does not, of itself, indicate any impediment to a staff member of the plaintiff observing the search. Indeed, one would expect, as a matter of ordinary common sense, that it would be undesirable for staff members to be wandering unsupervised around the area where a search warrant was being conducted.
60. What also must have re-inforced the belief of the staff and officers of the plaintiff that their movements were restricted was the degree of control exercised over them by police. For example, one member of staff wished to have a cigarette outside but it appeared that authority had to be sought for this and she be accompanied outside. On another occasion, a staff member was escorted to the toilet. I also saw staff members apparently seeking approval to move about the foyer and into the toilet.
61. Despite the need for some degree of control, the clear evidence about limits to access to the inner room is highly likely to have re-enforced the views of staff members and officials of the plaintiff that they were not permitted to observe the conduct of the search.
62. When the external solicitor for the plaintiff, Mr Martin Carrick, attended, he did enter the inner office on a number of occasions without any obstruction. There was no evidence to suggest that he took Mr Hall, Mr O'Mara or Mr Hamilton with him on those occasions nor was there any suggestion, in the evidence, that he asked and was denied permission to do so.
63. There is no doubt that access to the inner office was, from time to time, limited. One of the asserted justifications for that limitation was that members of the Australian Federal Police Bomb Technicians were deployed in the search. It was said that there were operational reasons why, when they were assisting in the search, it was inappropriate for there to be an observation of the search by Mr Hall, Mr O'Mara or Mr Hamilton. It was said that there may be safety reasons, although the details of that were rather vague, and that observation may disclose operational matters that the public interest required not to be disclosed. Again, that was rather vague.
64. An inspection of the CCTV shows that the Bomb Technicians, who were easily identifiable, did not bring through the foyer any particular equipment. They brought a ladder, some food from McDonalds, what appears to have been some goggles and what appears to be a mobile phone. None of these seem to me to constitute the kind of equipment that might produce a risk of safety to an observer or that observation of the operation would disclose an operational methodology that should not be disclosed.
65. It is also further relevant that, of the police officers that were asked about the issue, especially Constable Faccin, no police officer was actually told, at any stage during the search, that there was any operation being conducted at a particular time that would require persons, including staff and officials of the plaintiff, not to be present because of a risk of safety or for any other reason. Indeed, the CCTV showed Bomb Technicians working in the reception area, clearly close to and in full sight of staff and officials of the plaintiff.
66. I note, too, that no Bomb Technician gave evidence, even in general terms, about what they did, when they did it and whether there were risks to safety at the time they were assisting in the search. Obviously there may be limits to what evidence could be given, but none at all was given by any Bomb Technician.
67. The search continued all day. Contact had been made with Mr Martin Carrick of Slater and Gordon, which firm was the external solicitors for the plaintiff and had undertaken legal work for it and for its officials and members.
68. He was telephoned at about 11.00 am on 25 August 2015 and informed of the execution of the search warrant at the premises. He drove to Dickson, arriving at about 11.30 am.
69. He went to the conference room where he conferred with Mr Hall, Mr O'Mara, Mr Hamilton and Mr Smith. He was provided with a copy of the search warrant. He was told that the people in the room had been directed by police to sit there. The evidence was unclear about whether that had actually been said to those who told him that, but neither Mr O'Mara nor Mr Hamilton were cross examined about that.
70. Mr Hall did not give evidence. Both Mr Hamilton and Mr O'Mara filed affidavits and were cross-examined. Mr Hamilton did not say, in his affidavit, that he had been told to wait in the conference room. Indeed, the CCTV made it clear that he moved in and out of the conference room relatively freely and frequently.
The officer [clearly Detective Senior Constable Adams] indicated that police were going to search the CFMEU Office and that we were required to stay in this room whilst that occurred. Over the course of the day, there were always one or two police officers standing outside of the meeting room.
72. Mr O'Mara was cross-examined about the statement he made in his affidavit. The cross-examination was as follows:
And then you say Detective Senior Constable Adams said something to the effect of, 'You're going to need to stay in this room while we do the search'? --- I'm not sure what words. It was - yes. Sorry, whether he said that or not I'm not - I couldn't be sure. But we were left under no - an impression that we were allowed to go anywhere.
So you're not sure now whether Detective Senior Constable Adams might have said something like that or not. Is that right? --- Yes.
So when you say the officer indicated police were going to search the CFMEU office and we were required to stay in this room, you concede to his Honour that he might not have said something that had that effect? --- I believe he said something to that effect but, you know, there was a lot of conversation going on on that day. You know, we were there for 13 hours so ---
Do you think it's possible that you drew that conclusion from what was occurring, but nothing to that effect was said. Correct? --- It's possible.
73. During the course of the search, staff of the plaintiff provided police with the PINs for their phones, obtained and provided passwords for the computer server and opened the safe and cash box for police when requested to do so.
74. At some stage, Mr Carrick spoke to Sergeant Utteridge and requested a copy of all the documents that were going to be seized, as provided for under s 202 of the Crimes Act. Mr Carrick told Sergeant Utteridge that there was a large commercial photocopier in the office which would allow police officers to make copies of the documents that they had seized or proposed to seize. Sergeant Utteridge stated that police would not be making or providing copies that day of any documents they seized.
75. At about 1.41 pm, Detective Senior Constable Adams asked Mr Hall and Mr Carrick to attend at an office to identify some documents which police intended to seize.
76. At 4.50 pm, Detective Senior Constable Adams asked Mr Hall to attend at an office where documents were going to be seized and asked him to identify the office and the documents.
77. A similar process occurred at 4.53 pm, 5.28 pm, 6.09 pm and 8.08 pm.
78. Under s 194(9) of the Crimes Act, a warrant can only be executed between 6.00 am and 9.00 pm. It cannot be executed after 9.00 pm and before 6.00 am unless expressly authorised in the warrant for that to be done. The warrant issued on 24 August 2015 did not authorise a search outside these hours.
79. As the day wore on, it became clear that the police were not going to be able to complete the search under the warrant prior to 9.00 pm.
80. As a result, one of the officers, Constable McGruddy, prepared an application for a further search warrant and made an urgent out-of-hours application for a further warrant with authority to search after 9.00 pm and before 6.00 am so that the search could be continued and completed.
81. The affidavit in support of the application was not produced to me. No doubt it contained information that it was inappropriate to be placed on the public record, as often happens with applications for search warrants.
82. Nevertheless, Constable McGruddy did indicate some of the material that was contained in the affidavit in support of the application for the search warrant. That included the following:
On 15 December 2014 the Royal Commissioner, The Honourable John Dyson Heydon, handed down interim findings of the Royal Commission. These findings included the following:
d) The law is to be deliberately evaded, or thought of as an irrelevance, where it stands in the way of achieving the objectives of particular union officials;
e) Union officials prefer to lie rather than reveal the truth and betray the union; and
f) The reputations of those who speak out about union wrongdoing become the subject of baseless slurs and vilification.
f) Blackmail and extortion perpetrated by officers of the CFMEU in Victoria and Queensland;
g) Boycotts, cartel and other anti-competitive behaviour by officers of the CFMEU in Victoria and Queensland;
h) The making of a death threat by one CFMEU NSW organiser to a fellow organiser, Brian FITZPATRICK, the failure on the part of senior officials to undertake any proper and considered investigation into the incident, and the subsequent victimisation of the complainant by those same officials;
i) Organising and engaging in industrial action in deliberate defiance of orders made by the Fair Work Commission and the Federal Circuit Court of Australia; and
j) Obstructing Fair Work Building inspectors in the performance of their statutory duties through intimidation, insults and generally threatening behaviour.
83. It was accepted that, at the time these interim findings were made, there had been no public hearings or evidence taken from officials of the ACT Branch of the plaintiff.
84. Although an attempt was made to have a telephone warrant obtained, the Magistrate, in my view quite properly, indicated that it should be an application in person and Constable McGruddy attended at the second defendant's home for the purpose of obtaining the warrant.
85. So far as the information required to justify the search after 9.00 pm was concerned, Constable McGruddy provided to the second defendant information, not on oath, in words to the following effect:
We need a second search warrant to enable us to execute it at any time to prevent the loss, concealment or destruction of evidence. If Police were to leave the search warrant at 9.00 pm, the search would not be complete and material subject to the warrant may be left behind. This would give those persons with access to the premises opportunity to remove documents before another search warrant was executed. Police need a warrant that could be executed at any time to prevent those circumstances ever arising.
