Joukhador v Commissioner of Police

The warrants

1. The three warrants are relevantly identical. The need for three warrants arose because Thomas Booler Lawyers conducted its business at three separate premises (two adjacent suites within the same premises in Auburn and separate premises in Bankstown).
2. Each warrant provided that the relevant premises could be searched for any of the following things : "Thomas Booler Lawyers Business records relating to employees and wages Thomas Booler Lawyers trust account records including: Receipts cashbook for period January 2012 to present Payments cashbook for period January 2012 to present Reconciliation and balance statements for period January 2012 to present Client ledgers for all clients listed in Schedule of claims Receipts and payments requisitions for clients listed in Schedule of claims Transfer journals for clients listed in Schedule of claims Documents relating to clients/claims listed in Schedule of claims, including: Claim forms Medical/expert reports Invoices and receipts File notes and correspondence Electronic storage devices including computers, hard drives, flash drives containing: Electronic diaries Documents relating to clients/claims listed in Schedule of claims, including: Claim forms Medical/expert reports Invoices and receipts File notes and correspondence Arslan & Associates Business records relating to employees and wages Business records relating to clients listed in Schedule of claims"
3. The "Schedule of claims" referred to at various points in that list was an attachment to the warrant. It identified over 180 clients of the firm by name and "insurer". The reference to "Arslan & Associates" was a reference to a firm of interpreters which was understood to provide services to Thomas Booler Lawyers.
4. Under the list of things that could be searched for, each warrant stated: "The applicant has reasonable grounds for believing that those things are connected with the following searchable offence(s): Fraud s192E Crimes Act 1900."

Relevant provisions

1. The warrants were issued under Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
2. Much of the plaintiff's argument as to the alleged invalidity of the warrants was based on statements in earlier authorities concerning the refusal of the common law to countenance general warrants and the concern of statutes which create exceptions to the common law position to maintain a measure of protection against invasion of premises and privacy. The decision referred to by the plaintiff in that context included the decision of the High Court in George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 110-111 and the helpful account of the history of search warrants provided in the judgment of Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441 at 445-446. While those authorities are important in informing an understanding of the context in which any particular legislation was introduced and is to be construed, the consideration of the validity of a search warrant must ultimately turn on the terms of the statute. The decision in George v Rockett itself recognises that the validity of a warrant is "necessarily dependent upon the fulfilment of the conditions governing its issue".
3. The Law Enforcement (Powers and Responsibilities) Act creates a relatively clear and straightforward scheme for the conferral of search and seizure powers by warrant. Warrants of the kind with which these proceedings are concerned are addressed in Division 2 of Part 5 of the Act, which contains ss 47 to 52. Other parts of the Act confer power to apply for two other kinds of warrant, criminal organisation search warrants and covert search warrants, but these proceedings are not concerned with those kinds of warrant.
4. Section 47 confers power on a police officer to apply to an eligible issuing officer for a search warrant in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. Importantly, the authority to make an application under that section turns on the police officer's subjective belief concerning the existence of "a thing connected with a searchable offence in relation to the warrant". The question of fulfilment of the conditions governing the issue of a warrant accordingly calls attention to two particular matters: the existence of "a thing" on premises and its connection with a searchable offence.
5. The required connection is defined in s 46(3) as follows: "46 Interpretation (3) For the purposes of this Part, a thing is connected with a particular offence if it is: (a) a thing with respect to which the offence has been committed, or (b) a thing that will provide evidence of the commission of the offence, or (c) a thing that was used, or is intended to be used, in or in connection with the commission of the offence."
6. The term "searchable offence" is defined in s 46A and, relevantly for present purposes, an indictable offence.
7. Section 47A states the scope of general authority conferred by a search warrant, namely, to enter the subject premises and to search the premises for "things connected with a particular searchable offence in relation to the warrant".
8. Section 48(1) provides: "An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant."
9. The task of making that determination is qualified by s 62 of the Act in two important respects. First, s 62(1) provides a mandatory list of information which must be included in an application for a warrant and without which the eligible issuing officer "must not" issue the warrant. Importantly, that list includes as item (b) "particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved".
10. Secondly, s 62(3) provides a mandatory but non-exhaustive list of relevant considerations that must be taken into account in determining whether there are reasonable grounds to issue a warrant. Those matters are considered further below.

