Federal Court of Australia|1991-03-22|Before: Wilcox J

Re Beneficial Finance Corporation Ltd and Others v Commissioner of the Australian Federal Police and Others [1991] FCA 92; 91 Atc 4249 (22 March 1991)

And: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and OTHERS

Criminal Law - Search warrants - Validity of warrants - Whether warrants indicated offences - Specification of offences in terms of failure to comply with statutory provision which, by its nature, does not require any compliance action - Particularity of description of things authorised to be seized - Whether issuing Justice must certify his or her satisfaction that some other person reasonably suspects commission of offences.

Beneficial Finance Corporation Ltd v Commissioner of the Australian Federal Police and Others

Counsel for the Applicant: I. Gzell QC and F. Carnovale

Counsel for the Respondent: G. Niemann and G. Nicholson

Solicitors for the Respondent: Director of Public Prosecutions

Respondents numbers 1 and 7 to 12 inclusive and each and every one of them be restrained pending further order from taking any steps further to execute any of the following warrants, viz. the warrant issued by respondent number 6, being annexure B to the affidavit of Catherine Anne Barmes sworn 21 March 1991 and filed herein; the warrant issued by respondent number 5, being annexure IJ to that affidavit; and the warrant issued by respondent number 6, being annexure A to that affidavit.

Respondents numbers 1 and 7 to 12 inclusive place all things seized by them or any of them pursuant to any of the warrants referred to in annexure C to the Application, or which may hereafter be seized by them pursuant thereto, in sealed boxes or packages and hold them unopened until Wednesday, 27 March 1991 or such later time as may be fixed by a Judge of the Court.

There be liberty to any party to appeal against the judgment delivered, and orders made, today.

An amount of money equal to the costs incurred by the applicants in connection with the respondents' application for transfer of the matter to the South Australian registry of the Court together with one half of the costs incurred by the applicants in connection with the ex parte application made last Wednesday and the application for interlocutory orders made yesterday afternoon and today be applicants' costs in the principal proceeding.

Liberty to apply on one hour's notice be continued.

The matter be listed for mention at 10.15pm on Wednesday, 27 March 1991.

And the Court notes the undertaking of the respondents that, until next Wednesday, they will hold in sealed boxes or packages all material seized pursuant to any of the 37 warrants, not being the seven warrants referred to in the Application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

An application has been made to the Court for interim orders, under s.15 of the Administrative Decisions (Judicial Review) Act 1977, in respect of seven search warrants. I understand from counsel that these are but seven of a total of about 37 warrants which were issued in connection with a particular investigation being undertaken by the Australian Federal Police. Apparently, the parties consider that the seven warrants adequately raise the issues which the parties wish to litigate and they have come to an agreement between themselves to apply to other warrants following the same form the Court's rulings in respect of these seven warrants. This sensible arrangement has reduced the burden of work involved in dealing with the interlocutory application, a task which has had to be completed expeditiously because police officers continue to occupy some of the relevant premises.

2. The seven warrants with which I am concerned were issued on various days last week or early this week. Six of the warrants were issued under s.10 of the Crimes Act 1914, they being issued by a stipendiary magistrate; three in South Australia and one in each of Victoria, New South Wales and Queensland. The seventh warrant was issued under s.71 of the Proceeds of Crime Act 1987 by White J. of the Supreme Court of South Australia. I will return later to the terms of s.10 of the Crimes Act and s.71 of the Proceeds of Crime Act. For the present, it is enough to say that there is a distinction between the two types of warrant for which they provide. Section 10 of the Crimes Act is concerned with material relating to an offence which is suspected, on reasonable grounds, to have been committed or to be intended to be committed. The purpose of the section is to obtain evidence in relation to that particular offence. Section 71, by contrast, is concerned with obtaining information about the "money-trail". It applies only where a Supreme Court judge is satisfied, not only that an offence has occurred or is reasonably suspected to have occurred, but that there is in the relevant premises what the Act calls "a property-tracking document". In the contention of counsel for the respondent the difference between the two types of search warrant is of major significance in this case.

