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[1998] SASC 6634
Supreme Court of SA
1998-04-24
Doyle CJ, Matheson JJ
Original judgment source is linked above.
For the reasons indicated, having given careful consideration to the reasoning in Citibank, I am satisfied that this Court should not apply the reasoning in that case. I respectfully disagree with the reasoning, and consider that the approach in Citibank gives rise to real difficulties in its practical application. If the decision in Citibank is to be understood as to be resting upon a conclusion that the power to enter and search was exercised with the object of preventing Citibank from claiming legal professional privilege, or from approaching the courts for protection, then I would accept that the exercise of the power is invalid because it is exercised for an improper purpose: cf French J at 606.40 and 619.25.
No. If the documents seized under a search warrant are not in fact protected by legal professional privilege at the time of seizure, a failure, by a police officer who seizes the documents under a warrant, to allow an adequate opportunity for a claim of privilege to be made, will not make the seizure unlawful. The seizure will be unlawful if the police officer obtains possession of documents that are the subject of privilege at the time at which possession of them is obtained. If that occurs, the court should, in considering whether to exclude the documents from evidence, take into account the adequacy of the procedures adopted by the police officer to allow a claim of privilege to be made. In so doing, the court should have regard to the circumstances under which the seizure was made.
I agree with the answers proposed by the Chief Justice and with his reasons.
I agree with the answers proposed by Doyle CJ and with his reasons.
R
Ireland
The judge considered the exercise of the discretion which is identified with the principles established by the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. As I said earlier, on the judge's approach the prosecution was in something of a dilemma. Either the declarations were deliberately prepared to create a false impression that the files were seized in execution of the warrant, or the evidence of the detectives and Mr Renko before the judge that the warrants were not used was deliberately false. In that context, having referred to the decided cases, the judge said (reasons p41):
A Court conducting a criminal trial has a discretion to exclude evidence, tendered by the prosecution, on grounds based upon a consideration of public policy. The existence of that discretion has been recognised for some time. It is often traced back to the High Court decision in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 especially at 334-5. The judgment of Stephen J and Aickin J in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 has been regarded as stating the relevant principles authoritatively.
The nature and scope of the discretion has been considered in some detail by the High Court in recent times. I refer to Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, The Queen v Swaffield (1998) 72 ALJR 339; 151 ALR 98; and Nicholas v The Queen [1998] HCA 9; (1998) 72 ALJR 456; 151 ALR 312.
Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123 was decided before Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. The Full Court held that legal professional privilege did not provide a ground to refuse access to documents seized under the search warrant issued under s10 of the Crimes Act (Cth). On that point, the decision is no longer good law.
I would not decline to follow and to apply the reasoning in Citibank were it merely a matter of differing views on the point being open. The interests of consistency of approach, and the respect due to a decision of the Federal Court, require that a decision of the Full Court ordinarily be followed: see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; Fraser v Deputy Commissioner of Taxation [1996] FCA 1701; (1996) 138 ALR 689 at 691; Gye v Davies (1995) 137 ALR 723.
An approach that conditions the validity of a search upon the reasonableness of the manner in which the power is exercised will engage the courts in lengthy retrospective scrutiny of the conduct of searches. If validity depends upon the reasonableness of the manner in which the power is exercised, it is not easy to see why matters such as the time of day at which entry is made, the number of persons used to effect entry, the manner in which the search is conducted and so on would not become relevant. It is necessary to bear in mind that search warrants are executed under a wide variety of circumstances. The exercise of powers of search and seizure would, or could, become a legal minefield. As it is, the entitlement to challenge the validity of a search warrant by a collateral attack in the course of a criminal trial can disrupt the orderly management of a trial: see Ousley v The Queen [1997] HCA 49; (1997) 71 ALJR 1548 at [1997] HCA 49; 1566; 148 ALR 510 at 534 McHugh J. If validity were to depend upon a judicial assessment of the reasonableness of the manner of exercise of the powers, the scope for disruption of trials would be all the greater.
(1970) 126 CLR 321
(1978) 141 CLR 54
(1995) 184 CLR 19
(1998) 72 ALJR 339
(1998) 72 ALJR 456
(1993) 177 CLR 483
(1996) 138 ALR 689
(1995) 137 ALR 723
(1989) 85 ALR 588
(1986) 65 ALR 125
(1981) 52 FLR 123
(1983) 153 CLR 52
(1997) 71 ALJR 1548
(1988) 83 ALR 144
(1993) 177 CLR 485