Lego Australia Pty Ltd v Paraggio [1994] FCA 1020 | Case summary

Federal Court of Australia|1993-04-28|Before: Black CJ, Lindgren JJ, Hill JJ

These appeals concern the validity of three search warrants issued under s.10(1) of the Crimes Act 1914. The form of the warrants and the issues on the appeal appear from the joint reasons for judgment of Lockhart, Beaumont and Hill JJ, which I have had the

advantage of reading. Section 10(1) is also set out in the joint judgment.

I agree with Lockhart, Beaumont and Hill JJ, for the reasons they give, that the terms in which the warrants describe the suspected offences do not invalidate the warrants and that there is no substance in the appellants' further contention that, by reason of non- disclosure, musrepresentation or lack of good faith, the warrants were improperly

I also agree that a warrant issued under s.10(1) may contain a provision that identifies the objects of the search by reference, amongst other things, to a description that reflects the language of s.10(1)(b). The third condition in each of the present warrants effectively limits their scope to things that were, as a matter of objective fact at the time the warrant was issued, things as to which there were reasonable grounds for believing that they would afford evidence as to the commission of one or more of the offences described. The warrants are not general warrants at all; in fact they are very specific. In my view, however, there nevertheless remains a question whether, without additional words of limitation, the third condition sufficiently limits the warrants so that their issue was

It is of course well established that strict compliance with the statutory conditions for the issue of a search warrant is required. As the High Court pointed out in George v. Rockett (1990) 170 CLR 104 at 111, to insist on strict comphance 1s simply to give effect to the purpose of the legislation. See also Coco v. The Queen (1994) 68 ALJIR

One of the essential conditions for the issue of a search warrant under s.10(1) 1s that the required satisfaction of the justice of the peace or magistrate be "by information on oath": see George v. Rockett, esp. at 113-115, 122. In the present case the issuing Justice recited in the warrants her satisfaction "by information on oath placed before [her]". The information on oath put betore the justice did not however purport to be, and could not be said to be, the totality of all the information upon which a person

might, as an objective matter, be satisfied that there were the required reasonable grounds for suspecting and reasonable grounds for believing. Indeed :t is not hard to imagine how there could be other information, not put before the justice on oath, that as a matter of objective fact could provide reasonable grounds tor believing that particular documents would afford evidence as to the commission of one or more of

The third condition ot the warrants 1s conceded to be of critical importance because without it the warrants would be too wide. To my mind, however, the third condition fails in one critical respect to limit sufficiently the scope of the warrants. It fails, in

my view, because the third condition may be satisfied according to its terms if, as a

matter of objective fact, however established, it can be said of a particular thing m respect of which the first two conditions are satisfied, that there are reasonable grounds for believing that it will afford evidence as the commission of one or more of the offences described in the warrant. In my opmion the third condition does not limit the information by which reasonable grounds can be shown to exist as a matter of objective fact to the information on oath placed before the magistrate. Thus a police officer executing any of the warrants could justify, according to the terms of the warrant, the seizure of particular documents by reference to additional facts m existence at the time the warrant was issued but, for whatever reason, not placed

betore the justice of the peace on oath when the warrant was bemg sought.

I would therefore hold that the warrants are not authorised by s.10(1) because, as I would construe them, each goes further than to authorise the seizure of a thing as to which a justice was satisfied exclusively by information on oath that there was the required reasonable ground for suspecting and the required reasonable grounds for believing. It is of course quite possible that the information provided to a justice on oath will support a variety of reasonable grounds for suspecting and believing and these grounds need not themselves be stated m anything put before the justice or in the warrant itself, but what are reasonable grounds still has to be decided by

reference to the information on oath placed before the justice.