3. A decision was apparently made that the seven subject warrants - and perhaps others as well - should be executed, or at least commence to be executed, on a single day. Wednesday, 20 March was selected. On that morning a party of 16 police officers, one computer expert and four accountants went to the head office of Beneficial Finance Corporation Ltd at 33-37 Franklin Street, Adelaide. Other police officers, perhaps assisted by others, apparently attended the other premises named in the various warrants.

4. During the course of Wednesday afternoon, an ex parte application was made to me by counsel representing Beneficial Finance Corporation Ltd and certain other persons referred to in five of the seven warrants. They sought an order restraining the persons to whom the respective warrants were addressed from further executing those warrants. On behalf of Beneficial Finance, counsel offered certain undertakings, including an undertaking that that company would cause the various persons or entities controlling the various premises referred to in the warrants to search for, and to set aside in sealed boxes or packages, all material still in their possession which appears to them to be intended to be referred to in the relevant warrants and to hold such sealed boxes or packages unopened pending further orders.

5. I accepted the undertakings offered by Beneficial Finance and made certain orders. But I was not prepared to restrain activity under all of the warrants. It seemed to me then, as it seems to me now, that three of the warrants suffered a vice which was not shared by the other two warrants. I thought that, at that stage and pursuant to an ex parte application, I should confine any order restraining search and seizure to those three warrants. Furthermore, it was impractical to serve notice of the order on all of the addressees of the warrants. But they were all officers of the Australian Federal Police. So I issued an order against the Commissioner of the Australian Federal Police in the following terms:

That the Commissioner of the Australian Federal Police -

(i) forthwith instruct those charged with, or engaged in, executing

any of the following warrants: viz, the NSW warrant, the

Queensland warrant and the second SA warrant that they forthwith

cease to search any premises pursuant to any of those warrants;

and

(ii) give all instructions necessary to those charged with, or engaged

in, executing any of the five aforementioned warrants that all

things taken by them pursuant to any of those warrants shall be

placed in sealed boxes or packages and held unopened pending

further order."

6. I directed that the Application, which had not yet been filed, be made returnable at 2.15pm on the following day, Thursday, 21 March; reserving liberty to apply on one hour's notice.

7. The respondents took advantage of the liberty to apply. They sought an immediate order transferring the matter to the South Australian Registry of the Court. I refused that application, for reasons which I gave at the time. Accordingly, the application for interim relief proceeded before me in Sydney yesterday afternoon and this morning. In the meantime, the undertakings given, and orders made, on Wednesday afternoon have remained in effect.

8. The Application does not reveal the grounds of attack on the search warrant. Counsel for the applicants indicated that other grounds might be advanced at a later stage but, for the purposes of this application, they were content to limit themselves to the proposition that each of the persons who issued a relevant warrant erred in law in so doing: see s.5(1)(f) of the Administrative Decisions (Judicial Review) Act. In broad terms, three errors were ascribed to those persons.

9. Firstly, counsel claim that the relevant suspected offences were not properly identified. Section 10(1) of the Crimes Act provides:

"10.(1) If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place:

(a) anything with respect to which any offence against any law of the

Commonwealth or of a Territory has been, or is suspected on

reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing

that it will afford evidence as to the commission of any such

offence; or

it is intended to be used for the purpose of committing any such

offence,

or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there."

10. It is plain, say counsel, that a valid s.10 warrant involves a decision by the Justice of the Peace who issues it, amongst other things, that there are reasonable grounds for suspecting the commission of one or more offences against a law of the Commonwealth or of a Territory. The offence or offences must be specified in the warrant: see The Queen v Tillett; Ex parte Newton (1969) 14 FCR 101 at 113 and Crowley v Murphy (1981) 52 FCR 123 at 143. In Tillett, Fox J. adopted the principle that a s.10 warrant, amongst other things, "must relate to a particular offence".

