BENEFICIAL FINANCE CORPORATION LIMITED & ORS v THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE & ORS

Members: Sheppard J
Pincus J

Burchett J

Tribunal:
Full Federal Court

Decision date: Judgment handed down 16 October 1991

Burchett J

On 20 March 1991, the appellant Beneficial Finance Corporation Limited, and 22 companies and persons associated with it, commenced proceedings against the Commissioner of the Australian Federal Police, and against a very large number of other persons, being justices and judges who had issued search warrants and officers of police involved in the execution of the warrants at more than a dozen premises in several States. In the proceedings, judicial review was sought of the decisions to issue the warrants, and it was claimed that the warrants were bad on their face. Reliance was placed on the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) and on s. 39B of the Judiciary Act 1903.

The matter came before Wilcox J., who was asked to grant urgent interlocutory injunctions in respect of seven search warrants. It had been agreed that the seven warrants raised, between them, the issues in dispute, and that the decision made by his Honour would be applied to a total of 40 warrants. Six of the seven warrants had been issued under s. 10 of the Crimes Act 1914 in relation to premises in South Australia, Victoria, New South Wales and Queensland. The seventh warrant had been issued under s. 71 of the Proceeds of Crime Act 1987 by White J. of the Supreme Court of South Australia. The execution of the seven warrants had begun on 20 March 1991, the application being launched ex parte the same afternoon. Some temporary relief was granted then, followed by an interlocutory hearing the next day. On 22 March 1991, Wilcox J. delivered ex tempore reasons, and made interlocutory orders.

The orders pronounced on 22 March 1991 restrained the further execution of three of the seven warrants, including the warrant issued under s. 71 of the Proceeds of Crime Act, and made temporary provision, in view of the possibility of appeal by either side, for the custody of the documents seized under the warrants.

The questions dealt with by the learned primary Judge on 22 March were confined to the form of each of the various warrants. No question was raised at that stage concerning the grounds upon which the decisions to issue the warrants had been taken. But, shortly afterwards, the application was amended to challenge the reasonableness of these decisions, and to dispute whether there was evidence by which they could be justified. In an attempt to find support for the application as amended, the appellants sought access to the informations that had grounded the issue of the warrants. The Director of Public Prosecutions objected, relying on
Marinovich v. Director of Public Prosecutions (1987) 14 ALD 315 , where Forster J. refused access to the information upon which a warrant authorising the use of a listening device had issued. Forster J. (at 316-317) accepted a claim that production

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``would be contrary to the public interest in that it would reveal police methods of operations'', holding the evidence to:

``fall squarely within traditional areas of public interest and [that the accused] had not demonstrated that access to the [evidence was] necessary or desirable to maintain the applicant's innocence, rather the reverse.''

The appellants, on the other hand, relied on the comment of Lockhart J. in
Arno & Ors v. Forsyth (1986) 9 FCR 576 at 582 :

``The cases show that questions of validity of search warrants are generally decided with the information before the court and often turn on the terms of the information itself.''

Lockhart J. made it clear he thought this practice desirable, at least in many circumstances.

The primary Judge referred to evidence, presented on behalf of the respondents by affidavit, that the investigation in aid of which the warrants had been sought was part of a complex of enquiries, aspects of which would, according to that evidence, be impeded or even frustrated by premature revelation of the areas of official concern. It was deposed that persons presently unaware of police interest in their activities would be forewarned, and might be enabled to cover their tracks, if the information were disclosed. His Honour tested these matters for himself by examining what he described as ``the considerable volume of documents which were produced by counsel for the respondents'', setting out ``a complex chain of events''. He concluded:

``Having looked at the documents, I have reached the firm conclusion that the claim made on behalf of the respondents... should be upheld.''

He considered, and rejected as impracticable, the idea of requiring production to the appellants of an edited version of the material. His Honour summed up this question by saying:

``I think that it would be irresponsible for me to take a different course. I have to uphold the claim for public interest immunity and refuse the application of the applicants for access to these documents.''

