Crowley, P.L. & Ors v. Murphy, G.G. [1981] FCA 26

Federal Court of Australia|1981-03-19|Before: Lockhart JJ, Tazewell J, Franki J

Criminal Law - Search Warrant issued pursuant to Crimes Act 1914 s.10 authorising entry of solicitor's office and seizure of certain documents - Appeal from primary Judge's determination as to the nature and extent of search permissible in execution of warrant ~- Consideration of principles applicable in determining extent of lawful search - Whether legal professional privilege or

contractual relationship between solicitor and client relevant.

PETER LAWRENCE CROWLEY AND ORS v. GEOFFREY GERARD MURPHY

No. F.C. 43 of 1979 Franki, Northrop and Lockhart JJ. 19 March 1981.

ON APPEAL FROM THE SUPREMF COURT OF THE AUSTRALIAN CAPITAL TERRITORY

TERENCE JOHN CHAMBFRLAIN, CHRISTOPHER JOHN CROWLFY and WILLIAM BRIAN LOFTUS

JUDGES MAKING ORDER: Franki, Northrop and Lockhart JJ.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

TERENCE JOHN CHAMBERLAIN, CHRISTOPHER JOHN CROWLEY and WILLIAM BRIAN LOFTUS

A search warrant was issued by a Justice of the Peace

pursuant to s.10 of the Crimes Act 1914 which provides :

information on oath that there is reasonable ground for suspecting that there is in any

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;

he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place."

GEOFFRFY GFRARD MURPHY Australian Federal Police Officer.

WHEREAS I, HARRY TAZEWELL a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914 of the Commonwealth of Australia being satisfied by information on oath placead before me this day that there are reasonable grounds for suspecting that there are at premises known as 6th Floor, National Mutual Centre, Darwin Place, Canberra City, and situated at Block 3 Section 5, City, in the Australian Capital Territory, occupied by CROWLEY & CHAMBERLAIN, Solicitors, books, records, cheque butts, deposit slips, receipts and other documents in relation to transactions between GRANTHAM HOMES PTY. LTD., GRANTHAM HOLDINGS PTY. LTD., GRANTHAM INVESTMFNTS PTY. LTD., P.C. GRANTHAM PTY. LTF., AMSIL LIMITED, James Frederick GRANTHAM and Rena GRANTHAM as

to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against Section 67 of the Companies Ordinance 1962 of the Australian Capital Territory, namely the offence of receiving financial assistance from a company to purchase a share of that company YOU ARE HEREBY AUTHORISED with such assistance as you may think necessary to enter at any time the said premises, if necessary by force, and to seize any books, records, chegue butts, deposit slips and other documents in relation to the said transactions which you may find in the said premises and as to which these (sic) are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Canberra in the said Territory this 30th day of October 1979.

(SGD.) H. Tazewell J.P. Justice of the Peace in and for the Australian Capital Territory." The respondent attended at the offices of the solicitors for the purpose of executing the warrant. After some documents

had been inspected a dispute took place between the respondent

The respondent wanted to conduct the search in a way which Mr. Chamberlain sought to prevent. It appears that a gentleman from the Commonwealth Crown Solicitor's "office, on whose behalf the search was apparently being conducted, was claiming that the search could be carried out in the following manner:

«.-1f necessary to go to any cupboard, safe or other place on the premises to obtain

documents and to examine them to ascertain whether or not they had relevance within the terms of the warrant."

The appellants then issued a writ claiming a declaration to restrain the respondent: "from pursuing or undertaking a

threatened trespass against goods... in purported execution of a

No statement of claim was filed but a notice of motion

in the same matter was filed seeking the following orders:

"1. That the defendant be restrained from attempting to examine any document relating to the affairs of clients of the plaintiffs other than the five companies and two other persons named in the Search Warrant dated the 30th October 1979 given by H. Tazwell J.P. to the defendant.

That the Defendant, upon the assurance and undertaking of the plaintiffs that all such documents named in the said warrant have heen or will be without delay produced as required by the defendant search the premises named therein no further.

A declaration that the orders numbered 1 and 2 herein are implied by law within the terms of the said warrant.

Such further and other orders as to the Court shall seem proper."