86. Constable McGruddy was aware that Messrs Hamilton, Hall and O'Mara had given assistance to investigating police by providing the PINs to telephones. He was also aware that the plaintiff had responded to Notices to Produce issued by the Royal Commission. He said he was not aware himself that officers of the plaintiff had, during the search, provided access to the server and to the safe on the premises. Nevertheless, police were obviously aware of that.
87. None of that information was provided to the second defendant.
88. By 8.50 pm, no receipt for seized documents, known as a Property Seizure Record, had been completed and submitted to any officer of the plaintiff for signature as a receipt for material seized. Nevertheless, police officers involved in the search removed a number of plastic exhibit bags containing items seized by the police from the premises, at least some of which had not been sealed. All police left the premises by 9.00 pm.
89. Police then re-entered the premises purportedly under the further warrant obtained from the second defendant. A copy was provided to Mr Hall and he was invited to read it. Police indicated that they proposed to search under the second warrant.
90. Police also brought back into the premises the exhibit bags containing the items already seized.
91. One other item was seized, purportedly under the second warrant, and then the property seizure records were completed and Mr Hall invited to sign them all, acknowledging the seizure of the items recorded in them. He declined to do so on the basis that he was not aware of what had been taken out of the premises and then returned. Nevertheless, he was then provided with copies of the property seizure records signed by the Property Officer.
92. The police then left the premises at about 11.34 pm.
93. The next day, 26 August 2015, Mr Carrick wrote to the police requesting a copy of all hard copy documents and electronic information seized on 25 August 2015 to be provided to him by close of business on 28 August 2015.
94. On 28 August 2015, legal counsel from the Employment and Litigation Section of AFP Legal of the Australian Federal Police responded indicating that:
The AFP is not in a position to be able to comply with your request as it is not practicable in the given time period. However, I am instructed that the AFP will be able to provide you with copies of all the seized materials no later than 5.00 pm on 7 September 2015.
95. The letter confirmed that all material seized had been "quarantined, lodged and are secured in the AFP Property and Exhibits Registry". That is, the letter continued, "a secured facility and has external and internal security surveillance".
96. The letter further continued that the Standard Legal Professional Privilege AFP Procedures Form in relation to the electronic material was not completed at the search warrant. It was acknowledged that the plaintiff reserved its position as to claiming legal professional privilege over the electronic materials and forwarded a copy of the relevant procedures with a request that it be completed.
97. A week later, Slater and Gordon responded to that letter pointing out that they would not be in a position to identify and particularise any claims for legal professional privilege until copies of the material seized had been provided. It is not clear why, given its earlier demand, it took Slater and Gordon a week to respond.
98. No complaint was made about the new date of 7 September 2015, but a request was then made for the materials to be forwarded to the Melbourne office of Slater and Gordon, which meant it did not arrive until 9 September 2015.
99. The copying was, for the most part, undertaken by police officers not associated with the Royal Commission Taskforce and none of the documents over which legal professional privilege had already been claimed were inspected. It appears that it took two police officers eight hours to complete the photocopying.
100. It appeared that Constable McGruddy had, in fact, also spent about half an hour photocopying some of the documents. On 8 September 2015, a complaint was made about the photocopying by Constable McGruddy, because of his involvement in the Royal Commission Task Force, although it was acknowledged that none of the materials copied had been already subject of claims of legal professional privilege. Those claims, however, were not finalised because copies had not then been supplied and what Constable McGruddy copied may have included some of those documents.
101. Assurance was provided by the police that Constable McGruddy had not inspected or reviewed the documents he copied and had only access to them for photocopy purposes. It was expressly acknowledged that the police did not consider "this process to amount to a waiver or breach of any privilege which may exist in those documents".
102. The question of privilege and how that was handled was not a subject of these proceedings. Nevertheless, as can be seen, it was a significant issue and, of course, not one where privilege could properly and completely be claimed until the copies of the documents seized had been inspected by lawyers for the plaintiff.
103. During the execution of the search warrant, a number of mobile phones were inspected and the material on them downloaded to a USB. The USB was then seized for later further consideration.
104. In relation to Mr O'Mara's phone, it was conceded at the hearing that no reasonable belief had been formed that evidential material was to be found on Mr O'Mara's phone and an undertaking was offered to destroy the material obtained from his phone.
105. Much of the records the subject of the search warrant were electronically stored on the plaintiff's server. The work in relation to the search carried out in respect of these records was described by Scott Rees, a Senior Digital Forensic Examiner for the Australian Federal Police, in his affidavit. He was not cross-examined. The relevant portions of his affidavit are as follows:
I. Time - A significant amount of time would be required to first locate all files and emails of interest. At that stage it was not clear if an extension to the warrant was going to be granted and accordingly I worked on the assumption that we had until 9pm.
II. Permissions - In order to search a Microsoft Exchange Server using its inbuilt search functionality requires specific administrative privileges which we did not have. To search a Microsoft Exchange Server using external software, I believed, posed an unacceptable risk to the integrity of the underlying database i.e. permanent corruption of the date held within the database.
106. Mr Rees expanded on paragraph 17 of his affidavit by a further affidavit in which he deposed:
Documents of interest have been located on the share drive via the review conducted by GOODWIN and JAMES. We have to consider putting those documents into documentary form unless it is not practical to do so. Do you have reasonable belief that more documents exist or are likely to exist on the share drive?
Yes, we have also found hard copy documents during our search and references to files stored on the share drive during the search.
107. The application by the plaintiff is brought under the Administrative Decision (Judicial Review) Act. Such an application permits the challenge by a person aggrieved of a "decision of an administrative character made ... under an enactment" (see Dictionary to that Act).
108. It is clear that the decision by the second defendant to issue a warrant is such a decision: Kennedy v Baker [2004] FCA 562; (2004) 135 FCR 520 at 524; [7].
109. The decisions to seize items under the warrant is not so clearly a decision under an enactment. Nevertheless, Drummond J in Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175; (2001) 65 ALD 463 at 365; [22], held that it was. That decision was followed by Collier J in Gant v Commissioner, Australian Federal Police (2006) 218 FCR 425 at 441; [73].
110. The first defendant did not contend otherwise and, in the circumstances, I am content to accept that I have jurisdiction and will proceed accordingly. The first defendant did not contend, either, that the plaintiff was not a person aggrieved. It seems to me clear that it was so.
111. Before turning to the law, I should confirm that it is the plaintiff who bears the onus of proof of the matters required to justify me exercising my discretion to grant relief, even though some of the material, such as the confidential affidavit in support of the application for the second warrant, is not available to the court or, indeed, to the plaintiff. In a case such as this, it is not enough for the plaintiff merely to show that the exercise of discretion by the issuing of the warrant or the seizure of items under it interferes with liberty or property rights and transfer the onus to the defendants to justify the legality of the decision. In this case, it is clear that the warrant discharges any such onus. If the plaintiff seeks to challenge the issue of the warrant or its execution on administrative law grounds, then the onus is on the plaintiff to make good that challenge. See Williams v Keelty at 225; [236]. See also Kennedy v Baker at 542-3; [85]-[88]; Egglishaw v Australian Crime Commission [2006] FCA 819; (2006) 230 ALR 254 at 258-9; [18]- [20].
112. As is to be expected with a matter such as a search warrant, statutory regulation of the obtaining and execution of such a warrant is provided. It is to be found in Pt 10 of the Crimes Act. Search warrants, in particular, are subject to Div 10.3, which is in the following terms:
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
(2) An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person possesses, or will within the next 72 hours possess, any evidential material.
(3) If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person shall state that suspicion, and the grounds for that suspicion, in the information.
(4) If the person applying for the warrant is a police officer and has, at any time previously, applied for a warrant relating to the same person or premises, the person shall state in the information particulars of those applications and their outcome.
(5) A warrant shall include statements of the following matters:
(b) a description of the warrant premises, or the name or description of the person to whom it relates;
(c) the kinds of evidential material that are to be searched for under the warrant;
(d) the name of the police officer who is to be responsible for executing the warrant (unless he or she inserts in the warrant the name of another police officer);
(e) the period, not exceeding 7 days, that the warrant remains in force;
(f) subject to subsection (9), the times when the search is authorised.
