Parker, R.E. & Ors v Churchill, M.A. & Ors [1986] FCA 90

Administrative Decisions (Judicial Review) Act 1977 Sales Tax Assessment Act (No. 1) 1930, s.11(1) Taxation Administration Act 1953, s.8C(d)

RALPH EDWARD PARKER AND ORS. v. MARTIN ALAN CHURCHILL AND ORS.

Bowen C.d., Lockhart and Jackson JJ. 26 March (\9S6 Sydney

} ) NEW SOUTH WALES DISTRICT REGISTRY ) G337 of 1985 ) )

ABCONA PTY LIMITED (trading as UTILITY MANUFACTURING (NOWRA)

E.A. PARKER CONSTRUCTION PITY. LIMITED MASOCA PTY. LIMITED trading as ABACIS COLLECTION AGENCY ZANGA PTY. LIMITED

First Respondent BRENDAN CLIFFORD CONDIE Second Respondent

Declare that the first and second respondents in ussuing the warrants referred to inthe further amended application acted

' beyond the powers conferred by s.10 of the Crimes Act 1914 in so

far as the warrants contained paragraph (d) and so much of paragraph (b) as referred to a possible offence by Ralph Edward Parker and Therese Isobel Carson of falsely representing that they

were registered persons under the Sales Tax Assessment Act (No. 1) 1930.

Declare that the said warrants were otherwise valid. Order that the appeal be otherwise dismissed.

Order that the injunction against the Commissioner of Taxation be continued for 21 days from the date this order is pronounced.

Order that the appellants pay to the respondents two-thirds of their costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) G 337 of 1985 ) )

ON APPEAL FROM A SINGLE JUDGE OF THE : FEDERAL COURT OF AUSTRALIA

BETWEEN : RALPH EDWARD PARKER THERESE ISOBEL CARSON * ABCONA PTY. LIMITED trading as be UTILITY MANUFACTURING (NOWRA)

CHAMAN HOLDINGS PTY. LIMITED DALWORTH PTY. LIMITED l B.A. PARKER CONSTRUCTION PTY. | LIMITED i. MASOCA PTY. LIMITED trading as 1 ABACIS COLLECTION AGENCY ZANGA PTY. LIMITED

, THE COMMISSIONER OF THE wt t AUSTRALIAN FEDERAL POLICE i

CORAM: BOWEN C.J., LOCKHART 'and JACKSON JJ. i DATE > 26 MARCH 1986. I

We have had the benefit of reading the reasons for judgment of Jackson d.. We agree with them in all respects but one, namely, whether the contents of the information before the Justice of the Peace who issued the search warrant afforded reasonable grounds for suspecting that the various companies with which Ralph Edward Parker and Therese Isabel Carson were associated were being used as shams by them so that they (Parker and Carson) were committing the offence of

failing to register for sales tax purposes as manufacturers and/or

wholesale merchants. Jackson J. deals with this matter in his

\ i Paragraph (a) of the warrant describes the possible offence re

"(a). Taxation Administration Act 1953, sub-section 8C(d) together with sub-section 7 11(1) of the Sales Tax Assessment Act (No. 1) 4 1930, in that Ralph Edward Parker and Therese f Isobel Carson did at various times from the { twenty-sixth day of October 1984 until the t present time, fail to register for sales tax t purposes as manufacturers and/or wholesale i [

The warrant incorrectly referred to "sub-section 8C{d)" of i the Tax Administration Act 1953. It should have been a reference to

section 13 of the Sales Tax Assessment Act (No. 1) 1930. We agree

with Jackson J. fdr the reasons he has given that the incorrect

statutory reference in the description of the offence does not of

itself invalidate the warrant. We also agree with him that the

bier dd alee hii Po Bees aes rari Tmt ; . ° : ci oD ' Raa >

description of the possible offence in para. (a) is not appropriate to describe an offence by any of the companies with which Parker and Carson are alleged to be associated; but must be read, as its language requires, as referring to the possible offences committed by Parker and Carson themselves through having failed to register for sales tax purposes.

The point of difference between us is that in our opinion the contents of the information were sufficient to afford reasonable grounds for suspecting that the companies were being used as shams by

Parker and Carson and that they were committing the offence

The relevant contents of the information are set out in the reasons for judgment of Jackson J. so we need not repeat them. So far as presently relevant those contents may be summarised as alleging that between 26 October 1984 (the date of the winding up of Utility Brute Trailers Pty. Limited) and 30 September 1985 (the date of the

1. Parker and Carson carried on the business of manufacturing

and selling road trailers and related equipment through corporate facades which they controlled and manipulated to : -

mask what were in truth their own business activities;

2. Parker and Carson should have been, but were not, registered under the relevant sales tax legislation and paid no sales

tel a fete =" > =. plein pte re eee Se Pr ee TE ON nt

3. The business which they carried on included, so far as was known at the stage of the issue of the warrant:-

(a) the purchase of raw materials for the manufacture of road trailers and related equipment from six manufacturers of goods under quotation of the Sales Tax Certificate of Registration formerly held by Utility Brute Trailers Pty. Limited (In Liquidation), one of the companies controlled by them until it was wound up on 26 October 1984; and

(b) the sale of road trailers and similar or related

equipment to three purchasers on various occasions;

4. The sales invoices and other documents in respect of the transactions mentioned in 3(b) showed sale prices for the

In our opinion the material thus summarised was sufficient to

We would declare that the search warrants are outside the

fowers conferred by s. 10 of the Crimes Act 1914 insofar as they

ontain para. (d) and so much of para. (b) as refers to the possible

ffence by Parker and Carson of falsely representing that they are

Yegistered persons. The warrants are otherwise valid.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of their Honours the Chief Judge, Sir Nigel Bowen, and Mr Justice Lockhart.