This appeal is from the judgment given in relation to

It was common ground that the Solicitors, whose office

was being searched, were not implicated in the offences alleged

No attack was made on the validity of the warrant before the trial Judge and on appeal any attack on its validity was disclaimed. It appears that this was done for the purpose of enabling the real issues between the parties to be determined in the proceedings. The warrant however did contain at least one error in that it referred to the alleged offence under s.67 of the Companies Ordinance 1962 as being that of "receiving financial assistance from a company to purchase a share of that company" whereas the offence is that of "giving" and not "receiving" financial assistance. The case proceeded before us upon the basis that the warrant was to be read as if the alleged

This appeal raises the issue of the extent and nature of the search permitted under the warrant. Since no attack was made on the validity of the warrant it must be read as authorising any act encompassed by it. Mala fides was not alleged against

It is necessary to consider two questions:

Whether the search was restricted because of the relationship of solicitor and client.
Whether, apart from any restrictions arising out of the relationship of solicitor and client, any restrictions existed on

the extent of the search authorised by the warrant. Question 1. I am satisfied that neither professional privilege nor the contractual relationship existing between solicitor and client is relevant in relation to the nature and

There was evidence that certain clients of the appellants, who were not connected with the matters set out in the warrant, claimed that their dealings with the appellants as

solicitors should enjoy the strictest confidentiality.

The possible right to have such dealings protected from disclosure may rest on two grounds. The first may depend on the contractual right arising from the relationship of solicitor and client and the second on what is known as "legal professional

This question has arisen before. In my opinion the relevant principles are set out in Parry-Jones v. Law Society [1969] 1 Ch.1. In that case before the Court of Appeal, the Law Society had served a notice on a solicitor pursuant to the Solicitors' Accounts Rules, 1945, and the Solicitors' Trust Accounts Rules, 1945, requiring that solicitor to produce for inspection his books of account and any other necessary documents relating to his practice as a solicitor and every trust of which he was trustee. The solicitor sought injunctions restraining the

Law Society and its officials concerned from having access

pursuant to the notice to confidential information, relating to

any client of his, inter alia, without the express authority of such client. The Court held that the contractual duty of confidence was over-ridden by the duty to obey the rules made

pursuant to statutory power. Lord Denning M.R. at p.7 said:

"In my opinion the contract between solicitor and client must be taken to contain this implication: the solicitor must obey the law, and, in particular, he must comply with the rules made under the authority of statute for the conduct of the profession. If the rules require him to disclose his client's affairs, then he must do so."

"In my opinion that rule is a valid rule which overrides any privilege or confidence which otherwise might subsist between solicitor and client."

"The foundation of Mr. Parry-Jones' case is the submission that an inspection of documents under rule 11 of the Solicitors' Accounts Rules, 1945, is in the nature of a judicial proceeding. In my view it is no more in the nature of a judicial proceeding than an inspection by a factory inspector under the Factories Act of factory premises. Of course, the result of it may lead to subsequent judicial or quasi-judicial proceedings, but that does not make the inguiry or inspection a judicial or quasi-judicial proceeding itself.

So far as Mr. Parry-Jones' point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence. What we are concerned with here is the contractual duty of confidence, generally implied thovgh sometimes expressed, between a solicitor and client. Such a duty

exists not only between solicitor and client, but, for example, between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void."

Salmon L.J. agreed with the judgments of Lord Denning

This judgment was followed by Bowen C.J. in Equity in Brayley v. Wilton [1976] 2 N.S.W.L.R. 495. His Honour quoted and followed the passage which I have set out from the judgment of

Stephen J., sitting as a single Judge, in Smorgan v. Australia and New Zealand Banking Group Ltd. (1976) 134 C.L.R.

475, cited with approval, at p.487, the judgment of DPipliock L.J. in Parry-Jones v. Law Society (supra) as authority for the proposition that where the law of the land requires a disclosure of documents by a banker there will be no breach of contract by the banker of which the customer could complain. Stephen J., at

p.488, then referred to the case of the Commissioner of Inland

Revenue v. West-Walker [1954] N.Z.L.R. 191 and said that he had

not found it possible to reconcile aspects of the reasoning in

that case with that in the case of Parry-Jones v. Law Society.

