It is not open to the applicants to challenge the sufficiency of the information that was placed before the Judge nor does the warrant have to contain a statement of the Judge's satisfaction with respect to the matters referred to in sub.ss 71(5) and (6) although it would be desirable to do so.

Suspicion and belief in the information - the fact that an informant imposes upon himself the higher standard or belief (when suspicion is all that is required) does not, per se, affect the validity of a warrant.

The purpose of the search warrant is to be expressly set out in the warrant as required by sub.s 71(7) - the purpose not being stated the warrant was invalid.

Suspicion and belief in the warrant - it is necessary for the warrant to contain a statement of belief about the indictable offences that are referred to in the warrant - a statement of suspicion is insufficient and invalidates the warrant.

A Judge of a Supreme Court is engaged in an administrative act when issuing a search warrant under the Proceeds of Crime Act.

The transcript of the proceedings before the issuing Magistrate did not show that he had adopted a wrong test or that the information of which he possessed was insufficient - the particularity in the information being sufficient one is entitled to assume that silence meant that the Magistrate was otherwise satisfied.

Notwithstanding the length of the warrant, it was not too wide.

Search Warrants - proceeds of crime act and crimes act

All warrants fairly and clearly described the relevant offences.

There is a duty on any informant to produce all material facts in support of an application for the issue of warrants. The informant had complied with that duty.

A declaration that the s.71 warrant was invalidly issued does not invalidate the s.10 warrants.

Mr. M. Nicholls

Solicitors for the Applicant: Nicholls Gervasi and Co

Counsel for the Respondents: Mr. Rozenes QC with

Ms. S. Pickham

Solicitors for the Respondents: Australian Government

Solicitor

The applicants in this matter are Dinko Lukin, his wife Ann, their sons Dean and David and a company in the Lukin group of companies, Karina Fisheries Pty. Ltd. ("Karina Fisheries"). The case, which encompasses four separate sets of proceedings, challenges the validity of 12 search warrants that were issued pursuant to s.10 of the Crimes Act, 1914 (the "s.10 warrants") and a further warrant that was issued pursuant to s.71 of the Proceeds of Crime Act, 1987 (the "s.71 warrant"). The s.10 warrants issued in respect of 8 different addresses and 4 motor vehicles and the s.71 warrant issued in respect of 5 of the above 8 addresses. The 5 addresses that were common to both warrants were the home of Mr. and Mrs. Dinko Lukin, certain business premises owned by Orao Pty. Ltd. (another company in the Lukin group) used, in part, for the purposes of processing and storing fish and fish products, the Adelaide office and the Port Lincoln branch office of the solicitors for the applicants and the Adelaide office of the South Australian accountants for the applicants. In the events that transpired, not all warrants were executed and in some cases, although warrants were executed, nothing was seized. However documents were seized pursuant to both warrants from the Lukins' home, the business premises and the branch office of the solicitors; other documents were seized under the s.10 warrants from the offices of the South Australian and New South Wales accountants for the applicants.

2. The s.10 warrants issued as a consequence of a sworn information that there were reasonable grounds for suspecting that the applicants had committed certain offences. Briefly stated, they were two counts of conspiracy - the first to defraud the Commonwealth; the second to prevent the enforcement of a law of the Commonwealth - by failure to include income derived from the sale of seafood in Japan in certain taxation returns of Karina Fisheries; a third count of omitting to record in the accounting records of Karina Fisheries that same income with the intention of defeating the purposes of a taxation law; and the fourth and final count of defrauding the Commonwealth by failing to include the same income in the taxation returns of Karina Fisheries. The same four offences were referred to, although not in identical terms, in the s.71 warrant.

3. The Justice of the Peace who issued the s.10 warrants and the Judge of the South Australian Supreme Court who issued the s.71 warrant were named as respondents in the appropriate proceedings. Their counsel, Mr. Chivell, informed the Court that his clients would abide by any order that the Court might make. Having so advised, he sought and obtained leave to withdraw from the proceedings. The remaining respondents are members of the Australian Police Force to whom the various warrants were directed. Only Det. Sgt Mitson played a material part in arranging for the issue of the warrants; he was the informant in each case and it was he alone of the other respondents who appeared before the Justice and the learned Judge. As a matter of convenience it seems sufficient to refer hereafter to "the respondents" as meaning the police officers named in the warrants.

4. As is so often the case, many arguments were based upon the contents of the warrants and some centred upon alleged material omissions and incomplete information. Hence, although they are lengthy, it is necessary to reproduce the substance of both warrants. As the twelve s.10 warrants are identical save for the references to the various addresses and the motor vehicles, the particular warrant that was identified with the number 90009, and which related to a home unit at Plympton, is a sufficient sample of all the s.10 warrants. It appears, in abbreviated form, as appendix No. 1 to these reasons and the s.71 warrant, also abbreviated, is appendix No. 2.

5. The s.10 warrants issued on 9 February 1990; the issuing Justice was a Special Magistrate who is attached to the Adelaide Magistrates' Court. In accordance with the provisions of para 71(1)(c) of the Proceeds of Crime Act, a Judge of the South Australian Supreme Court issued the s.71 warrant; this occurred four days later on 13 February. All warrants that were executed were executed at their various locations on the following day, 14 February 1990.

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.

7. On 15 February 1990, the applicants issued the first of the four sets of proceedings - the remaining three actions were commenced within the next few days. In separate actions they sought declarations that the s.10 warrants and the s.71 warrant were "of no application, force, validity or effect", orders "setting aside" the search warrants, orders for the return of the seized documents, an injunction restraining the respondents from "in any way dealing with any of the documents" that had been seized and damages. The other two actions sought compatible relief under the Administrative Decisions (Judicial Review) Act (1977) in respect of the separate decisions to issue the separate warrants. Having regard to the manner in which Mr. Abbott QC and Mr. Nicholls of counsel for the applicants presented argument and the conclusions that I have reached, it will not be necessary to differentiate between the various proceedings. It will be sufficient to identify the various issues as they were developed in the course of argument. Before turning to the substantive arguments, it only remains necessary to mention that the respondents have, pursuant to an order made on 5 March 1990, lodged all seized documents with the Court pending a final determination of all matters.

Proceeds of Crime Act

8. The principal objects of this Act are expressed (inter alia) in sub.s 3(1) in these terms:-

"(a) to deprive persons of the proceeds of, and

benefits derived from, the commission of offences

against the laws of the Commonwealth or the

Territories;

(b) to provide for the forfeiture of property used in

or in connection with the commission of such

offences; and

(c) to enable law enforcement authorities effectively

to trace such proceeds, benefits and property."