(6) For a warrant in relation to premises, the warrant shall state -
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in subsection (5) (c)) found at the premises in the course of the search that the executing officer or an assisting officer believes on reasonable grounds to be -
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is a serious offence; or
(iii) target material or tainted property;
Note Target material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003.
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an assisting officer suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(7) For a warrant to search a person, the warrant shall state -
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in subsection (5) (c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or an assisting officer believes on reasonable grounds to be -
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is a serious offence; or
(iii) target material or tainted property;
Note Target material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003.
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) the kind of search of a person that the warrant authorises.
(8) Subsection (5) (e) does not prevent the issue of successive warrants in relation to the same premises or person.
(9) A warrant shall not be expressed to authorise a search at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the issuing officer is satisfied that -
(a) it would not be practicable to conduct the search at another time; or
(b) it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
(10) If the application for the warrant is made under section 205, this section applies as if -
(a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and
(b) subsection (5) (e) referred to 48 hours rather than 7 days.
(1) A warrant in force for the search of premises authorises the executing officer or an assisting officer -
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or an assisting officer believes on reasonable grounds to be -
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to any serious offence; or
Note Target material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003.
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(e) to seize other things found at the premises in the course of the search that the executing officer or an assisting officer believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows - to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or an assisting officer suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(2) A warrant in force for the search of a person authorises the executing officer or an assisting officer -
(a) to search the person as specified in the warrant, things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) to take forensic samples from things;
found in the course of the search; and
(c) to seize other things found in the course of the search on, or in the possession of, the person or in the conveyance that the executing officer or an assisting officer believes on reasonable grounds to be -
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to any serious offence; or
(iii) target material or tainted property;
Note Target material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003.
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(d) to seize other things found in the course of the search that the executing officer or an assisting officer believes on reasonable grounds to be seizable items.
(3) If the warrant states that it may be executed only during particular hours, the warrant shall not be executed outside those hours.
(4) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised shall not be done under the warrant.
(5) If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
(a) the executing officer may obtain the assistance that is necessary and reasonable in the circumstances; and
(b) the executing officer, or a police officer assisting in executing the warrant, may use the force against persons and things that is necessary and reasonable in the circumstances; and
(c) an assisting officer may use the force against things that is necessary and reasonable in the circumstances.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or an assisting officer shall make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or an assisting officer shall make available to that person a copy of the warrant.
(3) If a person is searched under a warrant in relation to premises, the executing officer or an assisting officer shall show the person a copy of the warrant.
(4) The executing officer shall identify himself or herself to the person at the premises or the person being searched.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.
(1) In executing a warrant in relation to premises, the executing officer or an assisting officer may -
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) If a warrant in relation to premises is being executed, the executing officer and the assisting officers may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises -
(b) for a longer period if the occupier of the premises consents in writing.
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(1) The executing officer or an assisting officer may bring to warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises, to determine whether they are things that may be seized under the warrant.
(a) it is not practicable to examine or process them at the warrant premises; or
(b) the occupier of the premises (or his or her representative) consents in writing;
the things may be moved to another place for examination or processing to determine whether they are things that may be seized under a warrant.
(3) If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer shall, if practicable -
(a) inform the occupier of the address of the place and the time when the examination or processing will be carried out; and
(b) allow the occupier (or his or her representative) to be present during the examination or processing.
(4) The executing officer or an assisting officer may operate equipment already at warrant premises to carry out the examination or processing of a thing found at the premises to determine whether it is a thing that may be seized under the warrant if the officer believes on reasonable grounds that -
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
(1) The executing officer or an assisting officer may operate electronic equipment at warrant premises to see whether evidential material is accessible by doing so if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(2) If the executing officer or an assisting officer, after operating the equipment, finds that evidential material is accessible by doing so, the officer may -
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form - operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device that -
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3) Equipment may only be seized under subsection (2) (a) if -
(a) it is not practicable to put the material in documentary form under subsection (2) (b) or to copy the material under subsection (2) (c); or
(b) possession by the occupier of the equipment could constitute an offence.
(4) If the executing officer or an assisting officer believes on reasonable grounds that -
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(5) The executing officer or an assisting officer shall give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.
(b) until the equipment has been operated by the expert;
(7) If the executing officer or assisting officer believes on reasonable grounds that expert assistance will not be available within 24 hours, he or she may apply to the issuing officer for an extension of that period.
(8) The executing officer or assisting officer shall give notice to the occupier of the premises -
(a) that the executing officer or assisting officer intends to apply for an extension under subsection (7); and
(b) that the occupier is entitled to be heard in relation to the application.
(9) The occupier is entitled to be heard in relation to an application under subsection (7).
(10) This division applies to the issuing of an extension on an application under subsection (7) in the same way as it applies to the issue of a warrant, with necessary changes.
(a) damage is caused to equipment as a result of it being operated under section 199 or 200; and
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises or the occupier's employees or agents, if they were available at the time, had provided any warning or guidance as to the appropriate operation of the equipment in the circumstances.
(1) If a police officer seizes from warrant premises -
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the officer shall, if requested to do so by the occupier of the premises (or another person apparently representing the occupier), give a copy of the thing or the information to the occupier or that person as soon as practicable after the seizure.
(a) the seized item was seized under section 200 (2) (b) or (c); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to the Commonwealth Crimes Act, part 1C entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
(1) If a thing is seized under a warrant or moved under section 199 (2), the executing officer or an assisting officer shall provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered by a single receipt.
(1) A police officer may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means -
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The issuing officer may require communication by voice to the extent that is practicable in the circumstances.
(3) An application under this section shall include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered the further information (if any) that the issuing officer required, is satisfied that -
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 194.
(5) If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant, the day and the time when it was signed.
(6) The applicant shall then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer, the day and the time when the warrant was signed.
(7) The applicant shall, not later than the day after the day of expiry of the warrant or the day after the day when the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
A warrant may not authorise a strip search or a search of a person's body cavities.
(1) This section applies if a police officer suspects, on reasonable grounds, that -
(a) a person is carrying, or otherwise has in his or her possession, a thing (the relevant thing) relevant to a serious offence or a thing stolen or otherwise unlawfully obtained; and
(b) it is necessary to exercise a power under subsection (2) to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2) If this section applies, the police officer may -
(b) conduct a frisk search or ordinary search of the person for the relevant thing; and
113. The approach of a court to these provisions has been set out in the unanimous decision of the Full Court of the High Court of Australia in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-1:
Nevertheless, 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.
114. More recently, the Full Court of the Federal Court of Australia unanimously held in A2 v Australian Crime Commission [2006] FCAFC 147; (2006) 155 FCR 456 at 460; [22]:
The conferring of investigative powers by Parliament involves striking a balance between the beneficial purpose of detecting and preventing offences, on the one hand, and the equally beneficial purpose of regulating incursions into the personal liberties of the subject, on the other hand. The importance of the protection of the personal liberties of the subject gives rise to the traditional requirement, in the construction of statutes authorising incursions on such liberties, that the extent of the permitted incursion be stated with compelling clarity. It is of critical importance to the existence and protection of personal liberties that the circumstances in which a person may search private premises should be strictly confined, plainly stated and readily ascertainable .... If there is any ambiguity as to the extent of a power that would interfere with the personal liberties of a subject, the ambiguity should be resolved in favour of the subject. Where Parliament imposes safeguards for personal liberties in the exercise of search powers, those safeguards must be strictly observed.
115. There is also a long tradition in the common law that courts do not impute into the legislature an intention to abrogate or curtail common law rights or freedoms unless such an intention is clearly manifested by unambiguous language. See, for example, Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304.
116. In this jurisdiction, it is also relevant that ss 12 and 30 of the Human Rights Act 1994 (ACT), require that, so far as it is possible to do so consistently with its purpose, the Crimes Act must be interpreted in a way that is compatible with human rights, particularly the right to privacy. I note, however, that only individuals have human rights. Thus, the plaintiff has no such rights, though search warrants are often directed at individuals and I must construe the Crimes Act with this in mind.
117. Nevertheless, the courts must respect the legislature's balance which is clearly designed to ensure that another important value in the community is respected, namely that serious crime may properly be investigated and, if that investigation establishes a sufficient case, to be prosecuted and, if proved, punished.
