Jeremiah v Lawrie & Anor [2016] NTCA 6

Jeremiah v Lawrie & Anor [2016] NTCA 6 - NTCA 2016 case summary — Zoe

[21]

[6] Subject to my general comments in relation to the form of the warrant below, I agree with Reeves J (at [89]) that in stating that it authorised the holder "to enter and search the place described above" the warrant complied with the prescription in s 117(5)(a) to state particulars of the purpose for which the search or entry was authorised. The issue for determination on this appeal is whether it complied with the requirements of s 117(5)(b).

[7] Section 117(5)(b) requires the warrant to include a description of the nature of the things authorised to be seized. In my view, no question of construction of s 117(5)(b) arises. Its meaning is plain. Similarly, in my view, the object of the requirement to provide a description of the nature of the things authorised to be seized is obvious: what the warrant authorises to be seized must be objectively ascertainable. What is necessary for the determination of this appeal, is to construe the warrant to assess whether it complies with this requirement. In my view it does not.

[8] The respondent submitted that, while a warrant may be valid if it does not identify the offence concerned, if it does identify the object of the search by reference to an offence, that offence must be properly defined. I agree. The nature of the things authorised to be seized must be plainly stated to enable a person reading the warrant to form a judgment about whether an item seized purportedly pursuant to the warrant falls within or outside the authority conferred by the warrant. There must be a standard by which the lawfulness of the conduct of the officer executing the warrant can be judged should that be challenged at a later date.

[9] Punctuation and infelicities of expression aside, what this warrant authorises to be seized is: "Electronic records [of the kind set out] [which are] related to ... an offence against a law in force in the Northern Territory, namely an offence of making a false statement in statements required to be under oath or solemn declaration - Section 118 of the Criminal Code Act (Northern Territory)." The question is whether this description adequately defines the class of documents authorised to be seized. In my view the question of whether the resulting description is adequate or inadequate does not depend upon the principles set out in the cases, but on a simple examination of the warrant.

[10] At [97] Reeves J refers to a footnote in _Ousley v[3]The Queen_3 ("Ousley") citing _The Queen v Tillett; Ex pa[4]te Newton_4 ("Tillett") for the proposition that a warrant need not specify particular things to be seized if the class of things is sufficiently identified by reference to an offence. That, to my mind does nothing more than emphasise the need for a warrant to sufficiently identify the class of things authorised to be seized - whether by reference to an offence or otherwise.

[11] In Tillett, Fox J made some observations about the requirement for a description of the things that may be seized in connection with a warrant issued under the Crimes Act (Cth):[5]

[23]

[12] It can be accepted that, under PAA s 117 also, "list certainty" is not required. As the very purpose of a warrant is to search for things that may be related to, or provide evidence of, the commission of an offence, the applicant for a warrant will often not know precisely what he or she is looking for. If one accepts that a warrant may be so framed as to leave room for a discretion in the warrant holder as to what may be seized, there must (as Fox J impliedly acknowledged in the above passage from Tillett) be some criterion by which a judgment can be made as to whether the discretion miscarried, that is to say whether a reasonable warrant holder could possibly have formed the view that the warrant authorised the seizure of a particular item. In my view, s 117(5)(b) requires the warrant to specify the type of item to be seized with sufficient particularity to enable that to occur.

[13] Although it is not strictly necessary for the purposes of this decision, it seems to me that whether a warrant provides for an area of discretion in the warrant holder as to what things may be seized will depend on the wording of the warrant. For example, if a warrant simply lists things or provides a concrete description of the things authorised to be seized, the authority conferred by the warrant will be limited to the things listed or things which objectively comply with the description. In such a case, what is required is "criterion certainty": that is it must be able to be said, with certainty, that a given object falls within or outside the class described in the warrant. On the other hand, if the things authorised to be seized are described by reference to the authorised officer's opinion or belief in the existence of a certain state of affairs or otherwise in partly subjective terms,[6] and a question arises as to whether particular items have been lawfully seized, the question to be determined will be whether an authorised officer could reasonably hold the relevant opinion or belief, or whether there are in fact sufficient grounds to induce the requisite belief or opinion in a reasonable person.[7] In such a case, at an anterior stage, where the question is the one here before the Court, namely whether the warrant complies with the requirement in s 117(5)(b) to provide a description of the nature of the things authorised to be seized, the question will be whether the warrant provides a sufficient description to enable an assessment to be made as to whether there are sufficient grounds to induce in a reasonable person the belief that the thing seized fell within the class so described.