NEW SOUTH WALES DISTRICT REGISTRY ) G337 of 1985 ie GENERAL DIVISION : ) : ib

RALPH EDWARD PARKER THERESE ISOBEL CARSON . ABCONA PTY LIMITED trading as - ~ es UTILITY MANUFACTURING (NOWRA) ANEY HOLDINGS PTY. LIMITED

' BELSIA PTY. LIMITED BENCARRA PTY. LIMITED * BENDOL PTY. LIMITED oo BEZLOM PTY. LIMITED - CHAMAN HOLDINGS PTY. LIMITED te DALWORTH PTY. LIMITED E.A. PARKER CONSTRUCTION PTY. LIMITED MASOCA PTY. LIMITED trading as ABACUS COLLECTION AGENCY ZANGA PTY. LIMITED

i MARTIN ALAN CHURCHILL : : First Respondent BRENDAN CLIFFORD CONDIE Second Respondent .

THE COMMISSIONER OF THE AUSTRALIAN i \ FEDERAL POLICE m

epee age eg ee Sea ees one DA LF OY pt dei he Tee te o. ~ any

On 30th September 1985 the first respondent, a justice of the peace for the State of New South Wales, granted search warrants authorizing the officers of the Australian Federal Police named therein, with such assistance as they thought necessary, to enter the premises named in the warrants, and to seize any of the things named in the warrants, which they might there find. The places named in the warrants were factory premises at Nowra, two dwelling houses at Nowra, dwelling houses at Leppington, Shoalhaven Heads and Warwick Farm, the premises of three banks at Nowra, the premises of two banks at Sydney, solicitors' premises at Nowra and office premises at Nowra.

The warrants were granted by the second respondent in the exercise - or, as the appellants would have it, purported exercise - of the powers conferred by s.10 of the Crimes Act 1914

information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has

been, or 1s suspected on reasonable grounds to have been, committed; fh

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the i* purpose of committing any such offence, v.

he may grant a search warrant authorizing any re constable named therein, with such assistance as he ' thinks necessary, to enter at any time any house,

vessel, or place named or described in the warrant,

if necessary by force, and to seize any such thing - - * which he may find in the house, vessel,or place." F

As is apparent from its, terms, s.10 requires that before

granting such a search warrant, a justice be satisfied by information on oath that there is reasonable ground for eo suspecting that there is, in the place in respect of which the search warrant is sought, something which falls within the

description contained in one or more of the paragraphs of the

section. The "information" which in this case led to the first respondent having the requisite satisfaction was provided in : writing by Kenneth Alan Moore, a Senior Investigation Officer of the Sales Tax Branch of the Australian Taxation Office and

Mr Moore ("the informant") swore to the contents of each such

document before the first respondent. It may be noted in passing

that it is clear from the evidence of the first respondent that the material before him at the time when he determined to grant the warrants was, and was only, the matter contained in the

Before the primary:Judge the appellants sought reviews

under the Administrative Decisions (Judicial Review) Act 1977 of

ny - Lt ee, 2 Jane? Linke eal bor a ete eed S Feline ater ene

the decisions made by the first respondent in granting the search L

1 warrants, and of the decisions made by officers of the Australian Federal Police in the execution of those warrants. The primary .

Judge refused the applications but reserved to the appellants L

liberty to apply in respect of particular documents upon seven

Before the Court both aspects of the case remained in issue, and it is convenient at this point to indicate in more ~

detail the nature of the attack made upon the grant of the

warrants on the one hand and upon their execution on the other. .

The grant of the search warrants was attacked on three i

bases. First it was said that in some respects the offences referred to in the warrants were not offences known to law. Next | it was put that the matter contained in the informations was not 1

capable of satisfying the first respondent of the matters of

which he was required to be satisfied pursuant to s.10. Finally,

it was contended that the first respondent applied the wrong test

in determining whether to grant the search warrants.

The lawfulness of the execution of the search warrants was

also put in issue in two ways. First it was contended that the

searches were carried out "indiscriminately", i.e. without regard

to the question of relevance of documents. Second it was

contended that -Eecause the warrants were not validly granted,

either in whole or in part, the items seized (or some of them)

Pete te eo wd Met [Raat etme a nah antennae 1 Cit ta aS

were illegally obtained, and that in consequence an order for

I shall deal with these contentions in the order in which

I have just mentioned them but since so much turns on the

warrants it is helpful to set out their terms . The warrant in

respect of the factory premises (which were situated at Lot 14,

Norfolk Avenue, Nowra) 1s a sufficient example and it was as

Christopher Bentley Australian Federal Police Officers _

a Justice of the Peace, within the meaning of that expression in section 10 of the Crimes Act 1914 of the Commonwealth of Australia, in and for the State of New South Wales, being satisfied by information on oath placed before me this day that

there are reasonable grounds for suspecting that there are at or in the following place:-

Factory premises situated at Lot 14 Norfolk Avenue, Nowra, in the said State, being a metal clad building with a metal roof, having a double storey brick office accommodation with a sign styled ~ "Utility" on the side, attached, including all rooms, safes and . other parts therein, the surrounding grounds and any outbuildings, receptacles and motor vehicles thereon.

