Ground 1: the second respondent misconstrued subsections (a) and (b) of the definition of evidential material in s 3 of the Agvet Code
67 The applicants submitted that the decision to issue the warrant involved an error of law and a jurisdictional error by virtue of the second respondent misconstruing subsections (a) and (b) of the definition of "evidential material" in s 3 of the Agvet Code.
68 The applicants argued that the recital in the third condition confined the evidential material to subsections (a) and (b) of the definition of evidential material in s 3 of the Agvet Code. It was argued that as some of the items in the first condition of the warrant included material that could never satisfy the definition of evidential material in subsections (a) and (b), it can be inferred that the magistrate misconstrued the definition of evidential material sufficient to vitiate the magistrate's satisfaction. It follows, according to the applicants, that there has been an error of law constituting jurisdictional error.
69 The applicants contended that subsections (a) and (b), which contain the wording "with respect to which" an offence or contravention has been committed, are directed to things which are used in the commission of an offence or civil penalty contravention. The applicants submitted that subsection (c) of the definition is wider than (a) and (b) and picks up things which are relevant to the commission of an offence, rather than just those things used in the commission of an offence. It was submitted that subsections (a) and (b) cannot be read as being intended to pick up material that is relevant to an offence as that would make subsection (c) otiose and would violate the principle that "no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent": Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [71] per McHugh, Gummow, Kirby and Hayne JJ citing Griffiths CJ in The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414.
70 The respondent contended that the applicants' argument depends upon two propositions, namely first, that as a matter of the construction of the warrant, the third condition limits the scope of the warrant to evidential material within the meaning of subsections (a) and (b) in s 3 of the Agvet Code, and second, as a matter of construction, those subsections refer only to "things" which are directly used or directly involved in the commission of the specified offences. The respondent contends that neither proposition should be accepted.
71 As to the first proposition, it is said that a fair reading of the warrant as a whole indicates that the warrant was not intended to be limited to only some aspects of the statutory definition of "evidential material". The respondent relied on seven reasons in support of this proposition. First, the third condition does not expressly refer to the statutory definition of evidential material or any part of it. Nor, properly construed, does the language of that condition invoke the limitation suggested by the applicants. While the formulation in the third condition bears some similarities to subsections (a) and (b), some of the words are different (e.g. "in relation to"). Read in the context of the warrant as a whole, the third condition was not intended to exclude evidential material of the kind referred to in subsections (c) and (d) of the definition. Second, the words "in relation to" and "with respect to which", which are used in the third condition, are of wide import. Third, there is no reason - indeed it would be nonsensical - for a magistrate to choose to limit a search warrant in the manner contended for by the applicants, so that it is not extended to the type of evidential material in (c): cf Beneficial Finance at [530]. Fourth, given the purpose of the third condition is to identify the suspected offences: Dunesky v Elder at 557, an overly technical approach ought not to be taken to the interpretation of the recital to that condition. Fifth, the warrant affidavit shows the recital should not be read in the limited way, but rather, shows that the purpose of the warrant was to provide or obtain evidence in relation to the contraventions listed in the warrant. Sixth, the difficulty in drawing the line in what could be seized on the applicants' interpretation during the course of the execution of the warrant by officers who are not trained lawyers. Finally, having regard to the principles of construction of the need to avoid a perverse construction and the preference for a construction which will preserve validity.
72 As to the second proposition, the respondent submitted that subsections (a) and (b) of the definition ought not to be construed as limited to things used or involved in the commission of an offence, or contravention of a penalty provision. The words "used" or "involved" are not found in those subsections, instead the words "with respect to which" are used. This distinction appears to have been intended by the draftsperson given that subsection (d) contains the words "used for the purpose of committing such an offence …" such that, if subsection (a) were intended to be limited to things used for the purpose of an offence, then it would be expected that it would say "a thing used in the commission of an offence" because that is the language of (d). This suggests that subsections (a) and (b) are to be understood as a broader category of things than those used in the commission of an offence, or a contravention of a penalty provision.
73 Although this argument might be more relevant to grounds 3 and 7, the respondent also submitted that, even if the applicants were correct that the third condition of the warrant only intended to capture (a) and (b) of the definition, and as such the warrant was valid however narrowly construed, it does not follow that the material seized was outside the scope of the warrant. The respondent referred to certain aspects of things taken, such as the invoices, which it was submitted were directly involved with the offence of supply such that they would fit within (a) and (b). Another example, the emails, the respondent submitted could be so closely connected with the offence that they are a thing with respect to which the offence was committed - e.g. if the email was an agreement for the supply of zoldronic acid. In relation to the supply offence, the respondent submitted that boxes and containers with a particular name are so closely connected with the offending they would also fall within (a) and (b).
