Miller v Sweeney

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 30 JUNE 2000 11586/99 Keiran James MILLER v Deborah SWEENEY & ors JUDGMENT 1 HIS HONOUR: This is an appeal pursuant to s 101 Justices Act 1902 against the dismissal by the first defendant, Ms D Sweeney LCM, of informations against the second and third defendants for offences against ss 6H and 6K Royal Commission Act 1902 (Cth) ("The Act") and consequential orders as to costs. 2 Following the crash on 2 October 1994, of an aircraft VHSVQ, owned and operated by Seaview Air with the loss of all nine passengers on board, on 25 October 1994, Sir Lawrence Street AC KCMG was appointed Commissioner to inquire into the operations of the Civil Aviation Authority ("the Authority") and Seaview Air in connection with certain specified matters and the implications of its findings in relation thereto, necessary to ensure total propriety in air safety administration. On 29 December 1994, the Letters Patent issued on 25 October 1994, were amended, and by separate Letters Patent of the same day, James Henry Staunton AO CBE QC was appointed a further Commissioner, while by further Letters Patent, of 30 May 1995, Sir Lawrence Street retired and Mr Staunton continued as sole Commissioner. The terms of the Letters Patent issued on 29 December 1994, which effectively renamed the relevant terms, required the Commissioners to enquire into: (a) The operations of the Authority in connection with: (i) the appropriateness of decisions in administrative actions of officers of the Authority relating to the operations of Seaview Air during 1994 (and earlier if necessary), including its upgrading to a Regular Public Transport (RPT) operator;

(ii) the diligence and propriety with which officers of the Authority and Seaview Air discharged their respective responsibilities relating to the safety of Seaview Air operations;

(iii) the effectiveness of the management systems within the Authority and communication between its various levels as they related to Seaview Air; and (b) the implications of your findings under paragraph (a) . . . necessary to ensure total propriety in air safety administration.