The insistence, that the law requires, on strict compliance with strictly construed

statutory conditions for the issue of a search warrant operates in a case such as the

present to maintain an important safeguard to the rights of individuals whose interests might be invaded, namely the requirement imposed by the Parliament in s.10(1) that the information upon which a warrant is issued be on oath: see George v. Rockett esp

I would therefore allow the appeals and set aside the orders dismissing the applications for judicial review. I would declare that the decisions to issue the warrants were not authorised by 5.10 of the Crimes Act 1914 and that the warrants are of no effect. I would order the third and fourth respondents to pay the appellants' costs. I certify that this and the preceding 4 pages are a true copy of the Reasons

for Judgment herein of the Honourable Chief Justice Black.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Black CJ, Lockhart, Beaumont, Hill and Lindgren JJ.

REASONS FOR JUDGMENT LOCKHART, BEAUMONT AND HILL JJ.

These are appeals from orders made by Whitlam J. dismissing applications for judicial review of decisions, made

in related matters, to issue three search warrants under

"(1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises ... or place:

(a) anything with respect to which any offence against any law of the Commonwealth or of a Yerritory 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 [against any law of the Commonwealth]; 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;

or that any such thing may, within the next following 72 hours, be brought into or upon the premises, ... the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises ... or place named or described in the warrant, and to seize any such thing which he or she might find there."

issued is important for present purposes, so it is necessary to recite many of its terms. The introductory section of the

"2. Upon the information set out in the following paragraphs, there is [sic] reasonable grounds for suspecting that there are in the following premises in the State of New South Wales, namely:

(i) the offices of Bay Wool Pty Limited ("Bay Wool") located at first floor, 15 Young Street, Sydney

(ii) the registered office of Bay Wool being the office of Edney Lawrence and Co. Accountants ("Edney Lawrence"), located at 2nd floor, 706 Military Road, Mosman,

(iii) the principal Australian office of Bay Wool being the home of Peter Eric Dunesky ("Dunesky") a director of Bay Wool, located at 7 Gilmore Close, Glenhaven,

(iv) the home of Brian Dawson Edney ("Edney") a director and the company secretary of Bay

THINGS which satisfy all THREE of the following conditions:

FIRST CONDITION: which are originals or copies of any one or more of the following:

(1) receipts, records of payment, invoices and statements of account,

(2) company records including minute books, share registries and share script,

(3) accounting books and records including journals, ledgers, trading accounts, profit and loss statements and balance sheets,

(4) banking records including bank statements, cheque butts and deposit books,

telexes, telegrams, cables and facsimiles, correspondence,

tax sreturns, notices of assessment (including notices of amended assessment),

reports, file notes, diary entries, minutes and memoranda,

things being any of the things mentioned above on; (a) microfiche or microfilm,

(b) magnetic tape or other computer storage medium and for the purpose of producing such things in a comprehensive form, computer software, peripherals, encryption devices, modems and software and related manuals or instruction notes.

SECOND CONDITION: which relate to, arise out of or are connected with any one or more of the following:

the purchase or sale of wool and wool products by Bay Wool,

the receipt or payment of monies by Edney Lawrence on behalf of Bay Wool or Dunesky,

the receipt or payment of monies by Dunesky, the purchase of real estate by Bay Wool or Dunesky,

the purchase of shares by Bay Wool or Dunesky in Neverfail Bottled Water Co. Pty Limited.

grounds for believing that the same will afford evidence as to the commission of one or more of the

following offences against laws of the Commonwealth

which offences are suspected on reasonable grounds to have been committed:

Between November 1984 and January 1989 Bay Wool Pty Limited defrauded the Commonwealth contrary to section 29D of the Crimes Act 1914 in that it failed to declare all of the assessable income received during the period 1 July 1984

(ii) Between November 1984 and January 1989 Peter Eric Dunesky was knowingly concerned in the commission of an offence against section 29D of the Crimes Act 1914 by Bay Wool Pty Limited, namely that Bay Wool Pty Limited did defraud the Commonwealth in that it failed to disclose all of the assessable income received during the period 1 July 1984 to 30 June 1988 to the Commissioner of Taxation.

(iii) Between November 1984 and January 1989 Brian Dawson Edney was knowingly concerned in the commission of an offence against section 29D of the Crimes Act 1914 by Bay Wool Pty Limited, namely that Bay Wool Pty Limited did defraud the Commonwealth in that it failed to disclose all of the assessable income received during the

period i July 1984 to 30 June 1988 to the Commissioner of Taxation.