118. A caution has been expressed about the precise application of these principles. Thus, a unanimous Full Court of the Federal Court of Australia in Harts v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 at 401; [68]:
From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.
See also Trimboli v Onley (No 3) (1981) 56 FLR 321 at 332-333, per Holland J. These remarks relate more to attacks upon the scope of warrants and action under them than to the construction of the statutes authorising the issue of such warrants. They nevertheless expose adequately the policy issues and legislative purposes which should inform construction. In particular, there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power.
119. It is important, however, not to misread this passage and suggest that it modifies or dilutes the approach mandated in George v Rockett. In Commissioner, Australian Federal Police v Oke [2007] FCAFC 94; (2007) 159 FCR 441 at 448; [37], Branson and Lindgren JJ, with whom Besanko J relevantly agreed, said:
The conclusion in Hart [2002] FCAFC 392; 124 FCR 384 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 [1990] HCA 26; 170 CLR 104.
120. The reference to the passage from George v Rockett, is to the passage I have quoted above (at [113]).
121. As with all statutory construction, however, it is important that a court be faithful to the words of the statute and the legislative commands. As was said as long ago in Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 155:
A court should be specially careful, in view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.
122. The High Court has also recognised that operational realities need to be borne in mind. Thus, Mason J said in Baker v Campbell (1983) 153 CLR 52 at 83:
In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned.
123. Contemplating this comment, Lockhart J in Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372 at 382-3, said:
A search warrant is a severe intrusion into a person's privacy, home or place of business. The law takes care to ensure that the powers of police officers entrusted with the task of executing a search warrant are not exceeded; but at the same time it must be borne in mind that execution of a search warrant is a practical exercise carried out by police officers who, though trained in their task of law enforcement, are generally not qualified lawyers. Just as a person's privacy must be respected so must the investigation of criminal offences not be unreasonably impeded.
124. As will be seen, it is also the plaintiff's contention that non-compliance with procedural requirements renders the execution of the warrant unlawful. That is an issue of statutory construction as to whether the failure to comply with procedures is unlawful or not and, if unlawful, renders the decision to issue the warrant in its execution invalid.
125. This issue has been considered carefully by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, where the High Court had to consider whether a program standard determined by the Australian Broadcasting Authority under the Broadcasting Services Act 1992 (Cth) was invalid because of failure to comply with requirements of that Act.
126. In the High Court, McHugh, Gummow, Kirby and Hayne JJ said at 388-9; [91]:
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 (63); there is not even a ranking of relevant factors or categories to give guidance on the issue.
[footnote omitted]
1. The second warrant should not have been issued. The plaintiff raises two matters:
(a) a warrant cannot be issued concurrently for the same premises at least claiming the same items to be seized; and
(b) there was no evidence before the second defendant justifying her in finding that it was necessary to prevent concealment, loss, or destruction of evidence to issue a warrant that was authorising a search after 9.00 pm.
2. The seizures of items from the premises were unlawful under the first warrant because procedures required by ss 197, 202, 203 and 204 of the Crimes Act were not observed, each of which I shall consider.
129. The plaintiff challenged the validity of the second warrant on two grounds: proper construction of the Crimes Act provisions prohibited the issue of more than one warrant concurrently and that there was no evidence to show that it was "necessary" for the second warrant to authorise the search during a period commencing at or after 9.00 pm on a day and ending at 6.00 am on the following day.
131. The first argument was based on the express provision in s 194(8) of the Crimes Act, which permitted the issuing of successive warrants in relation to the same premises or persons.
132. This, it was submitted, meant that, since there was express power to issue successive warrants, and no such express power to issue concurrent warrants, the legislation should be interpreted to exclude the latter.
133. There is no definition of "successive warrants" and, in my view, it should not interpreted to exclude any degree of concurrency. There is no implication, in my view, in the reference in s 194(5)(e) of the Crimes Act to the period of seven days which restricts the "successive" period of a warrant to a starting time after the expiry of a prior warrant. Indeed, with an ongoing investigation, there may well be good reasons why the police may come upon another named person with respect to whose affairs a search warrant at particular premises should be issued and it seems difficult to justify the inability of the police to act in an appropriately speedy manner to secure such material even where an earlier warrant has been issued. This is notwithstanding the powers under s 195(1)(d)(ii).
134. Mr P Morrissey SC, who appeared with Mr S Whybrow and Mr M Hosking for the plaintiff, made a number of creative attempts to justify the difficulty of concurrent warrants.
135. He submitted that concurrent warrants may create inconsistent obligations in an occupier of premises but I have some difficulty in seeing that being likely, at least in any way that would require the construction for which the plaintiff contends. While the obligations under each warrant may be different, it is difficult to see how they would be inconsistent. Indeed, other than the second warrant here being for the purpose of conducting a search after 9.00 pm, no express examples of inconsistencies were included in the plaintiff's submissions. That does not seem to me to be an example of a relevant inconsistency, that is one which precludes any degree of concurrency.
136. While the police did not execute the second warrant until after 9.00 pm, I could see no reason why the police should not execute that warrant as soon as it was issued, even though it allowed execution after 9.00 pm. Naturally, the execution of the first warrant would have to be completed prior to 9.00 pm but the authority under the second warrant would continue past that time and enable the search under that second warrant to continue until conclusion.
137. Even if, unlike the situation here, there were different items to be seized with different conditions under the two warrants, it seems unlikely that the execution of the warrant would cause any difficulty given the wide ambit under s 195(1)(d)(ii) of the Crimes Act. That may provide practical challenges as to what was seized under which warrant, but I do not see that difficulty as being so great as to be an inconsistency unless the actual situation creates a problem, when a second warrant may become an abuse of process.
138. I am fortified in my view by the fact that in A2 v Australian Crime Commission at 461; [29], the Full Court contemplated without any apparent concern concurrent warrants "to search the same premises for the same things" although, in that case, under different legislation. The issue of apparent inconsistency, however, would be the same.
139. That is not to say that there may not be circumstances where concurrent search warrants would be set aside, for example as an abuse of process were they to be used for an improper purpose such as to harass the occupier. That could not, however, be said to be the situation here.
140. The fact that a second or subsequent warrant might be an abuse of process does not go to the question of the validity of any such warrant, but only if it is shown that the second warrant is actually issued for an ulterior or improper purpose or otherwise constitutes an abuse of process.
141. In my view, it could not be said, in this case, that the issue of the second warrant was an abuse of process. No prejudice to the plaintiff was identified that was outside the contemplation of the construction of the relevant provisions.
142. The second justification is a little more complicated. As is to be seen from s 194(9) of the Crimes Act, there are only two specified circumstances under which a warrant shall be expressed to authorise a search after 9.00 pm on any day and before 6.00 am on any day. Those two conditions are that it would not be practicable to conduct the search at another time or that it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
143. It appears that the second justification is that on which the police rely for the second warrant.
144. The only explanation to the learned Magistrate of the relevant necessity given by Constable McGruddy was as set out above (at [85]). That was not given by him on oath. That is not required expressly under s 194(9) of the Crimes Act, which only refers to the issuing officer being "satisfied", as compared to s 194(1) which requires satisfaction "by information on oath". This distinguishes this case from cases such as Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 150-2.
145. In my view, it is correct to submit, as the plaintiff did, that the satisfaction of the precondition of the relevant necessity is that of the issuing officer (in this case the learned Magistrate), and not the informant or applicant for the warrant. Indeed, the authorities show it is not even of me on judicial review. It was submitted by the plaintiff that this was all the material that was put before the learned Magistrate and that the learned Magistrate could not have formed a view on that material that it was necessary to issue the second warrant.
146. It needs to be recalled that the application for the warrant included reference to the preliminary findings of the Royal Commission, which casts doubt on the honesty and integrity of the plaintiff and its officers. See [82] above.
147. As noted above, however, these findings related to a period before public inquiries had been held in relation to the ACT Branch of the plaintiff. I also note that Constable McGruddy did not provide any information about the conduct of the execution of the search warrant, in particular, the co-operation of officers of the plaintiff, including as to giving PINs and other material to assist in the search and also responding to notices to produce and co-operation with other evidentiary collecting activities of the police and the Royal Commission.