11. As I have said, s.71 of the Proceeds of Crime Act is directed to a different purpose than s.10 of the Crimes Act. But subs.(7) of that section requires that there be stated in the search warrant, among other things, "a statement of the purpose for which the warrant is issued, including a reference to the nature of the indictable offence that has been or is believed to have been committed."

12. The contention of counsel is that, when one looks at the warrants, one cannot find a specification of a particular offence. Their point is most easily understood, and made, in relation to the three warrants the subject of the first of my two ex parte orders. I turn to those warrants.

13. The New South Wales s.10 warrant defines the things the subject of the warrant, that is things which may be seized on the premises, by reference to three conditions which they must satisfy. The third condition is couched in those terms:

"... THIRDLY 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."

14. Then follow a list of so-called offences; and this list constituted the only identification of the alleged offences offered by the warrant. The first alleged offence is in these terms:

"(a) committed between 1st day of June 1983 and the date of swearing

this Information, namely conspiracy to defraud the Commonwealth by

failing to comply with the provisions of S.57AF of the Income Tax

Assessment Act 1936 relating to the leasing of luxury cars; contrary to

Section 86(1)(e) of the Crimes Act 1914 until the 24th day of October

1984 and thereafter contrary to S86A of the Crimes Act 1914."

15. Then follows a list of eight named persons suspected of having committed the offence "and other persons unknown".

16. Paragraph (b) alleges an offence in these terms:

"(b) committed between about the 1st day of June 1983 and the date of

swearing this Information, namely Conspiracy to defeat the execution of

a law of the Commonwealth, namely S.57AF of the Income Tax Assessment

Act 1936 relating to the leasing of luxury cars; contrary to S.86(1)(b)

of the Crimes Act 1914."

17. The same list of names appears. Paragraph (c) reads:

"(c) committed between the 25th day of October 1984 and the 30th day of

June 1986, namely defrauding the Commonwealth by failing to comply with

the provisions of S.57AF of the Income Tax Assessment Act 1936 relating

to the leasing of luxury cars; in respect of the 1984/1985 financial

year; contrary to S.29D of the Crimes Act 1914."

18. I need not read the remaining alleged offences. They follow the same form as para (c) except that they each relate to a later financial year.

19. It will be noted that each of these alleged offences refers to s.57AF of the Income Tax Assessment Act 1936. Paragraphs (a) and (c), and the subsequent paragraphs, speak of failing to comply with the provisions of that section. Paragraph (b) refers to its execution being defeated. The problem about this terminology is, as counsel for the applicants submit, that s.57AF is not a section which calls for any action to be taken. Section 57AF was added to the Income Tax Assessment Act in 1980 in order to impose a limit on the amount of depreciation which might be claimed in respect of a unit of property which is a motor vehicle. Its key element is subs.(2) which reads:

"(2) Where the cost of a unit of property to which this section applies

for the purpose of calculating the depreciation allowable to a taxpayer

under this Act in relation to a year of income would, apart from this

subsection, exceed the motor vehicle depreciation limit in relation to

the year of income (in this subsection referred to as the 'year of first

use') in which the unit of property was first used by the taxpayer

(whether for the purpose of producing assessable income or otherwise),

then, for the purpose of calculating the depreciation allowable under

this Act to the taxpayer in relation to a year of income, the cost of

that unit of property shall be deemed to be the amount of the motor

vehicle depreciation limit in relation to the year of first use."

20. Subsection (3) set a motor vehicle depreciation limit of $18,000 but subsequent provisions provided for the indexation of this sum, so it is now much greater. However, the only purpose of the section remains the restriction of the amount which a taxpayer may claim as the cost of a motor vehicle. Nothing has to be done pursuant to the section.

21. During the course of argument, I indicated to counsel for the respondents my difficulty in understanding the sense in which the warrants complained of a failure to comply with s.57A. In response, counsel offered me an example, which they said was hypothetical. They asked me to assume that a person wished to use for business purposes a car having a value greater than that specified under s.57AF for the relevant taxation year. If the car were leased by a financier to the user, only a portion of the year's actual depreciation would be tax-deductible. So, although the transaction truly was an ordinary leasing arrangement, the user and financier agreed to prepare documents which suggested a loan by the financier to the user of an amount of money equal to the cost of the car. That loan being apparently for business purposes, the interest repayments (which included the full amount of the depreciation) would be fully deductible.