Things being trailers, rubber stamps, typewriters, computer software and documents including, but not limited to, originals L

or copies of presented cheques, specimen signature cards, deposit ie slips, applications to open accounts, withdrawal forms, diaries, fe

: diary notes, order forms, signed cheques, unsigned cheques, , invoices, names and addresses of customers, cheque butts,

customer order forms, quotations, sales journals, purchase journals, certificates of conditional exemption and records of receipts and payments and other business records as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against provisions of the following legislation -

(a) Taxation Administration Act 1953, sub-section 8C(d) together with sub-section 11(1) of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did at various times from the twenty-sixth

• day of October 1984 until thepresent time, fail to register for sales tax purposes_as manufacturers and/or wholesale merchants;

(b) Section 15 of Sales Tax Assessment Act (No.1) 1930, in

various times from the twenty-sixth day of October 1984 until the present time, falsely represent they are registered persons or falsely quoted a certificate;

(c) Section 29D of the Crimes Act 1914, in that Ralph Edward

Parker and Therese Isobel Carson did, at various times from the twenty-sixth day of October 1984 until the

present time, defraud the Commonwealth in relation to the

purchase of raw materials free of sales tax and by failing

(d) Section 231 of the Income Tax Assessment Act in that Ralph

Edward Parker and Therese Isobel Carson did at various

times since 30 June 1978 until the present time evade payment of income tax.

YOU_ARE HEREBY AUTHORISED with such assistance as you may think

necessary to enter at any time the said place, if necessary by force, and seize the aforementioned things being:-

trailers, rubber stamps, typewriters, computer software and documents including, but not limited to, originals or copies of presented cheques, specimen signature cards, deposit slips, applications to open accounts, withdrawal forms, diaries, diary notes, order forms, signed cheques, unsigned cheques, invoices, names and addresses of customers, cheque butts, customer order forms, quotations, sales journals, purchase journals,

certificates of conditional exemption and records of receipts and

payments and other business records as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against provisions of the legislation named above, being described as:-

(a) Taxation Administration Act 1953, sub-section 8C(d),

that Ralph Edward Parker and Therese Isobel Carson did, at

together with sub-section 11(1) of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty~sixth day of October 1984 until the present time, fail to register for sales tax purposes as manufacturers and/or wholesale merchants;

(b) Section 15 of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty~sixth day of October 1984 until the present time, falsely represent they are

t registered persons or falsely quoted a certificate;

(c) Section 29D of the Crimes Act 1914, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty-sixth day of October 1984 until the

present time, defraud the Commonwealth in relation to the purchase of raw materials free of sales tax and by failing to account for sales tax; and

(d) Section 231 of the Income Tax Assessment Act in that Ralph Edward Parker and Therese Isobel Carson did at various times since 30 June 1978 until the present time evade payment of income tax.

and for so doing this shall be your sufficient Warrant.

GIVEN under my hand and seal at 111 Elizabeth Street, Sydney in the State of New South Wales, this 30th day of September 1985.

: Justice of the Peace in and for " the State of New South Wales , * (M. Churchill) "

As I have said, the decision to grant the search warrants was attacked on three bases and it is necessary to discuss each of those bases in relation to each of paragraphs (a)-(d) in the

Paragraph (a) of each warrant refers to a potential

offence of failing to register for sales tax purposes as'

! manufacturers and/or wholesale merchants. It identifies the te

relevant statutory provisions as being s.8C(d) of the Taxation

Administration Act 1953 and s.11(1) of the Sales Tax Assessment

In dealing with the contention that paragraph (a) does not refer to an offence known to law, it should first be noted that it 1s correct to say that at all material times there has been an .

offence of the nature described in the text of paragraph (a),

1.e. failing to register as a manufacturer or wholesale merchant a ; for the purposes of the Sales Tax Assessment Act (No.1). In this mn regard, until 30 May 1985 s.11(1) of the Sales Tax Assessment Act (No.1) provided that:- .

; "(1) A person who becomes a manufacturer or , wholesale merchant shall, within 28 days after he " becomes a manufacturer or: wholesale merchant, as re the case may be, become registered as prescribed"

"(1) Subject to this section, a person who is a manufacturer or a wholesale merchant, is required to be registered". t

At all times failure to comply with the requirements of s.11(1)

has been an offence by virtue of s.13 of the same Act.

The point which is made, however, is that paragraph (a)

of the warrants does not refer to s.13 but refers instead to -

s.8C(d) of the Taxation Administration Act 1953, which is as

"8C. A person who refuses or fails, when and as required under or pursuant to a taxation law to do so -

(d) to notify the Commissioner or another person of a matter or thing;

to the extent that the person is capable of doing so 1S guilty of an offence."

The obligation to become registered provided for by s.11(1), in both its earlier and its later form, is not in my view an obligation to "notify" the Commissioner in terms of s.8C(d) and I thus regard the reference to s.8C(d) in paragraph (a) of the warrants as incorrect. Further s.8C(d) did not come into force unt1l 14th December 1984 and thus could have no application to so much to the period referred to in paragraph (a)

As the primary Judge observed, a reference in a search warrant to an incorrect section was held not to invalidate a

search warrant in Reg v. Trottier et al, Ex parte McLaughlin et

al (1966) C.C.C. 321, and there seems no particular reason why it should. A search warrant, insofar as it is based on s.10(b) of the Crimes Act authorizes a constable named in it to enter and seize "any such thing", i.e. any thing as to which there are reasonable grounds for believing that it will afford evidence as

to the commission of an offence against a law of the Commonwealth

or of a Territory. The warrant must specify the offence, or

offences, in question (Reg. v Tillett; Ex parte Newton (1969) 14

F.L.R. 101 at 113, Crowley v. Murphy (1981) 52 F.L.R. 123 at 143,

Australian Broadcasting Commission v. Cloran (1984) 4 F.C.R. 151

at 153), but unless it be that the reference to an incorrect

section has the result that the warrant does not specify any

offence, or makes the warrant ambiguous so that it is not

possible to tell what offence is referred to, I think that the le reference to an incorrect section in the description of an . offence does not of itself invalidate a warrant which, as is conceded in the present case, does state in otherwise intelligible terms an offence in relation to which s.10 is

capable of operating. Compare the remarks of Moshansky J. in be

Alder v. Attorney-General of Alberta (1977) 5 W.W.R. 132 at 147. i. I turn then to consider the second basis on which the grant of the warrants, insofar as they relate to the offence

referred to in paragraph (a), was sought to be impugned.

