Re Karina Fisheries Pty Ltd and Ors v Mitson and Ors [1990] FCA 154

Re Karina Fisheries Pty Ltd and Ors v Mitson and Ors [1990] FCA 154 - FCA 1990 case summary — Zoe

[22]

6. The respective informations that were laid in support of the applications for the issue of the s.10 warrants and the s.71 warrant are not identical in their content; some factual assertions that are contained in the one are absent from the other. Nevertheless, for present purposes, it is sufficient to say that each information sets out the same general allegations in support of the informant's claims that there were reasonable grounds for his suspicions and beliefs. Those allegations are based, in the first instance, upon the contents of a letter dated 27 December 1985 from a Japanese business house addressed to Messrs Lukin and Sons; it appears to contain details of seafood shipped into Japan on 5 April 1985 and sold for about A$1.3M. The allegation is that only about A$220,000 of the proceeds of sale were remitted to Australia whilst the balance of A$1M or thereabouts was retained and used, in whole or in part, to purchase the motor vessel DAITO MARU No. 18. The abovementioned letter together with a document which was said to be the agreement of 40 June 1985 for the purchase of the vessel was annexed to each information. Other documents that were annexed to the information were certain reconciliation statements from a Japanese business house (which bears a similar name to the first mentioned business house) for the period 7 March 1984 to 7 July 1987 showing, so it was alleged, that approximately A$5.4M had not been remitted to Australia. In addition there were documents from Honduras that suggested that the vessel had been renamed "D THREE" and registered in that country. In short therefore the allegations are that the various members of the Lukin family and one of their companies engaged in conduct that led to sales of seafood in Japan, that they remitted some but not all of the proceeds of the sales to Australia and that they thereby failed (inter alia) to disclose the whole of the proceeds of the sales to the Australian Taxation Authorities in the income tax columns of Karina Fisheries.

[34]

"71. (1) Where:

(a) a person has been convicted of an indictable

offence and a police officer has reasonable grounds

for suspecting that there is upon any land, or upon

or in any premises, a property-tracking document in

relation to the offence; or

(b) a police officer has reasonable grounds for

suspecting that:

(i) a person has committed an indictable offence;

and

(ii) there is upon any land, or upon or in any

premises, a property-tracking document in

relation to the offence;

the police officer may:

(c) lay before a Judge of the Supreme Court of:

(i) the State or Territory in which the person was

convicted of the offence or in which the

offence is believed to have been committed; or

(ii) the State or Territory in which the document

is believed to be located;

an information on oath setting out those grounds; and

(d) apply to the Judge for a search warrant under

subsection (4) in respect of the land or premises.

(2) Where a police officer applying for a warrant

under this section in respect of an offence includes in

the information under subsection (1) information on

oath that the officer has reasonable grounds to believe

that:

(a) the person who was convicted of the offence or who

is believed to have committed the offence derived a

benefit, directly or indirectly, from the

commission of the offence; and

(b) property specified in the information is subject to

the effective control of the person;

the Judge may treat any document relevant to

identifying, locating or quantifying that property as a

property-tracking document in relation to the offence

for the purposes of this section.

(3) In determining whether to treat a document, under

subsection (2), as a property-tracking document in

relation to an offence, the Judge may have regard to

the matters referred to in subsection 28(2).

(4) Where an application is made under subsection (1)

for a search warrant in respect of land or premises,

the Judge may, subject to subsections (5) and (6),

issue a search warrant authorising a police officer

(whether or not named in the warrant), with such

assistance, and by such force, as is necessary and

reasonable:

(a) to enter upon the land or upon or into the

premises;

(b) to search the land or premises for documents of the

kind referred to in subsection (1); and

(c) to seize any document found in the course of the

search that the police officer believes, on

reasonable grounds, to be a document of that kind.

(5) A Judge shall not issue a search warrant under

subsection (4) unless the Judge is satisfied that:

(a) the document involved cannot be identified or

described with sufficient particularity for the

purpose of obtaining a production order in respect

of the document;

(b) a production order has been given in respect of the

document and has not been complied with;

(c) a production order in respect of the document would

be unlikely to be effective because there are

reasonable grounds to suspect that such a

production order would not be complied with; or

(d) the investigation for the purposes of which the

search warrant is being sought might be seriously

prejudiced if the police officer does not gain

immediate access to the document without notice to

any person.

(6) A Judge shall not issue a search warrant under this

section unless:

(a) the informant or some other person has given the

Judge, either orally or by affidavit, any further

information that the Judge requires concerning the

grounds on which the search warrant is sought; and

(b) the Judge is satisfied that there are reasonable

grounds for issuing the search warrant.

(7) There shall be stated in a search warrant issued

under this section:

(a) 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;

(b) whether entry is authorized to be made at any time

of the day or night or during specified hours of

the day or night;

(c) a description of the kind of documents authorised

to be seized; and

(d) a date, not being later than one month after the

day of issue of the warrant, upon which the warrant

ceases to have effect.