(iv) Between November 1984 and January 1989 Peter Eric Dunesky contrary to section 29D of the Crimes Act 1914 defrauded the Commonwealth in that he failed to disclose as assessable income by money either received by him from or paid on his behalf from Edney Lawrence and Co. accountants, such money having initially been deposited with the said Edney Lawrence and Co. on behalf of Bay Wool Pty Limited."

Officers of the Australian Taxation Office, Chatswood have conducted enquiries into the financial affairs of Bay Wool and Dunesky in relation to the period 1 July 1980 to 30 June 1989.

Bay Wool was incorporated in New South Wales on 26 August 1976 and on that date Dunesky and Edney were appointed directors. Dunesky was also appointed company secretary. The registered office of the company is 2nd floor, 706 Military Road, Mosman and the principal Australian Office is 7 Gilmore Close, Glenhaven. There are two issued shares, one held by Dunesky and the other held in trust by Edney for Dunesky. The principal business of the company is

the purchase, exportation and sale of wool and wool products,

The company's income tax returns for each of the financial years 1 July 1984 to 30 June 1988, ("the four financial years") and the accompanying profit and loss accounts have been examined by the Australian Taxation Office. Each of these returns was prepared and submitted by Edney of Edney Lawrence. A schedule depicting the value of gross sales, purchases and expenditure in each of these profit and loss accounts is attached hereto and marked "A". The amounts representing value of gross sales depicted in the profit and loss accounts represent the sale value of wool sold and these amounts are reflected in the company's current bank account and books of account.

[In attachment "A", a statement by way of comparison

between figures in the income tax return and figures

respect of the four years ended 30 June 1985, 1986,

Investigations reveal that since 1984 receipts for the sale of wool by Bay Wool have been deposited in the main into the company's current account number 000-105-2875 at the National Australia Bank, 181 Broadway, Sydney. Receipts for the sale of wool have also been deposited in the trust account of Edney Lawrence, account number 01-178-2693 National Australia Bank, 567 Military Road, Spit Junction.

The expenditure of Bay Wool was overstated in each of the four financial years as set out in columns 6 and 7 of attachment "A". Some of the monies shown in Bay Wool's current account as expenditure upon wool had in fact been deposited to the Edney Lawrence trust account.

In addition enquiries at the National Australia Bank in relation to the trust account banking records and

discussions with Edney revealed that a number of cheques in favour of Bay Wool were deposited to the Edney Lawrence trust account. These amounts were omitted from the amount of sales reported in the tax returns submitted by Bay Wool in the four financial years. A schedule depicting these cheque deposits is attached hereto and marked "B".

Enquiries show that some of the monies held in the Edney Lawrence trust account were paid to Dunesky or deposited into his private bank accounts. Private expenditure by Dunesky was met by funds withdrawn from the trust account in the form of bank cheques Payable to Holman Webb Solicitors, Neverfail Bottled Water Co. Pty Limited, Brash's and S Kane. Attached hereto and marked "C" is a schedule setting out Particulars of certain payments drawn on the trust

account. [By way of illustration, the items stated in attachments "B" and "C" between 11 July 1984 and 5

DATE DRAWER DRAWERS BANK DEPOSITS 11-Jul-84 Bay Wool Pty. Ltd. N.A.B. Broadway $9,876.40 10-Sep-84 Pacific Wool P/L N.A.B. Broadway $26,643.17

9-Oct~-84 F. Whitbread & Co. N.A.B. New Farm $87,638.27 22-Oct-84 F. Whitbread & Co. N.A.B. New Farm $69,987.62

5-Nov-84 Bay Wool Pty. Ltd. N.A.B. Broadway $21,617.18 22-Jan-85 F. Whitbread & Co. N.A.B. New Farm $108,263.12

5-Feb-85 F. Whitbread & Co. N.A.B. New Farm $119,710.56 Attachment "C"

