Complaints regarding the description of the offence in the third condition
55 The complaints regarding the description of the offence in the third condition were multifaceted and directed primarily to aspects of its last four lines: see [26] above. The complaints must be considered together and in their context.
56 As referred to above, the third condition must be read as a whole. This is to be contrasted to the applicant's approach which put to one side the first part of the third condition as "really just a restatement of the text" of the offence provision.
57 Properly read, the first part of the third condition (up to its last four lines, quoted at [26] above) identifies: that the offence is the provision of training, as opposed to the other bases in s 83.3(1)(a), namely receiving or participating in training; the nature of the training; and the circumstances in which the training occurred, including that it was directed, funded or supervised by the PLA. Contrary to the applicant's submission, matters of factual delineation are contained in the first part of the third condition. The latter part of the condition commencing "in that" must be read in that context. In context, it can be understood that the latter part of the condition provides further and more specific elucidation of the conduct said to have been engaged in by the applicant to constitute the offence.
58 As a result of mischaracterising the first part of the third condition, the applicant's submissions proceed on an artificial premise.
59 Based on the last four lines of the condition, it is said that the reader cannot discern: first, whether the applicant on the one hand, is said to have provided training or, on the other hand, is said to have organised and facilitated it (see [26(a)] and [26(b)] above); second, why the latter is an offence; and third, the meaning of key phrases and how they relate to the statutory offence, such as "military aircraft platforms" and "military doctrine, tactics and strategy" (see [26((c))]-[26(e)] above). It was also submitted that the warrant encompasses multiple offences, including accessorial offences, and offences involving variously providing or participating in training.
60 Addressing each in turn.
61 The first basis relies on the applicant's submission that the basis of liability is unclear in the third condition. It is said that the condition may be referring to accessorial liability, but that is not identified. That appears to be based on the use of the phrase "organised and facilitated" training, when the offence is instead to provide training. It was also said that the reference to the training being "delivered by TFASA" creates the same confusion. However, as explained above at [57], it is plain from the warrant that the applicant is alleged to have "provided training", that is, he is a principal offender. The language of the third condition does not suggest any form of accessorial liability.
62 The submission appears to proceed on the basis that the concepts of "organising and facilitating training" are not within the concept of "providing training" in the offence provision. The applicant goes so far as to submit in writing that the concepts are inconsistent, meaning the two parts of the third condition are inconsistent with each other. I do not accept that proposition. Moreover, the submission suggests that the conduct alleged to have been engaged in is incapable of satisfying the offence provision. That is the submission disavowed by the applicant: see [41] above. If, as a matter of law, conduct which falls within the description is capable of satisfying the description of providing training, there is no inconsistency. As explained above, the ordinary reader of the warrant does not have to be satisfied that the conduct falls within the offence provision.
63 In so far as the applicant also submitted that it is required that the third condition explain how the concepts of "organising and facilitating" satisfy the concept of "providing", it cannot be accepted. Such detail would not even be required in an indictment. Moreover, it must be recalled that the warrant is an investigative instrument, issued at the stage of gathering evidence. This submission also does not address focus on the task at hand. Delineation of search parameters is provided by the concepts of organising and facilitating, read in context. That also addresses the second complaint, as referred to at [59] above.
64 In the applicant's written submissions in reply, he contended that, based on s 11.2 of the Criminal Code (which provides that the who person "aids, abets, counsels or procures the commission of an offence" is taken "to have committed that offence"), the fact that the warrant identifies the applicant as a person who "provided training" does not tell whether he is said to have done so in his own right or as an accessory. That submission illustrates an approach to reading the warrant which is designed to look for ambiguity. There is no basis for the reader of the warrant to do other than to read that the applicant provided the training in any way other than he is alleged to have done.
65 I do not accept the submission that properly read, the warrant encompasses multiple offences in the manner contended by the applicant.
66 In any event, but importantly, it is entirely unclear how, if the applicant was said in the warrant to be an accessory as opposed to a principal offender, that could affect the limits of the search. Any proof of the role of an accessory involves establishing the principal offence. Delineation of the limits of the search is provided by the description of "organising and facilitating" the training delivered by TFASA.
67 For completeness, I also observe that although the applicant disavows any submission that the conduct is incapable of amounting to the offence (see [41] above), I accept that it is capable. The ordinary meaning of "provided" is broad enough to encompass more than in person or physical delivery. Although it is not necessary to rely on extrinsic material as to the meaning of the elements of the offence, I note that this ordinary meaning is confirmed by the Revised Explanatory Memorandum at [376]: "[t]he term 'provides' could include organising, facilitating, supplying, and delivering training. The term is intended to include any conduct that actually constitutes the delivery of the content of the training. However, it could also include conduct that contributes to the provision of training, such as supplying weapons or constructing the training course". I note also that in relation to the term "practising" in s 83.3(1)(b), the Revised Explanatory Memorandum at [383] states that "[t]he term 'practising' could include rehearsing, working at, working on and running through. This term is intended to include conduct that involves physical activity such as practising military drills, and non-physical activity such as studying or learning about the use of arms, military exercises, movements or evolutions". If the applicant is charged with an offence, it will be for the trial court to consider the terms of the indictment presented.