3 On 30 November 1994, a summons was issued by Commissioner Street, directed to Peter John Ziems, the second defendant, requiring him to appear to give evidence and produce a range of documents (Ex. 2 - all exhibit numbers refer to the exhibit number in the Local Court unless otherwise indicated). 4 On 5 January 1995, a second summons was issued by Commissioner Street directed to Mr Ziems (Ex. 3) requiring him to attend and give evidence and to produce various other documents relating to his personal financial affairs. In response to these summonses, Mr Ziems produced various documents to the Commission. He also made a written statement dated 2 February 1995 and gave evidence before Commissioner Staunton on 21 and 22 February 1995. The effect of his statement and evidence was that he had produced all documents within the terms of the summonses. 5 Based on information provided by a Mr Pritchard, search warrants were subsequently obtained, one of which was executed by Australian Federal Police (AFP) officers on the office of the third defendant, Suzanne Denise Ziems (wife of Peter John Ziems) at Wahroonga Public School, and during the course of that search Mrs Ziems handed over a number of other documents to APF officers, some of which referred to Seaview Air and/or Mr Green, the principal of Seaview Air. Mr and Mrs Ziems were then recalled to give evidence on 21 and 22 November 1995 when they were questioned about the documents which had been located at the school and the circumstances in which the documents came to be there. 6 On 31 July 1998, the plaintiff laid informations against Mr Ziems for offences against ss 6H (knowingly give false or misleading evidence) and 6K (concealing documents or other things) and against Mrs Ziems under s 6K, and those matters were heard by the first defendant on 7, 8 and 9 June 1999. During the course of the hearing, the prosecution sought to tender the following documents: · Pages of transcript of evidence of Peter Ziems given on 21 and 22 February 1995 (MFI A) · Pages of transcript of evidence of Peter Ziems given 22 November 1995 (MFI B) · Pages of transcript of evidence of Suzanne Ziems given 21 and 22 November 1995 (MFI C) · Part 14 of the Report of Commissioner Staunton (MFI D) · A bag of diaries (MFI E) · A bag of letters and invoices (MFI F) · A bag with twelve bank statements (MFI G) · A statement of Mr Ziems with handwriting (MFI H) · A photocopy of a letter from the Commission to Mr Ziems together with a draft statement (MFI I) 7 The tender of the documents was objected to by the second and third defendants and following argument, the Magistrate on 9 June 1999, ruled that: 1. The Commission had acted outside its Terms of Reference in summonsing Mr Ziems to give evidence and produce documents; 2. That the search warrant was not obtained with respect of matters into which the Commission was inquiring, and thus the warrant was invalid; 3. That in requiring Mr and Mrs Ziems to give evidence concerning the material found pursuant to the search warrant, the Commission was also acting outside the Terms of its Reference and; 4. As a consequence, the MFI's, apart from MFI D, had been obtained improperly. 8 Her Worship then considered whether the evidence should nevertheless be admitted in accordance with s 138(3) of the Evidence Act 1995, and having regard to the circumstances, she determined that it should not be. In relation to MFI D, her Worship determined that Part 14 of the Report was opinion evidence and was not relevant, and thus was not admissible. 9 These rulings effectively prevented the prosecution leading the evidence on which it sought to rely to prove that the evidence given was false and/or that relevant documents had been concealed, and following her Worship's ruling, the prosecution offered no evidence and the informations were dismissed. Following further argument, costs were awarded against the informant. 10 Section 2 of the Act authorises a member of a Commission to summons a person to appear before the Commission at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons, while s 3 provides that a person appearing as a witness shall not, without reasonable excuse, fail to produce a document or other thing that he was required to produce by summons served on him, but it is a defence to such offence if it is proved that the document or other thing was not relevant to the matters into which the Commission was inquiring. Section 4(1) provides that where a relevant Commission has reasonable grounds for suspecting that there may be, on land or premises etc a thing or things of a particular kind "connected with a matter into which the relevant Commission is inquiring" and the Commission believes on reasonable grounds that if a summons were issued for the production of the thing or things, such thing or things may be concealed, lost, mutilated or destroyed, it may apply to a judge of a prescribed court for issue of a search warrant, and if the judge is satisfied there are reasonable grounds for issuing the warrant he may issue a search warrant authorising a member of the AFP or any other person named in the warrant with such assistance as he considers necessary to enter upon and search land, premises etc, seize anything of the relevant kind found on the land, premises, etc and deliver the things so seized to the relevant Commission. Subs (4) of that section requires that there be stated in such warrant a statement of the purpose for which the warrant is issued, including reference to the matter into which the relevant Commission is inquiring and with which the things of the relevant kind are connected. 11 Sections 6H and 6K, so far as relevant, are as follows: 6H (1) A person shall not, at a hearing before a Commission, knowingly give false or misleading evidence with respect to any matter, being a matter that is material to the inquiry being made by the Commission . . . 6K (1) A person who, knowingly or having reasonable grounds to believe that a document or other thing is or may be required in evidence before a Commission wilfully - (a) conceals, mutilates or destroys the document or other thing . . . is guilty of an offence . . .

12 The plaintiff submits that the Magistrate was in error in holding that the documents were illegally obtained in that: (a) she had no power to rule on the validity of the summonses or the search warrant except for errors on the face of such summonses or search warrants, and (b) alternatively, the summonses and search warrant were in any event valid and did not relate to matters outside the Terms of Reference of the Commission, and also submits that she erred in rejecting the tender of Part 14 of the Commissioner's Report. The plaintiff does not submit that if the documents were illegally obtained the Magistrate erred in the exercise of her discretion in rejecting the tender of them. 13 Although in collateral proceedings it is not open to a party to challenge the material on which a summons or search warrant has been issued: Murphy v The Queen (1989) 167 CLR 94, a search warrant is open to challenge in collateral proceedings if it is invalid on its face. In Ousley v The Queen (1997) 192 CLR 69 at 80, Toohey J said: "It follows that in respect of this part of the appellant's challenge there is no bar to collateral review by a trial judge of the validity of the warrant on its face. However it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements."