22. I have no doubt that the facts postulated in this example would constitute an offence. The desired object would be achieved only by both parties misrepresenting the transaction to the Commissioner of Taxation in their taxation returns. The making of a deliberately false return is an offence against s.8P of the Taxation Administration Act 1953. But that offence would have nothing to do with s.57AF, except in the sense that the existence of that section provided the motive for the parties to act as they did. The reference to s.57AF is incorrect, perplexing and potentially misleading.

23. It is less clear that para.(b) is misconceived. Although it seems to me to be unnecessary to take the course of that paragraph, to allege a conspiracy to defeat the execution of a law of the Commonwealth, it might accurately be said that both the purpose and effect of counsel's hypothetical case is to defeat the operation of s.57AF. And s.86(1)(b) of the Crimes Act does make it an offence to conspire with another person to prevent or defeat the execution or enforcement of a law of the Commonwealth.

24. If para.(b) of this warrant stood alone I would be disinclined to hold, for interlocutory purposes, that it failed to meet the need to identify an offence. But it does not stand alone. Although the persons executing the warrant might seize some documents which are caught by this, and no other, paragraph, no one would know that this was so. In the limited time available, neither counsel nor I have been able to find any authority on the point; but it seems to me that, where a warrant identifies a number of alleged offences and one of them is not an offence known to the law, the warrant must be considered wholly invalid. Its issue was an error of law. Alternatively, it was not authorised by the enactment in pursuance of which it was purported to be made: see s.5(1)(d) of the Administrative Decisions (Judicial Review) Act.

25. The s.10 warrant issued in Queensland identifies the alleged offences in the same manner as does the New South Wales warrant. It also must be considered invalid.

26. The s.10 warrants issued in Victoria and South Australia, all three of them, follow a different form. Their terms are not identical but, in each case, the allegations are of conspiracy or fraud. The allegations do not speak of non-compliance with s.57AF. It is sufficient to take as an example the s.10 warrant issued in relation to Beneficial Finance's own premises in Franklin Street, Adelaide. Once again the offences are identified in connection with the specification of the third condition. The offence referred to in para.(a) is described in this way:

"(a) committed between the 1st day of June 1983 and the date of swearing

this Information, namely conspiracy to defraud the Commonwealth in that

the lessor failed to fully declare its income derived from the leasing

of luxury motor vehicles in its income tax returns submitted to the

Deputy Commissioner of Taxation in respect of the 1984/1985, 1985/1986,

1986/1987, 1987/1988 and 1988/1989 financial years; contrary to

S.86(1)(e) of the Crimes Act 1914 until the 24th day of October 1984

thereafter contrary to S.86A of the Crimes Act 1914."

27. Paragraph (b) alleges a conspiracy to defeat the execution of a law of the Commonwealth, namely ss.57AF and 161 of the Income Tax Assessment Act. Paragraph (c) reads:

"(c) committed between the 25th day of October and the 30th day of June

1986 namely defrauding the Commonwealth in that the lessor failed to

fully declare its income derived from the leasing of luxury motor

vehicles in its income tax return submitted to the Deputy Commissioner

of Taxation in respect of the 1984/1985 financial year; contrary to

S.29D of the Crimes Act 1914."

28. The remaining paragraphs are in similar terms but they refer to later financial years.

29. As counsel for the applicants point out, the language of the paragraphs leaves some uncertainties. Who is the "lessor" referred to in paras.(a) and (c) and the later paragraphs? To whom does "its" refer in para.(b)? But I do not think that these uncertainties amount to a failure to identify the relevant suspected offences. The relevant offence is clear. In each case, the offence is one known to the law. The applicant's complaint is really that the stated particulars of the offences are inadequate. I agree that greater particularity would be required at a trial. But I do not think that the same degree of particularity is required for a search warrant as for an indictment. I am not prepared to hold these warrants defective, at least for interlocutory purposes.