As IT have said the material before the first respondent at

the time of the grant of the warrants consisted entirely of the

material contained in the informations. In the informations the

"1 For several months he has been engaged on enquiries .

concerning the evasion of sales tax, by persons known - as Ralph Edward Parker of 11 Salisbury Drive, Nowra ' and Therese Isobel Carson of 8 Dwyer Road, "Ss Leppington, both of whom are either directors and/or r public officers of the following companies:- i

E A Parker Constructions Pty Ltd Utility Brute Trailers Pty Ltd (in Liquidation)

be Bendol Pty Ltd ' Abcona Pty Ltd T/A Utility Manufacturing (Nowra) 7 Dalworth Pty Ltd . Bencarra Pty Ltd. a Bezlom Pty Ltd ee Masoca Pty Ltd

(a) Failing to register, for sales tax purposes, : as manufacturers and/or wholesale merchants. 1

(b) Purchasing goods, being parts and machinery for the manufacture of taxable goods, from : registered sales taxpayers under the quotation of the sales tax certificate of registration held by Utility Brute Trailers Pty Ltd." *

and, after referring in paragraph 2 to the terms of ss.11(1) and i

15 of the Sales Tax Assessment Act (No.1) 1930 and s.8Y of the

"3 By application dated 18 November 1981, Ralph Edward Parker and Therese Isobel Carson, as directors, sought registration for sales tax purposes of the . entity, Utility Brute Trailers Pty Ltd, asa - manufacturer and wholesale merchant of highway trailers. Certificate of registration, numbered 2 456 453, was issued to this entity on 26 November 1981. By order of the Supreme Court of New South Wales, Equity Division, a winding up order, in relation to Utility Brute Trailers Pty Ltd, was made on 26 October 1984 and Mr D E W Blackwell of A W Butterell Porter and Company, 109 Pitt Street, Sydney, was appointed official liquidator.

4 The informant made enquiries of the official liquidator and was informed that the company has not traded since May 1984, that Ralph Edward Parker has been advised the company cannot trade now that it is in liquidation and further, that no authority has been given by- the liquidator for any other person or entity to act or carry on business on behalf of Utility Brute Trailers Pty Ltd.

5 The informant has established that subsequent to the commencement of his enquiries into the

activities of Utility Brute Trailers Pty Ltd, Ralph Edward Parker personally and through solicitors WR

Goodman and Associates, Suite 3, 50 Berry Street, Nowra and Weiss and Company of Challis House, Martin Place, Sydney and through accountants,

24 Berry Street, Nowra, purchased a number of shelf companies from Australian Formation Services, 3rd Floor, 110 Bathurst Street, Sydney and Company

Advice from representatives of these entities indicates that the names, intended registered offices and intended directors of these shelf companies are as follows:-

Abcona Pty Ltd Suite 3, T/A Utility 50 Berry St Manufacturing Nowra (Nowra)

(By letter, dated 18 February 1985, Clifton Atlee and Associates, notified Company Planners Pty Ltd that the following were to be

appointed as Directors of Chaman Holdings Pty Ltd:-

88 Yurunga Drive 50 Berry Street Nowra Nowra Edwin G Wright 16 Lawrence Hargreave Dr.

• Warwick Farm

Thi Bach Tuyet Tran 8/3 Acacia St. 5th Flr Cabramatta Challis House Martin Place,

Sydney Edward White 74 Lawrence Hargreave Dr. Warwick Farm Tuyet Parker named above is the wife of the said Ralph Edward Parker.

On 4 February 1985, the informant visited factory premises at Lot 14, Norfolk Avenue, Nowra, which had a sign styled "Utility" on the side, and sighted a number of road trailers in various stages of manufacture.

The informant has established from invoices, Corporate Affairs Commission records and enquiries of local government bodies that the address for Bendol Pty Ltd, Abcona Pty Ltd trading as Utility Manufacturing (Nowra), E.A. Parker Constructions Pty Ltd, Chaman Holdings Pty Ltd and Aney Holdings Pty Ltd is Lot 14 Norfolk Avenue, Nowra. Further, bank records show that the current postal address for Masoca Pty Ltd, Bezlom Pty Ltd and Abcona Pty Ltd trading as Utility Manufacturing (Nowra) is PO Box 704, Nowra,.the previous postal address of Utility Brute Trailers Pty Ltd and the current postal address of E.A. Parker Constructions Pty Ltd and Bendol Pty Ltd. Enquiries of the postmaster at Nowra Post Office have established that P.O. Box 704 is allocated to an entity named Utility Trailers.

