Price v Elder [2000] FCA 133 | Case summary

(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be." It is common ground that Ms Elder falls within the category of persons described in paragraph (b) of that definition. 7 A formal submission was made on behalf of Mr Price that an applicant for a warrant is under a duty to disclose to an issuing officer anything known to the applicant that would be relevant to the question of the commission of an offence, including exculpatory material, and any material that might give rise to a line of inquiry to such material. It was accepted on behalf of Mr Price that it is not open to this Court to accede to such a submission without departing from an earlier decision of the Full court (see Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555F and 564B) and no argument was developed as to why the Court should do so. 8 An applicant for a search warrant who discloses material in the information giving reasonable grounds for suspecting the presence of evidential material on the subject premises is not obliged to traverse those facts by reference to exculpatory explanations raised by the object of the suspicion. An exculpatory explanation does not necessarily dispel the grounds for suspicion that justify the issue of a warrant. The issuing officer is not required to conduct an enquiry to determine where the truth may lie. It is the object of the search warrant to assist law enforcement authorities to that outcome: Brian Saunders v Commissioner of the Australian Federal Police (1998) 52 ALD 484 at 496. 9 Mr Price asserted that, in the course of a number of discussions with officers of the Australian Taxation Office ("ATO"), he informed those officers that various computer industry operators were in breach of their sales tax obligations and gave them information about his own business. He asserted that the assistance of the officers in enabling him to comply with his own sales tax obligations had been sought and that he had discussions with them about the form of the sales tax legislation as it affected the computer industry. He asserted that he was told to keep trading as he was. It is common ground that most of that material was not placed before Ms Elder, although she was informed, in a summary way, that Mr Price had obtained professional advice on how he might comply with sales tax laws. 10 Ms Elder was called on behalf of Mr Price to give evidence before the primary judge. Ms Elder said that had she been informed that Mr Price had received assurances from the ATO, during the relevant period, that he should keep trading in the same manner, she would have considered that to be relevant material. She said that it was a matter she might have sought some information about. She said that she would have taken that information into account in considering the application "in the whole context of the application". 11 Mr Price contended that, in the light of that evidence, the material would have constituted a relevant consideration for Ms Elder in deciding whether she was satisfied as required by section 3E of the Act. Accordingly, so it was said, Mr Seymour had failed to disclose to Ms Elder all the material upon which she could properly come to a conclusion about the issuing of the warrant. 12 A warrant issued as a result of fraud or misrepresentation by an applicant is liable to be set aside. Further, an applicant for a warrant must act in good faith. A statement that is a half-truth, and thus misleading, may be treated as a misrepresentation such as to affect the validity of a warrant issued on the basis of that misrepresentation: Lego Australia Pty Ltd v Paraggio (above) at 555F-G, 564B & 570F, Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400. However, nothing has been advanced that would justify a finding that there has been fraud or misrepresentation in the present matters. 13 Failure to take into account a relevant consideration can only be made out as a ground of review of an administrative decision if the decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act. Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statutes some implied limitation on the factors to which the decision maker may legitimately have regard. Where a discretion is unconfined by the terms of the statute, a court will not find that the decision maker is bound to take particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. 14 Mr Price contended that the discretion conferred by section 3E(1) of the Act is unconfined. Accordingly, so it was said, Ms Elder, as the issuing officer, was the sole arbiter as to what material would have been relevant to her in considering an application for the issue of a warrant. Ms Elder, having said that the material in question would have been regarded by her as relevant and since that material was not taken into account by her, has failed to take into account a relevant consideration. Accordingly, so the argument ran, her decision should be set aside. 15 As the submission developed, it became apparent that no complaint was directed to Ms Elder's conduct and that any complaint was directed to non-disclosure by Mr Seymour in his application for the warrants. Failure by Ms Elder to take into account the material in question could only affect the validity of the decision if she was bound to take it into account. Having regard to the unconfined nature of the discretion conferred by section 3E(1), it is clear that there is no express requirement to do so stated in the section. Nor can such a requirement be implied, in relation to the matter in question, from the subject matter, scope and purpose of section 3E. 16 At one point, junior counsel for Mr Price contended that it was incumbent upon Ms Elder to ask as to the existence of any information that she would regard as material. It was said that if an applicant puts material before an issuing officer that ought to raise in the mind of that issuing officer matters in respect to which the issuing officer should make further inquiry, and it subsequently appears that, had the inquiry been made, relevant information would have been disclosed, the decision maker is under an obligation to make such an inquiry. 17 Such a proposition only needs to be stated to be rejected. The personal views of an issuing officer cannot be determinative of the material that an applicant is under a duty to disclose. Such views might never be known by an applicant. The nature of the material to be put before an issuing officer must be capable of being determined objectively, irrespective of the particular views of the issuing officer. 18 In an alternative formulation, junior counsel for Mr Price contended that when material is put before an issuing officer that ought objectively to raise a view or opinion in the mind of the applicant that other material should be put to the issuing officer in order for the issuing officer to be satisfied subjectively as to the matters required in section 3E(1), and there is a failure to do so, then there is administrative error. Such a proposition would require an applicant to be able to perceive what was in the mind of a particular issuing officer. Again, the proposition must be rejected as untenable. The extent of disclosure required of an applicant cannot depend upon the personal view of the particular issuing officer. 19 Finally, junior counsel for Mr Price contended that an applicant is under a duty to disclose to the issuing officer material that a reasonable applicant would bring to the attention of an issuing officer. However, such a proposition is without content in requiring disclosure of that which a "reasonable applicant" would disclose. It leaves at large the question of what criteria are to be considered when determining what would be reasonable in any given circumstances. 20 No satisfactory proposition was advanced on behalf of Mr Price as to the extent of disclosure required that was not satisfied in the present case. Mr Price did not establish any ground based on non-disclosure for interfering with the decision to issue the warrants.

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.

Price v Elder

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