Resolution of the issues
57 The first critical matter is to determine whether Khaled Cheikho has demonstrated that the seizing police officer failed to hold a belief based on reasonable grounds that the CDs found in the bedroom, and in particular the relevant CD, contained data relating to the theft and sale of stolen motor vehicles. In one sense, this is the primary matter to be determined. Mr Lange did not dispute that he carried the onus of demonstrating that an illegality or impropriety had occurred. Counsel's argument fell essentially into two parts. The first was that the evidence before this Court fell short of establishing such a belief based on reasonable grounds. Secondly, the fact that the CD was not "played" at the house - the laptop computer had not been taken to the premises - meant that no such belief could have been formed or held at the time of seizure.
58 As to the first matter, I am not satisfied that Khaled Cheikho has demonstrated the absence of such a belief on the part of Detective Senior Constable Teesdale. This is so for a number of reasons. First, the warrant itself had been issued by Mr Maughan upon his being satisfied by either evidence on oath or affidavit that at the premises there were likely to be "diskettes, hard disks, compact disks, et cetera" containing data relating to the theft and sale of stolen motor vehicles. The Magistrate's view of the material placed before him is, of course, by no means conclusive, or even indicative, of the belief of the seizing officers. Nor is the fact that the items mentioned in the subpoena were those that may have seemed, at first blush, to fall literally within the terms of the warrant. But each of those matters is germane to the presence of the necessary belief held by the seizing officer, at least as a matter of inferential background.
59 Secondly, the Court is entitled to infer that members of the specialist squad dealing with car theft, including Officer Teesdale, would have been aware of the practice of persons involved in car re-birthing offences to store material relating to their activities on electronic media such as a compact disc.
60 Thirdly, the inference as to Officer Teesdale's belief is all the more strengthened by the overall circumstances of the finding of the four CDs scattered on Aimen's bed near a computer, and the finding of a loaded pistol secreted under the bed itself. There were also other items found and seized both in the bedroom and elsewhere in or about the premises that would have further strengthened the relevant inference in relation to the CDs themselves. This is plain from the items listed on the property seizure record.
61 Fourthly, in conformity with the legislation, the CD and the other items seized were immediately taken before the Magistrate so that the latter might determine what stipulation should be made in respect of each of those items. The Magistrate, for example, might have ordered the immediate return of the items, or some of them, to their owner. He would have done so if they were unrelated to the offence in the warrant. The fact, however, that the issuing Magistrate, confronted with the list of the seized items, and knowing of the arrest of the person against whom the warrant had been issued, ordered, at the request of the seizing officers, that the items be retained by the Victorian Police, pending production in the proceedings against Aimen, further reinforces, even if indirectly, the continued existence of the appropriate inference as to the seizing officers' belief. Of course, the Magistrate's view that the CDs should be retained by the police pending production at court, if required, is not of itself direct proof of the belief held by Officer Teesdale, but it is again an important piece of background material in relation to the drawing of the appropriate inference.
62 Mr Maidment SC argued that the overall circumstances of the police briefing as to the connection between car re-birthing and terrorist intentions, together with the circumstances of the search, enabled a further inference to arise, namely that Officer Teesdale, and Mr Wheatfill, who was present in connection with the second warrant, would have been likely to have shared information as to the items seized by each of them. Sharing of information in this way would have been likely to give rise to the suggestion, not dispelled by any evidence adduced on behalf of Khaled Cheikho, that the CDs were seized in the further belief that they were likely to afford evidence of the commission of another offence, namely an offence against the Commonwealth terrorism legislation.
63 I am not altogether persuaded by this submission. But, at the very least, I do accept that the police at the search, including Mr Teesdale, would have been, or likely to have been, well aware of the connection between the re-birthing activities and Aimen's terrorist proclivities. The possibility, I put it no higher, that the police belief in relation to the CDs rested, at least in part, on Aimen's interest in terrorist pursuits plainly exists as a matter of inference. This inference, however, is perhaps not as firmly grounded as the principal inference to which I have made reference.