[14] As the applicant for this warrant chose to frame it in the terms he did - ie (essentially) such of c 12,000 emails as are "related to or in connection with an offence against a law in force in the Northern Territory, namely an offence of making a false statement in statements required to be under oath or solemn declaration - Section 118 of the Criminal Code Act" - then in order to satisfy that requirement in s 117(5)(b), the warrant must give sufficient particulars of the offence for it to be objectively ascertainable whether a particular email which has been seized does or does not fit that description.

[15] In my view, the warrant under consideration on this appeal does not.[8] I agree with the conclusion of the learned trial judge[9] at [26].

[30]

[20] I do not find it necessary to come to any conclusion as to whether his Honour erred in his reliance on Wright, or in finding that the purposes of the Queensland and Northern Territory provisions were the same. It seems to me that in the passage quoted above his Honour indicated that he was alive to the differences between the two Acts, but in any event, I do not think this issue is determinative of the appeal. Whether or not his Honour's conclusion about the purpose of s 117(5)(b) was correct, in my view his Honour was correct in deciding that "in the peculiar circumstances of this case", it would not be possible "to say with even the faintest degree of clarity what documents amongst the nearly 12,000 emails have or might have a possible connection to the offence" without knowing further details of the kind his Honour set out. For that reason the warrant did not "meet the requirements that that warrant provided particulars of the purpose for which the search was authorised and the description of the nature of things authorized to be seized"[17] - specifically the latter. I do not think that placing the emphasis on the person affected by the warrant as the one who needs to be in a position to say which documents might comply with the description affects the soundness of the conclusion. In my view, it would not be objectively possible to determine from the description in the warrant whether a particular document fell within the class specified and so whether it was authorised by the warrant to be seized.

[21] Counsel for the appellant contended that the warrant did not need to describe the type of documents authorised to be seized with the particularity described above. He contended that the warrant did not stand alone, that before the warrant is issued the applicant must submit to the issuing justice an information containing the particulars specified in s 117(2) and (3)(a), and that the issuing justice must be satisfied that there are reasonable grounds for issuing the warrant. The contention was that, so long as these conditions were satisfied, there was no need for any specificity in the warrant as to the type of thing authorised to be seized, and that, often, it would be undesirable for the target of a police investigation to be given particulars of the things authorised to be seized as it might risk the integrity of an on-going investigation.

[22] I do not accept that submission. First, it seems to me to be contrary to the plain words of s 117(5)(b). Second, it ignores the fact that, after a warrant has been executed, a court may be called upon to determine whether something seized purportedly under the authority of a warrant was lawfully seized, that is to say whether it fell within the authority set out in the warrant. It is essential to that task that the warrant contain a sufficient description of the things authorised to be seized to enable a judgment of the lawfulness of the seizure to be made. As Holland J said in Trimboli:

[53]

[32] I should also add that I agree with the comments made by Reeves J about the practical difficulties of executing this warrant in the absence of any provision in the PAA which would allow an executing officer who encounters a vast quantity of electronic data an adequate opportunity to search that data in order to identify what part of it relates to the offence (or otherwise falls within the description in the warrant) such that the officer can validly seize it.

[33] There is simply no power in the PAA to remove electronic (or other) documents from the premises being searched so as to examine them elsewhere to see if they fall within the class of documents authorised to be seized by the warrant. The only authority for removal of the documents is the warrant, and the warrant only authorises seizure of documents which fall within the description set out in the warrant (in this case emails sent and received from the named people between the specified dates "related to or in connection with an offence against a law in force in the Northern Territory, namely an offence of making a false statement in statements required to be under oath or solemn declaration - Section 118 of the Criminal Code Act (Northern Territory)" (sic). Further, the only person authorised to seize such documents is the person to whom the warrant was issued so that person must form the relevant judgment.[20]

[34] In Trimboli[21] there is a discussion of the English case of Inland Revenue Commissioners v Rossminster Ltd.[22] Rossminster concerned a power to search and seize conferred by statute rather than a warrant, but, as pointed out in Trimboli the principle is the same: the decision as to what fits the description in the warrant of what is authorised to be seized must be made before leaving the premises - there being no power to remove documents other than those which (in that case) fit the description in the statute, and (in this case) fit the description in the warrant.

[35] Given those constraints, the authorised person in a warrant issued under PAA s 117 must ascertain while on the premises that any documents he wishes to seize fall within the description in the warrant. That being the case, it being agreed that there were around 12,000 emails in the electronic records in question, there seems to me to be no practical way in which this particular warrant could have been lawfully executed.

[36] Finally, I agree with the comments of Hiley J at [60].