74 As noted above, the respondent contended that for the applicants to succeed they must establish two matters, first that the recital is reflective of subsections (a) and (b) and second, that subsections (a) and (b) have the meaning attributed to them by the applicants. It is correct that those two steps must be established for the applicants' submission to succeed (although not necessarily in that order). There is, however, also a third step, which is that as a consequence of the above, an inference can be drawn that the magistrate misconstrued the definition of evidential material in issuing the warrant, thereby constituting an error of law and jurisdictional error.
75 As seen from above, there was a difference between the parties as to the meaning of the recital in the third condition, and the construction of s 3 of the Agvet Code.
76 This recital in the third condition cannot be considered in a vacuum. It appears in a warrant which is issued under the Agvet Code, a code which defines evidential material for the purposes of issuing an investigative warrant. The recital is in a condition in a warrant which must be satisfied before property is evidential material within the terms of the warrant, and accordingly able to be seized pursuant to the warrant. The warrant only authorises the search and seizure of the types of evidential material that satisfy the matters specified in the three conditions of the warrant.
77 This argument around the recital's meaning is also in a context where the first and second conditions are in very broad terms, which necessarily results in the third condition, in practical terms, doing all the work defining the scope of the warrant: Caratti at [67].
78 Consequently, it is necessary to commence with a consideration of the statutory scheme, in particular the definition of evidential material.
The definition of evidential material
79 In relation to the statutory construction question, the parties accepted that evidential material falling within subsections (a) and (b) of the definition would necessarily also fall within (c), but that the converse did not occur. That is, evidential material in (c) may satisfy (a) and (b), but not necessarily so.
80 The parties also accepted that circumstantial evidence which affords proof of an offence could not satisfy subsections (a) and (b). The difference in construction turned on where the line was to be drawn between what satisfied subsections (a) and (b), and what did not. Both parties accepted this was a grey area with no bright line. So much may be accepted.
81 The interpretation of the statutory definition of evidential material must commence with a consideration of the relevant provisions. Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. The construction of statutes which authorise the search of premises and seizure of items must begin with "the ordinary meaning of the words considered according to their context and the legislative purpose": Caratti at [22], citing Hart at [64].
82 In support of their constructional argument that subsections (a) and (b) are, in effect, limited to things used in the commission of an offence, the applicants relied on Beneficial Finance, it being the only case the parties identified which addressed the meaning of a section equivalent to subsections (a) and (b).
83 In Beneficial Finance the warrant under consideration was issued pursuant to s 10 of the Crimes Act 1914 (Cth), which has a definition of evidential material in relevantly similar terms to that in s 3 of the Agvet Code. The warrant in that case was a three condition warrant with the recital in the third condition being phrased as follows:
there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth and in respect to which there are reasonable grounds for suspecting that the following offences have been committed. [emphasis added]
84 The argument in that case as to the meaning of the recital turned on the word "and", and whether it was to be read conjunctively or disjunctively.
85 Burchett J (with whom Sheppard J agreed), concluded at 530:
The effect of that single word, having regard to the provision at the beginning of the warrant that the things to which it relates satisfy all of the three conditions expressed in it, is that, upon a literal reading, it attaches a further condition to be satisfied by anything which would otherwise fall within the authorisation conferred under s 10(1)(b). This is, of course, nonsensical; the statute by pars (a) and (b) provides alternatives, and there is no conceivable reason why the justice should have intended to exclude evidence of the commission of an offence unless it happened to be constituted by something with respect to which the offence was suspected to have been committed. Nor did he, when he repeated the authorisation to seize evidence in those concluding portions of the warrant which I have quoted. In the context, I cannot doubt that the warrant provides a clear instance where the word "and" is used disjunctively.
86 As to the meaning of the two aspects of evidential material, he continued at 531:
That faultiness of expression was contributed to by the special nature of the alternative. For things falling within the alternative would, inevitably, remain also evidence as to the commission of the offence in question. They might, for example, be income tax returns containing fraudulent statements. So, upon analysis, the only sensible meaning to be attributed to the word "and" is that of a kind of hybrid of conjunctive and disjunctive, equivalent to "or as well", conveying that all the things in question are believed to afford evidence and some of them are also things with respect to which the offence was committed. This is confirmed by the unalloyed reference to s 10(1)(b) at the end of the warrant.