9. Part II of the Act, entitled "Confiscation", empowers the Director of Public Prosecutions in the limited circumstances specified in s.14 to apply to an appropriate court for a "forfeiture order". That forfeiture order, if obtained, will be based upon a conviction and will be in respect of property that is described in the legislation as "tainted property", an expression that is defined in sub.s 4(1) as meaning:-

"(a) property used in, or in connection with, the

commission of the offence; or

(b) proceeds of the offence;

and when used without reference to a particular offence

means tainted property in relation to an indictable

offence; "

10. To enable the law enforcement agencies to pursue the objects of the legislation, Part IV is devoted to the granting of certain powers which take their flavour from the title "Information Gathering Powers". The first such power is the obtaining of a "production order" under s.66. For example, where a police officer has reasonable grounds for suspecting that a person has committed an indictable offence and also has reasonable grounds for suspecting that that person or some other person has possession or control of "property-tracking documents" in relation to the offence, the officer is empowered to seek from a Judge of a Supreme Court and, subject to due compliance with the provisions of the section, obtain an order that the relevant person either produce or make available for inspection any documents that are properly classified as "property-tracking documents".

11. The expression "property-tracking document" is defined in sub.s 4(1) in this manner:-

"'property-tracking document', in relation to an

offence, means:

(a) a document relevant to:

(i) identifying, locating or quantifying property

of a person who committed the offence; or

(ii) identifying or locating any document necessary

for the transfer of property of a person who

committed the offence; or

(b) a document relevant to:

(i) identifying, locating or quantifying tainted

property in relation to the offence; or

(ii) identifying, or locating any document

necessary for the transfer of tainted property

in relation to the offence;"

12. The breadth of para (b) of the definition is immediately apparent when its contents are compared with those of para (a); that is limited to documents that are relevant to property that is or was the property of the person "who committed the offence". No such limitation is contained in para (b) - it extends to documents that are relevant to "tainted property in relation to the offence" irrespective of questions of ownership, possession or control.

13. Other "Information Gathering Powers" that are contained in Part IV of the Act are "Search powers": (Division 2): "Monitoring orders": (Division 3): and "Obligations of financial institutions": (Division 4). It is with "Search powers" and, in particular, the provisions of s.71 that this litigation is concerned. Having regard to the many arguments that have been mounted against the s.71 warrant, it is necessary to set out the lengthy provisions of that section:-

"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.

14. Mr. Abbott's first argument, to the effect that there had been a failure to comply with the provisions of s.71 in the preparation of the s.71 warrant, was based upon the premise that Det. Sgt Mitson, in his capacity as the informant, was not only required to have reasonable grounds for suspecting that there were property-tracking documents in relation to an indictable offence within the relevant premises: (sub.para 71(1)(b)(ii)), he was also required to disclose to the learned Judge the exact nature of the documents that were sought. This issue was said to arise by virtue of the manner in which a "property-tracking document" is defined in sub.s 4(1). Mr. Abbott highlighted the fact that the definition comprised two separate paragraphs; he argued that para (a) could not apply to his clients, pointing out that both of its sub-paragraphs referred to "a person who committed the offence". His claim was that the most that could be said of his clients was that a police officer had deposed that he had reasonable grounds for suspecting that they had committed certain specified indictable offences. Hence, so the argument concluded, his clients, who were only the objects of suspicion, could not be classified as persons who had committed offences.

15. The next aspect of this same argument noted that para 4(1)(b) of the definition of "property-tracking document" contained two components, each of which referred to "tainted property" and that the definition of "tainted property" meant one of two things - it might be property that had been used in the commission of an offence or it might be the proceeds of the offence. These observations were said to lead to the conclusion that there might have been one, two, three or four types of "property-tracking documents" that were the subject of the informant's suspicions and that he was therefore required to let the learned Judge know, in clear and precise terms, which type or types of documents was or were the object of his suspicions.

16. These arguments must be rejected; they can not stand for the reason that a warrant can justifiably issue as a result of a suspicion: para 71 (1)(b). Knowledge is not required. It stands to reason that on numerous occasions a police officer might hold a suspicion that is based on reasonable grounds that documents are to be found within certain premises but it transpires that there are no documents at that place. But that does not mean that the requisite suspicion was not truly and honestly held upon reasonable grounds. There is a further answer to this argument; para 71(1)(a) refers to a conviction for an indictable offence and to the police officer having reasonable grounds for suspecting that there is a property-tracking document "in relation to the offence"; on the other hand, para 71(1)(b) relates merely to a suspicion that a person has committed an indictable offence. Yet sub-para 71(1)(b)(ii) refers to "a property-tracking document in relation to the offence". In my opinion the words "in relation to the offence" in para 71(1)(a) mean "in relation to the actual offence" but in sub-para 71(1)(b)(ii) mean "in relation to the suspected offence". This distinction should, for consistency, be carried over to the definition of "property-tracking documents" in sub.s 4(1) so that it relates to an actual or a suspected offence, as the case may be. The fallacy in this particular argument arose from reading the words "a person who committed the offence" as if they meant "a person who has been convicted of the offence".

17. Mr. Abbott's next point was that the learned Judge could not have been satisfied of the existence of property-tracking documents in the various premises given the grounds that were set out in the information. Those grounds were that officers of the Taxation Office had on earlier occasions visited the home and business premises and had sighted documents that fell within the definition. That would seem to me to be an overwhelming justification for the requisite suspicion. As to the solicitors' and accountants' premises, the informant had this to say:-

"The informant believes that it is standard professional

practice for solicitors and accountants to maintain

files containing information and documents relating to

the property and affairs of their clients."

18. That belief was deposed to on oath; it could not be classified as an unlikely or unreal belief; such a belief could engender the requisite suspicion. If it is possible, as a matter of law, to question the learned Judge's measure of satisfaction, the applicants have not advanced any argument that would warrant doing so. To suggest, as Mr. Abbott suggested, that the learned Judge should have been told the exact details of the documents that had been sighted is once more indicative of the mistaken belief that the application for the warrant is to be based on knowledge as distinct from suspicion on reasonable grounds.

To whom may a s.71 warrant issue

19. Sub-section 71(4) authorises a Supreme Court Judge, in the circumstances contemplated by the legislation, to "issue a search warrant authorising a police officer (whether or not named in the warrant)..." to enter, search and seize.

20. The case for the applicants included an argument that the s.71 warrant was bad because it was directed to 8 named members of the Australian Federal Police and to "all members of the Australia Federal Police whether named above or not". The warrant, it was submitted, should have been limited to one named or described police officer. As I understand it, this argument did not extend to the s.10 warrants, all but one of which were directed to 2 named police officers.

21. No authority was advanced in support of this proposition and I see no reason why the singular should not include the plural: Acts Interpretation Act (1901) (s.23(b)). I note that the Acts Interpretation Act was used in Coward v Allan [1984] FCA 53; (1984) 52 ALR 320 at pp 329-330 to read the word "offence" in s.10 of the Crimes Act in the plural.