and at 87, Gaudron J said that the collateral inquiry into the validity of a warrant is a limited inquiry, and validity depends on the warrant being regularly issued, not the sufficiency of the material supporting the application for its issue. See also Kirby J at 145. 14 In the present case the Magistrate did not confine herself to whether any errors appeared on the face of the summonses or the warrant, but took into account the evidence relating to Mr Ziems' position in the Authority and his relationship with John Green and Seaview Air as disclosed in the various statements which he had given to the Commission before he was called to give evidence, she noted that such material disclosed that he had a technical position in the Authority maintaining on ground radar and communications systems, was not and had never been an employee of Seaview Air or remunerated as such, and that in the course of his employment with the Authority he had no involvement in administering or implementing safety regulations, she observed he had a long standing friendship with John Green, the principal of Seaview Air, which involved amongst other acts of friendship, mutual holiday accommodation and mutual loans, and that as a friend he assisted Mr Green in relation to his business, including purchasing items for Mr Green, Seaview Air and Mr Green's wife's shop, for which he was reimbursed. She went on (at p 4 of her judgment): "No evidence has been led to suggest that Mr Ziems' position in the CAA was not as was stated by him in his statements and the summonses and search warrants seem to confirm that the Commission's inquiry was focused on the personal and financial affairs and relationship of Mr Ziems and Mr Green. Mr Ziems' friendship with Mr Green may have caused him to assist Mr Green to an extent which may be regarded as giving rise to a conflict of interests but the question is, was that a matter within the terms of reference?"

Her Worship went on to observe that the summons issued to Mr Ziems (Exs. 2 & 3) set out "in shorthand" that the Commission was inquiring into the relations between the CAA and Seaview Air, and after considering the form of the search warrant, to which I shall return shortly, and the Terms of Reference, concluded that the Commission's inquiry into the relationship between Mr Ziems, Mr Green and Seaview Air was not within its Terms of Reference and therefore that the summonses and search warrant were invalid. In following this course I am satisfied her Worship fell into error because it involved going beyond the terms of the summonses and the search warrant and considering the sufficiency of the material available to the Commissioner when issuing the summonses, and to the Judge of the Federal Court when issuing the search warrant. 15 Had the defendants wished to challenge the summonses or warrant on the basis that they were not issued for a purpose within the Terms of Reference of the Letters Patent, the proper forum for such a challenge would have been by way of proceedings under the Administrative Decisions (Judicial Review) Act 1977, in the Federal Court. Examples of such challenges can be seen in Ross v Costigan (1982) 41 ALR 319; Ross v Costigan (No. 2) (1982) 41 ALR 337; Lloyd v Costigan (1983) 48 ALR 241. The arguments advanced on behalf of the 2nd and 3rd defendants before the Magistrate may have been relevant to the issue of materiality involved in the charges under s 6H of the Act or to a defence under s 3(3), but were not relevant matters for consideration by the Magistrate on the issue of the validity of the summonses or the search warrant, and were not relevant to the admissibility of the documents tendered by the plaintiff and rejected. 16 It is however appropriate to consider whether it was open to the Magistrate on the material before her to determine, even if she had jurisdiction, that the summonses or warrant were invalid as relating to matters outside the terms of the Terms of Reference. In Ross v Costigan, Ellicott J at 334 noted that in determining what is relevant to a Royal Commission Inquiry, regard must be had to its investigatory character, that it may have to follow leads, that there is no set order in which evidence must be adduced before it and if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry it should not be regarded as acting outside its Terms of Reference in doing so. His Honour went on at 335, "If there is a real as distinct from a fanciful possibility that a line of questioning may provide information directly or even indirectly to the matters which the Commission is required to investigate under its Letters Patent such a line of questioning should . . . be treated as relevant to the inquiry."