An appeal from the judgment of Stephen J. was taken to the Full Court and is reported in (1979) 23 A.L.R. 480. So far as is relevant the Full Court upheld the judgment of Stephen J. At

p.487 Gibbs A.C.J., as he then was, refered to Parry-Jones v. Law

Society, to Brayley v. Wilton and to the discussion by Stephen J.

sitting as a single Judge in the case under appeal, and said:

"Further, in my opinion, the existence of the contractual duty provides no just cause or excuse for refusing or neglecting to produce the documents. It is likely that documents which relate to the income or assessment of a taxpayer will often be entrusted by him to another, e.g., to a Bank, a solicitor or an

In my opinion, the principle of law to be taken from these authorities is that where a statute provides for access to documents to be available to a person the fact that those documents are held by a solicitor and were entrusted to him by a client does not provide a ground for the solicitor to refuse

Commissioner of Inland Revenue v. West-Walker (supra). In my

opinion the judgments of the majority in that case should not be

preferred to those in Parry-Jones v. Law Society, Brayley_ v.

Wilton, and what was said by Gibbs A.C.J. in Commisssioner of

Inland Revenue v. West-Walker. With great respect I consider

that the majority in Commissioner of Inland Revenue v.

West-Walker failed to pay proper regard to the nature of legal professional privilege as explained in the passage from the

judgment of Diplock L.J. set out above. I am satisfied that neither the contractual obligation existing between solicitor and client nor any question of professional privilege is relevant in considering the extent of

Question 2. There are many reported cases on the duties of the person issuing a search warrant and upon questions involved in determining whether a warrant should be quashed. Illustrations are to be found in the judgment of Fox J. in The Queen_ v. Tillett; ex parte Newton (1969) 14 F.L.R. 101 and the

Canadian cases referred to in Fontana "The Law of Search Warrants

in Canada" 1974 at pp.148 to 151 and 174 to 175. However whilst those cases provide useful background material I do not regard them as decisive in the case before us. They are Canadian cases and they deal with matters relevant in applications to quash warrants. We are not concerned with whether the warrant 1s beyond power or otherwise objectionable, but only with the question whether the acts which were sought to be done extended

Section 10 of the Crimes Act makes no mention of search but it is clear that it is authorised by implication (see The

Queen v. Tillett (supra) at p.112). The critical question

concerns the nature and extent of the search which is authorised

il The section authorises entry "if necessary by force" but, although the use of force is mentioned specifically, the section must be strictly construed because it interferes with a previously existing common law right. I need only refer to

Maxwell "On The Interpretation of Statutes" 12 Edn. (1969) where

As an illustration, if it is reasonable to gain access to a house when all the doors are locked, a warrant issued under the section would not appear ordinarily to justify blowing up a part of the house with an explosive or destroying a part of it with a bull-dozer although it would usually justify the use of such force as is reasonably necessary to break open a door to gain access to the premises. Since the nature of the search is not dealt with by the words of the section but arises by implication, I am clearly of the opinion that the only search which could be made pursuant to the warrant in this case is a search which 1s reasonable in the circumstances. I regard this

conclusion as the critical factor in the determination of this

The search authorised under the warrant therefore does

not extend beyond that which is reasonably necessary to ascertain what "books, records, chegue butts, deposit slips and other

documents in relation to the said transactions..." were upon the

The precise nature of the proceedings before the trial

Judge from whose judgment this appeal is brought are not clear.

The proceedings based on the notice of motion appear to be in the nature of interlocutory proceedings although the parties do not appear to have so treated them and before us no

I propose to regard them, as I think the parties did, as not being proceedings in which it was appropriate to apply principles applicable to the grant of an interlocutory

Having come to the firm conclusion that the warrant

authorised no search other than what was reasonable to ascertain what "books, records, cheque butts, deposit slips and other

documents in relation to the said transactions..." were upon the premises the question which I have to decide is whether the

The evidence is unsatisfactory. The respondent claimed the right to examine physically every document in the office to

ensure whether or not it was a document within the class

described in the warrant. In my opinion this claim 1s not justified. It is impossible to lay down the limits of a reasonable search. They must depend on many factors. The test

of what is reasonable in a search 'for a weapon used in an alleged murder, or for a large quantity of drugs, is very different to that in a search of the office of a firm of solicitors where no member of the firm is suspected of being implicated in the

offence for the proof of which evidence is being sought.