Specification of the "searchable offence"

1. Grounds 1 and 1A are: "(1) The search warrants do not state with sufficient particularity the searchable offence in relation to which warrants were issued. (1A) The Third Defendant erred in law by issuing search warrants which did not state with sufficient particularity the searchable offence in relation to which the warrants were issued."
2. Ground 1 appeared in the old amended summons whereas ground 1A is new. Although both grounds were pressed, they were not treated in the plaintiff's submissions as raising any different issue. It is convenient to consider both grounds together.
3. The only specification of the "searchable offence" on the face of the warrants is the short statement set out above, "Fraud s 192E Crimes Act". It is not disputed that the offence specified is a searchable offence, as that term is defined in s 46A of the Law Enforcement (Powers and Responsibilities) Act. However, the plaintiff submitted that the description provided in the warrant does not meet the requirements of the Act, which call attention to the connection between the thing for which search is authorised and "a particular offence". The plaintiff acknowledged that the relevant searchable offence need not be stated with the specificity of an indictment. It was further acknowledged that the applicant for the warrant need not have a particular instance or conception of the offence in mind. However, the plaintiff submitted that the specification of the offence must have sufficient particularity "to appropriately limit the scope of the search" (par 29 of the plaintiff's written submissions).
4. The plaintiff's submissions on this issue included reliance on s 62 of the Law Enforcement (Powers and Responsibilities) Act. In particular, it was submitted that the search warrants are invalid "because they do not comply with the requirements [in that section] because they do not contain particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved". In my respectful opinion, that submission entails a misconception as to the scope of s 62. As submitted by the defendants, it is important to distinguish between what is required to be included in an application, what the eligible issuing officer must consider and what must be included in the warrant.
5. There is no requirement in the Act to specify the relevant "searchable offence", or indeed particulars of "the nature of the searchable offence", on the face of the warrant. The only provision as to the content of the warrant is to be found in s 66(1), which provides "a warrant is to be in the form prescribed by the regulations". The regulations prescribe Form 11 as the form required to be used for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant): reg 6(1)(a) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW). Form 11 requires the applicant to complete the following entry: "The applicant has reasonable grounds for believing that those things are connected with the following searchable offence: (2) [ ]" (2) Specify relevant offences"
6. Section 62 is concerned with the information the eligible issuing officer must take into account, relevantly providing as follows: "62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: … (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved…"
7. The contemplation of searchable offence within the meaning of section 46A is certainly important. The authority to issue a search warrant (other than a covert search warrant or a criminal organisation search warrant) exists only in respect of a searchable offence. A warrant cannot be issued unless the application includes information as to "the nature of the searchable offence" (s 62). However, as already noted, no section of the Act imposes a requirement that the warrant contain a statement of the searchable offence on its face; that requirement comes only from the terms of the form.
8. The defendant submitted that there is a complete answer to grounds 1 and 1A in s 12 of the Criminal Procedure Act 1986 (NSW). That section provides: "12 Short description of certain offences (1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. (2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document. (3) Nothing in this section affects any other method of stating or describing an offence. (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document." (emphasis added)
9. Mr Singleton, who appears for the first and second defendants, submitted that the description of the offence that appears on the face of the warrant ("Fraud s192E Crimes Act") is the "short expression" (within the meaning of s 12(1) of the Criminal Procedure Act 1986) that describes the offence of fraud, which is the searchable offence in the present case.
10. Section 192E of the Crimes Act 1900 (NSW) appears under the heading "fraud" and provides as follows: (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.
11. It might have been possible to distinguish as between subsection (1)(a) and (1)(b), stating whether the "searchable offence" was dishonestly obtaining property by deception or dishonestly obtaining a financial advantage by deception or dishonestly causing a financial disadvantage by deception. However, the question is not whether more information could have been specified but whether the "searchable offence" in fact specified on the face of the warrant fulfilled the conditions governing its issue.
12. Mr Singleton submitted, having regard to the provisions of s 12 of the Criminal Procedure Act, that it would be absurd if the section was construed not to refer to search warrants under the Law Enforcement (Powers and Responsibilities) Act. He asked, rhetorically, if s 12(2) does not refer to such warrants, what kind of "warrant" might it refer to?
13. There is much force in those submissions.
14. Some guidance on this issue is also provided by the decision of the High Court in New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 where a warrant was issued on the strength of an application which specified the relevant offence by reference to a statute had been repealed and replaced. Despite that error, the High Court upheld the validity of the search warrant. The Court said (at [106] - [107]): "[106] Here, the application stated an intelligible offence, namely "possession of firearm", an offence which had been well known in New South Wales for decades…It was the nature of the offence which was critical, not the reference to the section of repealed legislation which had been replaced with cognate legislation. The nature of the offence had to be stated sufficiently to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize. [107]…[T]here could be no mistake about the object of the search or about the boundaries of the search warrant. The reference to the repealed Act in the application form was mere surplusage, which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Accordingly, the applicant complied with the statutory requirements and the warrant is not invalidated by the description of the offence in the application form."
15. I am not persuaded that the specification of the searchable offence in the present case failed to comply with the requirements of the Law Enforcement (Powers and Responsibilities) Act.
16. My conclusion on that issue is reinforced by a further consideration that was not raised during argument, namely, the additional words "in relation to the warrant", which qualify the authority to apply for a warrant and the powers conferred by the warrant. Thus s 47 provides that a police officer may apply for a search warrant in respect of any premises if he or she believes on reasonable grounds that there is on the premises "a thing connected with a searchable offence in relation to the warrant". Under s 47A, the general authority conferred by a search warrant is to enter the subject premises, and search "for things connected with a particular searchable offence in relation to the warrant". Those provisions limit the scope of the search to things connected with the particular searchable offence described in the application. As already noted, inclusion of information as to the nature of the searchable offence is mandatory under s 62(1).
17. For those reasons, I have concluded that grounds 1 and 1A must be rejected.