DATE CHEQUE NO. PAYEE WITHDRAWALS 11-Jul-84 49570 $9,376.40 11-Jul-84 49571 Cash $500.00 10-Sep-84 49587 S. Kane $26,143.17 10-Sep-84 49588 Cash $500.00 22-Oct-84 49600 P. Dunesky $87,138.27 22-Oct-84 286501 Cash $500.00

5-Nov-84 286504 Cash $1,000.00 5-Nov-84 286502 S. Kane $21,117.18 5-Nov-84 286505 Cash $500.00 5-Feb-85 286511 P. Dunesky $108,263.12]

The income tax returns of Dunesky for the years 1981 to 1988 were prepared by Edney of Edney Lawrence. A schedule depicting wages, dividends and other income in respect of each of the four financial years is attached hereto and marked "D".

An audit by the Australian Taxation Office has revealed that Dunesky underdeclared his income in each of the four financial years. Withdrawals from the Edney Lawrence trust account were not declared nor was interest derived from the operation of various accounts held by Dunesky. A schedule which sets out this undeclared income, which is additional to that set out in schedule "D" is attached hereto and marked "E".

Enquiries establish that Bay Wool understated income by the sum of $4,553,799 during the four financial years. The Australian Taxation Office has calculated the tax avoided as $2,207,961. A schedule setting out further details of the tax for each year is annexed hereto and marked "F".

Dunesky during each of the four financial years failed to report the receipt by him of funds paid from the trust account. In addition income in the form of interest has been understated in Dunesky's tax return. It is estimated that during the four financial years Dunesky understated his personal income by the sum of $1,888,138. The tax

applicable in relation to this additional income is $1,100,159.

Australian Taxation Office auditors have spoken to Dunesky and Edney. In addition statements by Dunesky and Edney prepared by solicitors acting on behalf of Dunesky have been supplied to the Australian Taxation Office.

When interviewed on 6 March 1989 Edney stated that it was at his suggestion that funds from sales were deposited into the trust account so that funds would be available to pay for purchases at short notice. Edney stated that he was unaware that funds were used for Dunesky's private spending. By letter dated 19 April 1989 (copy annexed hereto and marked "G") Edney noted that certain receipts had been omitted in Bay Wool's return. He stated 'The failure to bring the abovementioned income to account in the company, having regard to _ the declaration on the face of the company's income tax returns for these years would appear to constitute a false or misleading statement in those years.' Edney then submitted that there were mitigating

Edney signed the declaration on the tax return of Bay Wool each year to the effect that all monies received by Bay Wool had been declared.

Dunesky was interviewed on 6 March 1989. He admitted that cheques from the Edney Lawrence trust account had been used during 1987 and 1988 for non

business purposes. He stated that he had had the intention to 'fix things up' but had not got around to it.

Later submissions received by the Australian faxation Office have sought to claim that real estate bought with funds from the Edney Lawrence trust account should have been bought in the name of Bay Wool and not Dunesky. Similarly it has been sought to be claimed that shares in the company Neverfail Bottled Water Co. Pty Limited should have been issued to Bay Wool and not Dunesky. Edney was a director and the secretary of this company and prepared minutes which showed that 15,000 'A' shares had been allotted to Dunesky at a premium of $717,641. Neither of these submissions is accepted by the Australian Taxation Office. There is however a dispute between Dunesky and the Australian Taxation Office concerning the characterisation of some of the monies received by him from the Edney Lawrence Trust Account in the 1988 financial year as assessable income."