64 Whether one looks to the first or the second inference, or perhaps a combination of the two, the fact is that Khaled Cheikho has not satisfied me on the whole of the evidence I have considered that the seizing officer lacked a belief on reasonable grounds that the CD would afford evidence of the commission of an offence. The beliefs held by the police officer were plainly capable of relating the CD to the commission of the offence mentioned in the warrant. Perhaps less obviously, but nevertheless possibly so, those beliefs were capable of extending to a perception that the material would be relevant to the commission of an offence against the terrorist legislation.
65 I should mention here something that is not, strictly speaking, relevant to the resolution of this first question. It is, however, not without practical significance to the overall discussion to note, as an obvious matter, that the content of the relevant CD was in fact both relevant and probative to the offence to which Aimen eventually pleaded guilty at the Werribee Local Court. If he had not pleaded guilty to this offence, and had the burden of proof fallen upon the Crown at his trial, the CD would have been plainly a piece of evidence relevant to the motives underlying the theft of motor vehicles as revealed in the contents of the listening device intercepted at Ezzit's garage on 10 September 2004. The contents of the CD would not have proved the offence but would have been plainly relevant to its proof (Parker v Churchill per Burchett J at 337). The contents of the CD were also relevant and probative in relation to the charges for terrorism offences in respect of which Aimen was convicted in the Supreme Court of Victoria in 2008.
66 Mr Lange's second point, namely that the police did not have the capacity at Aimen's house to examine the contents of the CD, is not without attraction at first glance. But I do not accept that it is sufficient, in the circumstances of this particular matter, to dispel the existence of the inferences I have examined in relation to counsel's first argument. Once again, several points may be made. First, it must be acknowledged that the legislation represented by the terms of s465 of the Victorian Crimes Act is rather outmoded in its concepts. It takes no account, for example, of the revolution represented by the modern computer and its technology. More recent legislation, for example the provisions in the present Commonwealth Crimes Act, allow for the testing and analysis of computer material at the property to be searched. It allows, in addition, the removal of computer and media devices for testing away from the searched property and for later seizure after testing (Hart v Commissioner of Australian Federal Police at (80) to (103)).
67 By contrast, the Victorian legislation is based on the terms of a statute enacted nearly 100 years ago (s 8 Crimes Act 1910). It makes no allowances for the type of procedures I have mentioned in the more modern legislation. It does not follow, however, as an axiomatic certainty, that a belief based on reasonable grounds could not be held in relation to the contents of a particular CD or even a number of CDs located at a particular set of premises. Such a belief might, in particular circumstances, be held, even though the precise contents of the CD were not known or, in technical terms, not capable of being known precisely at the moment of seizure. The situation, inevitably, would be affected by, and perhaps determined by, the information held by police, by operational knowledge, briefing details and the circumstances encountered at the place of search. The present situation is very much one that is influenced by considerations of that kind.
68 Mr Lange relied on two authorities in relation to this argument. The first is Bartlett v Weir, a case counsel suggested was "on all fours" with the present matter. This decision, however, is, in my view, clearly distinguishable from the present.
69 Bartlett v Weir was a case in which the applicant sought a declaration that the execution by the second respondents of certain search warrants had been unlawful. The search warrants related to two separate sets of premises in Tasmania. The validity of the warrants had themselves been attacked but this had been resolved favourably to the issuing authorities in an earlier decision.
70 The proceedings before Beazley J sought not only a declaration, but a claim for damages for wrongful retention of property. There is no need for me to set out all of the factual matters in detail. The following points of distinction should, however, be noted:
71 First, the proceedings were, as I have said, for a declaration and other relief. It was not a case in which the Court was required to exercise a discretion as to exclude evidence at a criminal trial.
72 Secondly, the gravamen of the decision of Beazley J was that the conduct of the search had been very heavy-handed and quite unreasonable. Something like 400 floppy disks had been seized, as well as a number of computers. There was no issue with the proposition that much of the material seized was of a private nature, related to other persons' business affairs, and could not have reasonably fallen within the search warrant. There were other aspects of the search procedure which were plainly unreasonable. There is no need for me to detail them here.
73 Thirdly, and importantly, the seizing officer had conceded that the relevant belief was not held at the premises. Indeed, a decision had been made, prior to the execution of the warrant, to remove the equipment to be seized so that it could be examined at a later time and away from the premises at the leisure of the authorities. In effect, everything that might possibly answer the literal description in the warrant was seized, with the intention being that a decision should be made about the nature of the material and its retention at a later time and place.