In discussion following the primary Judge's decision on the question of access to the informations laid before the justices and judges who issued the warrants, counsel for the appellants accepted that the challenge to the grounds upon which the warrants issued must now fail; and it was agreed that further submissions concerning the form of the warrants would be put in writing, with a view to final orders being made, from which it was announced there would be an appeal. Thereafter, the primary Judge received written submissions in respect of two of the warrants issued under s. 10 of the Crimes Act and the warrant issued under s. 71 of the Proceeds of Crime Act. It was accepted by the parties that these three warrants (as to two of which, one being the s. 71 warrant, his Honour had tentatively come to the conclusion, at the interlocutory hearing, that they were invalid, while he had dismissed the claim for relief in respect of the third) were sufficiently representative of all the warrants for the purposes of the determination of all outstanding questions. In the result, his Honour adhered to the views he had expressed in his interlocutory reasons. Final orders were made accordingly.

From the final order in respect of the warrant upheld by his Honour and from the decision upholding the claim of public interest immunity in relation to the material on which the warrants were issued, the appellants appealed. In addition, they appealed from his Honour's refusal to order a separate trial of the question whether the warrant was bad on its face. This matter had been raised only in the written submissions, in which the appellants resiled from their acceptance of the conclusive effect, in practical terms, of the denial of access to the information on which the warrant had issued. His Honour refused to separate the point thus taken, and held no basis was shown on which the decision to issue the warrant, as distinct from its form, could be impugned. In respect of the remaining two warrants the subject of final decision, the respondents cross-appealed, claiming that the warrants were not invalid, and that if any portion were found invalid, it should be severed.

It is convenient to turn first to the questions arising in respect of the warrants under the Crimes Act. Section 10 of that Act has undergone some amendment since 1914, but not in any respect germane to those issues of

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construction which are relevant to this case. Section 10(1), as it presently stands, reads as follows:

``10(1) If a Magistrate or 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 Magistrate or 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.''

The warrant found by the primary Judge to be invalid (which I shall call the first warrant) is 16 pages in length, and it would be tedious to reproduce it. It was issued by a Magistrate and Justice of the Peace of New South Wales (the Justice) addressed to two named Australian Federal Police officers, and commences by reciting the Justice's satisfaction by information on oath:

``that there are reasonable grounds for suspecting that there is [ sic ] in, or upon [described premises] occupied by Beneficial Finance Corporation Ltd., certain THINGS which satisfy ALL of the three following conditions - that is to say, THINGS which FIRSTLY are any one or more of the following: - ''

Under the heading ``FIRST CONDITION'' are next set out a series of lettered paragraphs from (a) to (1), of which it is sufficient, for present purposes and for an understanding of the form of the warrant, to quote (a) and (b) as follows:

``(a) files, working papers, records, reports, diary notes, file notes, diaries, minutes and memoranda,

(b) Accounting books and records including journals, ledgers, profit and loss statements, balance sheets, trust account ledgers and financial statements.''

The warrant then proceeds:

``SECOND CONDITION and which SECONDLY pertain to, arise out of, are connected with or relate to the affairs of one or more of the following persons or entities: -

Autovermarktung

Autovermarktung Forest

...

Beneficial Finance Corporation Ltd

Beneficial Leasing Pty Ltd

...''

Numerous names of companies and individuals follow - the tally is 34 in all. After this list, the warrant continues:

``THIRD CONDITION and [as] to which THIRDLY there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth and in respect to which there are reasonable grounds for suspecting that the following offences have been committed: -

(a) Committed between 1st day of June 1983 and the date of swearing this Information, namely conspiracy to defraud the Commonwealth by failing to comply with the provisions of S. 57AF of the Income Tax Assessment Act 1936 relating to the leasing of luxury cars; contrary to Section 86(1)(e) of the Crimes Act 1914 until the 24th day of October 1984 and thereafter contrary to S. 86A of the Crimes Act 1914.

The persons reasonably suspected of having committed this offence are: -

[eight names of persons and companies are listed, including Beneficial Finance Corporation Ltd

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and ending with the words `and other persons unknown'].

(b) Committed between about the 1st day of June 1983 and the date of swearing this Information, namely Conspiracy to defeat the execution of a law of the Commonwealth, namely S. 57AF of the Income Tax Assessment Act 1936 relating to the leasing of luxury cars; contrary to S. 86(1)(b) of the Crimes Act 1914.

The persons reasonably suspected of having committed this offence are: -

[the same names and reference to persons unknown appear].