22. The provisions of these two sub-sections state that a "Judge shall not issue a search warrant" unless he is satisfied of one or other of the four matters referred to in paras (a) to (d) of sub.s 71(5) and unless he is "satisfied that there are reasonable grounds for issuing the search warrant:" (para 71(6)(b). Furthermore para 71(6)(a) states that he shall not issue a search warrant 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;"

23. I will deal first with Mr. Abbott's complaint about the alleged failure to comply with para 71(6)(a) and then return to the question of the Judge's "satisfaction". It was disclosed in the affidavit of Mr. Nicholson, a principal legal officer employed in the Adelaide office of the Director of Public Prosecutions, that he appeared with Det. Sgt. Mitson before the learned Judge when application was made for the issue of the s.71 warrant. He said that his Honour sought and obtained an assurance that the "Guidelines on the Execution of Search Warrants on Lawyers' Premises" as agreed between the Australian Federal Police and the Law Council of Australia would be complied with. Mr. Nicholson also deposed that he informed the learned Judge that the sworn information that had been laid before him wrongly referred to 82 Tasman Avenue: the proper address was 82 Tasman Terrace. Mr. Nicholson added that this error "had been corrected in the draft warrants". Based on these two issues, Mr. Abbott argued that there had been a failure to comply with the provisions of para 71(6)(a) in that "further information that the Judge required concerning the grounds on which the search warrant (was) sought" had not been given to him on oath. There are several answers to this proposition. First, paragraph 10 of the sworn information addressed the question of the guidelines:

"10. In consequence of the fact that a warrant is

sought pursuant to this information to authorise the

search of premises occupied by a firm of solicitors the

informant undertakes that if any claim for legal

professional privilege is made, then, so far as is

reasonably practicable, the course of action set out in

the 'Guidelines on the Execution of Search Warrants on

Lawyers' Premises' as agreed between the Law Council of

Australia and the Australian Federal Police is to be

adopted. A copy of such guidelines is annexed hereto

and marked with the letter 'G'."

24. At the most, his Honour was seeking no more than an assurance or a re-affirmation from Det. Sgt Mitson and Mr. Nicholson that the guidelines would be adhered to. He was not seeking information. Next, the advice by Mr. Nicholson to his Honour of the change in the draft warrant from "Avenue" to "Terrace" was just that - advice from the solicitor for the informant; it was not information sought by the learned Judge. Finally, if one or other of these matters could be classified as "information that the Judge require(d)" then by no stretch of the imagination could it be classified as "information" that was required "concerning the grounds" on which the search warrant was sought.

25. For the sake of completeness, I note that no question of legal professional privilege arose in these proceedings.

26. It is common ground that the s.71 warrant does not disclose on its face that the learned Judge was satisfied about any of the matters referred to in sub.s 71(5) or para 71(6)(b). This, said Mr. Abbott, was a fatal omission. In support of his argument he referred to a variety of authorities but, in essence, his claim was twofold. First, he said that the sworn information should have contained sufficient and appropriate details that would justify the issuing Judge having, in respect of the relevant subject matters, the requisite degree of satisfaction Secondly, the warrant should have contained appropriate statements to the effect that the learned Judge was so satisfied. In support of this latter proposition Mr. Abbott relied upon the views expressed by Fox J. in The Queen v Tillett; Ex parte Newton (1969) 14 FLR 101 where his Honour said at p 106:-

"It is said that I should infer that he was satisfied of

the relevant matters because sworn oral evidence was

given before him which, if accepted, could be

sufficient proof and because he thereafter issued the

warrant. There are, I think, several reasons why I

should not do so. In the first place there is no

presumption of regularity in such a case. Associated

with this consideration is the principle that a warrant

issued by subordinate authority should disclose

jurisdiction on its face."

27. Mr. Abbott also referred to the judgment of Burt J. (as he then was) in Morse and Thompson v Harlock (1977) WAR 65 at 73 as an example of the authorities that state that one cannot "go behind the record to ascertain from the magistrate whether in fact there appeared to him reasonable grounds for the required belief". In addition, there are the comments of Jacobs J. in Tran Nominees v Scheffler (1986) 42 SASR 361. His Honour said, with respect to a warrant that had been issued under the hand of an Inspector of Police:-

"... and I can see no reason why, consistently with the

general principles enunciated earlier, the Court should

be astute to sustain the warrant by attributing to the

issuing officer a state of satisfaction which, on the

face of the warrant, he does not claim to have had."

(p 373)

But Mr. Rozenes QC, of counsel for the respondents, denied that there was any rule of law or practice that required a Supreme Court Judge (as distinct from a Justice of the Peace or a Special Magistrate or an Inspector of Police) to set out, in any warrant issued under his hand, that he had achieved the necessary state of satisfaction. He referred to and relied strongly upon the views expressed by the majority in Reg v I.R.C. Ex parte Rossminster (1980) AC 990. In that case warrants were issued by a circuit Judge to officers of the Inland Revenue under s.20C of the Taxes Management Act 1970, as amended. Sub-section (1) of that section provided:-

"(1) If the appropriate judicial authority is satisfied

on information on oath given by an officer of the board

that - (a) there is reasonable ground for suspecting

that an offence involving any form of fraud in

connection with, or in relation to, tax has been

committed and that evidence of it is to be found on

premises specified in the information; and (b) in

applying under this section, the officer acts with the

approval of the board given in relation to the

particular case, the authority may issue a warrant in

writing authorising an officer of the board to enter

the premises, if necessary by force, at any time within

14 days from the time of issue of the warrant, and

search them."

28. It will be noted that the judicial authority had to be satisfied about three matters: first, that there was reasonable ground for suspecting that a certain type of offence had been committed, secondly, that there was reasonable ground for suspecting that evidence of the commission of the offence was to be found on premises specified in the information, and lastly, he had to be satisfied that the officer who swore out the information did so with an appropriate approval of the board. The warrants in Rossminster's case did not state that the circuit Judge had satisfied himself of the three matters set out in sub.s 20C(1) but Viscount Dilhorne noted at p 1004 that the Act did not say that the warrant "must state that requirements for its issue (had) been complied with". His Lordship concluded that the omission did not invalidate the warrants although he went on to add that he thought it "most desirable" that such a warrant "should make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with..." (p 1004). Lord Wilberforce came to the same conclusion and expressed the same sentiments:-

"It would be wise to add to it a statement of

satisfaction on the part of the judicial authority as

to the matters on which he must be satisfied but this

is not a requirement and its absence does not go to

validity." (p 1000)

"It is not, in my view, open to your Lordships to

approach the instant case on the assumption that the

Common Serjeant did not satisfy himself on both these

matters, or to imagine circumstances which might have

led him to commit so grave a dereliction of his

judicial duties. The presumption is that he acted

lawfully and properly; and it is only fair to him to

say that, in my view, there is nothing in the evidence

before your Lordships to suggest the contrary; nor,

indeed, have the respondents themselves so contended."

30. In the case at bar, the contents of the information addressed the provisions of sub.s 71(5) by stating in paragraph 8:

"The informant further informs me that the investigation

for the purposes of which the warrants are being

sought might be seriously prejudiced if access is not

gained to the documents without prior notice to any

person and that a production order under Division 1 of

Part IV of the Proceeds of Crime Act 1987 in respect of

the documents would be unlikely to be effective because

there are reasonable grounds to suspect that such a

production order would not be complied with."