Description and width of the things to be searched for

1. Ground 2 (which appeared in the old amended summons) is as follows: (2) The description of the things which the search warrants authorised search for, seizure of and removal from the premises, is unjustifiably wide.
2. In an earlier judgment in these proceedings, Beech-Jones J commented on the formulation of that ground, as follows (Joukhador as Principal Solicitor of Thomas Booler Lawyers v NSW Commissioner of Police [2017] NSWSC 1287 at [39]): "As formulated, it does not properly identify a basis for judicial review, although that does not represent an impediment to the success of this application. It will be necessary for the plaintiff to translate that assertion into grounds that reflect the more established grounds, eg, a failure to take into account a relevant consideration or a contention that the Third Defendant could not have been satisfied of the relevant statutory test because of the material that was placed before him."
3. Presumably in response to those remarks, the proposed further amended summons added a new ground 3, as follows: "(3) The Third Defendant erred in law by issuing the search warrants in circumstances where the Third Defendant could not have been satisfied on the material placed before him that there were reasonable grounds for the issue of the warrants."
4. The plaintiff's written submissions made plain that the burden of the complaint is that the eligible issuing officer could not have been satisfied that there were reasonable grounds for the issue of the warrants in the terms sought (emphasis added).
5. For reasons that are not clear, although the addition of a new ground addressing the problem raised by Beech-Jones J was not opposed, the old ground 2 was still maintained. I have approached both grounds on the basis that the error of law complained of is specified in ground 3, as informed by the historical indication in ground 2 that its principal focus is the width of the description of the things authorised to be searched for (that is, the absence of reasonable grounds for authorising such a wide search).
6. These grounds invoke s 62(3) of the Law Enforcement (Powers and Responsibilities) Act, which provides: "62 Information in, and consideration of, application for warrant (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is a sufficient connection between the thing sought and the offence."
7. The section clearly imposes an obligation on the issuing authority to make an independent assessment as to whether there is a sufficient connection between the thing to be searched for and the offence: Joukhador [2017] NSWSC 1287 at [40] per Beech-Jones J. That task will be guided, but not determined, by s 46(3). That section defines the requirement that a thing be connected with a particular offence, as follows: "46 Interpretation (3) For the purposes of this Part, a thing is connected with a particular offence if it is: (a) a thing with respect to which the offence has been committed, or (b) a thing that will provide evidence of the commission of the offence, or (c) a thing that was used, or is intended to be used, in or in connection with the commission of the offence."
8. In accordance with that section, there is a connection between a thing sought and the relevant offence if the thing "will provide evidence of the commission of the offence." However, in making the determination under s 62 as to whether there are reasonable grounds to issue the warrant, the eligible issuing officer is to consider the sufficiency of that connection.
9. The proper approach to that requirement is appropriately informed by the general principles discussed in George v Rockett. The Court said at 117: "Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location."
10. The plaintiff first addressed the description "business records relating to employees and wages". It was noted that this category specifies no limitation as to date or time period or category or class of employees. The plaintiff's submissions on this issue find some support of in the remarks of Beech-Jones J in the earlier judgment at [43]-[44] as follows: "This part of the search warrant is unrestrained in time and thus extends as far back as 2005 when the plaintiff became the principal solicitor at Thomas Booler Lawyers. The documents sought extend beyond those relating to employed solicitors or even paralegals. They presumably include receptionists and the like. Further, the documents sought not only concern payments made to those employees but all documents which relate to all employees. This must extend to a significant number of documents that do not concern any client, any legal costs and disbursements, the affairs of any insurer, the circumstances surrounding the retaining of an interpreter or the firm's dealings with any doctors or medical reports. There is no doubt that with sufficient ingenuity one can conceive of a fraud so wide in scope and on such a large scale that it would justify seizing documents within this category. However, equally, there is also a real prospect that this category of documents, namely "business records relating to employees and wages" is an "over-reach" that is, it extends beyond anything that has sufficient connection to whatever allegation of fraud is being made."
11. Those remarks were made in the context of an application by the plaintiff for access to the documents that would enable him to make the application he now makes. Justice Beech-Jones had not seen the applications for the warrants.
12. The defendants submitted that the wide description of things set out above is reasonable in the present case, where the allegation is one of systematic fraud. It is preferable in the circumstances not to rehearse the detail of those allegations; it is enough to note that the allegations are made against the principal of a law firm essentially implicating the conduct of his entire practice. It is specifically alleged that he has lodged wide-scale fraudulent claims. The allegations implicate every stage of the litigation process, from the taking of instructions to the settlement of claims and processing of invoices. In doing so, I accept, as submitted by the defendants, that the allegations potentially implicate every employee; at the very least, it can be said that the applicant could not be expected to know at this stage of the investigation "who is in and who is out", as it was put by Mr Singleton. He highlighted that the firm was relatively small and submitted that it was appropriate in the circumstances for the records of all employees to be searched.