(c) Committed between the 25th day of October 1984 and the 30th day of June 1986, namely defrauding the Commonwealth by failing to comply with the provisions of S. 57AF of the Income Tax Assessment Act 1936 relating to the leasing of luxury cars; in respect of the 1984/1985 financial year; contrary to S. 29D of the Crimes Act 1914.

The persons reasonably suspected of committing this offence against Section 29D of the Crimes Act 1914 or having aided or abetted, counselled and procured the commission of the said offence contrary to S. 5 of the said Act are:

[the same names and reference to persons unknown appear].''

There follows, in further lettered paragraphs, a list of offences, expressed in the same form as that adopted in paragraph (c), for subsequent years up to and including the financial year ending in 1989. The warrant concludes, before the signature, seal and date, with the usual authorisation to enter the premises and ``seize the said things more fully described above which you may find in the said premises as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences'', an authorisation to use ``such force as is necessary'', and a provision to ensure that any claim of legal professional privilege should receive proper consideration.

It will be observed that the Justice who issued this warrant must have had in mind both paragraph (a) and paragraph (b) of s. 10(1). This is made clear by the language of what is described as the ``THIRD CONDITION''. The expressions which make it clear are, however, joined by the word ``and''. The effect of that single word, having regard to the provision at the beginning of the warrant that the things to which it relates satisfy all of the three conditions expressed in it, is that, upon a literal reading, it attaches a further condition to be satisfied by anything which would otherwise fall within the authorisation conferred under s. 10(1)(b). This is, of course, nonsensical; the statute by paragraphs (a) and (b) provides alternatives, and there is no conceivable reason why the Justice should have intended to exclude evidence of the commission of an offence unless it happened to be constituted by something with respect to which the offence was suspected to have been committed. Nor did he, when he repeated the authorisation to seize evidence in those concluding portions of the warrant which I have quoted. In the context, I cannot doubt that the warrant provides a clear instance where the word ``and'' is used disjunctively. See
Doe dem. Bedford v. White (1827) 4 Bing. 276 ; 130 ER 773 ; In
re Brittlebank (1881) 30 WR 99 ;
Attorney-General of New Zealand v. Brown [1917] AC 393 ;
Murdoch v. British-Israel World Federation (New Zealand) Inc. [1942] NZLR 600 at 626-628, 637, 648-649, 659, 676 ;
R v. Oakes [1959] 2 QB 350 ;
R v. Blyth Valley Justices , Ex parte Fawcus The Times 30 April 1986 . See also,
Lander & Ors v. Mitson & Ors (1988) 83 ALR 466 at 473 , a case under s. 10 of the Crimes Act. What is revealed here, in the words of Rowlatt J. which Lord Parker C.J. quoted in R. v. Oakes (at 357), is ``nothing more than a faultiness of expression''. That faultiness of expression was contributed to by the special nature of the alternative. For things falling within the alternative would, inevitably, remain also evidence as to the commission of the offence in question. They might, for example, be income tax returns containing fraudulent statements. So, upon analysis, the only sensible meaning to be attributed to the word ``and'' is that of a kind of hybrid of conjunctive and disjunctive, equivalent to ``or as well'', conveying that all the things in question are believed to afford evidence and some of them are also things with respect to which the offence was committed. This is

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confirmed by the unalloyed reference to s. 10(1)(b) at the end of the warrant.

Even so, there remains a difficulty created by the carelessness of the draftsman in reproducing the language of s. 10(1)(a). Instead of referring to ``anything with respect to which any offence... is suspected on reasonable grounds to have been committed'', he refers to things ``in respect to which there are reasonable grounds for suspecting that the following offences have been committed''. However, it is convenient to defer consideration of the difficulty raised by this divergence of language.