31. An examination of the language of paragraph 8 of the information shows that the draftsman, in general terms, tracked the provisions, first of para 71(5)(d) and then of para 71(5)(c). A complaint was made that para 71(5)(d) referred to "immediate access to the document" whereas the warrant only referred to "access". I can not see that the omission of the word "immediate" is critical. Mr. Abbott was understandably ready to criticise that part of paragraph 8 (in its application to the solicitors and the accountants) where it was alleged that "there are reasonable grounds to suspect that such a production order would not be complied with". Mr. Abbott asked what was the justification for such a suspicion? None was stated in the information. The short answer to this question is that the learned Judge obviously regarded himself as satisfied in the terms of para 71(5)(c). I have no difficulty in coming to the conclusion that the learned Judge, conscious of his responsibilities, applied his mind to the statutory provisions that were pre-conditions to his decision to issue the warrant. There only remains the question whether the draftsman, of the warrant that was presented to his Honour for execution, should have included in it statements of satisfaction in respect of the matters that I have identified.

32. I have come to the conclusion that it was not necessary for the warrant to include these matters. I believe that it is proper to draw a distinction between warrants issued by a Justice of the Peace or a Special Magistrate or an Inspector of Police on the one hand and a Supreme Court Judge on the other (I couple Justices of the Peace and Magistrates together because a Magistrate, when issuing a warrant, does so in his capacity as a Justice of the Peace). Newton's case (supra) has been quoted with approval on numerous occasions and I am not to be taken as attempting to question that decision. I accept that a warrant that is issued by a Justice is not protected by any presumption of regularity. It is a matter of general principle that any such warrant must be valid on its face and it must show that all conditions precedent have been complied with. But Rossminster's case shows that in the United Kingdom the House of Lords was prepared to grant a presumption of regularity to a circuit Judge. Rossminster's case has been referred to on several occasions in decisions of this Court. In fact, on the question of the need to particularise the suspected offence, its application in Australia has been questioned: (see Optical Prescription Spectacle Makers Pty. Ltd. v Withers (1987) 13 FCR 594 and Pressler v Holzberger (unreported: judgment delivered 4 August 1989). However so far as I am aware, the majority views of the House of Lords on the question of presumption of regularity in favour of a superior judicial officer have not been the subject of express comment in this Court.

33. It is understandable that, in the case of a Justice of the Peace issuing a s.10 warrant, there should be no presumption of regularity. Lockhart J. pointed to the reasons (in a different context) in Crowley v Murphy [1981] FCA 31; (1981) 34 ALR 496 at pp 514-515 when he said:

"Justices of the peace are a numerous and eclectic class

of persons in Australia without any requirement of

legal training. Doubtless they perform valuable public

functions; but the dangers inherent in investing them

with judicial powers when there is no necessity for

judicial qualifications are obvious."

34. The same cannot be said of a Supreme Court Judge. Parliament has recognised that the powers contained in the Proceeds of Crime Act seriously affect the rights of citizens, many of whom, such as bankers and professional advisers, will be innocent of any wrong doing whilst nevertheless affected by virtue of some association with, or connection to, another person who is suspected of a criminal offence. Those extensive powers caused Parliament to place in the hands of a Supreme Court Judge the ultimate responsibility of satisfying himself that certain conditions exist or have been fulfilled and that there are reasonable grounds for the search warrant. But that is not to say that thereby, the same rules will apply as apply to a Justice of the Peace. For these reasons, I have concluded that there is a presumption of regularity with respect to a warrant that is issued by a Supreme Court Judge pursuant to s.71 of the Proceeds of Crime Act and that it is not therefore necessary for the warrant to contain statements of the learned Judge's satisfaction. However, I respectfully concur with the views expressed by Lord Wilberforce and Viscount Dilhorne; I suggest that it would be of some comfort to those who might be affected by such a warrant if the warrant contained appropriate statements of the Judge's satisfaction.

35. In Murphy v The Queen [1989] HCA 28; (1988-1989) 167 CLR 94, the High Court considered when, if at all, the circumstances of the grant of a warrant could be investigated during the course of a criminal trial. In concluding that no such investigation should be permitted, Mason C.J. and Toohey J. said in their joint judgment at p 105:

"The question is whether the presumption of validity

could be displaced by a collateral attack upon the

warrant founded on an alleged insufficiency of the

materials placed before the Supreme Court by the

applicant for the warrant. There was no challenge to

the jurisdiction of the Supreme Court to grant a

warrant; counsel sought to challenge the sufficiency of

the grounds on which the warrant had been granted.

This attack on the warrant was misconceived. The

admissibility of the evidence of Miss X depended on the

existence of the warrant, not on the sufficiency of the

grounds for granting it. In McArthur v. Williams

(1936) 55 CLR 324 where the validity of a

magistrate's warrant of arrest was in question, Dixon,

Evatt and McTiernan JJ., referring to the necessity for

a sworn information or complaint to found the issue of

a warrant, said (1936) 55 CLR, at pp 365-366:

'But it has never been considered that the

validity of the warrant could depend upon the

nature or sufficiency of the materials upon which

a magistrate granted the warrant if there was an

information on oath before him which, however

irregular, was not a nullity... In general the

sufficiency or character of materials which are

required for the purpose of exercising a

discretion is not a matter upon which the validity

of the discretionary act is made to depend (cf.

Cooper v. Booth [1785] EngR 7; (1785) 3 Esp 135, at p 144 (170

ER 564, at pp 567, 568)."

36. I have concluded that the remarks in McArthur v Williams contained the answer to the balance of Mr. Abbott's argument. It is not open to the applicants to challenge the sufficiency of the information that was placed before the learned Judge.

37. Para 71(1)(b) refers to a police officer having reasonable grounds for suspecting that a person has committed an indictable offence. On the other hand sub.s 71(7) requires the search warrant to contain a reference to the nature of the indictable offence that has been or is believed to have been committed. This change in emphasis - from suspicion about the identity of the offender to belief about the nature of the indictable offence - formed the basis of a further argument advanced by Mr. Abbott. An examination of the information that was laid in support of the application for the s.71 warrant shows that although Det. Sgt. Mitson suspected the existence of "property-tracking documents" he nevertheless claimed that he had "reasonable grounds for believing" (not suspecting) that the five named parties had committed the indictable offences that were specified in the information.

38. This switch in language in the information showed, said Mr. Abbott, that the wrong test had been applied by Det. Sgt. Mitson. There can be no doubt that suspicion is not the same as belief:-

"Although the learned Magistrate is required only to

have reasonable grounds for belief, it seems to me that

he has adopted a lesser standard of suspicion rather

than the standard of belief."

(Seven Seas Publishing Ltd v Sullivan (1968) NZLR

663 per McGregor J. at p 667; Morse and Thompson v

Harlock (supra) per Burt J. at p 73)).