87 Pincus J, while disagreeing with the meaning to be given to the word "and", nonetheless addressed the meaning of the two alternative aspects of evidential material in the same terms. In support of his construction of the word "and', his Honour also referred to the tax offence example, where an accurate set of accounts may afford evidence as to the commission of an offence but not be a document in respect to which an offence, for example, lodgement of a false tax return, has been committed. Pincus J concluded, at 526, that:
It is certainly an odd proceeding to confine the search and seizure to documents which fall into both categories [documents which both afford evidence of the commission of the offence, and documents in respect to which an offence has been committed], but I think a court should be slow to read the rather plain word "and" in a special sense, so as to expand the scope of the search warrant.
88 It is this analysis of the provisions and the tax example given which the applicants contend supports their construction of the warrant, and the meaning of (a) and (b) of the definition of evidential material.
89 The respondent also relied on this case in support of their argument, relying on the passage quoted at [85] above in which Burchett J concluded that it would be nonsensical for the magistrate to exclude material which may afford evidence of the commission of the offence, if the statutory definition permitted it.
90 Two observations may be made of the passages relied on in Beneficial Finance.
91 First, unlike this case, the recital to the third condition in the warrant in Beneficial Finance expressly provided for material which afforded evidence of an offence and in respect to which an offence has been committed. Having authorised the wider definition of evidential material, it was said to be nonsensical to then limit or confine that to material "in respect to which there are reasonable grounds for suspecting that the following offences have been committed". That is very different to this case where there is no express reference to that aspect of the definition which affords evidence as to the commission of an offence.
92 Second, the example given in Beneficial Finance of the tax return offence does not sit as comfortably with the offences nominated in the third condition in this warrant. For example, the second nominated offence is that of carrying out a step in the manufacture of a prohibited chemical contrary to s 121 of the Agvet Code. The definition of "manufacture" in s 3 includes "to engage in any part of the process of producing the chemical product, or any component or ingredient of the chemical product as part of that process, or of bringing the chemical product to its final state, including by formulating, processing, assembling, packaging, labelling, storing, sterilising, testing, supplying or releasing for supply". Given the breadth of that definition, it is difficult to identify what would constitute a thing with respect to which this offence, the carrying out of a step in the manufacture of a prohibited chemical, had been committed. I will return to this later in the reasons after considering the terms of the recital. Nonetheless, the distinction behind the tax return example is a valid one. Things with respect to which an offence has been committed focuses on the commission of the offence itself and relates to those things directly involved in the commission of the offence. Things of which there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence is directed to evidence which may go to proving the offence and is necessarily broader.
93 While there appears to have only been limited judicial consideration of the equivalent to subsections (a) and (b), there has been consideration of the phrase in subsection (c). It has been held that a thing will satisfy the description in (an equivalent to) (c) "if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters": George v Rockett at 119-120.
94 The interpretation placed on subsections (a) and (b) by the respondent is unclear, although, as noted above, it appears to have been accepted by both parties that those subsections would not capture material which was only circumstantial evidence of the commission of a nominated offence. Material of that nature would fall with subsection (c). However, what is clear is that subsection (c) is an alternative to (a) and (b), and it encompasses material broader than subsections (a) and (b): Beneficial Finance at 530, 531.
95 Moreover, each subsection in the definition of evidential material is focused on a different aspect of evidential material. The respondent's submission, that the principle of statutory construction that all words (and clauses) in the statute are intended to have meaning has limited application in this case because material captured by subsection (c) would necessarily encompass that in (a) and (b), is misplaced and does not assist in establishing the construction it contends for. Consistent with the fact that a warrant represents an intrusion into the recipient's privacy, the statutory definition provides the capacity for a warrant to be confined to the types of evidential material that might be sought in each particular case.
96 Given the presence of subsection (c) in the definition and the breadth of its meaning, subsections (a) and (b) must necessarily be more confined. The applicants variously submitted that the words "with respect to which" that appear in those subsections should be taken to mean "used in" the offence, "used in, or in relation to, an offence" and "things which are (or are suspected to be) themselves instruments of an offence". The respondent took issue with those descriptions, arguing that if it was intended for (a) and (b) to be limited to things used in the commission of the offence, one would expect those words to be used. I am mindful of the dangers of using language which is not the language of the statute, or of putting a gloss on the statutory language, as it is the language of the statute which must be applied.
