collateral attack
28 In his reasons for judgment, the trial judge observed that each warrant appeared on its face to have been regularly issued and neither warrant had been set aside by a court of competent jurisdiction. His Honour noted that Dr von Arnim had made an application under s 21 of the Act to review the magistrate's decisions under s 19, but that application was determined adversely to him by Sundberg J: see Von Arnim v Federal Republic of Germany [1999] FCA 1159; (1999) 107 A Crim R 529.
29 The trial judge said that the case had been argued before him on two potentially false assumptions. The first was that it was open to Dr von Arnim in these proceedings to challenge collaterally the validity and perhaps the legal effect of the ss 12 and 19 warrants. His Honour said that it was by no means clear that a warrant which on its face appears to have been regularly issued can be disregarded, citing Posner v Collector for Interstate Destitute Persons (Victoria) (1946) 74 CLR 461 at 483; Hadkinson v Hadkinson [1952] P 285 at 288; and R v Oldham Justices; Ex parte Cawley[1997] QB 1 at 13. The second assumption was that if Dr von Arnim could succeed in showing that the two warrants were invalid or not lawfully issued, that would make good his claim for damages for false imprisonment. His Honour noted that there are authorities which indicate that there can be no action for false imprisonment if the imprisonment is in execution of an order which appears to have been regularly made by a judicial officer, even if the order is without jurisdiction. His Honour referred to City of London v Cox (1867) LR 2 HL 239 at 263; Ward v Murphy (1937) 38 SR (NSW) 85 at 97; and Andrew v Marris (1841) 1 QB 3 at 16. In such a case, the proper remedy may be an action for malicious prosecution or malicious abuse of legal process.
30 The trial judge did not find it necessary to resolve these issues because he dealt with the substance of the claim that the two warrants were not lawfully issued, and rejected that claim.
31 Dr von Arnim relied on Ousley v The Queen (1997) 192 CLR 69 ('Ousley') to justify his collateral attack on the warrant. In Ousley, the High Court held that the lawfulness of the issue of a warrant under s 4A of the Listening Devices Act 1969 (Vic) could be challenged collaterally in the course of a criminal trial. All of the judgments proceed on the footing that the availability of collateral review is bound up with the nature of the authority which issues the warrant. Where the decision to issue a warrant is properly characterised as an administrative act, the validity of the warrant can be challenged in collateral proceedings.
32 The decision in Ousley turned on the question whether all necessary statutory requirements for the issue of the warrant had been satisfied. The issue of the warrant was governed by ss 4A(1), (3) and (4) of the Listening Devices Act 1969 (Vic) which provided:
'(1) On complaint made by a member of the police force that he or she suspects or believes -
(a) that an offence has been, is about to be or is likely to be committed; and
(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary -
the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.
…
(3) If a warrant granted by the Supreme Court under this section authorises the installation of a listening device on any premises, the Court must, by the warrant -
(a) authorise and require the retrieval of the listening device; and
(b) authorise entry onto those premises for the purpose of that installation and retrieval.
(4) A warrant granted by the Supreme Court under this section must specify the following matters:
(a) The offence in respect of which the warrant is granted;
(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;
(c) The period (being a period not exceeding 21 days) during which the warrant is in force;
(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;
(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;
(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;
(g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958.'
It was argued that the warrant was invalid because it recited on its face that condition (1)(a) had been satisfied, but it did not do so in respect of condition (1)(b). Toohey, McHugh and Gummow JJ held (Gaudron and Kirby JJ dissenting) that s 4A(3) and (4) stated exhaustively the matters required to be specified in a warrant for the use of a listing device. Accordingly, there was no requirement that the jurisdictional grounds relied upon in issuing the warrant be specified on the face of the warrant: see Toohey J at 81-82, 83; McHugh J at 113; and Gummow J at 128. Their Honours also held that the fact that the warrant referred on its face to only one jurisdictional condition did not give rise to the inference that the judge had failed to satisfy himself of the other condition. Gaudron J agreed that no such inference was open; both her Honour and Toohey J thought that the only available inference was that the judge issuing the warrant had followed the statutory form: see Toohey J at 82 and Gaudron J at 88.
33 Gaudron J found that the warrants were invalid on their face because they did not recite the Judge's satisfaction as to the two statutory pre-conditions. Her Honour reasoned that, notwithstanding s 4A(3) and (4), the Act should be construed as containing a requirement that the warrant must recite that the Court was satisfied as to both conditions governing the issuance of the warrant: at 91, 93-94. Under the general law, warrants issued by magistrates and inferior courts must recite the matters on which their validity depends. No such requirement exists with respect to superior courts because a presumption of regularity applies. The statute in question authorised both superior courts and lower courts to issue a warrant. Consequently, Gaudron J said that the statute should not be construed as abrogating the general law requirement that the warrant show jurisdiction on its face, given the absence of any indication of an intention to that effect: at 91. However, Gaudron J joined in the order dismissing the appeal because she would have excluded the evidence obtained under the warrants as a matter of discretion.
34 Kirby J dissented, both in holding that the warrants were invalid on their face and in holding that the evidence should be excluded. In his Honour's view, it may have been unnecessary for the warrant to refer to condition (1)(a) on its face but, having done so, the omission of any reference to the satisfaction of condition (1)(b) meant that the warrant was defective on its face: at 157.