39. In Morse and Thompson v Harlock the search warrant that was under attack said that the issuing Justice was satisfied that there were reasonable grounds for suspecting that there were certain documents at certain places "which will afford evidence...". The warrant should have used words to the effect "as to which there are reasonable grounds for believing that they will afford evidence...". Hence, even though the Justice would have been justified in issuing the warrant so long as he had reasonable grounds for believing that the documents will afford evidence, he purported to lay down a stricter test by stating a higher standard - that is, by stating that the documents will afford evidence. The warrant in Morse and Thompson v Harlock was held to be invalid and Mr. Abbott claimed that the decision was therefore authority for the proposition that a warrant will be struck down as bad when the wrong test is used - even though the wrong test is a higher test. I do not believe that the remarks of Burt J., upon which Mr. Abbott relied, are authority for the proposition that he advocated. What his Honour said at p 73 was this:-

"The learned Solicitor-General submitted to us that that

does not matter, his submission being that on a fair

reading of the warrant, and as a matter of construction

of it, the magistrate held the existence of reasonable

grounds for suspecting the presence of the things - the

documents - in the place, and that he made a positive

finding that the documents 'will afford evidence of the

commission of an offence' and, this being so, it must

necessarily have appeared to him that there were

reasonable grounds for believing that those things will

afford evidence of the commission of an offence. As to

that I can only say that I do not construe the document

in that way and I am not prepared to make the

implication which, as it seems to me, one must make to

extract that meaning from it. In my opinion the

reasonable grounds spoken of in the warrant go no

further than to sustain a suspicion both as to the

presence of the things in the place and as to the

relevant character of those things." (emphasis added)

40. This does not mean (as was argued) that Burt J. was not prepared to hold that the words "will afford evidence" could not encapsulate the requisite belief; rather his Honour interpreted the warrant by reading it down so that it went no further "than to sustain a suspicion". Furthermore, it was the warrant in Morse and Thompson v Harlock that contained the incorrect language - not the information that was sworn in support of the warrant. What has been challenged in this case is the language of the information - in this particular argument, the language of the warrant is not under attack.

41. In the application for the s.71 warrant, the informant only had to state in the information that he had "reasonable grounds for suspecting". The fact that he imposed upon himself, when swearing out his information, the higher standard of belief does not, per se, affect the validity of the warrant. This problem of suspicion and belief will also have to be addressed separately, at a later stage of these reasons, with respect to the contents of the warrant.

42. Sub-section 71(7) of the Proceeds of Crime Act requires that "there shall be stated in a search warrant issued under this section" the various matters that are referred to in paras (a) to (d) of that sub-section. The applicants acknowledged that this provision had been partially complied with in so far as it included particulars of the time of entry and the duration of the warrant. However Mr. Abbott claimed that the warrant was deficient in that it omitted "a statement of the purpose for which the warrant (was) issued;" he claimed that this omission was fatal. In response, Mr. Rozenes claimed that the purpose of the warrant was to authorise entry, search and seizure and that the relevant purpose was apparent on the face of the warrant by having regard to the words of the warrant appearing at page 5:-

"YOU ARE HEREBY AUTHORISED with such assistance and by

such force as is necessary and reasonable:-

(a) to enter at any time of the day or night upon the

land or upon or into the premises specified

above;

(b) to search such land or premises for any property

tracking documents specified above in relation to

the offences;

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

search that you believe on reasonable grounds to

be a property tracking document in relation to

the offences.

AND for so doing this shall be your sufficient warrant."

43. Mr. Rozenes pointed to the provisions of the National Crime Authority Act; s.22 of that Act deals with the subject of "Search Warrants" and sub.s 22(5) requires that:-

"(5) A warrant issued under this section shall -

(a) include a statement of the purpose for which

the warrant is issued..."

44. Regulations made under the National Crime Authority Act contain, in Form 1 of Schedule 1, the form of the warrant that is to be issued under s.22 of that act (no such form is prescribed by the Proceeds of Crime Act or by any regulations made under that Act). As Mr. Rozenes correctly pointed out, Form 1 of Schedule 1 does not provide for the inclusion of a statement which contains the words "Statement of the purpose for which the warrant is issued" or, indeed, any like words. Like the warrant at bar, its purpose, according to his argument, was to be ascertained by the completion of the last part of the form:-

"YOU ARE HEREBY AUTHORISED, with such assistance as you

think necessary and if necessary by force

(c) to enter *upon/*into/the above-mentioned

*between the hours of and

*at any time of the day or night:/

(d) to search the for connected with the

matter specified in the Schedule: and

(e) to seize any connected with the matter

specified in the Schedule found *upon/*in/the

and deliver them to the Authority."

45. When the s.71 warrant is read in its entirety, it may be fairly summarised in these terms:- the learned Judge was satisfied that there were reasonable grounds to suspect that the five parties named in the warrant had committed the four offences that were therein referred to; the warrant next stated that there were reasonable grounds for suspecting that there were property-tracking documents in relation to the offences of the kind thereafter specified upon the lands or premises at the five listed addresses; then the warrant proceeded to give the authorization to enter, search and seize and concluded by stating that the warrant shall cease to have effect on 28 February 1990. When regard is had to such a summary of the warrant it is not readily apparent that the purpose for which the warrant was issued was clearly stated.

46. This proposition is best tested by viewing the exercise through the eyes of a stranger such as a banker or a professional adviser. They would know from reading the warrant that it had been issued under the Proceeds of Crime Act; they would also know of the identity of the parties who were suspected of having committed certain nominated offences; they would know the nature of the documents that might be the subject of search and seizure and the premises that can be entered. But would they know the "purpose" for which the warrant was issued. The first definition of the word "purpose" in The Macquarie Dictionary is "the object for which anything exists or is done, made, used, etc". In the Shorter Oxford English Dictionary the first meaning attributed to the word is "The object which one has in view". Both authorities also refer to "intention" as well. It seems to me that any stranger affected by such a warrant (and its application to documents in his premises) is entitled to ask "what is intended by the issue of this warrant?: what is its object?: what is its purpose?" and the answer to these questions must be apparent from a reading of the warrant. To say that the object of the warrant is to enter and search the premises specified in the warrant and to seize documents of the kind listed in the warrant that are found in the premises so long as those documents relate to the suspected persons and the suspected offences, does little more than summarise the powers of entry, search and seizure that are contained in s.70. It tends to make the requirements of sub.s 71(7) superfluous.

47. I have concluded that I do not know the purpose for which this warrant issued. Assumptions could perhaps be made but it is not sufficient to make assumptions. As Fox J. said in Newton's case:-

"(T)he search must have a purpose and what may be

searched as relevant to one purpose may, or may not, be

as extensive as that which has to be searched as

relevant to another purpose." (p 113)

48. Another reference to the purpose of a warrant appears in the judgment of Jackson J. in Parker v Churchill [1986] FCA 88; (1986) 65 ALR 107 where his Honour said with respect to a s.10 warrant:-

"... it may well be that one of the purposes of

obtaining the search warrant is to obtain evidence to

identify the perpetrator of the offence is question."

(p 118)

49. I refer also to remarks of Pincus J. in OPSM v Withers set out below under the heading "Sufficiency of Grounds".

50. The short answer to this problem is that only the informant, his colleagues and advisers knew what was the object of the warrant. This should have been stated in the information so that, in turn, the purpose could be set out in the warrant. The absence of a statement of the purpose for which the warrant was issued means that the warrant was thereby deficient.

51. I do not suggest that it is essential that the word "purpose" be used although adherence to the language of the Statute would undoubtedly be the wisest course. The requirement of sub.s 71(7) that there shall be stated in the warrant "a statement of the purpose for which the warrant is issued" is clear and unambiguous. In addition it accords with a construction which would promote an object of the legislation - in this case, the object of informing a person, particularly a stranger, who might be affected by the warrant, of the purpose for which the warrant was issued: (see generally the remarks of Dawson J. in Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 at p 30).