97 In that context, the meaning attributed to the equivalent of (a) and (b) by the Court in Beneficial Finance, as highlighted by the example given in that case, is a valid one. In that example, where the lodgement of the false tax return was the offence, the false tax return was considered to be the thing used to commit the offence (thereby falling into the equivalent of subsections (a) and (b)), and the accurate set of accounts was considered as evidence as to the commission of the offence (thereby falling into the equivalent of subsection (c), but not (a) and (b) as it had not been used in the offence): Beneficial Finance at 526 per Pincus J. While this reasoning is only explicitly spelt out in the judgment of Pincus J, the reference to the income tax returns by Burchett J is consistent with that reasoning. Burchett J considered the tax returns containing the false statement would fall within both a thing used to commit the offence and evidence as to the commission of the offence: Beneficial Finance at 531. Having given that example, Burchett J concluded that the word "and" in the warrant there under consideration should be interpreted as "a kind of hybrid of conjunctive and disjunctive" on the basis that all things may afford evidence and some may also be things in respect to which an offence was committed.
98 Beneficial Finance considered relevantly similar provisions as the definition of "evidential material" in s 3 of the Agvet Code. The respondent did not suggest that Beneficial Finance was incorrect. Rather, it was contended that while the Court in that case was exploring the difference of meaning between the types of evidential material in the equivalents to (a) and (b) on the one hand, and (c) on the other, by reference to the fraudulent tax statement example, the reasoning of the Court was not exhaustive as to the limits of the meaning of the provisions in question. The reasoning in Beneficial Finance is valid and is equally applicable to the provisions in the Agvet Code. However, factually where the line would be drawn as to what would satisfy subsections (a) and (b) in relation to the offences in this case, is a grey area.
The recital in the third condition
99 As noted above, the applicants contended that the recital, properly read, only captures evidential material within subsections (a) and (b) of the definition and does not include material affording evidence of an offence (i.e. subsection (c)). The respondent contended that a fair reading of the warrant as a whole reflects that it, by virtue of the recital in the third condition, is not limited to only some aspects of the statutory definition of "evidential material". For the following reasons, the applicants' submission should be accepted.
100 First, the recital does not refer to "evidence" or "material affording evidence". Subsection (c) of the definition of evidential material addresses "a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence" as a separate category of material from a "thing with respect to which" an offence against an agvet law has been committed, or an agvet penalty provision has been contravened, or is suspected on reasonable grounds to have been committed or contravened, contained in subsections (a) and (b). In that context, if the warrant was intended to encompass material which afforded evidence of the commission of an offence, it would be expected to state as such.
101 Second, the language in the recital, while not identical to that in subsections (a) and (b), is relevantly similar. So much is apparent if the recital is juxtaposed with subsection (a). The recital contains the words "[a]nd with respect to which the following offence/s against the Agricultural and Veterinary Chemicals Code or the regulations, in relation to a contravention of a civil penalty or relation to both, has been committed/is suspected on reasonable grounds to have been committed". Subsection (a) is "a thing with respect to which an offence against an agvet law has been committed or is suspected, on reasonable grounds, to have been committed". Subsection (b) is in the same terms but relates to an agvet penalty provision.
102 The phrase "in relation to" in the recital that appears before the civil penalty reference and the phrase "relation to both" are not words which appear in subsections (a) or (b). The respondent submitted that it can be inferred from the use of those phrases that the recital was not intended to be tied to subsections (a) and (b) only. However, that submission does not address the meaning of "in relation to" and, in particular, the absence of the words "there are reasonable grounds for suspecting will afford evidence" in the recital in the third condition.
103 There is no basis to suggest that the choice of those phrases "in relation to" and "relation to both", which appears to relate to civil penalty provisions, was a deliberate choice made by the drafter intended to encompass material affording evidence as to the commission of an offence or civil penalty contravention, or to circumstantial evidence. The respondent's argument involves the wording in the recital relevantly following subsections (a) and (b), but choosing a different description to that contained in the definition, "in relation to", to encompass subsection (c). Or, to put it another way, the absence of the phrase "reasonable grounds for suspecting will afford evidence" is in the context where the choice of wording used, "with respect to which the following offence/s…have been committed" largely accords with the language of subsections (a) and (b). Moreover, if the recital was intended to encompass a thing that there were reasonable grounds for suspecting will afford evidence as to the commission of an offence, there is no reason to include the more limited wording of "with respect to which the following offence/s …have been committed". Indeed, it would be counter-productive to do so: cf Beneficial Finance at 530.