68 The third complaint relates to the meaning of phrases and how they relate to the statutory offence. The two phrases identified are "military aircraft platforms" and "military doctrine, tactics and strategy".
69 Again, the basis of this submission, in particular regarding the phrase "military doctrine, tactics and strategy" appears, at its heart, to be an incapability submission. Namely, that these words do not relate to the underlying offence, as the offence of providing training requires physical activity. If the conduct described is capable of satisfying the offence, which the applicant has made clear he does not challenge, it is difficult to understand the basis of the submission. If the submission is that the offence description in the third condition needed to explain how "military doctrine, tactics and strategy" are legally capable of satisfying the offence provision, for the reasons given above, I do not accept that argument. Again, such detail would not even be necessary in an indictment. It is a legal question of which the ordinary reader does not need to be satisfied. The phrase itself, read in context, is readily understandable. As referred to above, these concepts read in their context, provide delineation of the search parameters authorised by this warrant.
70 The phrase "military aircraft platforms" must also be read in its context. The terms of the third condition reflect that the applicant is said to be the Chief Operating Operator of the Test Flying Academy of South Africa. The training is stated on the face of the warrant to have involved "the use of arms or practising military exercises, movements or evolutions" and to have been provided to pilots. The plain reading of Test Flying is that it relates to planes.
71 As explained above, the parties placed a number of dictionary definitions before the Court, of which they submitted I could take judicial notice. Although the definition of "platform" included a number of alternative meanings and varied, at least to some extent, between the publications, the Oxford English Dictionary provides as part of the second meaning, "a vehicle, esp. an aeroplane, providing a steady firing base for heavy weaponry". The Collins Dictionary and Merriam-Webster Dictionary, which were also provided by the respondent, similarly referred, as part of their meanings, to a vehicle (including the specific example of aircraft in the Merriam-Webster Dictionary). I note, on the other hand, that the Macquarie Dictionary supplies 13 definitions for "platform", none of which contain reference to a "vehicle". Nonetheless, it can hardly be said in that context that the meaning is, as the applicant submitted, a technical meaning only. It may be accepted that the phrase has an ordinary meaning, albeit perhaps used more in a particular field.
72 Further, the respondent relied on extracts concerning military matters (such as public facing military strategy documents) which use the term platform in the same manner. That does not render it a technical meaning, but rather reflects its common usage in a particular field.
73 Although there may be multiple meanings of the term, it takes its meaning from the context in which it is used. In the context of an offence of military style training, involving pilots and the use of arms or practising military exercises, movements or evolutions, the inference is that "military aircraft platforms" refers to vehicles. The ordinary reader of the warrant, reading it as a whole and in context, would reasonably have understood the phrase to be referring to military aircraft. That the applicant may be able to theorise alternate meanings (for example, software for a hardware simulator) does not create ambiguity as to the limits of the search.
74 In any event, the applicant would have been under no misapprehension as to the meaning of the term. Although unnecessary to decide given the conclusion above, it is appropriate to address the respondent's submission that the applicant, given his position with TFASA and his background in the aviation and defence industries, would be expected to be aware of this meaning of the term. It was submitted that the occupier's expertise and knowledge are relevant, consistent with the statement in Caratti at [40] that whether the offence description is adequate or sufficient is a "matter for assessment in all the circumstances of the case at hand". The applicant submitted that this approach is not permitted according to Smethurst at [29], and in any event, it had not been pleaded and evidence had not been adduced that the applicant was the occupier. The respondent took issue with that, and submitted that nothing in Smethurst suggests the expertise or knowledge of the occupier must be put aside.
75 The passage of Smethurst relied on by the applicant states (citations omitted):
[29] It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate.
76 Further, the plurality cited Wright v Queensland Police Service [2002] 2 Qd R 667 (Wright) at [31]-[32] in support of the second sentence.
77 In Wright, the warrant in issue only included the name of the offence and section number. Holmes J held that the reader, without ancillary knowledge, would not have known from the face of the warrant who committed the offence, where or when it was committed. Her Honour found that it was no answer to contend that the description of the offence was sufficient because the person affected had been charged with the offence. Her Honour concluded, having regard to the need for the persons affected by the warrant to understand the bounds of the search to be conducted, that was not sufficient: see Wright at [32].