148. Mr Morrissey submitted that "necessary" provides a high threshold of satisfaction for the issuing of the search to be satisfied about prevention of concealment, loss or destruction of evidence.
149. Mr A Berger, who appeared for the first defendant, submitted otherwise. He referred to a number of decisions which had considered the meaning of the word "necessary".
150. It is clear, however, that "necessary" has a range of meanings and that the relevant meaning must be seen to be identified in the context of the particular statute. See Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 at 240; [50]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 263 FLR 211 at 215; [8], 224; [45].
151. Thus, for example, it does not seem to me to be appropriate to apply, in this context, the meaning given to the allowability of deductions for expenses necessarily incurred in the conduct of a business as in Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15; (1949) 78 CLR 47 at 56.
152. Here, the issue is whether a warrant should be executed at night. There are suggestions in texts that the common law did not permit warrants to be executed at night. See the brief discussion and authorities referred to in Dr Christopher Corns and Dr Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Lawbook Co; Sydney, 2009) at 120; [4.470]. Nevertheless, the specific statutory provision does require special treatment of such time of execution, no doubt in part for the reasons expressed by Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441 at 452 as follows:
... execution of warrants by night has a particular dread to it. The pre-dawn bang on the door has associations with the activities of authoritarian states and their oppressive instrumentalities...[The humiliation and trauma inherent in] individuals struggl[ing] from their beds in various states of undress and unpreparedness ... are to be conserved to cases of the clearest, proved necessity.
153. While the situation here is a far cry from the graphic description painted by his Honour, the fact is that the need for such a warrant seems to me to require proof of a real level of necessity beyond something that is merely "clearly appropriate as adapted for" achieving the purposes, a high threshold, not based on mere speculation.
154. While what Constable McGruddy said was a lay opinion, it may have been admissible under s 78 of the Evidence Act 2011 (ACT) were that Act to apply. He was at the search and saw what was happening and what had to be done. It was, of course, as truncated as it may be and barely condescended to particulars, much less gave the learned Magistrate proper details of what had to be done and what was to be done. It needs to be borne in mind that only one item was in fact seized under the second warrant. Constable McGruddy's opinion seems, at least, inflated. It seems to me, with some considerable hesitation, that it was, however, some evidence of at least a need.
155. It may be accepted that the absence of advice to the learned Magistrate about the co-operation of the plaintiff and those present at its premises, does not, of itself, mean that the information Constable McGruddy provided was not logically probative of the satisfaction required of the learned Magistrate. That is really the no evidence ground.
156. It is a somewhat different point, namely that there was highly relevant material of which the learned Magistrate should have been made aware in order to determine whether she was satisfied as required by the Act. Given the significant intrusion on liberty and the fact that such applications are made ex parte, the courts have held, for example, in Harts v The Commissioner of the Australian Federal Police at 400; [66], there is a strict duty of full disclosure. This is what would be expected of an ex parte procedure with such significant consequences.
157. Just as it is not for the informant or applicant for the search warrant to decide whether the evidence would satisfy the issuing officer, but it is for the issuing officer herself to be so satisfied, similarly, it is not for the informant or applicant for the search warrant to assume that it was not necessary to put relevant material, especially that which might well have affected the question of whether the issuing officer was satisfied as required under the section, before the learned Magistrate. It was not suggested that such material could not be logically probative of whether the issuing of the second warrant was necessary.
158. That is to say, the issue here is not whether, on the material before the learned Magistrate, she could be satisfied as required by the statutory provision but whether, as appeared to be conceded by the first defendant, it was open to the learned Magistrate to form a different view as to whether it was necessary to issue the warrant executable after 9.00 pm as necessary to prevent concealment, loss or destruction of evidence.
159. I accept that the obligation of disclosure, so far as the issue of the warrant was concerned, appears to have been somewhat circumscribed in decisions such as Lego Australia Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542 at 555 and Dunesky v Elder [1994] FCA 1006; (1994) 54 FCR 540. Nevertheless, the obligation was accepted as at a high level in Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 481 and accepted by the Full Court in Harts v Commissioner of Australian Federal Police, relying on George v Rockett.
160. Whatever may be the resolution of this matter, the issue here is different, in that it is not the question of issue of the warrant itself, but a specific condition on it and the information, so that the learned Magistrate could exercise her discretion under the Crimes Act so as to make it executable after 9.00 pm must have included material directly relevant to that issue, including whether, for example, the plaintiff would have permitted re-entry at 6.00 am the next day under s 198(2)(b) of the Crimes Act, an issue that may have been required to be made to show necessity, subject, perhaps, to conditions that the premises be secured in the meantime.
161. In the light of the strict duty of full disclosure, it seems to me that this failure meant that the warrant was issued on a false basis and therefore invalid. While this ground was not strictly pleaded in this way, I am satisfied that the issue was properly raised at the hearing.
162. As I understand it, only one item was seized under the second warrant. That item should be returned and all copies destroyed.
163. One of the procedural grounds on which it was said that the execution of a search warrant was unlawful was that a copy of the warrant was not produced as soon as practicable.
164. Section 197 of the Crimes Act, requires that a copy of the warrant is to be made available in relation to premises where the occupier or an apparent representative of the occupier is present.
165. The section only provides that the warrant "is being executed" and is no more specific as to time. Nevertheless, in Commissioner, Australian Federal Police v Oke at 450; [45], it was held that this requires the warrant to be produced "as soon as reasonably practicable". That is consistent with the common law which required production on demand: Galliard v Laxton [1862] EngR 474; (1862) 2 B & S 363; 121 ER 1109; Clifford v Nolan (1904) 1 CLR 429 at 444.
166. Although this is the construction that should be given to the section, it is to be noted that it is a gloss on the words of the section and should not be treated as if it were a precise statutory provision itself.
167. Nevertheless, there are sound policy reasons why an occupier should have a copy of the warrant in his or her hands as soon as possible. These include that an occupier or an occupier's representative needs and is entitled to know what is being sought and likely to be seized so that, for example, the occupier may take advantage of the discount provided for co-operation with the authorities should the question of sentencing arise and also, perhaps more importantly, the knowledge of the parameters of the search warrant so that the occupier or the occupier's representative may be able to ensure that the actual execution of the warrant does not travel beyond the express interference with the liberty not only of the occupier but also of other persons present on the premises and who may be affected by the warrant. See, for example, Zhang v Commissioner, Australian Federal Police (2009) 260 ALR 580 at 589; [25].
168. In this case, the premises were entered at approximately 10.45 am. In my view, the execution of a search warrant commences upon the entry into the premises of police who are, from that time, exercising the powers under the warrant. In this case, it may be argued that entry of the police into the reception area of the plaintiff's premises was not the commencement of the execution of the search warrant as it was a public foyer to which persons having business with the plaintiff would ordinarily have unimpeded access until the licence to do so was terminated. In this case, however, very shortly after the police had entered the premises, they entered the inner office area of the premises and that, at the very least, must be accepted as the commencement of the search warrant. This was clearly prior to the point in time that a copy of the warrant was given to Mr Hall. There was no point taken that Mr Hall was not the representative of the plaintiff as occupier of the premises.
169. Police began executing the search warrant thereafter, not only, but certainly, by entering that inner office area and then also by moving people out of the inner office area to the foyer area and by requiring them not to operate their computer equipment and not to operate their phones and, indeed, to put their phones on to flight mode. These are all powers exercised by police under the warrant and, in my view, part of the execution of the warrant.
170. I am satisfied that Detective Senior Constable Adams sought out Mr Hall and Mr O'Mara and, once they were identified, declined to show either of them the warrant until there had been a recorded discussion in the conference room.
171. It was clear from the evidence of Sergeant Utteridge that at least he, and presumably the other officers, were aware of the conference room and the capacity to conduct a relatively private conversation in that place.
172. The request to permit Mr Hall or the others to view the original warrant was declined, apparently because of a risk that one of them would tear it up. I am not sure that this is a legitimate reason for non-production of the warrant, for such destruction, in my view, cannot invalidate the warrant itself. It is certainly no justification for non-production of a copy already in the hands of the police.
173. Copies had been made of the warrant to be brought with executing police officers to be made available, and which were made available, to Mr Hall, Mr O'Mara and Mr Hamilton. They could easily then have been handed over.