Attachment "G" to the information (referred to in par. 15 above) should be recited. It is a letter dated 19 April 1989 from Messrs Edney Lawrence & Co., Chartered

Accountants to the Deputy Commissioner of Taxation in these

We refer you to your request to examine the bank records of Mr. Peter Eric Dunesky, Director and Principal Shareholder of Bay Wool Pty. Limited, as part of an audit of the affairs of that company. We note that you have already inspected bank statements

and cheque butts for various accounts in the name of Mr. Dunesky but that you require details of the various bank deposits in those accounts for the years ended 30 June, 1987 and 30 June 1988. The bank accounts referred to above are as under:

Australian and New Zealand Banking Group Limited - Epping - Account number 2242-27263

National Australia Bank - Broadway ~ Account number 00123-217

Commonwealth Bank of Australia - Circular Quay

Sydney - Account number 0012-9572

State Bank of New South Wales - Hunter Street - Sydney - Account number 33-0014-00

Schedules setting out details of all deposits to these accounts during the abovementioned periods are attached to this letter together with supporting documentation where appropriate.

You will note from the attached schedule of bank deposits into the various accounts of Mr. Dunesky that there are numerous deposits from the trust account of this firm and which directly relate to the proceeds of the sale of wool belonging to Bay Wool Pty. Limited. These proceeds have not been included in the company's assessable income for the years ended 30 June 1987 and 30 June 1988. As a result, the company's income for those years has been understated by $957,160 as under:

Year ended 30 June, 1987 $759,186 Year ended 30 June, 1988 $197,974

The effect of these transactions is that Mr. Dunesky should have appeared as a debtor in the 1987 and 1988 accounts. Steps are being taken to make these adjustments in the 1989 accounts.

The failure to bring the abovementioned income to account in the company, having regard to the declaration on the face of the company's income tax returns for those years would appear to constitute a false or misleading statement in those years. Whilst this would appear to constitute deliberate evasion for the purposes of income tax ruling number 2517, it is submitted that there are mitigating circumstances in that what occurred can best be described as Mr. Dunesky being overtaken by events rather than having embarked on a plan to transfer

During the year ended 30 June, 1986, Bay Wool Pty. Limited was appointed a purchaser of wool for a Japanese woolen goods manufacturer represented by an agent in Australia. At the time of appointment it was stressed by the agent that, at any time, he might wish to draw amounts of consultants fees owing to him by Bay Wool Pty. Limited under' the arrangement and he emphasised that it was imperative that there be no delay in making the funds available.

This caused a dilemma for Mr. Dunesky in that he is absent from Sydney for extensive periods during the year while attending wool sales throughout' the Commonwealth and it was distinctly possible that the Japanese agent might seek payment of the consultants fees due to him whilst Mr. Dunesky was attending one of these sales. Mr. Dunesky was the sole signatory on the company's bank account. His first solution was to make a calculation of the approximate amount of consultants fees that he thought would be due to the agent from time to time and to deposit wool sales proceeds from time to time into a number 2 account in the name of the company to isolate such funds and to insure that they would be available at

all times. He then realised that this could be a problem in that the bank may confuse the number 1 and number 2 account of the company. He then

decided to place such funds in the trust account of Messrs Edney, Lawrence & Co., chartered accountants of Mosman and made arrangements for that firm to remit funds as and when required, to the personal bank accounts of Mr. Dunesky in order that his wife could draw such consultants fees when they were demanded by the Japanese agent. Because he anticipated that any amounts paid from the trust account of Messrs Edney, Lawrence & Co. would represent allowable expenditure for Bay Wool Pty Limited, he merely transferred sales proceeds which had not been recorded in the company's books to Messrs Edney, Lawrence & Co. and there the matter rested. He did not think it would be necessary to bring to account either the sales proceeds or the

consultants fees payments in the books of account of the company.

fhroughout the period in question, Mr. Dunesky requested Edney, Lawrence & Co. to remit various sums either to his personal accounts or to his solicitor as arranged. Unfortunately Mr. Dunesky did not pay the consultants fees from his personal bank accounts but paid them from Bay Wool Pty.

Limited. As Mr. Dunesky is the only employee of the company as mentioned above and as he works extremely long hours in order to service all that needs to be done in a company with such a large business, he completely overlooked advising Messrs Edney, Lawrence & Co. that the sums had not been paid for consultants fees and he did not instruct this firm to bring to account as income in the returns for Bay Wool Pty. Limited the wool sales proceeds that were deposited into this firm's trust account.