No problem (other than grammatical) is raised by the recital, early in the warrant, ``that there are reasonable grounds for suspecting that there is in or upon [the relevant premises] certain THINGS '', so far as the nature of the things is indicated by the first and second conditions and they fall within the terms of s. 10(1)(b). In
George v. Rockett & Anor (1990) 170 CLR 104 at 112 , the joint judgment of all the judges of the High Court declared it to be ``excessive'' to require, in respect of the comparable language of s. 679 of the Queensland Criminal Code, that the justice declare his own suspicion - it is sufficient that he be satisfied there is reasonable ground for the suspicion stated in the provision. This construction is inescapable in the context of s. 10(1), where the expressions ``there is reasonable ground for suspecting'', in the opening words of the provision, ``there are reasonable grounds for believing'', in paragraph (b), and ``there is reasonable ground for believing'', in paragraph (c), provide a contrast for the expression ``or is suspected on reasonable grounds to have been committed'' in paragraph (a). That is not to say that even the last expression might not be similarly construed, but the others must, in this setting, refer to an objective assessment of the grounds alleged. See
Australian Telecommunications Commission v. Krieg Enterprises Pty Ltd (1976) 27 FLR 400 at 406 ;
Davis v. Director of Public Prosecutions [1988] RTR 156 at 161-162 ;
Thompson v. Thompson [1956] P. 414 at 421 ;
Registrar of Restrictive Trading Agreements v. W.H. Smith & Son Ltd [1969] 1 WLR 1460 at 1468 ;
Re Worrall (1965) 2 CCC 1 at 10 ;
Inland Revenue Commissioners v. Rossminster Ltd [1980] AC 952 at 1009 ; but cf.
Nakkuda Ali v. Jayaratne [1951] AC 66 ;
Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds [1980] AC 637 at 657-659 ; Inland Revenue Commissioners v. Rossminster Ltd at 1000, 1011;
DFC of T v. Saddler 82 ATC 4659 at 4663 (this decision was reversed on appeal - see 83 ATC 4552 - but not so as to affect what was said on the present point);
Boucaut Bay Company Limited (in liq) v. The Commonwealth (1927) 40 CLR 98 at 106 ;
W.A. Pines Pty Ltd v. Bannerman (1980) 41 FLR 175 at 186 ,
Shapowloff v. Dunn (1980-1981) 148 CLR 72 at 85-86 ;
Liversidge v. Sir John Anderson [1942] AC 206 at 219 (this dictum is not affected by the subsequent rejection of the majority decision supported by Viscount Maugham and adoption of Lord Atkin's dissent, as to which see the passage in the speech of Lord Diplock in Inland Revenue Commissioners v. Rossminster at 1011 cited above).

But the difficulty which the learned primary Judge perceived, and which led him to hold the warrant invalid, related to the statements lettered (a) and (c) (and other statements in the same form as (c)) of the offences as to the commission of which the warrant declared there were reasonable grounds for believing the documents described in it would afford evidence. His Honour thought the offence lettered (b) was adequately identified, but he considered the others to be misconceived. As he held the warrant could not be severed (a matter which the cross-appeal contests), and as it has been held a warrant must ``refer to a particular offence and authorise seizure by reference to that offence'' (
R v. Tillett & Ors ; ex parte Newton & Ors (1969) 14 FLR 101 at 113 ), he held this warrant invalid.

Before examining the question (the primary question in the cross-appeal) whether the learned Judge was correct in so holding, I find it convenient to refer to the second warrant issued by a justice, with which the appeal is concerned. The second warrant commences and concludes in the same manner as the first, so that it is unnecessary to set out any of its terms, except that part of it which contains what is described as the ``THIRD CONDITION''. This reads as follows:

``THIRD CONDITION and [as] to which THIRDLY there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth and in respect to which there are reasonable

ATC 4889
grounds for suspecting that the following offences have been committed: -

(a) Committed between the 1st day of June 1983 and the date of swearing this Information, namely conspiracy to defraud the Commonwealth in that the lessor failed to fully declare its income derived from the leasing of luxury motor vehicles in its income tax returns submitted to the Deputy Commissioner of Taxation in respect of the 1984/1985, 1985/1986, 1986/1987, 1987/1988 and 1988/1989 financial years; contrary to S. 86(1)(e) of the Crimes Act 1914 until the 24th day of October 1984 and thereafter contrary to S. 86A of the Crimes Act 1914

[there followed the same list as appeared following paragraph (a) of the first warrant]

(b) Committed between the 1st day of June 1983 and the date of swearing this Information, namely conspiracy to defeat the execution of a law of the Commonwealth, namely Sections 57AF and 161(1) of the Income Tax Assessment Act 1936 by failing to fully declare its income from the leasing of luxury motor vehicles; contrary to S. 86(1)(b) of the Crimes Act 1914

[the same list of persons reasonably suspected of having committed the offence was set out]

(c) Committed between the 25th day of October 1984 and the 30th day of June 1986 namely defrauding the Commonwealth in that the lessor failed to fully declare its income derived from the leasing of luxury motor vehicles in its income tax return submitted to the Deputy Commissioner of Taxation in respect of the 1984/1985 financial year; contrary to S. 29D of the Crimes Act 1914

[the same reference to persons reasonably suspected of committing this offence, or of being accessories, was here set out as in the corresponding part of the first warrant, and in paragraphs (d) to (g) inclusive the same offence as in paragraph (c) was repeated for subsequent years].''