17 In Lloyd v Costigan (No. 2) (1983) 53 ALR 402 at 405 the Full Court said that it is a misconception of the function of a Royal Commissioner that before he can invoke his inquisitorial powers there must be before him material probative of the facts the very existence of which his Commission has directed him to investigate. 18 In the present case, the Commission was directed to inquire into the matters set out in para [2] of this judgment. There was material available to it that Mr Ziems, who was an employee of the Authority although in the radar operations section and not directly involved in safety regulation, had a close personal association with Mr Green, the principal of Seaview Air, that he had bought materials on behalf of Mr Green for Seaview Air, that he had delivered freight to the airport for loading onto the Seaview Air planes although not actually involved in the physical loading himself, that he had in a practical sense, though without remuneration, acted as Sydney Operations Manager for Seaview Air, and was so described on a business card. 19 To say the least, this close association by the principal of Seaview Air with an officer of the Authority could give rise to concerns about the propriety of such relationship, and whether there was the possibility that he may have been able to influence those employees of the Authority concerned with safety to be lenient or to take a certain course in respect of Seaview Air. In these circumstances it was clearly relevant that his relationship with Mr Green be investigated. Indeed, having become aware of his association with the company, the Commission would have been derelict in its duty had it not investigated the nature and extent of the relationship and whether it had in any way affected for example, "the diligence and propriety with which officers of the Authority and Seaview Air discharged their respective responsibilities relating to the safety of Seaview Air Operations". 20 The Commissioner was not bound by any answers he gave, but was entitled to look at other material to determine whether the information given by him disclosed the whole of the story of his relationship with Seaview Air. 21 Although the documents specified in the warrant and in the summonses may at first glance appear not to be directly related to safety issues, in so far as they may have disclosed the relationship between Mr Ziems and Mr Green they may have thrown some light on the issues to which I have referred or led to further investigations relating to such issues. Having regard to these considerations, it was not open to the Magistrate to find as she did that the Commission's inquiry into the relationship between Mr Ziems, Mr Green and Seaview Air was outside the Terms of Reference. I am further of the opinion that the additional documents having been located, it was within the Terms of Reference to recall Mr Ziems and to call Mrs Ziems to explain why these documents had not been produced at an earlier stage. Not only does it go to Mr Ziems' credit, but the mere fact that these documents had been concealed, left open the inference that the documents were relevant in some way, and so it was important to recall the witnesses to ascertain whether any further information could be elicited from them in relation to those documents. I am not satisfied that they were recalled merely for the purpose of obtaining evidence to justify the current prosecutions. 22 It follows that the learned Magistrate was in error in rejecting the tender of the documents (except MFI D) for the reasons which she did, in that she was in error in holding that they were illegally obtained because the summonses and search warrant, were outside the Terms of Reference of the Letters Patent. 23 However, a different issue arises concerning the validity of the search warrant (Ex. 7) "on its face". As noted above, s 4(a) requires that there shall be stated in the warrant a statement of the purpose for which the warrant is issued which shall include a reference to the matter into which the relevant Commission is inquiring and with which the things of the relevant time are connected. 24 In the present case the only "reference to the matter into which the relevant Commission is inquiring" appearing in the search warrant appears in the recital at the beginning of such warrant where the Commission is described as an "Inquiry into the relations between CAA and 'Seaview Air'". The Commission was not inquiring generally into relations between the Authority and Seaview Air, but only into the operations of the Authority and its officers in certain respects relating to the safety of Seaview Air operations. To describe it as an inquiry into the relations between the Authority and Seaview Air in general terms was in my view inaccurate and misleading, and was not a compliance with the requirements of s 4(4)(a) of the Act. 25 There is another part of the search warrant which was referred to in this regard, namely the so called "SECOND CONDITION" which also purports to refer to matters into which the Commission is inquiring as follows:- "(i) The relationship between officers of CAA, namely Peter Ziems and officers of "Seaview Air"; (ii) The issue of overloading, by reason of freight carried by "Seaview Air"; (iii) The operation of "Seaview Air"; (iv) Records regarding the financial arrangements "Seaview Air", John Green, and/or Peter Ziems (sic)",