13. In my assessment, in the extraordinary circumstances of this case, it cannot be concluded that the issuing officer was wrong to allow such a wide category of document. That is not to condone a return to the era of the general warrant but simply reflects the complexity and breadth of this particular investigation.
14. Next, the plaintiff addressed the validity of the description of the trust account records (as set out above). Passing mention was made of the large number of clients listed in the schedule (over 180). However, I do not think the large number alone indicates that the warrant is unduly wide, since the relevant suspicion is that there has been a systematic process of defrauding a scheme. The principal focus of the submissions on this ground was the use of the word "including". The plaintiff submitted that, expressed in those terms, the warrant authorised searching for any trust account records, including records not relating to the clients listed in the schedule.
15. The defendants submitted, in effect, that that reflected an overly punctilious approach to the wording of the warrant. He submitted that, considering the terms of the warrant as a whole, the word "including" would be interpreted to mean "comprising."
16. While at first blush there is force in the complaint as to the use of the word "including", which is a red rag to a lawyer, upon reflection I have concluded that the defendants' submission should be accepted. The opening words of this category, "Thomas Booler Lawyers trust account records including:" serve as a heading to guide the officer executing the warrant to a kind of document. Reading the warrant as a whole it is clear, in my view, that the six categories listed under that heading would be understood to state the universe of things that could be searched for under that heading.
17. Next, the plaintiff addressed the category labelled "documents relating to clients/claims listed in Schedule of claims". In written submissions, the plaintiff submitted that it is not revealed how such documents relating to any matter concerning such a client could possibly afford evidence of the commission of the offence". The defendant submitted that, when the search warrants are construed properly and sensibly, they cannot fairly be read as an authorisation to search for and seize documents relating to clients' affairs unrelated to the matters identified in the Schedule of claims. For the reasons stated in the previous paragraph, I agree. In my view, a sensible reading of that category is that, as with the category relating to trust account records, the heading would be understood to guide the officer executing the warrant to a kind of document while the items underneath would be understood to list the things that could be searched for under that heading.
18. Next, the plaintiff addressed the category "electronic storage devices". It was noted in the plaintiff's written submissions that whole devices were referred to, with no mention of the specific contents of the devices. The plaintiff submitted that this category would capture personal laptops and phones of any member of staff or other person present at the premises on the day which contained, for example, an electronic diary. As with previous categories, I consider that the words "electronic storage devices" would be read as a heading to guide those executing the warrant to the kind of document within which the things listed underneath the heading could be searched for.
19. The connection between the searchable offences and the items sought was set out in the warrant applications in the following terms: "The complaints by TBL clients to the Office of the Legal Services Commissioner indicate that JOUKHADOR provides clients with scant and misleading documentation, if any, in the first instance. In response to continued demands and pressure, JOUKHADOR has provided additional contradictory documentation, including revised memoranda of costs and disbursements and invoices, that suggests attempts to conceal and manipulate. Police consider it necessary to search for and seize documents as specified to prevent JOUKHADOR and other TBL employees from fabricating, modifying and/or destroying documents and financial records to conceal their fraudulent activities. The identified claims extend from 2012 until present, consistent with the identified trend of a TBL's dramatic increase in the number of lodged claims starting in 2012. TBL's trust account records for the period, and for the individual claims, are necessary to track claimant's funds and fraudulent deductions. Business records relating to employees and wages are required to determine the true nature of the association between TBL and agents including [redacted]. This is relevant to tracing and correctly characterising the large sums of money paid by TBL to those agents. Given the close associations between JOUKHADOR and [redacted]…police suspect JOUKHADOR is knowingly complicit in the lodging of fraudulent claims. Police consider it necessary to search for and seize documents as specified, particularly notes and correspondence, to ascertain what JOUKHADOR and TBL were told by claimants and thereby determine the true nature of JOUKHADOR and TBL's involvement in the creation and lodging of fraudulent claims."
20. Those allegations make plain the very broad nature of this investigation. I am not persuaded that the eligible issuing officer erred in being satisfied that there was a sufficient connection between the things sought and the offences under investigation.
21. In respect of the concluding words of the first paragraph set out above, the plaintiff noted that a search warrant is not available as a preventive measure. Upon consideration of that part of the application as a whole, I do not think police intended to seize things for the purpose of preventing the conduct referred to so much as for the purpose of obtaining evidence of the documents as they were originally prepared by the plaintiff.
22. For those reasons, I have concluded that grounds 2 and 3 must be rejected.
23. In the circumstances, it is not necessary to address the parties' alternative submissions as to the procedural fairness of addressing this ground when the plaintiff's counsel have only had access to redacted versions of the applications, nor is it necessary to address the issue of severability of the warrant.