[54]

[37] I agree that the appeal should be dismissed. In particular I agree with the conclusions expressed by Kelly J as to the need for a warrant to sufficiently identify the nature of the things authorised to be seized so that a reasonable warrant holder can ascertain what things may be seized (at [7] - [8] and [12] - [14] above), the non-compliance of the subject warrant with this requirement (at [14] - [16]), the relevance of the interests of a person who may be affected by the warrant (at [17] - [20]) and the relevance of information known to the holder of the warrant but not apparent on the face of the warrant (at [21] - [22]). I add the following comments.

[38] In the present matter the warrant purports to describe the nature of the things authorised to be seized by reference to an offence, namely "an offence of making a false statement in statements required to be under oath or solemn declaration - Section 118 of the Criminal Code Act (Northern Territory)." Accordingly, the main question in the present matter, and the focus of most of the submissions on appeal, is whether the offence is sufficiently described in the warrant to identify the area of the search.

[39] The primary judge's observation, at the end of [18] of his reasons for decision, that it is "necessary that the warrant should refer to a particular offence and authorize seizure by reference to that offence", is uncontroversial for the purposes of this matter. That observation is consistent with views expressed in the authorities to which his Honour referred in footnote 5, Tillett and Corbett,[23] and in other authorities to which we were referred including BFC,[24] Parker v Churchill,[25] Wright, Ousley, Hart[26] and Different Solutions.[27]

[40] At the hearing of the appeal both parties referred extensively to those and other authorities, none of which directly related to s 117 of the PAA or legislation elsewhere containing provisions such as s 117(5)(a) or s 117(5)(b). However they are useful in so far as they contain relevant principles including those concerning the kind of information that should be included in a warrant in order that the permitted scope of the search is identified.

[41] Tillett, BFC and Parker involved the interpretation and application of s 10(1) of the Crimes Act 1914 (Cth). This provision authorised the issue of a warrant following the issuing officer being satisfied that "there is reasonable ground for suspecting that there is" at the place to be searched "anything" relating to an offence. Many of the other authorities relate to similar provisions, but also involve additional provisions which expressly stipulate that the warrant must refer to a particular offence.[28]

[42] In Different Solutions Graham J summarised those authorities and expressed a number of conclusions.

[43] At [104] his Honour said:

[113]

[71] Before the primary judge, Ms Lawrie advanced two contentions in her challenge to the first warrant. Each contention incorporated two bases. The first basis relied upon for the first contention related to the breadth of the warrant. The primary judge rejected that basis because he held that there was no challenge to the breadth of the warrant on the grounds that the information before the learned magistrate failed to establish a connection between the things referred to in the warrant and the offence, "extraordinary as that may appear to be at face value".[35] The second basis for the first contention was that the warrant did not purport to limit the range of records to which it related to those that might be connected or related to any offence. The primary judge's reasons for rejecting that basis have already been mentioned above.[36] None of these conclusions has been challenged in this appeal.

[72] Ms Lawrie's second contention was that the words in the first warrant were insufficient to define properly the scope of the warrant. In particular, she pointed to the fact that, although the alleged offence was referred to in the warrant, there was no indication as to who it was that was said to have made the false declaration, when it was said to have been made, the nature of it, that is what it related to, and in what context it was said to have been made.[37] The first basis put in support of this contention was rejected by the primary judge on essentially the same ground as he rejected the first basis in support of the first contention: that there was no challenge to the breadth of the warrant.[38] This conclusion is also not challenged in this appeal.

[73] The second basis put in support of this second contention relied upon the decision of Holmes J (as she then was) in Wright a decision concerning s 73 of the Police Powers and Responsibilities Act 2000 (Qld). The primary judge quoted from what Holmes J had said at [31] and [32] of that decision, and then expressed the following conclusions:[39]

[116]

[74] Detective Jeremiah submitted that the primary judge had erred in relying upon the decision in Wright to conclude that the purpose of the PAA was the same as the purpose of the Queensland legislation there under consideration. Rather, he submitted the primary judge should have determined the purpose of the PAA by reference to its provisions alone. Detective Jeremiah also submitted that the primary judge had erred in construing s 117(5) of the PAA. He submitted that the express requirements of that section were to state the purpose for which a search is authorised and to describe the things authorised to be seized. He submitted that the primary judge had erred in construing that section as requiring the warrant to state with clarity which of the things specified in it have, or might have, a possible connection with the offence. He submitted that the section does not require the offence to be so particularised. Since the warrant stated the relevant offence and corresponding legislative provision, he submitted it was valid on its face.