30. I turn now to the s.71 warrant issued in South Australia. This warrant includes a list of the offences disclosed in the information laid before White J. by a police officer. The offences in that list follow the same form as those in the New South Wales and Queensland s.10 warrants. But counsel for the respondent make three additional submissions. First, they say that s.71(7) only requires "a reference to the nature of the indictable offence". Secondly, they say that, in the case of a warrant issued by a Supreme Court judge, there is a presumption of regularity. Thirdly, counsel contend that I should follow the view of White J. that the form of the warrant was appropriate.

31. The last two points may quickly be disposed of. Even though there may be a presumption of regularity, that is only a presumption. When the validity of a document is squarely challenged, the Court must decide the point. As to following White J., I say immediately that his Honour is a most experienced judge for whom I have a high regard. But the warrant was issued on an ex parte application, as is the usual course. There was no opportunity for the present applicants to put argument as to the form of the warrant. They did not do so. Accordingly, so far as appears, his Honour's mind was not directed to the point now under consideration. I do not think that I should assume that, had he considered the point, he would have found the description of the offences to be satisfactory.

32. As to the first submission, I agree that s.71 is directed to a different purpose than s.10. Nonetheless, the section does require identification of one or more particular indictable offences. I think that they should be offences known to the law. Although a conspiracy to defraud is an offence known to the law, once the draftsman particularises that offence by saying that the offence was committed by failing to comply with the provisions of s.57AF of the Income Tax Assessment Act, an impossible task, it is obvious that the conduct complained of could not constitute an offence. An indictment framed in these terms would have to be quashed. Accordingly, the warrant fails to refer to an indictable offence known to the law. It also is bad.

33. In view of my finding in respect of the first point, the second and third submissions of the applicants have importance only in relation to the s.10 warrants issued in Victoria and South Australia. These two points are relatively short. Each arises out of the terms of the warrants themselves.

34. The second point is that the warrants do not sufficiently limit the description of the things whose seizure they authorise. Counsel refer to the Full Court decision in Arno v Forsyth (1986) 65 ALR 125. In that case the Court held invalid a warrant which purported to authorise the seizure of documents held in a barrister's chambers. At p 130 Fox J. said:

"It seems to me that a warrant under s.10 must indicate the 'things' to

which it relates by reference to some characteristic other than the

offence which it is said to constitute or evidence. In the present case

there is a general description of documents but they are to be those 'in

relation to the implementation of tax avoidance schemes'. This is quite

indefinite. The tax avoidance schemes referred to are those 'associated

with' the named persons and entities. This loose conjunction makes the

indication of the documents even more vague. The implementation of the

tax avoidance schemes is not however limited to the 37 persons and

entities in question but relates also to 'other persons and entities

associated with the implementation of tax avoidance schemes'.

This seems to me to make the warrant hopelessly wide and obscure. It approximates a general warrant. The recipient of the warrant cannot be expected to go through the exercise of deciding whether there are reasonable grounds for believing that the documents will afford evidence or that there are reasonable grounds for believing that the offences have been committed. The offences in fact cover a wide ground, three of them relating to conspiracies between unnamed persons."

35. The other two members of the Court, Lockhart and Jackson JJ., expressed similar views.

36. However, the description contained in the Arno v Forsyth warrant was much wider than that used in any of the present warrants. It authorised the seizure of a wide class of documents "in relation to tax avoidance schemes" (whatever those words mean) "associated with" 37, named persons and with other, unnamed, persons.