Ground 4: Prescribed form

1. At the hearing of the application, the plaintiffs relied on a fourth ground for review, as follows: "The Third Defendant erred in law by issuing search warrant number 631/2017 and search warrant number 633/2017 on the basis of applications for the warrants that were not in the prescribed form."
2. This ground asserted that two of the warrants are invalid due to the applicant's failure accurately to reproduce the application for the warrants in the terms of the form prescribed by the regulations. Form 1 contains the following text at the end of Part 1: "Warning It is an offence under section 63 of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of $11,000 or 2 years imprisonment (or both)."
3. In two of the search warrants, the warning is not located at the end of Part 1 but rather partway through Part 2. I do not think that is a defect which affects the substance of either warrant in a material particular: cf s 76 of the Law Enforcement (Powers and Responsibilities) Act.
4. Separately, submissions were addressed to an alleged failure to serve the occupier's notice. However, there was no ground of review directed to that issue. Further, it became clear at the hearing that there is a factual dispute as to the correctness of that complaint. In any event, I regard that to be an issue going to the legality of the execution of the warrants (which is potentially relevant to the admissibility of the evidence) rather than the validity of the third defendants' decisions to issue the warrants.
5. Ground 4 must be rejected.

Orders

1. For those reasons, I make the following orders: 1. the time within which judicial review of the decisions of the third defendant may be sought is extended to 4 August 2017; 2. grant leave to the plaintiff to file the proposed further amended summons handed up in court on 16 October 2017; 3. the relief sought in respect of the decisions of the third defendant (orders 3 to 8 in the further amended summons dated 16 October 2017) is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2018