52. I have also come to the conclusion that there is another deficiency in the s.71 warrant. I have earlier referred to para 71(1)(b); it permits a police officer to lay before a Supreme Court Judge an information on oath setting out his reasonable grounds for suspecting that a person has committed an indictable offence. Even so, when the time comes to issue a warrant, para 71(7)(a) calls for the inclusion in the warrant of "a reference to the nature of the indictable offence that has been or is believed to have been committed." What was relied on by Mr. Abbott was the fact that the warrant did not contain a reference to the nature of the indictable offences that had been or were believed to have been committed. As I have earlier explained when considering the question of "purpose", the draft warrant that was presented to the learned Judge only stated that there were reasonable grounds to suspect that the named persons or entities had committed the four indictable offences that were set out in the warrant. I construe the statement of suspicion that is contained in the warrant as applying not only to the persons or entities but also to the words "have committed indictable offences against the laws of the Commonwealth, ...".

53. It was quite appropriate to refer in the warrant to suspicion when naming persons or entities. But it was necessary to state, independently of the suspicions as to the identities of offenders, a belief as to the nature of the indictable offences that have been committed. This statement of belief does not appear and its omission constitutes a failure to comply with the provisions of para 71(7)(a).

54. It remains to mention the proper classification of the actions of the learned Judge in issuing the s.71 warrant. Much time was devoted to this subject during the hearing and I mean no disrespect to the many arguments that were advanced by not referring to them in detail. But it seems to me that the decision of the High Court in Love v Attorney-General (N.S.W.) (1990) 90 ALR 322 resolves this matter. That case dealt with the issue by Supreme Court Judges of warrants under Pt.4 of the Listening Devices Act 1984 (NSW). In a joint judgment, the Court held that neither the power to issue nor the act of issuing the relevant warrant was a judicial act. The Court said that it being an administrative act, "... the ambit of the warrant must be determined in the light of the scope of the power conferred upon the Court by the Statute:" (p 327). I believe that those remarks apply with equal force to a warrant that is issued by a Supreme Court Judge under s.71 of the Proceeds of Crime Act. Although he must act judiciously, the Judge is nevertheless engaging in an administrative act. His decision to issue the warrant is reviewable by this Court under the Administrative Decisions (Judicial Review) Act and the principal of severance, if needed, could be applied to any warrant issued under the Proceeds of Crime Act.

55. Having regard to the decisions that I have reached, the question that must be determined is the relief (if any) that should be granted to the applicants. It may be that there is reposed in the Court a discretion not to grant any relief notwithstanding the nature of the deficiencies that I have identified. Even though that might be the case, I do not think that it would be appropriate to exercise any such discretion favourably to the respondents. The view that I have taken is that the draft warrant that was compiled by those representing the respondents contained two material omissions. They were, perhaps, omissions that were not readily noticeable and I concede that there was nothing before me to suggest that they were deliberate. Indeed, I am quite willing to accept them as accidental slips or omissions. On the other hand, I regard the need to comply with the provisions of para 71(7)(a) as a matter of prime importance; I regard the omissions as fatal. I decline to exercise, in favour of the respondent, any discretionary powers that I may possess. It would seem to me that the correct course of action would be for me to make a declaration that the s.71 warrant is invalid. Section 21 of the Federal Court Act 1976 (Cth) contains an express power to grant declaratory relief in matters in which this Court has original jurisdiction. Although the learned Judge was a member of the South Australian Supreme Court, he was nevertheless exercising Federal jurisdiction in relation to a warrant that was allegedly issued under the Proceeds of Crime Act - a federal Statute (c.f. OPSM v Withers (supra) per Pincus J. at p 596). I am therefore prepared to make the necessary declaration; I will hear counsel as to any consequential matters that might arise from the making of such a declaration and I will reserve to both parties the right to speak to the minutes.

Section 10 Warrants

56. Some arguments relating to the s.71 warrant (which I have not yet identified) are common to both warrants. I will consider these separately after first dealing with those matters that are peculiar to the s.10 warrants. Sub-section (1) of that section provides as follows:-

"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

(c) anything as to which there is reasonable ground

for believing that 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."

57. Each of the s.10 warrants claims in its opening lines that the Magistrate, in his capacity as the issuing Justice of the Peace, was satisfied "by information on oath placed before me this date (sic) that there are reasonable grounds for suspecting that there is in or upon premises situated at (the nominated address in the warrant) certain things..." So expressed, the wording of the warrant generally tracked the language contained in the opening lines of sub.s 10(1). Then a sequence of paragraphs numbered 2 to 20 contains detailed descriptions of various types of documents and things. However, in paragraph 20, the "things" are qualified by the words "which pertain to, arise out of, are connected with or relate to the affairs of one or more of the " 26 persons or entities named in paragraph 21. Paragraph 22 then commences with words quoted hereunder and concludes by specifying the four alleged offences:

"And as to which 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 are

reasonable grounds for suspecting that the following

offences have been committed by KARINA FISHERIES PTY

LTD., Dinko LUKIN, Ann LUKIN, Dean LUKIN, David Franc

LUKIN."

58. I take the opening words of para 22: "And as to which..." as relating back to the "things" that are described in paragraphs 2 - 20 which, in turn are limited to the persons and entities named in paragraph 21. I do not understand Mr. Abbott to have argued a contrary cause for he conceded, during the course of argument that the relevant suspicions and beliefs of the Magistrate were not incorrectly stated. His complaint rested in the statements that were made by the Magistrate (or in the Magistrate's "judgment" as he called it) as disclosed in the transcript of the proceedings when the informant appeared before the Magistrate and applied for the issue of the warrants. Mr. Abbott maintained that this transcript revealed that in his consideration of the matter (prior to his act of signing and issuing the warrants) the Magistrate indicated, by the words that he used, that he was only satisfied that the alleged facts gave rise to a suspicion that the offences that were set out in the information had been committed. In other words, a perusal of the transcript does not contain, so it was said, the requisite states of belief and suspicion with respect to the two matters referred to in paragraph 22 of the warrant: that is the belief as to evidence and the suspicion as to the identity of the offenders. There is ample authority for the proposition that one can go behind the face of the warrant in order to determine that the information that was placed before the Justice of the Peace was sufficient to justify the issue of the warrant: (for example, see Parker v Churchill (supra) per Jackson J. at p 119 where an examination of the respondent showed that he had applied the wrong test in granting the warrants; see also OPSM v Withers (supra) at p 604 where it was held that the information before the Justice was inadequate and could not have justified the issue of the warrant).