In my opinion, the warrant certainly authorise@ a full examination of the index of files. Nothing in the evidence pointed to the index which was kept being unreliable. If the index pointed to any documents within the terms of the warrant being in any file, the warrant certainly authorised an examination of that file so far as was necessary to ascertain whether any document in it was within the terms of the warrant. Once it had been determined by the respondent that the file was

not relevant no further examination of 1t was justified.

In addition the respondent at least was entitled to see and examine to the same extent any file or document, the existence of which he had learnt otherwise than from the index, and which he had reason to believe came within the terms of the

If the appellants were seeking to reduce the area of the

search beyond that sought by the respondent, they ought to have taken all reasonable steps to establish that no document within

the terms of the warrant existed other than those made available

The evidence shows that after some initial difficulties with files the appellants were prepared to make available further files. However, Mr. Chamberlain, who gave oral evidence, gave no

assurance to the respondent or to the learned trial Judge that he

had made an adequate investigation of the position and that all documents which might fall within the terms of the warrant had been made available to the respondent, or indeed, at the time of

The following evidence is from the cross-examination of

"Q. Can I put this to you - Crowley and Chamberlain still have in their possession a number of files relating to the subject matter of the warrant which have not been given to Constable Murphy? A. We hold still those files that were withdrawn at the request of the defendant on the second occasion. In other words, those that were taken down from the finished... Apart from those files and apart from those documents which we have also withdrawn from the deeds safe, JI have no knowledge of any other files or documents that might relate to the affairs of those parties referred to in the warrant.

QO. Those files have not been given to Constable Murphy, on your assessment, because they come under the heading of legal professional privilege, is that the situation? A. No. No, that is not right. The documents that I have withdrawn that I have just referred to are those which I would be

prepared to make available to him. They are the ones that he selected. When we came back to court they were kept as a bundle, they have been put aside, they are in our premises, they are available.

Q. Can I put it this way, you still have two types of files relating to the subject matter of the warrant. Ones which you are prepared to give Constable Murphy, and another pile which you are not prepared to give which relate, as you see it, which come under the umbrella of legal professional privilege? A. No, so far as I am aware those files and those documents that have now been bundled represent the total of those files held by our firm that have reference to the warrant. Io am not prepared, and was not prepared, to allow the defendant and his officers to conduct a general search of our office otherwise.

Q. Are there any files contained on the premises of Crowley & Chamberlain relating to the subject matter of the warrant that you are

not now prepared to make available to Constable Murphy? A. Not to my knowledge."

Mr. Chamberlain only said that so far as his knowledge extended no other files were within the terms of the warrant. This is insufficient in my opinion. He did not explain the nature of the search he had made or the basis upon which he had formed his view. What would be necessary again depends on the particular circumstances existing at the relevant moment. The question of the search of a solicitor's office was considered by Swanwick J. in Frank Truman Export Ltd. v. Metropolitan Police Commissioner [1977] 1 Q.B. 952 at pp.965-966. At p.965 Swanwick J. said: "What is reasonable when conducting a search in a solicitor's office must depend on the circumstances. What is

reasonable in a man's house may well not be reasonable in the offices of his solicitor". I have cited this case but it must be read with caution because of the statements in it concerning

I do not suggest that any restrictions exist in relation to the search of a solicitor's office merely because he 1s a solicitor. Any restrictions arise from the search being limited to a reasonable search. Many factors are relevant. For example it is clear that a warrant to search for a particular cheque at the premises of a bank, would not, at least in the absence of some extraordinary circumstances, entitle the searcher to examine each cheque on the premises referred to in the warrant. Questions of what is reasonable would arise in the case of a warrant issued to search the offices of a member of parliament, a union official or a statutory body. It must be remembered that a Justice of the Peace, unqualified in the law, may issue a search warrant under s.10 of the Crimes Act, 1914. It is not the function of this Court to question the desirability of such a

The task of a person seeking to show that more than a reasonable search is being sought will never be easy. r reiterate that what is a reasonable search depends on the particular circumstances existing at the moment when objection is

taken to the search being made. Although the views I have expressed differ from those of the learned trial Judge I consider that the appellants have not made out a case for any order. Consequently I would dismiss the

I would leave each party to pay its own costs because, although the appeal should not succeed, I reject the respondent's claim that the method of search for which he contended was

I certify that this and the lb preceding pages are a true copy of the Reesons for Judgment herein of his jlonour |

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY BETWEEN: PETER LAWRENCE CROWLEY, TERENCE JOHN CHAMBERLAIN, CHRISTOPHER JOHN CROWLEY and WILLIAM BRIAN LOFTUS Appellants (Plaintiffs) and GEOFFREY GERARD MURPHY Respondent (Defendant) NORTHROP ug. REASONS FOR JUDGMENT 1Q MARCH 1981.