174. It appears from all the evidence that the purpose of taking Mr Hall and Mr O'Mara into the conference room before producing the warrant was for the convenience of having a record made, in a standard format, of the production of the warrant. That is to say, it is usually required that the person shown the warrant should read enough of it to make it clear that the person can read and is then given an opportunity to read it in full and asked whether he or she understands its contents. There is no suggestion that this was for other than purely evidentiary purposes for the convenience of the police.
175. These are, of course, desirable evidentiary matters, but they do not override the statutory obligation to make a copy of the warrant available, interpreted by the courts to mean as soon as reasonably practicable.
176. The only authority to which my attention was drawn as to how to construe an obligation to do something "as soon as practicable" was Martin v Commonwealth (1975) 7 ACTR 1. That was in a quite different context, however, and clearly dependent on what appears to have been based on agreed facts, the details of which are now reproduced in this judgment. It relates to different situations, such as the publication of a government gazette.
177. I am not satisfied that, in this circumstance, under this legislation, the temporal requirement is simply at the decision of the executing police officers. This is entirely inconsistent with the need to justify what would otherwise be a breach of the criminal law and to permit the occupier or the occupier's representative to participate in the search as entitled and as may be in the interests of the occupier or other people on the premises.
178. In my view, there was no reason why a copy of the warrant should not be handed over immediately upon the executing police officers identifying the occupant, just as they had identified themselves.
179. The warrant is, of course, the authority for the police to be on the premises and to seize items authorised for seizure under the warrant. That authority should be made available to the occupier or the occupier's representative and, just because it is standard procedure and has some desirable evidentiary value to record that part of the operation in the way conducted in this case, it is clearly not as soon as practicable. There is no reason why Mr Hall could not have been handed a copy of the warrant immediately when he was identified as the representative of the occupier. If there was some doubt about that happening, then, of course, the delay while that was properly ascertained could not be counted as failing to comply with the obligation as soon as practicable.
180. So far as the evidentiary value is concerned, there is no reason, if police do not want to carry out the relevant interrogation at that point, why later the person cannot be asked to acknowledge for recording on tape that a copy of the warrant has already been given to them and, if contrary to the fact, they choose to deny that, a challenge to that and appropriate evidence can be recorded at the time. While a taped record of a procedure is usually highly probative, the evidence of a couple of police officers that the warrant was handed over is also probative, as seems often forgotten.
181. The statute does not require that the occupier of the premises have the capacity to read and understand the warrant, although it is obviously desirable for police to ascertain that at an appropriate time.
182. In my view, there was no reason why Mr Hall, and perhaps the others, could not have been given their copy of the warrant immediately upon meeting the executing officers and the conversation conducted immediately after that been undertaken and recorded as commonly done.
183. In my view, the police gave priority to the formal recording of the standard procedure in relation to handing a copy to the occupier or the occupier's representative during the execution of the search warrant rather than to the obligation they expressly had under the statute. In this, they did not comply with their obligations.
184. It was said that no persons were actually searched until a copy of the search warrant had been provided and the recording completed at 11.08 am. That is inconsistent with the evidence, which shows that at least some persons were searched prior to that time. In any event, as I have indicated above, the movement of persons, the seizing of their mobile phones for the purposes of investigating them and so on amounts to the execution of the search warrant and it appears that that was well underway before the copy of the warrant was given to Mr Hall and the recording of the conversation with him completed.
185. While there were practical reasons why the police chose to proceed as they did, it does not seem to me that those come properly within the concept of "as soon as reasonably practicable". The practicality is not the practicality of the internal procedures of the police being conveniently followed but relate to matters such as securing the premises, ensuring safety of those police coming on to the premises and of those persons in occupation of the premises, as well as ensuring that evidence is not lost and the like. There is a level of objectivity in this; it is not a matter of the subjective view of the police officers, though this may be relevant.
186. It is not intended to cover some procedural provisions which, however desirable they are, have been unilaterally chosen by police to be applied for the purpose of recording the delivery of the search warrant and acknowledgement of its contents by the occupier or the occupier's representatives.
187. There was, however, only a matter of a few minutes involved and it does not seem to me that the failure can be regarded as a gross failure or one of great seriousness.
188. As the breach was not a gross one and I cannot see, in the terms and structure of the Crimes Act, an intention by the legislature that a brief delay with no apparent prejudice or adverse consequences for the occupier of the premises or the occupier's representative or, indeed, any of the other persons present on the premises, to invalidate the search thereafter.
189. In those circumstances, it does not seem to me that the execution of the search warrant was invalid. This failure to comply strictly with the obligations of officers under the legislation, as now interpreted following the construction given to the equivalent Commonwealth provision by the Full Court of the Federal Court of Australia, is something that may be recorded, as I have been requested to do by the plaintiff.
190. Section 203 of the search warrant entitles the occupier or the occupier's representative to observe the search being conducted. In this case, with some very limited exceptions, that was not a right exercised by Mr Hall, Mr O'Mara or Mr Hamilton.
191. The evidence was somewhat unclear. Initially, the evidence was that they were told not to leave the conference room. Certainly, Mr Hall and Mr O'Mara did not leave the conference room except to go to the toilet, to go to lunch or to accompany police officers and there were officers stationed within the foyer, so far as I could tell, continuously.
192. Nevertheless, under cross-examination it became clear that the obligation not to leave the conference room was rather inferred by Mr Hall, Mr O'Mara and Mr Hamilton than being an express direction or order.
193. Indeed, all three had been provided with the document relating to the rights of the occupier and although I have criticised that document as being, for the most part, a repetition of the terms of the statute which is not always helpful to persons to enable them to understand their rights, it was plain that at least Mr Hamilton was well aware of what it meant, he being a lawyer and obviously able to construe legislation in the relatively simple terms in which it was drafted.
194. In addition, there was uncontradicted evidence that, when Mr Hamilton was later searched, he was told at the time of being searched that he had an entitlement to observe the search being conducted. That cannot, of course, refer only to the frisk searching of himself, rather than the searching of the inner office, as that would be an absurdity. It clearly meant, and Mr Hamilton, having read the rights of the occupier, must have known that it meant, that he was entitled to observe the search.
195. The matter, however, does not end there. Having regard to all the evidence, it is clear to me that there were restrictions placed on persons with the authority of the plaintiff going into the inner area where the search was being conducted and observing it.
196. There is a dearth of jurisprudence about the actual search of premises under a warrant. Acknowledging this, however, Lockhart J made some helpful comments in Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123 at 150, where he said:
Little has been written definitively and directly on the enforcement of search warrants by the courts of Australia, New Zealand and the United Kingdom.
197. That situation has not changed. His Honour then gave "some general guidance" which, relevantly included, at 150:
Third, the power must be exercised fairly, having regard to all the circumstances. Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons.
198. It seems to me that this issue must be seen through this general approach and the acts and activities of the police executing the search warrant assessed by reference to these general comments.
199. Some of the restriction that I have identified could be explained as acts out of politeness or the willingness of the police officer to assist the person by obtaining a thing from the inner office such as a glass of water or a newspaper or placing something on a desk. Much of the approach, however, went well beyond this. Nevertheless, it amounted to an impediment to such a person observing the search.
200. One of the grounds said to require that description was what said to be operational and safety concerns. This seemed to be related to work said to be undertaken by the Bomb Technicians.
201. The difficulty with this explanation is that none of the persons who were asked about the issue said, at any time, that they had been directed that, at any particular point in time, the Bomb Technicians were undertaking such investigations which required, for safety or operational reasons, that the occupier or the occupier's representative should not be entitled to observe the search or, indeed, police officers should not be present.
202. This was re-inforced by the fact that the CCTV, which showed the entry and egress of persons into the premises through the only external accesses, did not show the Bomb Technicians taking into the premises any equipment that could be described as fitting the relevant description. Indeed, the only equipment seen by identifiable officers from the Bomb Technicians were completely unobjectionable items of equipment such as a ladder and a mobile phone.
203. Against all this, however, the fact is that no person actually requested to observe the search. That is to say, no-one actually asked to exercise the right of the occupier or of the occupier's representative.
204. This is despite the fact that Mr Hamilton, at least, was well aware of the right and he certainly was not confined to the conference room, which seemed to be the limit of the actual movement of Mr Hall and Mr O'Mara (other than for toilet stops and later for lunch).