59. But that is not the complaint here. There is no suggestion that the Magistrate applied the wrong test nor is it suggested that the information upon which he relied was inadequate. The complaint is that the Magistrate expressly stated his satisfaction on one matter in the transcript of proceedings but failed to express a similar state of satisfaction in respect of other matters. This should lead to the conclusion, said Mr. Abbott, that the Magistrate failed to apply his mind to the omitted matters (even though they are stated in the warrant). I do not believe that there is any substance in this point. However, in fairness to the Magistrate who, in my opinion, showed that he was most aware of his responsibilities, a reading of the transcript of the proceedings shows that Mr. Abbott's criticisms are not a true reflection of what occurred. The responsibility of the Magistrate was to receive and consider the material that was placed before him for the purposes of determining whether he was satisfied in the manner required by s.10. Instead of merely considering the material, the Magistrate asked several questions of Det. Sgt. Mitson on oath. His first question indicated his primary concern:

"Briefly would you explain to me how and why the facts

which are alleged in the information give rise to the

relevant suspicion that offences have been committed."

60. Thereafter there was a series of questions seeking further information. The Magistrate made comments and criticisms concerning the wording of the warrants and asked a question relating to the breadth of the documents that were intended to be the subject of the search. Finally he stated his satisfaction in these terms:-

"I am satisfied that the facts alleged give rise to the

relevant suspicions that is a suspicion that the

offences particularised in the information have been

committed by one or more of the persons named."

Mr. Abbott relied on this supposed limited state of satisfaction to claim that the Magistrate had fallen into error.

61. Far from falling into error, I am of the opinion, that a reading of the whole of the transcript showed that the Magistrate was astute to question Det. Sgt. Mitson on those matters in respect of which he needed additional information in order to arrive at his final conclusion. This is a matter of practical importance; Justices who are asked to issue warrants should be encouraged to ask questions, to seek clarification and to test matters which may be of concern to them in the knowledge that they are thereby doing what the law requires of them - they are making their own determination and not merely acting as a rubber stamp. But if a Justice is satisfied about a particular matter having regard to the sworn information, he has no need, either as a matter of fact or as a matter of law to make any reference to it other than in the warrant. His omission to address that issue during his questioning of the informant is not to be held against him. If the information contains sufficient particularity of the subject matter, one is entitled to proceed upon the premise that the Justice's silence meant no more than that he had no cause to make any further enquiries on that subject.

62. Mr. Abbott's further claim that the Magistrate abrogated his responsibilities by accepting the suspicions and beliefs of the informant instead of making his own decisions lacks any foundation.

63. The next argument that was advanced by Mr. Abbott was that the s.10 warrants were bad on their face as being too wide. His first complaint, which related to paragraph 5, was based upon the proposition that the warrant failed to name the fishing vessels whose design drawings etc should be seized - it merely named those vessels whose design drawings etc were not to be the subject of the warrant. I can see nothing offensive about this paragraph. The informant would not be expected to know the name of every vessel that was owned, leased, chartered or otherwise operated by any one or more of the 26 persons and entities named in paragraph 21. In fact the exclusion of the six vessels named in paragraph 5 was a proper attempt on the part of the informant to limit the width of the warrant.

64. The next criticism related to the reference to banking records in paragraph 12 which, said Mr. Abbott, had the hallmarks of a word processor operation. I tend to agree with him but, contrary to his submissions, I think that the reference to banking records is sufficiently limited by the reference to named persons and entities in paragraph 21 and by paragraph 22 and its reference to the four alleged offences. Mr. Abbott pointed out that paragraph 5 is limited in its effect by its express reference to the parties named in paragraph 21 but that paragraph 12 is not so limited. I do not agree; a reference to paragraph 21 appears, (unnecessarily in my opinion,) in paragraphs 5, 6, 7 and 11. In fact, it is clear that the contents of each of paragraphs 2 to 19 (inclusive) are governed by and are limited to the matters contained in paragraph 20 (which is the provision that connects with paragraph 21). Paragraph 21 lists the relevant persons and entities and paragraph 22 restricts things that are to be seized to those having the necessary connection to the four offences. To say that "the net is cast very wide" is not to say that the warrant is thereby too wide and invalid: (Lander v Mitson (1988) 83 ALR 446 at p 472). Although the description of the documents is quite general, that description is qualified and limited by naming the suspected offenders and by describing the alleged offences (c.f. Ryder v Morley (1986) 70 ALR 593: on appeal (1987) 76 ALR 329). Notwithstanding the length of the warrant, I find that its contents are clear and unambiguous. I reject the proposition that it is too wide.

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".

Section 71 Warrant and Section 10 Warrants Sufficiency of Grounds

66. Mr. Abbott raised, but did not pursue in great detail, a claim that none of the warrants properly alleged facts that would substantiate an intention to defraud or the essential elements of the offence of conspiracy. In OPSM v WITHERS (supra) Pincus J. dealt with a s.10 warrant which contained allegations of breaches of the Health Insurance Act 1973 and of the Crimes Act. The relevant provisions of those statutes dealt with submitting false documents, making false statements and procuring money to be paid by the Commonwealth by a false pretence. Having said that "the purpose of the search" could not be ascertained from a perusal of the warrant (p 598) his Honour added at the same page:-

"... the warrant must set out the object of the search

with some particularity, by saying what wrong doing is

suspected."

67. He then proceeded to review the authorities in these terms:-

"In Brewer v Castles (No 2) (1984) 1 FCR 55, the

offences were specified fairly generally, one being 's

86(1)(e) of the Crimes Act, to wit, conspiracy to

defraud the Commonwealth' (at 56); that was held to be

enough, at 61 and 62. In Australian Broadcasting

Corporation v Cloran (1984) 4 FCR 151, the warrant

mentioned 'commission of offences against s 70 of the

Crimes Act 1914'. That seems to me to have been fairly

comparable with the allegation in the case just

mentioned, but Lockhart J., at 154 held it to be

insufficient in that it did not 'define with reasonable

particularity' suspected offences. In Arno v Forsyth

(1986) 9 FCR 576 Lockhart J. in the Full Court referred

to the Rossminster case at 591 and to the 'dangers of

too readily striking down warrants on the ground of

generality in cases of this kind' (at 591) - that is,

cases of tax fraud. Jackson J. however in the same

case adopted (at 595)a view expressed by Lockhart J. in

Australian Broadcasting Corporation v Cloran (supra)

that it is necessary that the warrant 'describe the

particular offences in relation to which the seizure is

authorised so as to enable the persons to whom they are

addressed and the persons whose premises are to be

searched to know the exact object of the search."

(p 599)

68. I fail to see merit in Mr. Abbott's argument. The need to describe in the warrant the particular offences that are "suspected on reasonable grounds to have been committed" (para 10(1)(a) of the Crimes Act) or that are "believed to have been committed" (para 71(7)(a) of the Proceeds of Crime Act) does not equate with the particularity that the defence can reasonably expect once formal charges have been laid. It must not be overlooked that search warrants are often, and justifiably, sought at an early investigative stage when the informant is still looking for information: (Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J. (as he then was) at p 81; Coward v Allen [1984] FCA 53; (1984) 52 ALR 320 per Northrop J. at p 329). That is why warrants can issue as a result of suspicions or beliefs. With that most imporant qualification in mind, the assessments that I am prepared to make with respect to all warrants are that they fairly and clearly described the relevant offences.

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.