On 26 February 1985 Peter Clyne, purporting to be the agent of the said Mr Parker, in response to a number of notices to attend with books and records, hand delivered, in the presence

of the said Mr Parker, notification that the said Ralph Edward Parker was either a Director and or Public Officer of Dalworth

Pty Ltd, Bendol Pty Ltd, Abcona Pty Ltd, E A Parker Constructions Pty Ltd, Bezlom Pty Ltd, Masoca Pty Ltd and
Bencarra Pty Ltd. Further, a statement of financial position ie signed by Ralph Edward Parker and Tuyet Bach Parker, presented to ANZ Bank, 100 Junction Street, Nowra, discloses assets of

both to include equity in Bendol Pty Ltd, Bencarra Pty Ltd and Masoca Pty Ltd Trading as Abacus Collections. -

of the shelf companies purchased-by Ralph Edward Parker (refer paragraph 5) has applied for registration and that no sales tax has been paid by any person or entity named Ralph Edward Parker, Therese Isobel Carson, Dalworth Pty Ltd, Bendol Pty Ltd, Abcona Pty Ltd Trading as Utility Manufacturing (Nowra), Aney Holdings Pty Ltd or Chaman Holdings Pty Ltd. Further, no record could be found of either Ralph Edward Parker or Therese 4 Isobel Carson having .lodged income tax returns for the years I ended 30 June 1978 to_date.

t Records held by the Australian Taxation Office show that none .

The informant made enquiries at the Department of Motor Transport Offices, Junction Street, Nowra, and established oe that Bendol Pty Ltd, Lot 14, Norfolk Avenue, Nowra, had bs registered a number of new road trailers prior to delivery to various customers. |

Officers of the Taxation Office made enquiries at the premises ' of C Swadling and Sons Pty Ltd, Lonsdale Street, Leichhardt, H and were informed that this company had purchased a new tandem axle skeletal tra1rler, serial number BD 1555. A copy of Bendol Pty Ltd invoice number 001531 was sighted, showing the purchase , price of $12,000 for the trailer was inclusive of sales tax. Payment in respect of this invoice ,which was undated, was made on 6 March 1985.

Officers of the Taxation Office made enquiries at the premises of Jack Seatons Transport Pty Ltd, Grand Avenue, Camellia and were informed that this company had ordered a tri-axle utility drop deck trailer from Peter Carson of Rent-a-Skel. A copy of Bendol Pty Ltd invoice number 001054, dated 1 March 1985, was sighted, showing the purchase price of $25,800 for a tri-axle

utility drop deck trailer was inclusive of sales tax. B

The informant made enquiries at the premises of SPD Transport - Pty Ltd, 56 Anzac Street, Chullora, and discovered that during the months August 1982, May 1983, September 1983, November 1983, December 1983, October 1984, and March 1985, the company purchased road trailers and transi~flats to the value of $1,491,236. All these purchases were made from companies of which Ralph Edward Parker is either a director and/or public officer and he (Parker) had requested that SPD Transport Pty : Ltd make orders and payments variously to Utility Brute te Trailers Pty Ltd, Utility Trailers, Bendol Pty Ltd, Abcona Pty le Ltd, Utility Manufacturing (Nowra) and Chaman Holdings Pty ; Ltd.

| 14 Invoices from the various companies of which Ralph Edward - |

Parker is either director and/or public officer that have had dealings with SPD Transport Pty Ltd show all sales prices are . inclusive of sales tax. -

15 A search of the records at the ANZ Bank, 100 Junction Street, Nowra, reveal deposits of funds to the account of Bendol Pty Ltd emanating from the sale of trailers. Further, deposits to the account of Bendol Pty Ltd from Therese Isobel Carson | personally and other companies of which Ralph Edward Parker 1 and Therese Isobel Carson are either directors and/or public officers are suspected to emanate from the sale of trailers. In this regard, some cheques made payable to Chaman Holdings ' Pty Ltd by SPD Transport Pty Ltd were negotiated through the Anchor House Branch of Westpac, George Street, Sydney, and some bank cheques purchased from the proceeds were made

16 On various dates subsequent to 26 October 1984, officers of the Taxation Office made enquiries at:-

Francis Auto Electrical, Corner North and Berry Streets, Nowra

Patons Brake Replacements, 9 Wordie Place, Padstow M S McLeod Limited, Corner Carolyn and Fariola Streets, Silverwater

Fruehauf Distributors Pty Ltd, 100 Cosgrove Road, Enfield

Fairfield Street, Villawood Transpec, 180 Silverwater Road, Auburn

and established that raw materials for the manufacture of taxable goods have been sold variously to Utility, Utility Trailers, Utility Trailers Pty Ltd, Abcona Pty Ltd Trading as Utility Manufacturing (Nowra) and Bendol Pty Ltd Trading as Utility Trailers, under quotation of sales tax certificate of

\ registration numbered 2456453, which is the registration of Utility Brute Trailers Pty Ltd.

17 The informant made enquiries at Shoalhaven Business Equipment, 25 Meroo Road, Bomaderry and established that Ralph Edward Parker had purchased a computer valued at $2295. Payment was made by cheque drawn by Utility Manufacturing (Nowra) on its account with Westpac Banking Corporation, 88 Junction ' Street, Nowra.

' 18 All attempts to obtain the books and records of the relevant companies have proved unsuccessful, as ' have attempts to obtain information in relation to b ' the activities of these companies. In this regard, the informant has been refused access to books and
records by Ralph Edward Parker and both Ralph

Edward Parker and Therese Isobel Carson have a refused, on oath, to answer questions put to them ix by the informant." he

Taken at face value the contents of the informations were ia

clearly sufficient to enable the first respondent to form the view required by s.10(b) of the Crimes Act in respect of Bendol