[75] Ms Lawrie submitted that the primary judge was clearly aware of the differences between the PAA and the Police Powers and Responsibilities Act 2000 (Qld) and had not erred by relying on the decision in Wright to conclude that the purposes of the two pieces of legislation was similar. Further, she submitted that a warrant issued under the PAA must comply with "the general law requirement that the object of the search must be identified on the face of the warrant". She submitted that, while a warrant may be valid if it does not identify the offence concerned, if it does identify the object of the search by reference to an offence, that offence must be properly defined. She therefore submitted that the primary judge correctly found that the warrant was defective because it did not properly define the offence concerned. In particular, she submitted it did not identify the date and place of the alleged offence, the identity of the alleged offender and the circumstances in which the alleged offending had occurred.

[137]

[87] Put differently, if the primary judge had construed the PAA by reference to its true purpose, as stated above, I do not consider one could "discern ... a legislative purpose to invalidate" the warrant.[52]

[88] To demonstrate this, it is necessary to turn to consider the text of s 117 of the PAA, particularly s 117(5). That section prescribes the "particulars" that shall be stated in a warrant. As can be seen above,[53] there are three such particulars. The third, the date upon which the warrant ceases to have effect, is not in issue in this appeal, so it is only necessary to consider the first two.

[89] The first, s 117(5)(a), requires the warrant to state, by way of particulars, "the purpose for which the search or entry is authorised". When this provision is read in the context of the first two subsections of s 117 (s 117(1) and (2)), which distinguish between a warrant issued for the purposes of searching a person (117(1)) and a warrant issued for the purposes of searching a place (117(2)), I consider it is to be construed to require the warrant to state which of these two purposes the warrant authorises. Applying that construction, it can be seen from the warrant above[54] that it stated that it authorised Detective Jeremiah "to enter and search the place described above". That place is earlier described as the Department of Corporate and Information Services, Northern Territory Government, Level 3, Darwin Plaza, 41 Smith Street Mall, Darwin. In my view, the warrant therefore complied with the prescription in s 117(5)(a) to state particulars of the purpose for which the search or entry was authorised.

[90] The second, s 117(5)(b) of the PAA, requires the warrant to state, by way of particulars, "a description of the nature of the things authorised to be seized" (emphasis added).

[91] The words of this subsection must, of course, be read together as a whole. Nonetheless, it is instructive to consider some of the particular expressions that have been used within it. I will deal with them, in turn (as emphasised above). In this context, the ordinary meaning of the word "nature" is "the particular combination of qualities belonging to a person or thing by birth or constitution; native or inherent character".[55] This word therefore requires the warrant to describe those features of the things which are authorised to be seized.

[92] As is already noted above,[56] s 116(1) of the PAA provides an expansive meaning to the word "thing". It applies not only to things connected with, or relating to, an offence that has been committed, but extends to things that are intended to be used for the purposes of committing an offence.

[93] The word "seized" is not defined in the PAA. It was also not defined in the Crimes Act 1914 (Cth), which was the legislation under consideration in Hart. The observations the Full Court made about its meaning in the context of a seizure under that legislation are therefore pertinent. They were:[57]

[145]

[98] In Different Solutions,[62] Graham J conducted a helpful review of the authorities relating to the sufficiency of the description in a search warrant of the object or area of the search it authorises. His Honour began by identifying the restrictive "exact object of the search" approach taken in Parker and similar authorities, including Tillett.[63] He then referred to the change of approach adopted in BFC and Harts Australia Ltd v Commissioner, Australian Federal Police[64] where "a broad practical approach" was preferred.[65] Thereafter, as well as identifying a number of errors or omissions that had not led to the invalidity of a warrant,[66] his Honour also discussed the balance that had to be struck between "the sanctity of a person's domain and concomitantly an interference with his privacy"[67] and "the prevention, detection and punishment of crime",[68] noting that it was the task of the Courts to "find a satisfactory and workable compromise of the conflicting public interests that are involved".[69]

[99] In her contentions in this appeal, Ms Lawrie has therefore correctly identified the need for a search warrant to state the object or area of the search. However, she has also claimed that, while the failure to include a reference to an offence will not cause such a warrant to be invalid, if an offence is inserted in it to attempt to state the object or area of the search, it will lead to invalidity if that offence is not sufficiently defined. I do not consider this latter contention accurately reflects the effect of the observations set out in the authorities cited above. The defect in it is that it fails to address the instance where both a thing or things and an offence or offences are stated in the warrant. In that case, I consider the two components will operate together to define the object or area of the search. Whether they do that so inadequately that it leads to the invalidity of the warrant will depend upon the considerations set out above.