205. In addition, when the solicitor from the plaintiff's external lawyers arrived, he regularly went into the inner officer without being restricted in any way. That, in itself, undermines the suggestion that there were problems with safety or operational matters that were being supervised in relation to officers or staff of the plaintiff. Nevertheless, there is no record of the solicitor asking for his clients to be given an opportunity to observe the search.
206. I see no reason why the police should not formally invite the occupier or the occupier's representatives to observe the search; indeed, there is much to be said in favour of that for the protection both of police and the occupier. It is rather like the recording of the delivery of a copy of the warrant to the occupier or the occupier's representative. Failure to do so, however, does not, of itself, amount to such a breach of that entitlement so as to affect the validity of the execution of the search warrant.
207. The most that can be said, in my view, is that the police officers executing the search warrant impeded the exercise by the occupier or the occupier's representatives of the right to observe the search. No justification was given for this or proved in the evidence that would warrant, in law, a curtailment of that right. Indeed, that right, in the statute, is not subject to any express curtailment. It is not for me to consider the limits, if any, of the curtailment of that right that is permissible. No legitimate curtailment was proved to my satisfaction in this case.
208. Again, consideration of the whole of the legislation does not lead me to say that the actions of the police in doing what they did amounted to a denial of the right or such a gross breach of the entitlement as to invalidate the search.
209. Again, however, the actions of the police did amount, in my view, to a clear impeding of the exercise of the right, though it cannot be said to have been actually breached. This can and should be recorded as requested by the plaintiff.
210. Section 202 of the Crimes Act provides that where documents, films, computer files or other things can be readily copied or a storage device the information in which can be readily copied are seized, copies of documents seized shall, if requested by the occupier, be given to the occupier as soon as practicable after the seizure.
211. The copies of the documents were provided to the plaintiff through its external lawyers on 9 September 2015.
212. The context of this complaint is that, during the search, the lawyer from the external solicitors for the plaintiff raised with the executing officers the question of provision of copies. He pointed to the availability in the premises of an industrial photocopier which could be used to make copies of the documents. No copying of documents was done at the time of their seizure.
213. In my view, this is not a breach of the relevant requirement. As it turned out, the execution of the search warrant could not be completed within the time actually available; that is, it could not be completed before 9.00 pm.
214. The evidence was that it subsequently took two officers eight hours each, plus another officer about half an hour, to complete the copying of all the relevant documents. To suggest that the police were required to photocopy the very large number of documents clearly seized at the same time as effecting the search and the seizure does not, in my view, justify a complaint that there was a breach of the section.
215. Nevertheless, it does seem to me that the terms of the section, in this case including an express provision that the copies are to be provided "as soon as practicable after the seizure", are to be given their full value.
216. It seems to me that these words should be construed reasonably but objectively. That is to say, it is not up to the seizing agency to determine when it might choose, in applying its own priorities, to provide the copies as required.
217. In the circumstances, however, it cannot be said that the failure to provide the copies as they are being seized amounted to a breach of s 202 of the Crimes Act.
218. This requirement to provide copies to the occupier is, nevertheless, an important provision for a number of reasons. Two of the obvious ones are so that client legal privilege can be claimed in relation to documents which would, if that claim made out, be immune from seizure. It is obviously desirable for such claims to be resolved as soon as possible to prevent unauthorised, hopefully only accidental, unauthorised disclosure.
219. In addition, many of the documents will, as in this case, be documents that appear to be part of the ordinary ongoing records of the plaintiff and the purpose of the execution of a search warrant is not unreasonably to impede the ongoing conduct of the business of the subject of the search warrant search (here the plaintiff) and to enable at least copies of the documents to be returned so the ongoing business can continue to be conducted.
220. For my own part, I have doubts as to whether the provision of documents so late after the actual seizure breached that obligation.
221. Having given that matter anxious thought, I do not consider that, in the circumstances, the provision of the documents so late in this case breached the obligation under the Act.
222. As noted above, I do not consider that the failure to provide them on the day constitutes such a failure. I am mindful, also, of the time and effort that it actually took to prepare the copies. While Sergeant Utteridge had difficulties in obtaining the necessary resources, this can only be of limited value as an explanation for the failure of a statutory body to comply with statutory obligations by failure to provide sufficient resources. Choices have to be made and it is not for the courts to second-guess statutory agencies when going about their business, but denial of a statutory right cannot rely on the subjective views of the agency alone.
223. To provide no check or balance on the compliance with a statutory obligation denudes it of any force or value.
224. In this case, despite an early urgent request for copies of the documents, that request was, ultimately, responded to, but not promptly, and yet no complaint was made on behalf of the plaintiff of either the delay in the response or the subsequent explanation of why it was taking so long to provide copies by the date given for their delivery.
225. I also note that the plaintiff's external lawyers then required provision of the documents at its Melbourne office which delayed provision by another couple of days.
226. In these circumstances, without more, I cannot say that the obligation under s 202 of the Crimes Act was breached in this case.
227. Under s 204 of the Crimes Act, police are required to provide a receipt for everything seized under a warrant. Two or more things may be included in the one receipt.
228. It is common for items to be seized during the execution of the warrant and then provided to a designated property officer who goes through the items seized, identifying them against what is known as a "property seizure record" as referred to above (at [88]), and asking for confirmation of the seizure of that particular item by the occupier or the occupier's representative signing the property seizure record.
229. That is, however, not required by the Crimes Act. All that is required is that a receipt be provided. The section does not indicate that the receipt is required to be provided at the time of the seizure. Indeed, in my view, the structure of the provisions are that, once the police take possession of the item it is seized and this is consistent with authority. Thus, the receipt will inevitably be provided after seizure.
230. It is, obviously, desirable that the receipt be provided as soon as practicable and, in most cases, it can be provided before the end of the execution of the search warrant but, in any event, before the police officers have left the premises. I would construe s 204 of the Crimes Act to require provision of the receipt as soon as practicable and, certainly no later than soon after the search has been completed.
231. In this case, the receipts were not provided until later that evening. Although the opportunity was taken to show Mr Hall the items that were seized, he declined, on legal advice, to sign the property seizure record. That did not invalidate the record as a receipt, although there may be evidentiary consequences later. Nevertheless, it does not seem to me that there was a breach of this statutory obligation.
232. The plaintiff submitted that there were some issues about the seizure because items had been removed from the premises in unsealed exhibit bags and then brought back onto the premises.
233. It is clear, in my view, that the seizure had already taken place before this was done.
234. There may be an issue as to the continuity of custody of the items seized. That is to say, the bags were removed from the premises, in some cases unsealed, and there was no evidence before me (although there may be evidence available) that the bags were under continuous observance during the period between being taken off the premises and being returned to the premises and sealed.
235. That is a matter for another day and is not a matter with which I am concerned.
236. In my view, the provision of a receipt in these circumstances did not breach the obligations of the police executing the search warrant seizure after 9.00 pm.
237. It is clear that the police were unable to complete the search of the premises as they desired to do prior to 9.00 pm when, in the ordinary course, the first warrant expired. It seems that the police would not have been able to re-commence the search at 6.00 am the next day, since s 198 of the Crimes Act only permits a brief time during which a search may be interrupted and then resumed. Otherwise, departure from the premises results in expiry of the warrant: R v Adams [1980] 1 QB 575; Larsson v Commissioner for Police (NSW) (1988) 16 NSWLR 173 at 179. They were concerned that the plaintiff, now having knowledge of the items being sought, could take steps to conceal or destroy evidence that may be seizable under the search warrant. It was for this reason that the second warrant was obtained.
238. The argument appeared to be that, when the police left shortly before 9.00 pm, they took with them items that they then subsequently returned to the premises and apparently, although the evidence was not entirely clear, purported to seize them again under the second warrant which permitted seizure after 9.00 pm.
239. It seems to me clear that, having seized the items before 9.00 pm, those items were seized under the first warrant. See Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 402-3.
240. Though the police perhaps purported to re-seize the items under the second warrant, I accept that, as a matter of law, there was only one seizure of the documents that were taken into possession of the police before 9.00 pm. That they were removed from the premises and then returned to the premises meant that they were not items then found on the premises within the meaning of the Act and so not seizable under the second warrant. That was not necessary, however, for they had already been seized.