As can be seen from the schedule of bank deposits and property transactions, all the funds in question, namely $957,160 were used by Mr. Dunesky for his personal use.

In addition it has now come to our notice that several items of income were omitted from the personal income tax return of Mr. Peter Eric Dunesky during the years ended 30 June, 1986, 30 June 1987 and 30 June, 1988 and we set out details of this omitted income hereunder:

Year ended 30 June, 1986 Interest received - State Building Society Term Deposit $ 492

Year ended 30 June, 1987 Interest received - State Building

Year ended 30 June, 1988 Interest received - State Building Society Term Deposit s 503

Although it is realised that you are unable to treat this as a voluntary disclosure, we draw your attention to paragraph 51 of income tax ruling number 2517 and ask that this disclosure be treated as positive co-operation as expressed in that paragraph.

The warrants purport to authorise named members of the Australian Federal Police to enter several premises said to be the premises of the appellants, Peter Eric Dunesky ("Dunesky") and Bay Wool Pty. Ltd. ("Bay Wool") and of Edney Lawrence & Co. ("Edney Lawrence"). Each of the warrants is in the same form, authorising that entry and the seizure of things which satisfy the three conditions specified in para. 2 of the information. Fach of the warrants recite that the justice, "being satisfied by information on oath ... that there is reasonable ground for suspecting that there is in premises [then specified] THINGS which satisfy all THREE of the following conditions...." It will be noted that the third condition in the information refers to s.29D of the Crimes

Act. It is there provided that a person who defrauds the

In order to understand the nature of the proceedings dealt with at first instance, 1t will suffice to refer to the amended application for an order of review filed on behalf of Mr. Edney. This application sought review of the decisions to issue the warrants in respect of the office of Edney Lawrence and the home of Mr. Edney. Relevantly, the grounds of the

id. That the decisions were not authorised by the enactment in pursuance of which they were purported to be made, being Section 10 of the Crimes Act 1914 (Cth).

(a) The warrants are too general in that the documents which could be seized pursuant to the warrant are too broadly described.

(b) The warrants do not on their face disclose any offence known to law, and therefore do not show jurisdiction.

That the making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purportedly made.

(a) The warrants were uncertain and therefore the power exercised pursuant to them was exercised in such a way that the result of the exercise of the power was uncertain.

(b) The First Respondent failed to take account of relevant considerations, namely facts that were known to the Second Respondent but were not disclosed to the First Respondent.

That the decisions involved an error of law, by reason of the matters referred to in Grounds 1 and 2 above.

justify the making of the decisions. 5. Procedures that were required by law to be observed in connection with the making of the decisions were

not observed in that the Second Respondent failed to disclose material facts to the First Respondent."

Relief was claimed in the application under (1) the

Administrative Decisions (Judicial Review) Act 1977; (2) s.39B of the Judiciary Act 1903; and (3) the associated

jurisdiction conferred by s.32 of the Federal Court of

THE ARGUMENTS OF THE PARTIES AND THE DECISION OF THE PRIMARY JUDGE

At the trial, and before us, the appellants contended that the warrants were bad on their face, in that

their terms were, it was argued, uncertain and overly complex.

It was also said that the warrants failed to identify offences known to the law; and in particular, the reference in the information and the warrants to "assessable" income was criticised on the qround that the only relevant

statutory obligation was to lodge a return stating all income

derived in the sense explained in North Coast Grazing Pty.

Ltd. v Federal Commissioner of Taxation (1987) 15 FCR 104;

that is to say, the argument went, there was no statutory

At first instance, Whitlam J. held (1) that the warrants stated the requisite satisfaction of the justice of the peace and (2) that the substance of the offence could be plainly understood. The particulars given of the offences, although inappropriately phrased, were in order, his Honour held, because, applying observations by Burchett J. in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 (at 545), they "narrow the statement of the offences so as to indicate that the offences

relate to particular activities, and they indicate boundaries

The appellants further argued at the trial, and before us, that those seeking the issue of the warrants had failed to discharge the "strict duty of full disclosure of material facts" to the justice of the peace in the sense explained in Karina Fisheries Pty. Ltd. v Mitson (1990) 26 FCR 473 at 480-3; it was contended that they should have disclosed that, in the course of a tax audit, the Australian