78 This case is very different from the circumstance that arose in Wright. The knowledge said to be relevant does not relate to the commission of the offence, but rather, is based on the applicant's background and position in the field where the description "military aircraft platform" is commonly used. It is not that what is relied on is that the applicant has "some ancillary information as to the offence to which the warrant is intended to relate": see Smethurst at [29], the proposition for which Wright is also cited. As explained above, the phrase has an ordinary meaning, and one which the applicant would have been well aware of. In the circumstances of the case at hand, given the context of its use, the applicant would have been under no misapprehension of its meaning. Further, for the purposes of this application, there is evidence (being admissions in an affidavit of the applicant's solicitor) that the address that the warrant related to is the applicant's residence, and that he was provided with the document which sets out the rights of the occupier and signed off on the items seized (noting in respect to signing off the seizure record he did not indicate by crossing out alternatives, in which capacity he was doing so).
79 As explained above, this case is also very different from Smethurst, where the offence was misstated such that the reader was misinformed of its nature.
80 The use of the term "military aircraft platforms" does not involve a misstatement of an offence, but rather the warrant includes a word in a phrase which is said to have more than one meaning, in the description of the alleged conduct (the issue being which ordinary meaning is understood as applying). It can be assumed that the impugned phrase was used by the police seeking to obtain the warrant, in the context of the offence alleging military style training involving a foreign principal contrary to s 83.3 of the Criminal Code. Noting also that there is no challenge made to the sufficiency of the information before the magistrate in issuing the warrant in the terms her Honour did, or its execution. There is no reason to suggest that there was any misunderstanding by the issuing or executing officer.
81 Pausing there. I referred above to the applicant's objections to the: documents annexed to the affidavit of the applicant's solicitor; bundle of documents in relation to the meaning of the term "platform"; and Wayback Machine capture of the TFASA website: see above at [8]. This evidence relates only to this submission. Although it was not necessary to rely on this submission to resolve the issue at hand, I nonetheless addressed it and therefore I allow the evidence, given my findings at [72]-[80] above.
82 Although not much emphasis was placed on it, the applicant also submitted that there is no explanation in the third condition as to how, if at all, the fact that training was said to be delivered to PLA pilots means that the training was "directed, funded or supervised" by the PLA. It may be argued that such a detail may be required in an indictment (or may more likely be provided by particulars), but it is not required for a condition for the purpose of identifying the limits of the search to be undertaken. The applicant submitted that he did not suggest this detail was required, but that the failure to include it contributes to the overall vagueness of the warrant. That is rather a matter of semantics. The issue is whether the nature of the offence is sufficiently identified for the purpose of the warrant. As is plain from the third condition, there is a limitation on the area of the search as the foreign entity is identified. It is unclear how the absence of further detail creates vagueness such that the nature of the offence is not sufficiently clear. Again, this illustrates an approach with an eye for ambiguity.
83 It is important to recall that the question is not whether further specificity or detail could have been included in the conditions of the warrant. Rather, the question is whether the applicant has established that the warrant is invalid on the basis that it fails to set real and meaningful parameters (as explained in the authorities) on the scope of the search that is authorised.
84 I do not accept the applicant's submission that the matters identified by him in relation to the third condition expose "debilitating ambiguity in the articulation of the offence". Although the applicant also asserted in his written submissions that the warrant misstates the offence, none of his complaints (whether considered separately or in combination), found that submission. I do not accept that there is any misstatement of the offence.
85 I am not assisted by the hypothetical scenarios posed by the applicant, as they are artificial and founded on the correctness of his underlying propositions. For example, the first illustration submits the reader is left to guess whether the first part of the condition (provided training involving the use of arms, where the training was funded by the PLA) or the second part, (as Chief Operating Officer of TFASA, organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy) is the dominant one. It is premised on the basis that there is an inconsistency between the two. For the reasons above, I do not agree.
86 More importantly, the applicant's hypothetical examples fail to properly recognise that the warrant authorises seizure of "evidential material". The examples provided were: a copy of "Sun Tzu's Art of War" gifted to the applicant by the PLA; and a "document containing an agenda of activities", including an activity marked as "quiz on military doctrine, tactics and strategy - to be run by Ms Smith for the PLA". The term "evidential material" is defined as "anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence": ss 3 and 3C of the Crimes Act. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial: Smethurst at [28], citing George v Rockett at 119. As described in Adler v Gardiner at [20] (citations omitted):
[20] A thing will afford evidence of the commission of an offence if it assists, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters. The expression "will afford evidence" does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged. That includes things which are adjectivally relevant as well as things which are of substantive relevance.
87 Also see George v Rockett at 119-120.
88 The applicant's approach, by the examples given, seems to erroneously assume that the evidential material must directly implicate the applicant in the elements of the offence, as opposed to, for example, doing so in an indirect way or being relevant to furthering the investigation.
89 I agree with the respondent's submission that, if the executing officer or a constable assisting seized either of the items in the applicant's hypothetical examples, the suspicion that the item would afford evidence as to the commission of the stated offence might well be held on reasonable grounds.
90 In any event, that in any particular case there may be room for dispute about whether particular items fall within the bounds of the warrant does not establish that the warrant is invalid. An item can only be seized if the relevant suspicion is held.