but this was no more an accurate description of matters into which the Commission was inquiring than the earlier description quoted above. 26 There are a number of cases in relation to search warrants where the offence being investigated has been required to be specified and an incomplete, inaccurate or misleading statement of the offence being investigated has been held to render the search warrant invalid, e.g. R v Tillett; ex parte Newton (1969) 14 FLR 101, Dover v Ridge (unreported - Dunford J - 3 July 1998), Tran Nominees Pty Ltd v Scheffer & ors (1986) 42 SASR 361, Australian Broadcasting Commission v Cloran (1984) 57 ALR 742, Cassaniti v Croucher [2000] NSWCA 95. 27 In Warner v Elder (unreported - Temby AJ - 23 April 1997) warrants had been issued pursuant to s 15 Royal Commission (Police Service) Act 1994 which authorised the issue of a warrant if there were reasonable grounds for believing that there were on any premises etc any document or thing "connected with any matter that is the subject of the Commission's inquiry", but such warrants were held invalid on a number of grounds including that they did not on their face provide full information as to what matter of inquiry the warrant related. On appeal, sub nom. MacGibbon v Warner (unreported - Court of Appeal - 27 November 1997) the judgment was affirmed on other grounds, but the Court expressed the view that Temby AJ was correct on this and other points. 28 It is clearly not necessary for the whole of the Terms of Reference to be set out in the search warrant, although that may be the safer and more prudent course; but if the matter into which the relevant Commission is inquiring is purported to be set out as an abbreviation of the Terms of Reference, it is necessary for that abbreviation to be accurate, and to contain any relevant qualifications which form part of the Terms of Reference. The importance of setting out the purpose of the warrant, whether it be investigation of a specific offence or the matter into which the Commission is inquiring is fundamental so that those executing the warrant will know what documents or other things may be taken pursuant to it. It follows that the search warrant for the search at Wahroonga Public School was invalid on the face of it, and any documents taken pursuant to it were taken illegally within the terms of s 138 of the Evidence Act. 29 A similar statement as to the nature of the subject matter of the Commission appears in the summonses (Exs. 2 and 3), but that does not render the summonses invalid because s 2 dealing with summonses does not contain the same requirement as s 4(4)(a). 30 The other document which was tendered on behalf of the plaintiff, objected to and rejected was MFI D, namely Part 14 of the Commissioner's Report. That part is headed "Mr Ziems" and consists of a summary and paragraphs 67.1 to 67.54. The summary is as follows: "Mr Peter Ziems, an officer of the CAA, was involved also in the Sydney operations of Seaview Air. Mr Ziems was called to give evidence and to produce certain documents. In his statement and at his first appearance, Mr Ziems asserted that he had produced all relevant documents in his possession. As a result of further information a search warrant was executed and documents were seized. The failure of Mr Ziems to produce the documentation, and his statements given in evidence that there were no documents to produce, are possible breaches of the Royal Commissions Act 1902. It is the conclusion of the Commission that there is material that ought to be referred to the Director of Public Prosecutions to consider whether charges should be preferred."

31 Paras 67.1 to 67.54 contain a detailed narrative and description of the events relating to the summonses, Mr Ziem's evidence, the issue and execution of the search warrant, the documents recovered, the later evidence of Mr and Mrs Ziems, the relevant statutory provisions and the Commissioner's conclusion that the material should be referred to the Director of Public Prosecutions. 32 Her Worship rejected the tender on the ground that the Report was only hearsay and opinion evidence, and did not come within any of the exceptions to the general exclusion of such evidence, a position sought to be maintained by the second and third defendants in these proceedings, whilst the plaintiff submits that although findings and opinions by the Commissioner are expressed in Part 14, it also contains summaries of the evidence before the Commission and thus provides evidence of the factual issues considered by the Commission within the Terms of Reference for the purpose of assessing the materiality of the evidence of Mr and Mrs Ziems and of the documents seized pursuant to the search warrant. 33 In my view, Part 14 was not admissible. Although parts of it summarised the relevant evidence, it also contained views and opinions of the Commissioner that the evidence and documents recovered pursuant to the search warrant were material and suggested that offences had been committed. Such views, opinions and suggestions were irrelevant and these issues were matters for the Magistrate. As they were not relevant, the document containing them was not admissible: Evidence Act 1995 s 56(2). 34 Materiality of the answers given by Mr Ziems and the documents recovered was a relevant issue but, if strict proof were insisted on, could not be proved by tendering the summary of the evidence contained in paragraphs 67.1 to 67.54. What would have been necessary, if strict proof were required, was the tender of the relevant parts of the Commission's transcript; although ultimately the tender of those paragraphs of Part 14 might have been a reasonable approach if it were done by consent; but a summary in that form, absent consent, was simply not in an admissible form. 35 I am therefore satisfied that her Worship erred in rejecting the tender of MFI's A, B, C, H and I, but was correct in holding that the documents seized pursuant to the search warrant, MFI's E, F and G had been illegally obtained. I am also satisfied the Magistrate was correct in rejecting the tender of MFI D (Part 14 of the Report). 36 Mr Hastings QC on behalf of the plaintiff indicated during the hearing (transcript, 11 November 1999, p 11) that if I upheld the Magistrate's ruling that the evidence was illegally obtained, there was no challenge to her exercise of discretion under s 138 Evidence Act 1995 not to admit the evidence, and in those circumstances I should dismiss the appeal. As I have only upheld her Worship in respect of some of the documents I feel I should give him the opportunity to make further submissions if he wishes as to the further disposition of those proceedings before I make final orders. -----------------------

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