Pty Limited, Abcona Pty Limited and Chaman Holdings Pty Limited

Assessment Act (No.1). See particularly paragraphs 13, 15 and 16

t | | in relation to conduct falling within s.11(1) of the Sales Tax [ |i | | b

The point which is made, however, is that the terms of paragraph (a) of the warrant refer to an offence which the appellants, Parker and Carson, are suspected of having committed, namely that they failed to register pursuant to s.11(1). Such a description of the offence would not be appropriate to describe an offence by Bendol Pty Limited, or by any of the companies, and it would not be appropriate to describe an offence committed by '

either Parker or Carson as a secondary party because in such a

case s.5 of the Crimes Act provides that the offence committed by

the aider, abettor, etc., is the offence committed by the

That is not the end of the matter, however, because the

question which arises is whether the contents of the information

might be regarded as showing that there was reasonable ground for

suspecting that the companies were being used as "shams" by

' Parker and Carson, with the result that Parker and Carson were

In this regard, the material which might be so relied on starts with that part of the information which states that Parker had requested one purchaser of trailers to make orders and payments "variously to Utility Brute Trailers Pty Limited, Utility Trailers, Bendol Pty Limited, Abcona Pty Limited, Utility

Manufacturing (Nowra) and Chaman Holdings Pty Limited", but it seems apparent enough from the dates referred to in paragraph 13 of the information that the transactions in question related principally to the period before Utility Brute Trailers Pty Limited went into liquidation, and that the only transactions

which might possibly be relevant are those referred to in March

Secondly, the information indicated that materials for the manufacture of goods had been sold to "Utility", "Utility Trailers", "Utility Trailers Pty Limited", "Abcona Pty Limited Trading as Utility Manufacturing (Nowra)" and "Bendol Pty Limited Trading as Utility Trailers" under the quotation of the sales tax certificate formerly held by Utility Brute Trailers Pty Limited.

Thirdly, Parker and Carson have refused to provide access

to books and records and to answer questions put_to them by the

se an ce rene ween pee eee en eee . OTe Ta TE wa Te ee at 24K,

• 8 se ee ~ Le tected tenner lS hen ate esimn Mi = PG Wak terme edt ott

Do these matters then provide a sufficient basis for the

view that the use of the companies may have been a sham and that

in truth Parker and Carson were themselves carrying on business

as manufacturers? Although the issue is one of some difficulty, I am, in the end, of the view that they do not. I am conscious that it is not essential to the validity of a search warrant under s.10 that it contain the name of the alleged offender (Reg. v. Tillett, Ex . parte Newton (supra) at 114). Indeed in particular cases it may well be that one of the purposes of obtaining the search warrant

is to obtain evidence to identify the perpetrator of the offence

in question. If, however, the search warrant (as here) does

identify the suspected perpetrator of the offence, it seems to me that the information before the Justice must be capable of satisfying him that the particular offence contended for is one in relation to which there is reasonable ground for the belief that it will afford evidence of the commission of the offence by

Turning then to the ultimate question on this issue and recognizing that it is one on which different minds may take different views, I do not think that the material before the first respondent was sufficient to satisfy the test in relation to paragraph (a) of the search warrant in respect of the factory

premises, or in relation to any of the other premises the subject

It is thus unnecessary in relation to paragraph (a), to

deal with the contention that the first respondent applied the incorrect test in determining whether to grant the search

Paragraph (b) of the warrants alleges the relevant offences as being that in breach of s.15 of the Sales Tax Assessment Act (No.1) 1930 Parker and Carson, at various times from 26th October 1984 until the date of the warrant, "falsely represented that they were registered persons or falsely quoted a certificate." It is not contended that paragraph (b) deals with an offence not known to law but it is contended that the other

S.15 of the Sales Tax Assessment Act (No.1) provides

"15 Any person who, in relation to any transaction, act or operation in respect of goods, falsely represents that he is a registered person or falsely quotes a certificate, shall be guilty of an offence."

In view of the apparent connection between Parker and

Carson and the companies, and in view of the terms of paragraph

16 of the information I am satisfied that there was sufficient

material before the Justice on which he might form the view

required by the section insofar_as paragraph (b) alleged a

possible offence' of falsely quoting a certificate. There seems

to me, however, to have been no material before him which went to

show that Parker and Carson falsely represented that they were

The position is not altered by s.8¥(1) of the Taxation

"(1) Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an-officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly."

The operation of s.8Y¥(1) is that it deems the person who

1s concerned in or who takes part in the management of the corporation to have committed the taxation offence, the taxation

offence necessarily being that which was committed by the

corporation. The contention in the warrant, however, is that

Parker and Carson falsely represented that they were registered

In the light of that view, it is necessary to turn to the third basis on which the warrant is attacked, namely whether the first respondent applied the correct test in deciding to issue the warrants. The submission founds itself on the fact that when

giving evidence the first respondent gave an answer as follows:-

"OQ. Before you signed that document what questions did you ask. yourself?

A. Had an offence been committed and was there evidence relating to that offence on the premises specified?"

and other answers which on one reading of them might lead to the impression that the question which he was considering 'was not whether in terms of s.10 there was reasonable ground for

suspicion etc., but rather whether there was evidence at the relevant place and whether an offence had been committed. It is noteworthy that a question raising directly the difference between the two tests was never put to the first respondent and I doubt whether the witness was intending to convey the meaning now sought to be drawn from his evidence. In this regard I think it is significant that the primary Judge, who had the opportunity,

which we do not have, of seeing and hearing the evidence being given, said:-

"It was submitted these and similar passages showed Mr Churchill tested the information according to an impossibly high standard, that he went well beyond suspicion on reasonable grounds, and reasonable grounds for believing, and considered whether the offences had in fact occurred. I do not think this is a fair understanding of the evidence as I heard it given. The witness was not directing his mind, in these answers, to any standard of persuasion, but to the question upon which he was required to reach a conclusion according to the statutory standard. He gave evidence that he "had a familiarity with section 10 of the Crimes Act", and he referred to its terms without appearing to me to be making. as he read them any new discovery of them."