37. In this area of the law a balance is required to be struck. On the one hand, warrants should not be so widely framed as to allow investigating officers to ransack premises at large in the hope of turning up something which might assist to prove the commission of an offence. On the other hand, to require the draftsman of a warrant precisely to specify the particular thing which is sought would be to defeat the purpose of s.10, in many cases. The point was made by Lockhart J. in Arno v Forsyth at p 139:

"It is necessary to sound a cautionary note when considering this

question. When investigations are proceeding into alleged tax evasion

on a large scale it may be impossible to define documents in search

warrants other than in rather general terms. If the terms are so

general or vague as to suffer from the vice of a general warrant then

plainly it is bad; but it must be remembered that at the time the

warrant is issued the matter is obviously at an investigatory stage and

there will not be sufficient evidence in a form admissible at a criminal

trial to prove the alleged offences. The purpose of the search is to

obtain such evidence. It is necessary to reconcile the two competing

public interests that offences involving tax frauds should be detected

and punished on the one hand and the right of the individual to

protection of the law from unjustified interference with his privacy and

property on the other. It is in the public interest that those who

commit offences involving fraud in relation to tax should be brought to

justice. It is at least equally in the public interest that individual

liberty should be protected by the courts whose function it is to

protect individuals from abuse of power by the Executive arm of

government. The balancing of the claims of the due administration of

justice and those of the citizen whose rights must be jealously

protected is not determined in a sterile vacuum but with due regard to

the legislation involved and criminal activity suspected. The

complexity of taxation frauds which often involve numerous persons and

entities, and the concomitant difficulties associated with the gathering

of documentary evidence to support the laying of charges highlights the

dangers of too readily striking down warrants on the ground of

generality in cases of this kind: see generally R v InLand Revenue

Commissioners; Ex parte Rossminster Ltd [1979] UKHL 5; (1980) AC 952, especially per

Lord Diplock at p 1010."

38. In the present case, the warrant limits the things authorised to be taken in three ways. In the first place it must be a thing properly described by one or more of the paragraphs in the first condition: that is, it must be "files, working papers, records, reports, diary notes" etc as in (a), accounting books and records, as in (b); and so on. So its essential nature is prescribed. Secondly, the thing must relate to the affairs of one or more of a number of named persons or entities. Its field of relevance is specified. Thirdly, it must be a thing as to which there are reasonable grounds for believing that the thing will afford evidence as to the commission of one or more of the specified alleged offences; thus excluding such documents relating to the named persons as have no connection with the alleged offences. Although a question of degree is involved, it seems to me that this is a sufficient description of the things authorised to be seized. The problem encountered in Arno v Forsyth does not arise.

39. The final point relates to the matters in connection with which the issuing Justice must express satisfaction. It is clear that s.10 requires the Justice to be satisfied that there is reasonable ground for suspecting the existence on premises of a thing as to which there are reasonable grounds for believing that it will afford evidence of the commission of an offence. Equally, it is clear that the words "such offence" in para.(b) import from para.(a), firstly, that the offence must be one against a law of the Commonwealth or of a Territory and, secondly, that it is an offence which has been, or is suspected on reasonable grounds to have been, committed. In the present case the issuing Justices each recited their satisfaction that there were reasonable grounds for suspecting the existence, on the specified premises, of things which, amongst other qualities, were such that there were reasonable grounds for believing that they will afford evidence of the commission of the relevant offences. So the Justices stated their satisfaction with the matters required by para.(b), when read with para.(a). But counsel say that this is not enough; the Justice must also recite that someone else suspects the offence to have been committed, on reasonable grounds; for example, the investigating police officer. In support of this decision they refer to something said by Sweeney J. in Arno v Forsyth at first instance: see 9 FCR 557 at p 561.

"The draftsman of the warrant was no doubt concerned to comply with the

requirement that a warrant should disclose jurisdiction on its face:

see R v Tillett; Ex parte Newton (1969) 14 FLR 101 and cases cited

therein; Gossett v Howard [1845] EngR 233; (1845) 10 QB 411; 116 ER 158; Caudle v Seymour

[1841] EngR 777; (1841) 10 LJMC 130; 113 ER 1372; Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287;

Posner v Collector for Interstate Destitute Persons (Vic) (1946) 74 CLR

When he used the words in the recital in relation to the things

designated in it, 'in respect to which there are reasonable grounds for

believing that the following offences have been committed', he did so in

apparent reliance upon the language of par (a) of s.10, which so far as

is material, reads: 'anything with respect to which any offence ... is

suspected on reasonable grounds to have been committed.'