[100] In this case, the warrant did include both components. As can be seen above,[70] it described the "thing" and the offence in the following terms:

[152]

[103] These observations applied to the issue of the warrant in question, however I consider that they are equally applicable to the contents of the first warrant in this case. Having regard to the description of the things that were authorised to be searched and the description of the offence with which those things were connected, or to which they were related, I therefore consider this warrant served to achieve this strict compliance. Put differently, taking into account the authorities I have discussed above and the purpose of the police powers provisions of the PAA I have identified above of facilitating the investigation and prosecution of crime, I do not consider the description of the object of the search by reference to both the things in question and the offence was so deficient that it led to the invalidity of the first warrant.

[104] For these reasons, I consider this appeal must be allowed and the orders of the primary judge set aside. This means that the things that were seized and returned to the Northern Territory Government Department of Corporate and Information Services should be returned to Detective Jeremiah.

[105] However, it is appropriate to add these observations. While I consider the primary judge was in error in finding this warrant to be invalid, I do consider his Honour has identified a real issue with the execution of this warrant. In my view, the difficulty in this case does not arise from any lack of clarity in the description of the object of the search in the warrant, but rather lies with the lack of any provision in the PAA which allows an executing officer who encounters a vast quantity of electronic data an adequate opportunity to search that data in order to identify what parts of it relate to the offence such that he or she can validly seize it. This difficulty was adverted to in Hart where the Full Court discussed a similar issue, in relation to s 10 of the Crimes Act 1914 (Cth) which, in its previous form, was similar, albeit more prescriptive, than s 117 of the PAA. The Court said:[72]

Prior to the enactment of s 3K it was not possible under s 10 of the Crimes Act or the like provisions of other jurisdictions to remove things from the warrant premises with a view to deciding at a later time whether or not to seize them. This limitation flowed from the conditions by which the statute governed the execution of a warrant. It reflected the general principles enunciated by Lord Denning MR in Ghani v Jones [1970] 1 QB 693. His Lordship described it (at 706) as "settled law" that officers entering a house under a warrant or arresting a person with or without warrant for a serious offence were "entitled to take any goods which they [found] in his possession or in his house which they reasonably [believed] to be material evidence in relation to the crime for which he [was] arrested or for which they [entered]" (at 706). See also R v Inland Revenue Commissioners; Ex parte Rossminster Ltd at 960 per Eveleigh LJ and at 1013 per Lord Diplock.

It was possible to remove a file, book, bundle or document which was believed on reasonable grounds to contain material of evidentiary value, provided that any necessary sorting process was carried out with reasonable expedition and that those documents not of evidential value returned reasonably promptly. It was not open to an executing officer to remove materials for later sorting without consideration of whether or not they might contain evidential material: Reynolds v Metropolitan Police Commissioner [1985] QB 881 at 896 per Slade LJ; at 889 per Waller LJ; at 902-903 per Purchas LJ; Allitt v Sullivan [1988] VicRp 65; [1988] VR 621 at 641 per Brooking J; Bartlett v Weir [1994] FCA 1143; (1994) 72 A Crim R 511 at 523 per Beazley J.

[106] The Commonwealth Legislature addressed this difficulty by establishing the Gibbs Committee and inserting ss 3L and 3K into Part IAA of the Crimes Act.[73] Those sections included provisions which allowed executing officers to take equipment to the search premises "reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant" (s 3K(1)); subject to various conditions, to move a thing found at the search premises "for examination or processing in order to determine whether it may be seized under a warrant" (s 3K(2)); to "operate electronic equipment at the warrant premises to access data ... if he or she suspects on reasonable grounds that the data constitutes evidential material" (s 3L(1)); subject to various conditions, to "copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises" (s 3L(1A)); and to "seize the equipment and any disk, tape or other associated device" upon which an executing officer finds evidential material after operating the equipment (s 3L(2)). These provisions have been amended on occasions since as issues have been identified with respect to them.

[107] There are no such provisions in the PAA. In their absence, it is not difficult to predict that an executing officer such as Detective Jeremiah who is confronted with a large quantity of electronic data when undertaking a search at premises will encounter problems forming the requisite belief on reasonable grounds at the premises in relation to the connection between that data and the offence to which the warrant relates such as to justify seizing all or a part of that data. Nonetheless, since I do not know the full circumstances of the seizure in this case and since this has not been raised as an issue in this appeal, it is not appropriate that I take this matter any further.

[108] For these reasons, I consider the appropriate orders are:

(a) The appeal be allowed.

(b) The orders of the primary judge made on 29 April 2016 be set aside.

(c) Order that the documents seized under the first warrant should be returned to the appellant.

(d) Order that the first respondent pay the appellant's costs of the appeal.

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