For these reasons I do not accept the submission that the

primary Judge should have found that the Justice applied the

(a) an allegation of defrauding the Commonwealth in relation to the purchase of raw materials free of sales tax; and

(b) an allegation of defrauding the Commonwealth by

The offence of defrauding the Commonwealth was created by

S.29D of the Crimes Act which came into force on 25th October 1984, the day before the commencing date of the period referred

The argument that the first limb of paragraph (c) does not

disclose an offence is based on the contention that the offence is not stated with sufficient particularity and that in essence

A warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search (The Queen v. Tillett, Ex parte Newton (supra) at 113,

Crowley v. Murphy (1981) 34 A.L.R. 496 at 519, Brewer v. Castles

(No. 2)(1984) 1 F.C.R. 55 and Australian Broadcasting Commission

In my view the terms in which the first limb of paragraph (c) of the warrant are stated are sufficient to satisfy the

requirement of particularity. They deal with a stated offence,

and give some particulars of it, i.e. "in relation to the

purchase of raw materials free of sales tax", the particulars

It also seems to me that the second basis of attack on this part of the warrant should fail. It is clear from paragraph 16 of the information that it is asserted that raw materials for the manufacturer of taxable goods have been sold to companies with which Parker and Carson are associated in consequence of the quotation of a sales tax certificate of registration the use of which was unauthorized. I see no reason why conduct of that kind, if engaged in by Parker and Carson, might not amount to

The third basis of attack fails for the reasons earlier

I turn then to consider the second limb of paragraph (c)

Although it is here contended that the second limb of paragraph (c) does not constitute an offence, the basis of the contention is that it is the manufacturer of goods, rather than a purchaser of goods from the manufacturer, who is liable to pay sales tax in respect of goods manufactured in Australia (see s.19

of the Sales Tax Assessment Act (No.1)) and that it could not

amount to defrauding the Commonwealth in terms of s.29D for a

manufacturer not to pay to the Commonwealth sales tax, despite

the fact that the price which he had charged, and had received

from, the purchaser of goods was expressed to include sales tax.

The case under this head, comes down_to the question

whether failing to pay sales tax is capable of amounting to

In Welham v. Director of Public Prosecutions (1961) A.C.

103 at 124 Lord Radcliffe said that "to defraud" may mean to deprive someone by deceit of something which, though not belonging to him, "is regarded as due to him or his right". Again in Stephens v. Abrahams (1902¥/V.L.R. 753 at 767 Hodges J.

described an intent to defraud the revenue as an intent:-

"to get out of the revenue something that was already

in it, or to prevent something from getting into the revenue which the revenue was entitled to get".

In Scott v. Metropolitan Police Commissioner (1975) A.C.

819 at 838, Viscount Dilhorne, with whom the other members of the House of Lords agreed, expressed the view that the observations

of Lord Radcliffe in Welham v. Director of Public Prosecutions

(supra) should be treated as of general application in relation

to the meaning of "defraud" and went on to say that:-

""to defraud" ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would

or might but for the perpetration of the fraud be entitled".

Scott v. Metropolitan Police Commissiorer (supra) also decided that

deceit of the person intended to be defrauded was not an

It seems to me that whilst it is true to say that mere

non-payment of sales tax, to use the phrase put to us in- - K ; argument, may not amount to defrauding the Commonwealth, it does ' not follow that non-payment of sales tax cannot occur in f circumstances which amount to defrauding the Commonwealth. In

' the present case I think that the material before the Justice was "

such as to entitle him to grant the warrant in relation to the

For the reasons expressed earlier the third basis of

| ; Paragraph (d) relates to matters which are entirely 3 | different in nature from those referred to in paragraphs (a), (b) and (c), alleging simply that Parker and Carson were in breach of a s.231 of the Income Tax Assessment Act 1936 in that they "did at r- various times since 30th June 1978 until the present time evade

$.231 of the Income Tax Assessment Act was repealed as ' from 14th December 1984 but it had otherwise been in force during

the whole of the period referred to 1n paragraph (d) of the

warrant. It did not provide in terms for an offence of "evading

or neglect, or by any fraud, art or contrivance whatever, avoids or attempts to avoid assessment or taxation shall be guilty of an offence."

The use in association of the words "assessment or taxation" suggests that one of the means of avoiding "taxation" would be to evade paying it, and I am not satisfied that in respect of the period until 14th December 1984 paragraph (d) of the warrant does not refer to an offence. I should add that I do not think that the fact that reference in paragraph (d) toa

period after the time when s.231 created an offence has the

result that the whole of paragraph (d) is bad. Whilst different

considerations might apply if a warrant purported to refer to a lengthy period in respect of only a very small part of which particular conduct had constituted an offence, it seems to me

that the reference in paragraph (d) to "various times" is

sufficient to leave the paragraph such that it does refer to an

The more serious objection to paragraph (d), however, is that the paragraph is entirely bereft of any particularity. It simply alleges in the broadest terms that "at various times" over a period of more than six years Parker and Carson had evaded payment of income tax and it is impossible in these circumstances, in my view, to regard paragraph (d) as stating

with sufficient particularity the offences. See the cases on

this question to which reference has earlier been made.