104 Third, the respondent's interpretation of the recital is dependent on, or at least accepts, that the phrases "with respect to" and "in relation to" used in the recital having the same wide meaning as each other. While it may be accepted, as the respondent contends, that the phrases "with respect to" and "in relation to" are phrases of wide import, that is not always so. Those phrases are ambulatory and may be designed to cover a variety of subjects and relationships between those subjects: The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [31] per French CJ. As Davies J in Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 15 FCR 487 at 491 observed:
Expressions such as 'relating to', 'in relation to', 'in connection with' and 'in respect of' are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute...The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.
105 The respondent's submission as to the meaning of those phrases faces fundamental problems. While the respondent contends that the ordinary meaning of "with respect to" and "in relation to" should be applied, it accepts that the ordinary meaning of those phrases is wider than "afford evidence of the commission of an offence". Consequently, the respondent submits that the phrases "with respect to" and "in relation to" are limited by the definition of evidential material in the Agvet Code which is referred to at the introduction to the first condition of the warrant, because if it were otherwise, the warrant would be beyond power. That submission accepts that the ordinary wide meaning of the phrases would authorise seizure of material which does not fall within the statutory definition of evidential material.
106 In practical terms the respondent's submission is that "in relation to" must, in effect, be read as "there are reasonable grounds for suspecting will afford evidence as to the commission of". However, the submission that the phrase is to be read down in that manner because "evidential material" is referred to in the warrant is inconsistent with the nature of a three condition warrant. A three condition warrant defines evidential material as that which satisfies the three conditions specified in that warrant. As the warrant here states, the magistrate was satisfied "that there are reasonable grounds for suspecting that there is at premises…evidential material which satisfies all …three conditions". The investigation powers that an inspector may then relevantly exercise under a warrant are to search the premises for the kind of evidential material specified in the warrant, and the power to seize such material: s 132A(1)(b) of the Agvet Code.
107 Moreover, the phrase "with respect to" appears in subsections (a) and (b) of the definition. The meaning of that phrase is subject to the context in which it is used. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ. As observed above, the respondent accepted that subsection (c) is broader than (a) and (b). Therefore, it must follow that the respondent's submission is that the phrase "with respect to" has a different, and broader meaning in the recital than it does in the statutory definition. There is no reason why the phrase should be interpreted in that way. If "with respect to" has the narrower meaning reflecting the relevant part of the definition, there is no basis to suggest that "in relation to" was a deliberate choice made by the drafter, intending to encompass subsection (c).
108 To read the phrase "in relation to" or "with respect to" as meaning "reasonable grounds for suspecting will afford evidence as to the commission of an offence" would be to give a meaning to those words which they do not have.
109 Given that the wording in the recital is reflective of subsections (a) and (b), it is to be inferred that the issuing magistrate had those sections in mind: cf Beneficial Finance at 530. Given the terms of the recital, and the absence of a reference to the language of subsection (c), there is no proper basis to infer that the magistrate also had subsection (c) in mind.
110 Finally, the textual arguments relied on by the respondent do not lead to a reading of the recital which is contrary to that conclusion.
111 In so far as the respondent relied on clause 6(a) of the warrant affidavit to support the submission that the recital in the third condition was intended to be broader than (a) and (b), the meaning and relevance of that clause is unclear. The aspect of the clause (which is recited below at [161]) on which the respondent relies is the phrase "will provide evidence". However, whatever may have been inferred from the warrant affidavit as to the deponent's state of mind, the submission does not address or overcome the drafting of the warrant and the ordinary meaning of the third condition.
112 As noted above, the respondent also argued, relying on Dunesky v Elder, that as the purpose of the third condition is to identify the suspected offences, an overly technical approach ought not to be taken to the interpretation of the recital in that condition. However, that submission ignores the significance of the recital in the third condition and the circumstances of this case. The Court's comments in Dunesky v Elder about the real object of the third condition are made in the context where the recital in that condition (unlike this case) did not depart from the statutory provisions: Dunesky v Elder at 557.