I have had the advantage of reading the reasons for judgment prepared by Lockhart J. and am in complete agreemenc with them. I agree with the principles of law therein stated

and propose to apply those principles to the facts of this

interlocutory relief, the learned trial judge said:

"Furthermore, there are almost no reported cases of search, under a warrant, for documents in solicitors' offices. Counsel for the plaintiffs relied on this as a persuasive indication that the legislature could not have intended that s.10 should destroy the protection upon which persons who leave their documents in the possession of their solicitors are entitled to rely. This contention carries little weight with me. I am not at all surprised by the undisturbed longevity of conventions and practices, including conventional abstentions from the assertion of legal rights. Moreover, I think an explanation comes readily to mind: the rarity, or absence, of instances of this particular issue can well be explained not only in terms of mere convention but also by the honesty of both classes of persons concerned. Solicitors can usually be trusted to tell the truth, so police officers can usually accept a solicitor's statement that a given collection of documents is all that the solicitor has of documents answering to a given description. Police officers usually act in good faith, so solicitors have seldom been subjected to improper searches. Nothing I say is intended to cast the least reflection on either party in this case. But the scarcity of reported authority does not help me to decide what 1s the letter of the law."

The facts of this case illustrate an absence of the rational

and reasonable attitude one would expect in a case of this

The search warrant was issued on Tuesday, 30 October 1979. At about 4.55 p.m. on that day the respondent with other police attended at the premises of the appellants to execute the warrant. The only evidence of what occurred was given by the appellant, Mr. Chamberlain. The evidence

given is somewhat confusing and it is desirable to quote from

-3- the transcript of evidence taken at the hearing of the motion for the interlocutory injunction. The extracts of evidence are selected to state the facts in chronological order. In

"Was there some discussion between you and Mr. Murphy concerning the documents which he said claim to have the right to search? --- Mr. Murphy contended that he had the right to search willy nilly, I would say, through the office. I challenged him on this and asked whether he was seeking a right to carry out a negative search. And he affirmed that this was the case and if necessary reinforcements would be called to enforce that right.

What did you mean by a negative search? --- To inspect all or any documents that he saw fit on the premises to ensure that there was

nothing in those documents or files that might relate to the matters covered by the warrant."

It is to be noted that on the evidence Mr. Chamberlain was the person who first used the expression "negative search" and he used it in the sense of the

constable naving the right to inspect the documents he, the

afternoon. In examination in chief Mr. Chamberlain said:

"Did you at any stage refuse to give him any documents which were sought? --- Yes.

When was that? --- When the warrant was first presented to me I said to Mr. Murphy that I thought there was only the one file in relation to the Amsell matters which appear to be that matter to which the warrant referred.

I obtained that file and subsequently made inquiries of other staff who were still at the office and found that there were, in fact, other files relating to the overall thing and a bundle of files were obtained. Of that I withheld two files and indicated to the defendant that those files in my view were privileged and not part of that those matters held by the warrant. There was a further file which was one kept for our own office which I also refused to make available to him. Subsequently he did inspect that file anyway.

What about the other two? --- They were inspected the following morning during the course of our attempts to reconcile the Matter.

Why did you claim privilege on those? --- Because they related to the affairs of another Grantham who was not one of the parties or bodies referred to in the warrant itself."

"What further files then did you give Constable Murphy that afternoon? --- There was a further bunch of files relating to the affairs of the parties referred to in the Warrant.

Do you know how many files there were? --- There would have been about ten to a dozen.

From your knowledge at that time, were they all the files held by Crowley & Chamberlain in relation to the subject matter contained in the warrant? --- To my knowledge, yes. I must qualify that to the extent that we, during the period that we acted for - particularly one of the parties, Grantham Homes, which was a builder/developer in this Territory - acted for them as the vendor of many properties. I indicated at the time to the defendant that we had a large number of files relating to Grantham Homes, that those files that I had obtained were, so far as I wasS aware only those to which the warrant related, but that I could not be sure. :

search and examine those files - those othcr files that you told him you had? --- Yes.