It is thus unnecessary to deal with the other bases of

attack upon paragraph (d). As I have said above, however, the

The situation which thus obtains in relation to the warrants is that in my view they are valid:- (a) as to paragraph (b) insofar as it refers to an offence of falsely quoting a certificate; and (b) as to paragraph (c);

It was then submitted that if a part of the warrant was

"bad", in Lhe sense that it was ultra vires the Justice for one

of the reasons to which I have referred, it should be treated as ' wholly bad. Alternatively, it was put that in the particular case the defects in the warrants to which I have just referred

: were so serious that the good parts of the warrant could not be dealt with separately from the bad, and that the warrant as a

I do not agree with either proposition. There is no

reason why a search warrant granted under s.10 may not include in

: respect of the same place a number of quite different matters and | there is nothing in the section itself to suggest that if one of the matters so included exceeds the powers conferred by s.10, the warrant necessarily fails as to the other matters. It is

possible, of course, that thé -good and bad parts of the warrants

' may be so interlinked that one cannot stand without the other but

that would usually mean no more than that the parts, as a matter

of construction of the warrant, were not truly separate. tL. ' Further, as the primary Judge said, the authorities suggest that

a search warrant, being an order of a Justice is divisible and

when good in part and bad in part, the good may be divided from :

the bad, and the good affirmed and the bad quashed (Reg v. ye

Johnson & Franklin Wholesale Distributors Ltd (1971) 3 c.c.c.

. (2d) 484, Adler v. Attorney-General of Alberta supra at 139-140,

Abou-Assale v. Bourden J.S.P. (1978) 1 C.R. (3d) 213 at 231, Coward v. Allen (1984) 52 A.L.R. 320 and Brewer v. Castles (No.3)

(1984) 52 A.L.R. 581. When one comes to the present warrants the arrangement

' of them textually creates no difficulty in treating the invalid 1

parts of the warrants as severed from the remainder.

The search conducted by the police officers was attacked ia on the basis that it was carried out indiscriminately and that

documents not covered by the warrant were illegally obtained.

Aqhe ER re rg em a oe eT eee te ee. Dek 2 Ree Re 9 . ' oat

The contention that the search was carried out indiscriminately, and without regard to the question of relevance of documents, was supported by reliance upon paragraphs 4 and 7 of Parker's affidavit which showed that a number of personal

_items and other items which could not in any way be connected with the matters referred to in the warrants, had been seized at the factory premises and at Parker's home at 11 Salisbury Drive, Nowra. Reliance was also placed on evidence that there had been a briefing session of the officers involved in the search prior to the warrants being executed and that at the briefing the police officers were issued with "Operational Orders" which they followed in carrying out the search, the Operational Orders requiring the seizure of "all documentation in relation to the business activities of the various companies" and thus, it is

The question whether the officers executing the warrants did so solely by reference to the Operational Orders to the exclusion of consideration of the terms of the warrants was the subject of oral evidence before the primary Judge and after hearing that evidence the primary Judge declined to find that the officers executing the warrants so acted. That view was one : which, in the light of the nature of the oral evidence, was inevitably based to some degree on his assessment of the

witnesses, and I do not think that it should be disturbed.

I should also add that the evidence relating to the

seizure deals essentially with events which occurred at the factory premises and at Parker's home. There was some brief evidence from Mr Donelly, a solicitor, as to the search at 188 McKay Street, Nowra but it would not have justified the making of a finding that the search had not been carried out in accordance with the warrant. The Court is yet invited to assume that in respect of all the premises other than the factory premises and Parker's home, the Operational Orders were observed to the exclusion of a consideration of the term of the warrants. I do not think that the making of such an assumption is justified and

Returning to the items which were seized at Parker's home and at the factory and which could not possibly be covered by the warrants, (e.g. "child's colouring-in books") there is no explanation appearing in the evidence' for the seizure of those items. It may well be, as the primary Judge said, that they were included in cartons of documents which were removed during the search, particularly from the garage at Parker's home. It is impossible, however, to say that the seizure of those items demonstrates that the execution of the warrants as a whole was

carried out "indiscriminately" or "unreasonably". The primary Judge did not so find, and I am not persuaded that we should take

In respect of the first of these classes, it is clear that they should be ordered to be returned to the relevant applicant, but some difficulty arises in relation to the precise identification of them and it is not possible to say simply that all the items listed in paragraphs 4 and 7 of Parker's affidavit should be ordered to be returned. Thus whilst it seems clear

that an item such as a "child's colouring-in book" should be

ordered to be returned, it is by no means clear that the same

course should be adopted in relation to company books of account.

A similar situation exists in relation to the items

As matters stand it is not possible, without examining the documents themselves, to determine whether the documents do or do not fall within the terms of the warrants. Further, as the primary Judge noted, it has been accepted by the Court of Appeal in England in Reynolds v. Commissioner of Police of the

Metropolis (1985) 1 Q.B. 881 that a police officer executing a

ive 2 . Nae reo -v or aee Tet an eee ns OO te tte the stem

search warrant (in that case under the Forgery Act 1913) was

entitled provided he acted reasonably in so doing, to seize not

merely material covered by the warrant, but also material which might be of evidential value, as showing that the owner was

The question whether the principle to which I have referred should be applied in relation to warrants under s.10 has not been determined by the Court. The Court was invited to enter upon the issue but until it is clear that the issue arises, it

In the result my view is that it has not been established that the seizure of material has gone beyond the terms of the warrants, save in respect of some of the items referred to in paragraphs 4 and 7 of Parker's affidavit. The primary Judge gave the appellants liberty to apply in respect of particular documents upon seven days notice to the respondents, and I agree

I would declare that the search warrants were outside the

powers conferred by s.10 of the Crimes Act insofar as they contained paragraphs (a) and (d), and so much of paragraph (b) as referred to a possible offence by Parker and Carson of falsely

representing that they were registered persons, but were

| certify that this andthe 32 preceding pages are a true copy of the Rercons for Judgment herein cf his Hencur

\ rhea ts tare &, wast red wet pe - rity 2 eet 2 =f soe, - a ES A te? 5