The distinction taken by the primary Judge may now be stated. He pointed out that s. 57AF of the Income Tax Assessment Act 1936 is not a section which, of its own force, requires something to be done. It is not expressed as a command to be complied with. It simply sets a limit on the amount of depreciation that may be claimed in respect of a motor vehicle. The purpose, of course, was to prevent large amounts of depreciation being claimed in respect of very costly vehicles. His Honour accepted that, within the terms of paragraph (b) of the statement of offences contained in the first warrant, there could be an offence of ``Conspiracy to defeat the execution of a law of the Commonwealth, namely S. 57AF... relating to the leasing of luxury cars; contrary to S. 86(1)(b) of the Crimes Act 1914'', since the concerted taking of steps to misrepresent a transaction of lease of a luxury car, so as to deceive the Commissioner of Taxation into allowing the full deduction which s. 57AF denies, could be described as a conspiracy to defeat the execution of that law of the Commonwealth. A fortiori, the conspiracy described in paragraph (b) of the second warrant, which introduces the defeating of the execution of s. 161(1) of the Income Tax Assessment Act (the section that requires a person to furnish information in relation to his income) would be such an offence. Paragraphs (a) and (c) of the second warrant also allege identifiable offences, in the one case of conspiracy to defraud the Commonwealth, and in the other of fraud in terms of s. 29D of the Crimes Act. But, in his Honour's view, the references to compliance with the provisions of s. 57AF in paragraphs (a) and (c) of the statement of offences in the first warrant produced the result that these paragraphs did not identify offences.

In my respectful opinion, this is to take an overly technical view. The authorities make it clear that the statement of the offence in a search warrant need not be made with the precision of an indictment. That would be impossible, and indeed to attempt it would be irrational, bearing in mind the stage of the investigation at which a search warrant may issue. The purpose of the statement of the offence in the warrant is not to define the issues for trial; but to set bounds to the area of search which the execution of the warrant will involve, as part of an investigation into a

ATC 4890

suspected crime. The appropriate contrast is not with the sort of error which might vitiate an indictment, but with the failure to focus the statutory suspicion and belief upon any particular crime, with the result that a condition of the issue of the warrant is not fulfilled, and it purports to be a general warrant of the kind the law decisively rejected in the 18th century. There should be no going back on that rejection, which is an essential bulwark of respect for the integrity and liberties of the individual in a free society, but what the rule requires is identification (and so limitation) of an area of search by reference to a suspected offence, not the formulation of a pleading before the offence is capable of prosecution. I stated my understanding of this aspect of the law in
Parker & Ors v. Churchill & Ors (1985) 9 FCR 316 at 319 , as follows:

``(I)t is necessary to bear in mind the purpose of the specification of an offence or offences in a search warrant under s 10. In the nature of things, that purpose is far removed from the purpose of an indictment or statement of particulars of an offence charged. For the search warrant is a tool of investigation or of evidence gathering, and may be obtained at a time before any charge could be adequately framed, if indeed any charge should ever eventuate. The function of the indication of an offence in a search warrant is to `authorize seizure by reference to that offence': see R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113;
Crowley v Murphy (1981) 52 FLR 123 at 143 ;
Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ;
Quartermaine v Netto (unreported, Toohey J. 14 December 1984) ;
Rosenberg v Jaine [1983] NZLR 1 at 5 . It establishes a nucleus for the search. It enables both the officer executing the warrant, and the citizen whose premises are subjected to it, to form some judgment whether particular things are relevant or irrelevant, and particular actions authorised or unauthorised. Of necessity the lines cannot be precisely drawn, since the warrant is not concerned with what is known, but with what `there is reasonable ground for suspecting that there is'. The warrant is a map, drawn upon `reasonable grounds for believing', of a terra incognita. But the outline of that which is so believed must be sufficiently indicated to set the appropriate bounds to the search.''