And did you then refuse to allow him to search for those files? --- Initially, yes."

On Wednesday, 31 October 1979 the respondent again attended at the office of the appellants. In evidence in

"On the following morning did the matter come again before the court? --- Yes.

Was there any discussion with Mr. Hiscock from the Deputy Crown Solicitor's office? --- Yes. Through the course of that morning attempts were made to satisfy Mr. Murphy that files were available and all those files that we had made available or could make available to him were those to which the warrant related. Subsequently and later through the course of that morning, I think late in the morning, Mr. Hiscock indicated that that was not sufficient and that he and his officers considered they were being impeded in their search and that they sought appropriate power.

Did they say what the power was that they sought? --- Yes, to search any and all

cupboard, safe or other place on the premises to obtain documents and to examine them to ascertain whether or not they had relevance within the terms of the warrant."

It is noted that the claim for the right to search every

cupboard, safe or other place was claimed "if necessary".

On Wednesday, 31 October 1979 the appellants gave additional files to the respondent. In cross examination Mr.

"And what further files did you give him on that date? --- I could not advise the precise files or the number of the files, but there waS a search conducted by the defendant and his officers of our index. Certain files were selected. Those files were brought down from our storage premises, and after inspection by me, if I thought they applied, they were made available to them.

And what criteria did you use for deciding whether you would give those files to Constable Murphy or not? --- My only criterion was whether or not the people referred to were covered by the terms of the warrant and whether - if I felt that there were any matters that were not -~- that those parties should not or were not privy to, then I did not make them available.

And on 31 october did you show Constable Murphy an index relating to 'A's and 'G's? --- He had access to the whole of our index. He looked at the 'A's and the 'G's."

"After you came over to court on the 31st, did you then, some time after, show Constable

Murphy the book where the file numbers are kept when a file 1S given a number? --- Yes.

And after that on request of Constable Murphy did you then obtain further files? --- Yes. At the same time I might add, that I also explained to Constable Murphy the whole of the operation of our indexing, recording and file opening and closing systems.

Following that giving of files to Constable Murphy, have you given him any further files on any other occasion, or any other documents relating to the subject matter of the warrant? --- Following the inspection of the index, the files that were sought were brought down. They were inspected. Those that were selected

I do not think any of them were rejected - were put aside in a bundle. We then moved to our library where we have a deeds safe and a wills safe. A further inspection was made of the index in relation to those documents. The documents which were selected by the defendant and his officers were witndrawn from the safe

and put into a bundle, with the exception of one package which related to the affairs of another Grantham. There was a bundle of personal papers, and I can only describe it as such, there was a letter on the file which indicated what papers were in that package. That letter was seen by the defendant and the package was subsequently restored to the safe.

Can I put this to you that you - Crowley & Chamberlain still have in their possession a number of files relating to the subject matter of the warrant which have not been given to Constable Murphy? ---

We hold still those files that were withdrawn at the request of the defendant on the second occasion. In other words, those that were taken down from the finished ...... Apart from those files and apart from those documents which we have also withdrawn from the deeds safe, I have no knowledge of any other files or documents that might relate to the affairs of those parties referred to in the warrant.

Those files have not been given to Constable Murphy, on your assessment, because they come under the heading of legal professional privilege, is that the situation? --- No. No, that is not right. The documents that I have withdrawn that I have just referred to are those which I would ke prepared to make available to him. They are the ones that he selected. When we came back to court they were kept as a bundle, they have been put

aside, they are in our premises, they are available.

Can I put it this way, you still have two types of files relating to the subject matter of the warrant. Ones which you are prepared to give Constable Murphy, and another pile which you are not prepared to give which relate, aS you see it, which come under the umbrella of legal professional privilege? ---

No, so far as I am aware those files and those documents that have now been bundled represent the total of those files held by our firm that have reference to the warrant. Io am not prepared, and waS not prepared, to allow the

defendant and his officers to conduct a general search of our office otherwise,

Are there any files contained on the premises of Crowley & Chamberlain relating to the subject matter of the warrant that you are not now prepared to make available to Constable Murphy? --- Not to my knowledge."