113 In Corbett, Callinan and Crennan JJ observed at [104] (citations omitted):
Obviously each statutory requirement or condition needs to be construed on its own terms and by reference to the statute in which it is to be found. However, common requirements for "reasonable grounds for believing" (or suspecting) imposed on an applicant (as here under s 5(1)(b)), or upon an issuing justice (as in Rockett or Beneficial Finance) have a common derivation. The concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person's home was inviolable is the original source of common, although differently expressed, statutory requirements. These requirements have as their purpose the proper identification of the object of a search by reference to a particular offence. This in turn limits the scope of the search authorised by the search warrant. As stated in the judgment of this Court in Rockett:
"[T]he description of the object of the search is a reference point for delimiting the scope of the warrant ... [T]he requirement of 'reasonable grounds for believing' ... performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms."
114 While the Court was considering the sufficiency of the identification of the offence, those comments are equally apt in this case. Once it is accepted, as it must be, that the recital in the third condition could confine the evidential material to any one or more of the categories within the statutory definition, its function must be to identify the object of the search. If that is so, its significance cannot be minimised.
115 The respondent called in aid the principles of construction of the need to avoid a perverse construction, and a construction which would preserve the validity of the warrant is to be preferred. There is no doubt that a warrant should be read fairly and not perversely, and that the language used need not be elegant: Different Solutions Pty Limited v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686; (2008) 190 A Crim R 265 (Different Solutions) at [108]; Beneficial Finance at 546. However, the respondent accepted that the recital could be construed in more than one way. If the recital was limited to subsections (a) and (b), the warrant would not be invalid on that account alone. The result might have been unintentional on the part of the investigating officer, but a plea to read a warrant beneficially does not permit what is, in effect, reading in words to the recital in order to encompass an aspect of the statutory definition which had not been included. The absence of the relevant words cannot properly be described as some technical flaw in the warrant. Nor can the third condition be read more broadly simply because it would make it easier to execute. Further, the fact that the third condition of a warrant might more typically refer to the wider definition of evidential material does not provide a proper basis to interpret the warrant in this case in that manner.
116 Having concluded that properly read the recital does not include material which there are "reasonable grounds for suspecting will afford evidence as to the commission of an offence", the issue raised on the applicants' submission is whether the issuing magistrate fell into jurisdictional error by misconstruing the definition of evidential material.
117 The only basis for this submission put forward by the applicants, is an inference being drawn from the items in the last three bullet points in the first condition. It is submitted that those items could not fall within subsections (a) and (b) of the definition properly construed. However, as observed above at [92], what may constitute a thing with respect to which an offence is committed given the offences specified in the third condition, is unclear. To take just one example, one item listed in the last dot point is "instructions pertaining to manufacture" which was said in the applicants' written submissions as being unable to satisfy (a) or (b). However, in oral submissions the applicants accepted there were arguments both ways as to whether obtaining instructions to manufacture would constitute a step in the manufacture. If that is the case, then the instructions could arguably be a thing with respect to which an offence is committed. Given the breadth of the definition of manufacture, a number of the types of documents referred to in those dot points relied on by the applicants are arguably capable of falling within subsections (a) or (b) of the definition.
118 I observe that in Caratti the Full Court criticised the framing of the first two conditions in the search warrant in question, stating that a "shopping list" approach had been taken with the purpose of casting as wide a net as possible, not confined to things that will necessarily afford evidence of the commission of the suspected offences, as was the terms of the third condition of the warrant in that case: Caratti at [67]. This left all the work of confining the warrant to the third condition: Caratti at [67]. The Full Court highlighted the risks of this approach, including rendering the warrant more vulnerable to challenge: Caratti at [68].
119 The breadth of the first condition is not, unfortunately, unusual. It may reflect no more than adopting an undisciplined approach: cf Caratti at [52]. Given the grey area in this case as to what material would satisfy the third condition on a narrow construction, in all the circumstances, I am not satisfied that the applicants have established that the second respondent misconstrued the law such as to vitiate the relevant state of satisfaction.
120 The applicants have not established that the warrant is invalid on the basis that the magistrate misconstrued subsections (a) and (b), although the third condition of the warrant is narrower than that contended for by the respondent: Beneficial Finance at 526.
121 Although this conclusion is consistent with the respondent's alternative argument, that the warrant was valid but narrower than originally contended for, neither party addressed what, if any, effect that finding would have on the remaining grounds of appeal.