The appellants (both in order to support the Judge's rejection of the first warrant and in order to attack his acceptance of the second) drew attention to a passage in the judgment of Jackson J. (a judgment with which, except in a respect presently irrelevant, Bowen C.J. and Lockhart J. expressed agreement) in Parker & Ors v. Churchill & Ors (1986) 9 FCR 334 at 348. Jackson J. said:

``A warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search ( R v. Tillett: Ex parte Newton (supra) at 113; Crowley v. Murphy (1981) 52 FLR 123 at 147-148:
Brewer v. Castles (1984) 1 FCR 55 and Australian Broadcasting Commission v. Cloran (supra) at 153.''

Insofar as this passage suggests a requirement, not merely to identify the offence so as to show the nature of the things for which search is to be made, but also to do so with exactitude, it goes beyond what was necessary for the decision. The warrant in Parker v. Churchill was upheld by the majority, except in relation to an offence described by Jackson J. (at 349) as:

``entirely bereft of any particularity'' and ``simply alleg[ing] in the broadest terms that `at various times' over a period of more than six years [certain individuals] had evaded payment of income tax...''

It is plain that it was not necessary to find a requirement of great stringency in order to hold that this was insufficient. And the descriptions of other offences contained in the warrant in Parker v. Churchill, which were far from precise, were held to be sufficient: a statement that certain persons ``did, at various times from the twenty-sixth day of October 1984 until the present time,... falsely quoted [ sic ] a certificate'' (i.e. a certificate for sales tax purposes), furnished as particulars of an offence described by the words: ``Section 15 of Sales Tax Assessment Act (No. 1) 1930''; a statement of an offence as:

``Section 29D of the Crimes Act 1914, in that [certain persons] did, at various times from the twenty-sixth day of October 1984

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until the present time, defraud the Commonwealth in relation to the purchase of raw materials free of sales tax and by failing to account for sales tax;''

and a statement of an offence as:

``Taxation Administration Act 1953, sub-section 8C(d), together with sub-section 11(1) of Sales Tax Assessment Act (No. 1) 1930, in that [certain persons] did, at various times from the twenty-sixth day of October 1984 until the present time, fail to register for sales tax purposes as manufacturers and/or wholesale merchants.''

(In order to enable the expression ``the present time'' to be read with better understanding, I note here that the warrant was dated 30 September 1985.)

Whether the proposition stated by Jackson J. is nevertheless correct is a matter of some importance. If it is correct, any search warrant under s. 10 must be able to pass a very stringent test. As it is at odds with a number of decisions in this area, some doubt has developed as to the true rule, so that Pincus J. in
Optical Prescription Spectacle Makers Pty Ltd v. Withers & Anor (1987) 13 FCR 594 at 598 (in a passage adopted by Spender J. in
Pressler v. Holzberger (1989) 44 A. Crim. R. 261 at 264 ) concluded ``there is some variance in the authorities as to the degree of particularity necessary''. Pincus J. (at 599) added the comment:

``It might be suggested, with respect, that the construction of s 10 of the Crimes Act which has been adopted could unduly hamper criminal investigation where there is good reason to suspect some serious crime, but no precise idea of what its character might be. In such cases the doctrine that the suspected offence or offences must be identified might seem to require modification.''

The actual decisions in OPSM and Pressler do not clarify the test. In each, the warrant was, on its terms and in the circumstances, plainly insufficient upon any of the tests that have been stated: see OPSM at 599-600; Pressler at 270-271.

The basal authority relied on by Jackson J., R v. Tillett, is also the authority from which some other cases have derived the same proposition. It is therefore desirable to see just what was said in R v. Tillett at the page cited. Fox J. formulated his view (at 112-113), which has been frequently approved, that:

``What s. 10 authorizes to be seized is therefore any `thing' which is, in the way required by the section, related to a particular offence. The warrant cannot authorize the seizure of things in general or things which are related to offences in general. In my opinion the warrant should refer to a particular offence and authorise seizure by reference to that offence.''