"Can I put this to you. Was it put to you by the police at any stage that because of the non-availability to them of the index that they wished to conduct a search of all the premises? --- Yes, I think that is probably a fair assessment, but it was - I did tell him, the defendant, that the index was not on the premises, that I did not have immediate access to it, and that it was not covered by the warrant in any event. I told him also that, you know, arrangements could be made for that

to be inspected. But the thing about it was that there was a practical difficulty associated with the timing of the presentation of the warrant in the sense that it was right

on closing time and there were other commitments, other staff involved and this is

of files and what had to be then done if that warrant was to be fully executed with our

It is not disputed that on the Tuesday afternoon Mr. Chamberlain refused to allow the respondent to inspect some files which he desired to inspect. The appellants then claimed legal professional privilege. Subsequently the appellants made reference to the index of files, but even then the appellants contended that since the index was not on the premises to be searched it was not covered by the search warrant. The respondent searched the index relating to "A"s and "G"s, being the first letters of the names of the

companies and individuals mentioned in the warrant. From

Qe this index the respondent selected a number of files which he desired to inspect. The appellants claimed the right to determine which of those files should be made available to the respondent and refused to make available the others. The latter category has not yet been made available to the

respondent but the_appellants now are prepared to make them

The respondent is asserting an absolute right to search but that claim is qualified by the words "if necesSary". The respondent has not given evidence of the manner by which he desires to execute the warrant. The facts show that he is interested in the files and documents indexed under any of the names of the companies or individuals named in the warrant. Where there is doubt as to the name or where the same name refers to a different company or individual, the respondent desires to inspect the file or documents to ascertain its relevance for the purpose of executing the

warrant. That is a reasonable course of action. The first order sought, namely:

"That the Respondent be restrained from attempting to examine any documents relating to the affairs of clients of the Appellants other than the five companies and two other persons named in the search warrant dated the 30th October 1979 given by H. Tazewell, J.P. to the respondent."

10 - is based upon the existence of legal professional privilege. That privilege has no application to the facts of this case and accordingly no order should be made in the form sought.

"That the Respondent, upon the assurance and undertaking of the Appellants that all such documents named in the said search warrant

have been or will be without delay produced as required by the Respondent, search the premises named therein no further."

The searcher is authorised to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances he has whatever documents are necessary to answer the terms of the warrant. The searcher must have some idea of what he is looking for. He should be entitled to look at the files and documents relating to the companies and individuals named in the warrant. An index of files and documents may identify them. In the absence of an index it May be necessary to identify all files and documents to enable the searcher to identify the relevant files and documents for examination. The appellants do not know the details of the information being sought by the respondent. It may not be a sufficient search to compel the respondent to accept the assurance and undertaking of the appellants, particularly where, as in this case, all the files relating to the case and individuals named in the warrant have not

been handed to the respondent. It is extremely difficult to

ll - determine what 1s or is not a reasonable search in the absence of particular facts. The general legal principles have been stated. On the facts proved it is impossible to say whether the respondent has attempted to conduct the search in an unreasonable manner. An order in the form sought interferes unduly with the authority of the respondent

in executing the warrant and should not be granted.

"A Declaration that the orders numbered 1 and 2 herein are implied by law within the terms of the said search warrant."

Accordingly, the appeal should be dismissed. The appellants have failed in their primary submission. The respondent has had restrictions imposed upon his contentions in the other submission. There should be no order as to the

I certify that this and the 7-7 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice 4 --2/+7eC?

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

PETER LAWRENCE CROWLEY, TERENCE JOHN CHAMBERLAIN, CHRISTOPHER JOHN CROWLEY and WILLIAM BRIAN LOFTUS

This appeal concerns the powers of policemen executing search warrants. A warrant was granted to Geoffrey Gerard Murphy ("the respondent"), authorising him to enter premises in which the appellants, a firm of solicitors, carry on practice in Canberra and to seize documents relating to possible offences under s. 67 of the Companies Ordinance 1962 (A.C.T.).

The documents are described in the warrant in general terms and are said to relate to transactions between five companies and two natural persons. They are clients of the appellants.

It is common ground that the appellants are not themselves implicated in the alleged contraventions of s. 67.

At a glance

Court

Decision date

Before

Source

Judgment (483 paragraphs)

Cited By (3)