Tax Office already had obtained numerous documents from Bay

"It cannot be the case that an informant is obliged to set out everything that is known to him. What he or she must disclose are the material facts. Unless a fact can be identified as having been both not disclosed and material (in the sense that it may have affected the exercise of discretion of the JP), there will be no breach of the relevant duty. The applicants are unable to point to such a fact. The fact that many of the documents sought by the warrants might be originals of documents, copies of which were already available to the informant, could be readily inferred from the information."

By their amended grounds of appeal, the appellants again contend that the warrants were bad because (1) they were excessively broad and uncertain; (2) they disclosed no

offence known to the law; and (3) there had been a failure to

CONCLUSIONS ON THE APPEAL (a) The principles to be applied

As the Full High Court said in George v Rockett ("Rockett") (1990) 170 CLR 104 (at 110), a case concerned with a provision in substantially the same terms as s.10(1) of the Crimes Act, the questions now raised turn on the construction of the provision and, of course, its application in the present circumstances. In Rockett, Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. went on (at 110-

to point out that because a search warrant authorises an invasion of premises without the consent of those in possession or occupation, its validity depends upon the fulfilment of the statutory conditions; and that, since the provision is a far-reaching exception to the common law rules protecting property and privacy, a warrant must' comply

strictly with the statutory conditions governing its issue.

The High Court proceeded to consider the operation of the relevant conditions under three headings (1) the justice's function; (2) the material to ground the issue of a

warrant; and (3) the facts to be established, as follows:

As to the justice's function, it was held (at 111) that the opening words of the provision impose upon the justice the duty of satisfying himself or herself,

independently of the views of those seeking the warrant, that

the requisite conditions are fulfilled: see, e.g., Televantos v The Commonwealth of Australia (unreported, 28 April 1993,

Full Federal Court). Additionally, the warrant should express the justice's satisfaction that there are reasonable grounds

With respect to the material to ground the issue of a warrant, the High Court held (at 114) that the statutory requirement is that the sworn information should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in the statute. If that requirement is not satisfied, any information otherwise

As to the facts to be established, it was held that the statute requires that the justice must be satisfied that there are "reasonable grounds for suspecting" that there is in any premises "anything" as to which there are "reasonable grounds for believing that the thing 'will ... afford evidence as to the commission of any offence'" (at 115). It was further held (at 115) that suspicion and belief are different states of mind; and that, in its ordinary meaning, "suspicion" 1s "a state of conjecture or surmise where proof is lacking" and that the facts which can reasonably ground a

suspicion may not reasonably ground a belief; yet some

factual basis for the suspicion must be shown. It is necessary to identify the subject matter of suspicion and the subject matter of belief. The better view is that it is the existence of the thing, not merely its location, that is, ina provision such as s.10(1), the subject of "suspicion" rather than "belief". However, their Honours went on to say (at

"So to hold does not deprive the requirement of 'reasonable grounds for believing' in par.(b) of significance. That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object

of the search. A thing must be identified either as a_ specific object or as an object which answers a

particular description, It_is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for

suspecting and reasonable grounds for believing must be judged. 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 belieying 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." (Emphasis added)

The High Court held that the phrase "will afford evidence as to the commission of [an] offence" does not suggest that the only things for which a search warrant might be issued are things which are or will become admissible in

"The power to issue a search warrant is in aid of criminal investigation as well as in aid of proof at the trial, though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to. An object will answer the description in par.(b) if there are reasonable grounds for believing that it will assist 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 identify of the person or persons who committed it or any other information material to the investigation of those matters."

In Lego Australia Pty Ltd v Paraggio (1994) 124 ALR 225, a judgment of a Full Court of this Court (Beaumont, Hill and Whitlam JJ.) Beaumont and Whitlam JJ., in joint reasons

-+- in our view ... there is no general, in the sense of abstract, 'duty' of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see R v Kylsant [1932] 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.