This requirement of the section, which is a condition necessary to give

jurisdiction for the grant of a warrant, is two-fold. The justice must

be satisfied by information on oath that a designated thing, the seizure

of which is authorised by the warrant, is one with respect to which any

offence is suspected to have been committed, and that it so suspected on

reasonable grounds.

The recital that there are reasonable grounds for believing that an

offence has been committed uses the word 'believing', which is stronger

than 'suspecting', but does not say that the justice was satisfied on

oath that anyone in fact held such a belief. The recital does not

disclose that the prescribed suspicion was held and that it was held on

reasonable grounds. However, as the applicant did not contend that this

discrepancy supported the conclusion that the warrant did not disclose

jurisdiction on its face, I do not propose to rely upon it for that

purpose."

40. Contrary to the submission of counsel, I cannot read this passage as saying that the warrant must include a recital of someone else's satisfaction. The issuing Justice may obtain information from more than one source. It is his state of satisfaction which is important: see Crowley v Murphy at 143.

42. In the light of the foregoing, I think that the appropriate course is for me to retain the prohibition against further execution of the New South Wales warrant, the Queensland warrant and the s.71 South Australian warrant. But, as the addressees of the warrants are now parties, the order may be addressed directly to them. I should say that counsel for the respondents submitted that, if I were of the opinion that these warrants were invalid, I should nonetheless allow the search and seizure to be completed, but require that the documents seized then be stored pending further order. However, I do not think that I should take this course. It would involve police officers, without lawful authority, remaining in the premises of others and removing their documents.

43. In relation to the remaining warrants, I propose to make no interim order restricting further search and seizure. I am not satisfied that there is a sufficiently strong case of invalidity to justify the intervention of the Court.

44. It is possible that the applicants will wish to contest before a Full Court my rejection of their arguments in respect of these warrants. Ordinarily, it is undesirable for there to be an appeal against interlocutory orders. It is usually better to bring on the matter for final hearing at the earliest possible date and then, if an appeal be necessary, to have all aspects disposed of at once. But the present case is unusual, in two respects. Firstly, the matters argued before me are dry questions of law whose substance is unlikely to be changed by further evidence. Secondly, in a practical sense, their resolution is likely to dispose of the parties' dispute. Accordingly, in this particular instance, I think that I should grant liberty to any party to appeal against this decision.

45. In order to hold the status quo, pending any appeal, in relation to the documents already seized or which may hereafter be seized, it is, I think, appropriate to order the respondents to place all things taken, or which may hereafter be taken, by them pursuant to any warrant in sealed boxes or packages and to hold them unopened pending further order. This order will also apply to the things taken pursuant to the warrants which I consider invalid, so protecting the respondents' position in the event that they wish to challenge my conclusion on that matter.

46. The order regarding storage should apply for only a limited period, say 2 working days. If, within that period, an appeal is lodged, it would be appropriate to extend the operation of the order until the hearing of the appeal, subject to the undertaking of the applicant for further suspension to co-operate in the hearing of the appeal at the earliest possible date.

47. I will hear counsel on the precise form of the appropriate orders, including in respect of costs.

48. I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.

Tax Assessment Act 1936

Decisions (Judicial Review) Act 1977

Administration Act 1953

Tax Assessment Act 1936

Decisions (Judicial Review) Act 1977

Administration Act 1953

Tax Assessment Act 1936

Decisions (Judicial Review) Act 1977

Administration Act 1953

Re Beneficial Finance Corporation Ltd and Others v Commissioner of the Australian Federal Police and Others [1991] FCA 92; 91 Atc 4249

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Re Beneficial Finance Corporation Ltd and Others v Commissioner of the Australian Federal Police and Others [1991] FCA 92; 91 Atc 4249 (22 March 1991)

Parties

Legislation Cited (15)

Cases Cited (6)