74 Fourthly, the material was retained for seven months, even though no proceedings were pending or apparently even contemplated.
75 Finally, there was no evidence before Beazley J that any investigation into the matter was continuing, even at the time, nearly two years later, when the proceedings in the Federal Court were determined.
76 Two points can be made. First, it will be seen that the case before Beazley J was very significantly different from the situation I have examined in the present matter. Secondly, her Honour's decision was not, as I read it, an authority for the proposition that in no circumstances could a belief be held on reasonable grounds that a computer disk, unexamined as to its precise contents at seizure, would afford evidence of the commission of a crime.
77 In the present matter there were only four CDs seized. There is not the slightest suggestion in the evidence that it was a "willy-nilly seizure". Of course, the police officer may have been wrong as to his belief. But, in that case, that would have perhaps predicated a need for the CD to be returned. It would not have meant that the seizure was itself illegal or improper.
78 Nor is this a "bundled-up" case (the exception mentioned in Reynolds). There is no suggestion that the police simply bundled up the CDs with a view to sorting out later which part was probative of the commission of an offence and which part was not. The positive inference I draw from the whole of the circumstances is that the belief was held that all four CDs contained material relevant to, or probative of, the commission of an offence relating to the theft and re-birthing of vehicles. At the very least, it has not been demonstrated by the applicant in the present matter that such a belief was not held.
79 The second authority relied on by Mr Lange was Trimboli v Onley [No 3] (1981) 56 FLR 321. This was a decision by Holland J. It related to a complex series of cases where the plaintiff had attempted to thwart a search of his premises mid-stream. Once again, the immediate decision concerned a claim for wrongful detention of goods and damages. The plaintiff was by no means successful in his claim, at least in the decision under discussion, and the Court made a detailed set of orders preserving, in effect, the rights of the parties in accordance with the principles stated in the decision. There is no need for me to set out the principles as they are, in the main, those I have already identified. Mr Lange, however, placed reliance on one particular part of Holland J's decision. At pp336-337, Holland J has stated: -
"In the present case s. 10 of the Crimes Act permits the grant of a search warrant authorizing the named officer to enter a house "and to seize any such thing which he may find in the house". The wording of the English section suggests that seizure must precede removal from the premises. Section 10 does not refer to removal and might be capable of being construed as authorizing seizure of a thing found in the premises to take place at some point of time after removal from the premises such as after removal and possession for a period long enough for an examination. There were items found in the present case that are in point. I refer to the tape recordings, for example. Their contents could not be known unless they were played back on suitable equipment which the defendant did not have with him at the time. Undeveloped films would be another example. The "electronic device" might need examination by an expert to ascertain its function before a decision could be made. Notwithstanding that such examples favour, from a practical point of view, a power to remove and keep possession for examination before deciding upon seizure or return of the property, I do not think that either the statutory provision or the terms of the warrant here in question ought to be construed as giving any such authority. We are in a field where, in my opinion, one would expect such authority to be directly and expressly conferred by the statute if it was intended to be given. I think that the impression conveyed by a first reading of s. 10 is that both entry and seizure would occur at the same place if there is to be a seizure. I would so construe both the section and the warrant in the present case and hold that the decision to seize must be made and the contemporaneous belief must exist at the premises and before any removal therefrom if the removal and a subsequent detention of the property is to be lawful under the warrant.
If the views I have expressed are correct, ex post facto justification under the warrant is not possible. If the conditions for lawful seizure did not exist at the time when the goods were removed from the premises, it cannot subsequently arise under the warrant if the conditions afterwards come to be fulfilled. If the defendant did not entertain the requisite belief at the time he removed the goods from the premises he cannot, under the warrant, support a claim to be entitled to retain the goods on the basis of a later belief that he had formed. If he was able to show that the goods were the subject of or were evidence of the commission of a crime and that under the common law should be withheld from the plaintiff or delivered up to prosecuting or other authorities legally entitled to seek possession of them, the court would have to consider that matter but in such case the defendant would not be showing justification under the search warrant."