Put differently, the primary question here is not whether the informant was under an obligation to disclose to the Justice a particular fact, but whether the statements in the Information were sufficient to satisfy the requirements of s. 10(1). There is also a question whether the decision to grant the warrant was induced by fraud."

"Thus it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the Magistrate or Justice is not such as to mislead and that any omission of relevant matter was inadvertent. This is merely another way of saying that the informant must in compiling the information act in 'good faith'.

The power to lay an information before a Magistrate or Justice for the issue of a warrant, like all powers, must be exercised in good faith and for the purpose for which the power was conferred. If the informant does exercise the power in good faith then the issue of the warrant can not be criticised upon the basis that material was inadvertently excluded from the Magistrate's attention. Absent good faith

upon the part of the informant the result will be different."

In the penultimate paragraph of his Honour's reasons, Hill J.

"I would accordingly hold that the obligation of an informant for a warrant to make disclosure should be stated in terms of good faith and by way of corollary, that a failure in good faith to disclose material relevant to the issue which the Magistrate or Justice has to determine will bring about the result that the discretion exercised by that functionary to issue a warrant will have miscarried

by virtue that the procedures required by law for the issue of the warrant will not have been observed." (at 253)

Counsel for the appellants argued that the passages

which we have recited from the joint judgment of Beaumont and Whitlam JJ. and the judgment of Hill J. reveal different

approaches, and that this Court, constituted by five judges,

should resolve the differences and decide for itself whether there is a duty on the part of the informant to disclose material facts to the Justice issuing a warrant and, if so, to

We do not find it necessary to consider whether their Honours' judgments reflect differences of principle or merely of emphasis because, for reasons given later, if there was an obligation to disclose the material facts, this duty

(b) The application of these principles in the present circumstances

(i) Are the warrants too broad and uncertain? It will be recalled that the warrants recite the justice's satisfaction, by the sworn information, that there is "reasonable ground for suspecting that there is in

[specified] premises ... THINGS which satisfy all THREE of the

In support of their contention that the warrants lacked the necessary particularity, the appellants rely upon the observations of Mason C.J., Brennan, Gaudron and McHugh JJ. in Coco v R (1994) 120 ALR 415 (at 418) that -

would be tortious conduct must be clearly expressed in unmistakable and unambiguous language."

In our view, the source of the authority to search and seize

in the present case is to be found clearly expressed in

s.10(1). The essential question here is whether the conditions there stipulated were, in the instant circumstances, strictly complied with. In undertaking this

inquiry, no real assistance can be gained from a consideration of the analysis made of the sufficiency or otherwise of informations and warrants in other instances. All the decided cases have emphasised that sufficiency in this context must depend upon the particular circumstances of the matter at hand. It follows, in our view, that no useful purpose will be served here by a comparative analysis of the kind sought to be made in the arguments advanced on behalf of the appellants, of first, the adequacy of other informations and warrants in the decided cases and, secondly, of the reasons why those informations and warrants were, or were not, held to be

As has been noted, complaint is made as to the width of the warrants. It is said that they are not sufficiently specific, in their terms, in identifying the object of the

It is true, as the High Court observed in Rockett (at 117), that "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." But it must follow that the real question here is whether that requirement has been satisfied, bearing in mind, as the High Court also pointed out in Rockett (at 117), that the "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

In our opinion, there is nothing in the form of the warrants, and in particular, there is nothing in the description of the things the object of the search, which

leads to the conclusion that any of the warrants is bad. Subject, as has been said, to compliance with the conditions stipulated in s.10(1) as explained in Rockett, it is not, in our opinion, impermissible to describe the object of the

Were the statutory conditions fulfilled in the present case, looking at the matter objectively in the sense explained in Rockett? In our view, the requisite conditions

In the first place, in terms of the justice's function, it was sufficient, in our view, for the justice to

Lego Australia Pty Ltd v Paraggio

At a glance

Court

Decision date

Before

Source

Judgment (274 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)

Cited By (1)