70. Coupled with this argument was the further argument that both informations contained unsourced material. Mr. Abbott claimed that it was not only incumbent on an informant to state his belief or his suspicion, but he should also state the sources of the information that have given rise to that belief or suspicion. In the case at Bar, he complained that if that had been done, it would have become apparent that much of the information that was disclosed in the two informations had come from or through the Lukins. Instead, so said Mr. Abbott, the material in the informations had been presented as though it had been gathered as a result of "surreptitious" inquiries by taxation investigators. The high point of this particular complaint was that the accountants who were said, in the informations, to be the suppliers of certain information were never identified as the accountants for the Lukins. The third and final aspect of this argument related to the alleged involvement of Mrs. Ann Lukin.

71. It was said, in the case for the applicants, that the offences referred to in the informations related to the alleged failure to disclose income derived by Karina Fisheries; therefore the argument proceeded that a natural person could only be implicated in such offences if it could be shown that she or he was, in some way, connected with that company. As it was an admitted fact that Mrs. Lukin was neither a director nor a secretary of Karina Fisheries in the period in which the offences were said to have been committed, the argument concluded by saying that the informations failed to link Mrs. Lukin in any meaningful way with the alleged offences. I will first deal with this last argument.

72. A short answer is that one does not have to be an office-holder of a company to engage in a course of criminal conduct relative to the affairs of a company - and at the same time, it is also pertinent to point out that because Mr. Lukin and his two sons were directors of the company, that does not mean, without more, that they were thereby engaged in any form of criminal behaviour. Section 10 of the Crimes Act does not require the informant to state the names of the persons who are suspected of having committed any offence. Indeed it is recognised that warrants under that section can lawfully issue notwithstanding the fact that no suspected offender has been named in the warrant. As to the provisions of para 71(1)(b) of the Proceeds of Crime Act, it is pertinent to point out that whilst the police officer must have reasonable grounds for suspecting that some person or some persons has or have committed an indictable offence, the thrust of the whole section is directed to the location of documents wheresoever they may be; it is not necessary to name the suspected persons in the warrant although one would think that the "purpose" of the s.71 warrant would be more clearly expressed if they were named. Be that as it may, it must be remembered that the documents may be under the control, or in the possession, of an innocent third party; the purpose of their seizure is not to implicate that third party in the commission of any offence but to deprive any offender of any benefit that he or she would otherwise enjoy. I see no cause to differentiate between Mrs. Lukin and the other members of her family. I do not consider her inclusion as one of the suspected persons as a cause to question the validity of the warrants.

73. I turn next to the complaint that the informations failed to disclose certain of the sources of the material that formed part of the grounds relied on by the informant. Mr. Abbott very properly drew attention to the comments of Marks J. in Coghill v McDermott [1983] VicRp 71; (1983) 1 VR 751 at p 756 where his Honour said:-

"As to reliance on conclusions of fact or mere statement

of primary facts, I do not think that s.10 requires

that sources of information be disclosed or detailed

factual substratum. Section 10 does not, in my

opinion, envisage some final adjudication or that the

Justice of the Peace be empowered to act only on

information received according to the rules of

evidence. To do so would make the procedure virtually

unworkable, if not nugatory of the purpose for which it

is provided. It is clear enough that the Justice must

be in a position to exercise an independent judgment

and not merely act as a rubber stamp to the state of

mind of the informant. The question is whether the

statements of fact alleged to form grounds of suspicion

were capable of constituting 'information' within the

meaning of s.10 and were sufficient to engender the

required satisfaction in the mind of the Justice of the

Peace."

74. I respectfully endorse the remarks of the learned Judge; I believe that they constitute a sufficient answer to Mr. Abbott's complaint. Furthermore, the measure of co-operation of the applicants is not inconsistent with a suspicion or a belief that the exercise in co-operation may not have been total or complete.

75. I have no doubt that there is a duty on any informant "to bring to the notice of" (the Justice and the Judge) "all the facts material to the decision to be made". (See R. v Curran and Torney [1983] VicRp 77; (1983) 2 VR 133 per McGarvie J. at pp 150-151 where his Honour compared the duty that rests on a party who is seeking an interlocutory injunction and referred to the remarks of Isaacs J. in Thomas A. Edison v Bullock [1912] HCA 72; (1912) 15 CLR 679 at pp 682-683). But I fail to see that the accidental omission to supply a copy of the charter-party agreement constituted a breach of that duty: (C.f. Esso Australia Ltd v Curran 39 A Crim R 157). It should be remembered that the gravamen of the alleged offences is centred upon the claim that the parties were responsible (in the criminal sense) for the failure (inter alia) to include income derived from the sale of seafood in Japan in the taxation returns that were submitted for or on behalf of Karina Fisheries. The manner in which the disputed income was expended, whilst important, is a secondary issue. If, to take an extreme and hypothetical example, it transpires that the Lukin group only chartered the vessel and expended the whole or the greater part of the disputed income in charter fees, (so that the expenditure became a deduction for income tax purposes) those facts would be of material importance on questions of penalty but they would not, of themselves, constitute an answer to allegations that there had been a failure to include income in a relevant tax return. I reject the argument that the informant failed in his duty to bring all material facts before the Justice and the Judge.

76. The consequence of the conclusions that I have reached is that the s.10 warrants were validly issued but that the s.71 warrant was not. Mr. Abbott's final argument was to this effect: if I should find that any s.10 warrant or the s.71 warrant was validly issued but that the others were not, all warrants should be struck down because a valid warrant would be tainted by the illegality of the others; he claimed that it would not be possible to identify what documents had been seized under a valid warrant and what had been seized under an invalid warrant. This argument could not have any application to those documents or things that were seized from premises in respect of which the s.71 warrant did not issue or having issued, was not executed. This then leaves for consideration the three s.10 warrants that were executed at the home of Mr. and Mrs. Lukin, the business premises of Orao Pty. Ltd. and the Port Lincoln branch office of the solicitors - in each of those cases the s.71 warrant was contemporaneously executed.

77. The inventory that was attached to the s.10 warrant that was executed at Mr and Mrs. Lukin's home lists 85 items plus an additional 3 which, at the time of seizure, were the subject of a claim of legal professional privilege. On the other hand the inventory that was attached to the s.71 warrant in respect of its execution at the same premises lists 49 seized items. A superficial examination suggests that none of the 49 items are listed on the inventory that was compiled in respect of the s.10 warrant. However, I do not claim to have made a close study of the lists and in light of my decisions that are set out hereunder I reserve to counsel the right to address the subject of the disposition of seized items. The same comments and reservations can be made about documents and things seized at the business premises and the solicitors' office. Subject to these comments, I cannot see any force in Mr. Abbott's argument. The two sets of warrants were issued and executed under different legislation; their objects serve different purposes. In principle, each can stand independently of the other. I have concluded therefore that anything seized pursuant to a s.10 warrant may be retained and dealt with by the respondents in accordance with the law. Should it transpire that any document or thing was seized under both types of warrant, I am of the opinion that its seizure pursuant to a s.10 warrant remains valid. If there is any dispute about the proper classification of any document or thing that has been seized counsel will be at liberty to address that issue.

78. I will stand this matter over so that counsel may give consideration to my published reasons and thereafter address me on the terms of the declarations and orders to be declared and made.