241. That the police may have mistakenly thought that they could further validate the execution of the search warrant by "re-seizing" the items does not mean that that occurred and the failure to seal exhibit bags and provide a receipt is, as noted above at [234]-[236], not relevant to the validity of the pre 9.00 pm seizure in this case.
242. I am satisfied that the alleged complaint that documents seized before 9.00 pm and removed from the plaintiff's premises and then returned had already been seized and were not seized under the second warrant which did not authorise that seizure.
243. The widespread use of computer storage for material has now meant complexity in the way in which such material is dealt with under search warrants, that have their genesis in very much a paper economy.
244. Clearly, when documents are stored on a computer, there will be potentially a very large number of documents and it will often be impossible, realistically, to search through each document and download and seize only those documents that constitute evidential material (that is material that is relevant to an offence).
245. Section 200 of the Crimes Act provides for executing officers or assisting officers to operate electronic equipment at premises subject to a search warrant to see whether evidential material is accessible by doing so without damage to the equipment on the premises.
246. The section provides for three methods by which that seizure may be affected. In the first place, the whole of the equipment and any disc, tape or other associated device may be seized. This obviously is the most intrusive of the options, for it deprives the searched entity of computer equipment, such as hard drives, servers and the like while they are separately searched. It also means, of course, that all the material on such equipment, whether evidential material or not, will be seized along with a whole host of other non-evidential material.
247. The second method is that, if the material can be put into a documentary form then the facilities at the premises may be operated to put material in that form and then the documents so made may be seized.
248. The difficulty with that operation is that downloading will, again, produce material that is not evidential material as, in many cases, there will be many many documents which it would take a considerable period of time to identify as evidential material.
249. The third way is for material to be transferred to a disc, tape or other storage device brought on to the premises or at the premises which can make a copy of the material to that storage device and take the storage device from the premises.
250. Again, it would be very difficult, in those circumstances, to separate what is evidential material from the other material that is on the computer and that may take some days or longer. It is, however, necessary for the police to be satisfied that there is evidential material accessible on the computer. It is not sufficient to seize all the material on a computer on the basis that later examination may discover such material.
251. The question here was whether what may be taken in any of the three methods is only evidential material or all the material on the computer (which I will use as the generic term for the electronic storage), which will include both evidential material and non-evidential material.
252. The matter is, however, not free from authority, though the authorities are not presently easily reconcilable.
253. The authorities deal with s 3L of the Crimes Act 1914 (Cth) but which was relevantly in the same terms as s 200 of the Crimes Act at the time the authorities were decided. What is at issue here was that material was transferred to a disc, tape or other storage device. That material included material that was not evidential material.
254. The construction given by Drummond J to the provision in Harts Australia Ltd v Commissioner of Australian Federal Police at 406; [88], where his Honour pointed out that the word "material" in the Commonwealth equivalent s 200(2)(c), refers back to the chapeau in the section which refers to a finding "that evidential material is accessible". This is what one might assume to be completely orthodox construction of the statute. That construction was not addressed by the Full Court in the appeal.
255. In, however, Williams v Keelty at 237; [299], Hely J had said:
The "material" which can be transferred to a storage disk pursuant to s 3L(2)( c) [the equivalent to s 200(2)(c) of the Crimes Act] is the material contained on the disk, tape or other associated device which, but for the ability to produce a duplicate disk could have been seized pursuant to the warrant. When the draftsman of the statute intends to refer to "evidential material" as defined, he is careful to use that term. The storage device is intended as a surrogate for the original disk, tape or other associated device, and the explanatory memorandum confirms that a duplicate disk was intended.
Accordingly, in my view, the production of a duplicate disk containing all of the material on the original disk, tape or other associated device was authorised by s 3L once it was ascertained that evidential material was to be found on the original.
257. It is unfortunate that the Full Court in Harts v Commissioner of the Australian Federal Police did not resolve this issue.
258. It also must be accepted that the description of "evidential material" is not always so clear that context and relationship with other material may be necessary to identify with precision what is evidential material which the other material makes so. See, for example, the explanation of Hely J in Adler v Gardiner [2002] FCA 1141; (2002) 43 ACSR 24 at 29-30; [21]. That supports his Honour's interpretation.
259. To some extent, the interpretation of Hely J is also reinforced by the terms of s 200(3) of the Crimes Act because it limits the seizure of equipment only to circumstances where it is not practicable to put the material in a documentary form under sub-section 200(2)(b) or to copy the material to another device under sub-section 200(2)(c) or another not relevant condition.
260. The intrusive nature of the first alternative, namely seizure of the computer itself, would inevitably include seizure of material that is both evidential material and non-evidential material; this is clearly permitted.
261. Although the more orthodox statutory construction by Drummond J has some attraction, particularly as it appears, at first sight, better to protect the liberty of the subject, it nevertheless seems to me that what s 200(3) does is suggest that while seizure of evidential and non-evidential material is possible, the preferable course is not to seize the equipment but to seize the material.
262. That would lead to the curious result that if it would take too long to search through large computer files to ascertain whether material is evidential material or not, the searcher would have the alternative of seizing the computer hardware itself, which would be more intrusive of the searchee.
263. Not without some hesitation, I am satisfied that the construction suggested by Hely J is to be preferred and, accordingly, the seizure of the computer material by transfer to a storage disc or device was authorised, even though it amounted to seizure of non-evidential material, at least in the first instance.
264. Of course, once material of that seized is identified as non-evidential material, it must be destroyed or returned and it would be required that this be advised to the plaintiff.
265. Accordingly, I am not satisfied that the seizure of the computer material was invalid.
266. As I have found the seizure under the second warrant to be invalid because of the failure to disclose fully the circumstances that were required to be disclosed for the issuing officer, the learned Magistrate, to make a proper decision about whether to issue a warrant that is able to be executed after 9.00 pm, I have not found that any of the other complaints invalidated the search or the warrants.
267. In relation to the material obtained under that warrant, the material must be returned or destroyed.
268. In relation to the breaches that I have found, I have been asked to make declarations of non-compliance with the relevant sections.
269. The question of whether I had power to make declarations was not subject to any challenge by the first defendant, other than as to discretion. This is not a case such as Kennedy v Baker where such an issue arose. There is, in this Court, plenary power to make such declarations and I do not need to consider the jurisdiction further.
270. As to discretion, the only basis on which it was urged that I should not make any declaration is that a failure to do so would still leave a court, which was required to deal with any criminal proceedings on which any seized material is sought to be admitted, and which retained jurisdiction under s 138 of the Evidence Act, to deal with any impropriety or illegality then.
271. I accept that a court will be appropriately able to protect an accused's interests in any such criminal proceeding by such means; see Phong v Attorney-General for the Commonwealth [2001] FCA 1241; (2001) 114 FCR 75. It seems to me, however, inappropriate to deprive such a court of my findings following what was a detailed hearing with not only affidavit evidence but cross-examination and oral submissions.
272. In the circumstances, I am prepared to make the declarations.
273. It seems to me that the plaintiff has had sufficient success to justify an order for costs. I shall permit the parties to seek another order but otherwise so order.
I certify that the preceding two hundred and seventy-three [273] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Construction, Forestry, Mining and Energy Union
Commissioner, Australian Federal Police [2015] ACTSC 362
(2006) 155 FCR 456
(1983) 153 CLR 52
(1991) 25 NSWLR 441
(1904) 1 CLR 429
(2007) 159 FCR 441
(1981) 52 FLR 123
(1994) 54 FCR 540
(2006) 230 ALR 254
(2012) 263 FLR 211
(1991) 29 FCR 147
(2006) 218 FCR 425
(1990) 170 CLR 104
(2001) 117 FCR 358
(2002) 124 FCR 384
(1990) 26 FCR 473
(2004) 135 FCR 520
(1994) 52 FCR 542
(2011) 281 ALR 223
(2001) 114 FCR 75
(1908) 7 CLR 277
(1998) 194 CLR 355
(1997) 148 ALR 393
(1949) 78 CLR 47
(1988) 16 NSWLR 173
(1907) 5 CLR 132
(2001) 111 FCR 175
(2009) 260 ALR 580
(1985) 153 CLR 52
(1981) 56 FLR 321