PRIOR APPLICATION
21 Section 3E(4) of the Act provides as follows:
"If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information."
22 Mr Price contends that Mr Seymour had previously applied for warrants relating to the same premises and that there was a contravention of section 3E(4) because the outcome of that application was not stated "in the information". The question that arises concerns the circumstances in which it can be said that a person "has, at any time previously, applied for a warrant". The primary judge concluded that no prior application had been made. In relation to that question, Mr Price again relied on the evidence given by Ms Elder before the trial judge which was not in dispute. It is therefore necessary to consider that evidence.
23 Ms Elder's first contact with the matter was some time in 1997. She said she then received "a draft application". By that term, Ms Elder was referring to a draft of a statutory declaration intended to be relied upon by Mr Seymour in applying for warrants. The document in question was entitled "Application for Warrants to Search Multiple Premises". The document was delivered to Ms Elder by Mr Ray Plibersek, a solicitor in the Office of the Director of Public Prosecutions, in about August or September 1997. The document contained Mr Seymour's name as the deponent and stated that he was the applicant for warrants.
24 A short time before 23 June 1998, possibly a week or two, a second version of the document was received by Ms Elder. The precise circumstances in which the second version was received by Ms Elder are by no means clear. The applicant shown in the second version was also Mr Seymour. An inference may be drawn that the second document was sent to Ms Elder by Mr Plibersek whom she described as "sort of liaising with Douglas Seymour in Melbourne for him." Ms Elder looked at the second version and subsequently telephoned Mr Plibersek and informed him that she required more information.
25 At some time prior to 23 June 1998, Mr Plibersek rang Ms Elder to say that Mr Seymour would be in Sydney on the morning of 23 June and made an appointment for him to call on Ms Elder at 9.30 a.m. on that day. On the morning of 23 June 1998, Mr Seymour presented himself at Ms Elder's office shortly after 9.30 a.m. Ms Elder does not remember whether or not Mr Seymour was alone. He brought with him a third version of the document. When Ms Elder first saw that version of the document, it was not signed. Ms Elder also had before her at that time the second version that she had received a week or two previously. The third version related to the same premises but contained the further information that Ms Elder had requested of Mr Plibersek.
26 On the first occasion when Mr Seymour appeared at Ms Elder's office on 23 June, there was no discussion between Mr Seymour and Ms Elder concerning the contents of the document that he then gave to her. However, there was discussion about when Mr Seymour would return to enable Ms Elder to give him a decision as to whether she would issue warrants, based on the further information that was now in the version she then received.
27 After she received the third version, Ms Elder shut her office to enable her to read it. She switched the telephones off and cancelled an appointment that she had for 10.15 a.m. on that morning. Mr Seymour returned at about 11.30 a.m. At that time he signed and swore the third version of the document and Ms Elder then issued the warrants. At that time, she returned to Mr Seymour the version that she had received from Mr Plibersek one or two weeks before.
28 Junior counsel for Mr Price contended initially that there were two prior applications within the meaning of section 3E(4). The first was said to be in August or September 1997 and the second was said to be a week or two weeks before 23 June 1998. Subsequently, the contention as to the 1997 occasion was abandoned.
29 There are two possible purposes for section 3E(4). One purpose appears to be to ensure that the restrictions contained in section 3E(5) are not avoided by successive applications. For example, section 3E(5)(e) requires the issuing officer to state in the warrant the period for which the warrant remains in force, which must not be more than seven days. Thus, the section requires a statement as to the outcome of any previous application, even a successful one. An issuing officer must be informed whether previous warrants for the same person or premises have already been in force.
30 The second purpose appears to be to avoid "forum shopping". Thus, the statement of the outcome of an unsuccessful application would inform an issuing officer that some other issuing officer had declined to issue a warrant (see explanatory memorandum to the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth)). Whatever may be the intended purpose of section 3E(4), it must be possible, before there is a contravention of its provisions, to identify circumstances that constitute a person having "applied" for a warrant.
31 Before an issuing officer may issue a warrant, the officer must be satisfied "by information on oath" as to certain matters. A question may arise whether that expression requires a document or whether information may be communicated orally, so long as it is on oath. The use of the term "in the information" in section 3E(4) perhaps tends to suggest a document but this is by no means clear.
32 Section 3R of the Act throws some light on the meaning of the expression "information on oath". Under section 3R(1) a constable (defined in section 3C) may make an application for a warrant by telephone, telex, facsimile or other electronic means. Section 3R(3) then provides as follows:
"An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn."
That indicates that the term "information" does not refer to a document but to the material that is to be communicated.
33 It is arguable that there can be no application for a warrant under section 3E(1) unless and until information on oath is presented to the issuing officer. Information on oath is a necessary precondition for the issue of a warrant under section 3E(1), since the officer must be satisfied that there are reasonable grounds for the suspicion referred to in the section. Moreover, both sub-sections 3E(3) and (4) appear to have been drafted on the assumption that a person applying for a warrant will have supplied information on oath. Section 3E(3) provides that if the person applying for the warrant suspects that in executing the warrant it will be necessary to use firearms, the suspicion and the grounds for it must be stated "in the information". Section 3E(4), the terms of which are quoted above, is framed in a similar manner. In the present case, the evidence is that no information was sworn until 11:30am on 23 June, when Mr Seymour returned to Ms Elder's office.
34 Whether or not there can be an application under section 3E(1) before the presentation of sworn information to the issuing officer, in our view there cannot be an application until the person seeking the warrant communicates to the issuing officer a request that he or she issue the warrant. In the absence of a request, it is difficult to see how a person can be said to have applied for a warrant. A person does not apply for a warrant, for example, merely by inquiring of an issuing officer whether, if a request were subsequently made and were accompanied by sworn information in the form of a particular draft document, the officer would be prepared to issue a warrant.
35 The evidence in the present case does not support a conclusion that a request for a warrant was made by Mr Seymour, or by Mr Plibersek on Mr Seymour's behalf, prior to 23 June 1998. Even if can be assumed that Mr Plibersek, acting as agent for Mr Seymour, sent a draft application to Ms Elder in Sydney, at a time when Mr Seymour was in Melbourne, that does not amount to a request to the issuing officer to issue the warrant. The evidence suggests that Mr Plibersek was making an inquiry as to whether the issuing officer would be prepared to issue a warrant if a request were made by Mr Seymour in person on the basis of sworn information in a particular form. Mr Seymour ultimately did make a request to Ms Elder in person. It follows that Mr Seymour's failure to state in the information on oath particulars of the earlier communications did not constitute non-compliance with s 3E(4) of the Act.
36 While this ground of impugning the issue of the warrants has not been made out, in our view the conduct that appears to have occurred has undesirable aspects to it. If a person wishes to have a warrant issued, that person should make the application to the proposed issuing officer. It is undesirable that a proposed issuing officer should, in effect, give advice to an applicant as to whether the proposed information is adequate. In so far as section 3E(4) is designed to avoid "forum shopping", such a practice would afford a fairly obvious means of circumventing the object, if not the letter, of the sub-section. Moreover, it is possible that circumstances might arise which, if not disclosed to the person to whom a successful application for the issue of a warrant was made, could lead to invalidity in accordance with the principles discussed in Lego Australia Pty Ltd v Paraggio (above).
37 Efficient administration may well be served by issuing officers indicating, in general terms, the nature of information that would be regarded as satisfactory for the purposes of issuing a warrant. But that is different from an issuing officer being asked to indicate, in a particular case, the specific deficiencies in an application intended to be put before the officer. In our view, the latter practice is undesirable.