35 Somewhat differing views were expressed by the members of the Court in Ousley as to the proper scope of a collateral challenge to the validity of a warrant. Toohey J said that, while there is no bar to collateral review by a trial judge of the validity of a warrant on its face, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements: at 80. Gaudron J said that validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue: at 87. Gummow J agreed that a warrant was open to collateral review, but his Honour noted that a warrant would be presumed valid until it be set aside or corrected on appeal or by other due process of law: at 131. He referred approvingly (at 131) to the statement by Mason CJ and Toohey J in Murphy v The Queen (1989) 167 CLR 94 at 105-106 ('Murphy') that the presumption of validity could not be displaced by a collateral attack upon the warrant that was founded on an alleged insufficiency of the materials placed before the issuing court by the applicant for the warrant.
36 At first blush, McHugh J seems to go somewhat further in the following passage:
'Since this Court's decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. In Coco, the Court held that the Supreme Court Judge, acting as persona designata, who had made an order authorising the installation of a listening device, had "misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction". It is true that the Court said that the "error might also be characterised as an error on the face of the record" and that the Crown accepted that the existence of the warrant "did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant." But the important point for present purposes is that this Court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue.'
37 The Respondents relied heavily on this passage as supporting a wide view of the availability of collateral review. However, the passage must be read in context. The concluding words make it clear that his Honour was directing his remarks at jurisdictional errors. In Coco v The Queen (1994) 179 CLR 427 ('Coco'), the court decided that s 43 of the Invasion of Privacy Act 1971 (Qld) did not confer power on a judge to authorise entry on to premises for the purpose of installing and maintaining a listening device in circumstances where that entry would otherwise have constituted a trespass. In reliance on s 43, a judge of the Supreme Court of Queensland had approved the use of a listening device in terms which purported to authorise any police officer engaged in the investigation of the offence to enter upon specified premises for the purpose of installing and maintaining a listening device. The court held that the approval was wholly void because it exceeded the power conferred by s 43: see Mason CJ, Brennan, Gaudron and McHugh JJ at 438-439, 441 and 443; Deane and Dawson JJ at 447-448; and Toohey J at 456, 457-458 and 463. Jurisdictional error was revealed in Coco by comparing the terms of the statute, which did not authorise entry on to premises, with the terms of the approval which purported to do so. Moreover, there is nothing in any of the judgments in Coco to suggest that the court was intending to depart from Murphy and McArthur v Williams (1936) 55 CLR 324 ('McArthur'). Those cases held that the validity of a warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of the matters prescribed by the statute: see Murphy, per Mason CJ and Toohey J at 105-106; and McArthur, per Dixon, Evatt and McTiernan JJ at 365-366.
38 It is also significant that McHugh J went on to refer, with apparent approval, to Murphy and McArthur as authorities for the proposition that insufficiency of evidence is not itself a ground for collateral challenge: at 103. McHugh J also considered that a presumption of regularity applied to the issue of warrants by superior courts even when the issue of the warrant is characterised as an administrative act: at 109.
39 Kirby J said that a jurisdictional error which appeared on the face of the record could be the subject of collateral review: at 145-146. His Honour went on to identify various issues concerning the scope of permissible collateral review, and said those issues did not need to be resolved for the purposes of the case before him: at 147-148, 151. They included the questions whether a warrant of the Supreme Court, in order to be valid, must disclose its jurisdiction on its face; whether the judges who issued the warrants were not, as a matter of fact, satisfied of the condition in s 4A(1)(b); and whether a presumption of regularity is available to sustain warrants issued by the Supreme Court. In the course of discussing these issues, Kirby J said:
'This argument, addressed to the subjective satisfaction of two of the judges of the Supreme Court, runs into various difficulties. It would seem inappropriate for a court to receive evidence from a person such as a Supreme Court judge (even acting administratively) that he or she did reach the requisite satisfaction. The task of the Court being the examination of the warrant on the material appearing on its face, the actual state of subjective satisfaction of the signatory appears to be of dubious relevance. Be that as it may, the issue can be ignored in this appeal because the appeal may be resolved on the appellant's primary argument concerning validity of the warrants on the face of the documents. An inquiry into what the judicial signatories actually took into account, assuming that to be permissible, can safely be left aside.'
Kirby J doubted that there was any role for a presumption of legality: at 152.
40 In summary, all of the judgments in Ousley make it clear that a warrant can be challenged in collateral proceedings where the issue of the warrant did not comply with the statutory conditions governing its issue, and hence involved a jurisdictional error. I also consider that all of the judgments, including that of McHugh J, confirm that a collateral challenge cannot be mounted by attacking the character or sufficiency of the evidence that was placed before the court or officer who issued the warrant.
41 Ousley has been followed and applied in numerous cases: see, eg, R v Nicholas [2000] 1 VR 356 at [78] and [88]-[94]; P v Australian Crime Commission [2005] FCA 55 at [15] and [18]; R v Tracey & Others (No 3) [2005] SASC 357; and R v Gassy (No.3) [2005] SASC 496. They afford illustrations of the proposition that a warrant can be reviewed to determine whether, on the face of the record, it complied with the statutory preconditions for its issue.
42 Dr von Arnim also relied upon the general principle of administrative law that a decision involving jurisdictional error is a decision that lacks legal foundation and is properly regarded in law as no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, at [51]. The focus on jurisdictional error is appropriate, but in other respects Dr von Arnim cannot rely on this principle to side-step the specialised rules that govern the collateral review of search warrants and similar orders.
43 In this case, the magistrates who issued the warrants under ss 12 and 19 of the Act were acting administratively. Like the trial judge, I propose to proceed on the assumption that it was open to Dr von Arnim to challenge the legality of the warrants in these proceedings. However, having regard to Ousley, the challenge will only be maintainable if, and to the extent that, Dr von Arnim alleges that the issue of the warrants involved non-compliance with a jurisdictional pre-condition that is prescribed by the Act.
44 For reasons which will appear, I consider that neither warrant in this case was affected by any jurisdictional error.