(8) If, in the course of searching, under a warrant

issued under this section, for a property-tracking

document in relation to a particular offence, a police

officer finds:

(a) any document that the police officer believes, on

reasonable grounds, to be:

(i) a property-tracking document in relation to

the offence, although not of a kind specified

in the warrant; or

(ii) a property-tracking document in relation to

another indictable offence; or

(b) any thing that the police officer believes, on

reasonable grounds, will afford evidence as to the

commission of a criminal offence;

and the police officer believes, on reasonable grounds,

that it is necessary to seize that document or thing in

order to prevent its concealment, loss or destruction,

the warrant shall be deemed to authorise the police

officer to seize that document or thing.

[111]

65. The last of the arguments that are limited to the s.10 warrants are two small points that can be disposed of summarily. The first relates to the words used in paragraph 14 - "...and in the event that there are electronic data processing facilities...". Sub-section 10(1) talks of there being reasonable ground for suspecting that there is anything in or upon any premises etc. I do not see why the draftsman of the warrant chose to use the words "and in the event" but I fail to see how their presence affects the validity of the warrants. The second issue calls for a re-examination of the contents of paragraph 22 of the s.10 warrants. Mr. Abbott correctly pointed out that the language of the first three lines is taken from the provisions of para 10(1)(b) of the Crimes Act and he emphasised the presence of the word "believing" in that paragraph. However, noting the presence of the word "and" immediately following the words "against the laws of the Commonwealth", he said, again correctly, that the next three lines of paragraph 22 were taken from the provisions of para (10)(1)(a) and in that paragraph the relevant word was "suspected". As I understand it, Mr. Abbott argued that the conjunctive use of "believing" and "suspected" is at odds with the transcript of proceedings whilst Mr. Rozenes said that the presence of the word "and" was mere surplusage and should be ignored. I must say that I have failed to appreciate either argument. As to Mr. Abbott's proposition, I have already expressed the view that I cannot fault anything that the learned Magistrate said whilst he was questioning Det. Sgt. Mitson. As to Mr. Rozenes' argument, it would seem to me that the presence of the word "and" should not be ignored. It seems to me that paragraph 22 of the warrant is expressed clearly in that the Magistrate first expressed the requisite belief, based on reasonable grounds, that certain things will afford evidence and at the same time added that there were reasonable grounds for suspecting the commission of certain offences. The three paragraphs of sub.s 10(1) are disjunctive as is evident by the presence of the word "or" at the end of para (b). It would have been sufficient for the Magistrate to rely on one only of the three matters that are enumerated in those paragraphs. The fact that he chose to rely on two of the three matters is quite in order so long as there was material before him that justified such reliance. In my opinion that material was present. I therefore reject Mr. Abbott's argument and I also reject his claim that, as drafted, paragraph 22 of the warrant incorrectly referred to a suspicion as to "things" instead of a suspicion as to "offences".

[118]

69. The applicants claimed that the informant, when seeking the issue of the s.71 warrant and the s.10 warrants, failed to disclose all material information to the learned Judge and Magistrate. It was alleged that there was a "duty of candour" and that a failure to comply with that duty would, in appropriate circumstances, invalidate a warrant. Whilst not suggesting bad faith or malice on the part of the informant, Mr. Abbott argued that in each case the information was, in part misleading and, in part incomplete. Foremost in his argument was the admitted omission on the part of the informant to disclose the existence of a charter party agreement dated 10 October 1985 relating to the motor-vessel "DAITO MARU No. 18". It was agreed from the Bar table that neither Det. Sgt Mitson nor the Director of Public Prosecutions had any knowledge of the existence of this document at the time when the two informations were sworn but it was established by the affidavit of Mr. G.P. Allan, a chartered accountant and a partner in the firm of chartered accountants whose offices were the subject of the warrants, that he had "on or before February 1989" supplied a copy of that agreement to the Australian Taxation Office. The principle significance of the agreement is that it purports to show that Lukin and Sons only chartered the vessel whereas other documents presented in support of the warrants purported to evidence a purchase of the vessel by Lukin and Sons. Then it was claimed that the informations failed to disclose that much of the information, concerning the business affairs of the Lukin family and the Lukin group, had been volunteered by members of the Lukin family (or by their accountants on their instructions) to officers of the Australian Taxation Office. It was said that if the learned Judge had been made aware of this level of co-operation he might not have been persuaded that it was inappropriate to rely on production orders with respect to the premises of the legal and accounting representatives.

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)

Re Karina Fisheries Pty Ltd and Ors v Mitson and Ors [1990] FCA 154 (18 May 1990)

Parties

Legislation Cited (20)

Cases Cited (19)