No one today would dispute that statement of the law. But his Honour went on to refer to Canadian authority concerning the comparable provision made by s. 429 of the Canadian Criminal Code of 1954 and its predecessor. He said [at 113]:

``(W)hile there are many Canadian cases on the topic, they are to a greater or less extent affected by statutory provisions dealing with the form and content of search warrants. They decide, inter alia, that the information must relate to a particular offence, that the description of the offence in the warrant must be sufficiently clear to enable the person where premises are being searched to know the exact object of the search, and that there must be in the warrant a sufficient description of the documents or things
R v. Solloway Mills & Co. [1930] 3 DLR 293 ; R v. Solloway & Mills [1930] 3 DLR 770;
Imperial Tobacco Sales Co. v. Attorney-General for Alberta [1941] 2 DLR 673 ; and see
Re Worrall [1965] 2 Can. Crim. Cas. 1 ; 48 DLR (2d.) 673 ).''

The first thing to notice about this passage is that Fox J. does not construe s. 10 of the Crimes Act as requiring the warrant to contain an indication of ``the exact object of the search''; that expression is part of his summary of the effect of Canadian cases that are, he says, ``to a greater or less extent affected by statutory provisions dealing with the form and content of search warrants''. Fox J.'s statement of what the Australian Act lays down has already been quoted; it is a broad requirement, in keeping with the nature of a search warrant as a tool of investigation for use at a stage when the outlines of the object in view may still be blurred. It is simply that " the warrant should

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refer to a particular offence and authorise seizure by reference to that offence " .

Even as a statement of the Canadian position, a rule expressed in terms of ``the exact object of the search'' seems, on examination, to be too stringent. None of the authorities referred to by Fox J. actually supports the use of this expression. In R v. Solloway Mills & Co., there was no reference at all to the offence to be found in the warrant. Hyndman J.A. (at 294-295) said the warrant ``should disclose the offence to enable [the person whose premises are to be searched] to learn that much, at least, of the object of the search'' and that ``the omission to set out the nature of the offence was fatal and rendered the search warrant invalid'' (emphasis added). The similarly named R v. Solloway & Mills , which concerned a different warrant, and was not an appeal from R v. Solloway Mills & Co., did not raise this point, but a question whether there was reasonable ground to believe the allegations placed before the Justice. In Imperial Tobacco Sales Co., the decision of the majority of the court turned on the strength of the information furnished to the Justice. The majority judgment delivered by Ewing J.A. expressly refrained (at 686) from dealing with an objection (which had been stated at 681) that ``neither the information nor the warrant contain any sufficient description of the things to be searched for and seized''. The minority judgment of Ford J.A. (at 678-679) does deal with this ground, but does so in terms consistent with the more general statement of the law I have already made, and does not suggest any ``exact object'' test. The final case referred to by Fox J., though not directly as authority, is Re Worrall. That case concerned a warrant the relevant portion of which read as follows (see CCC report at 17):

``WHEREAS it appears... that there are reasonable grounds for believing that oil paintings, records and documents of all descriptions, art books, artist's supplies, paints and restoration materials, and correspondence [which] may afford evidence that the public in the Province of Ontario have been defrauded by the sale of spurious oil paintings attributed to known Canadian artists, are in premises of Mr. Frank Worrall [description of premises]...''

The information in fact contained names of persons said to be associated with the sale of spurious paintings, but these names did not appear in the warrant. An offence described by the language of the warrant could hardly be said to enable the ``exact object'' of the search to be identified by reference to the description of the offence. The ``known Canadian artists'' are not identified, nor is the date of any alleged offence of fraud nor the parties to it, nor is there anything remotely like an identification of the paintings the subject of the fraud. Yet the majority of the Ontario Court of Appeal rejected a submission that the ``warrant [was] too vague and general''. Nothing in the case supports an ``exact object'' rule, although the dissenting Judge, Roach J.A. (at CCC 9), states a requirement that the Justice have before him evidence concerning ``a specific offence''.

In the passage I have quoted from the judgment of Jackson J. in Parker v. Churchill, it is indicated that, in addition to R v. Tillett, reliance as authorities is placed on three other cases. If reference is made to those cases several points will emerge. First, Crowley v. Murphy (1981) 52 FLR 123, as appears from a passage at 139, raised no issue at all as to the validity of the warrant, but was concerned only with the manner of its execution and with the problem of legal professional privilege claimed in respect of some of the documents. The passage at 147-148 cited by Jackson J. is concerned with the latter issue, and contains nothing that supports an ``exact object'' rule. Elsewhere in the judgment of Lockhart J. (at 152) the warrant is referred to as revealing ``the general nature of the alleged offence'', and (at 143) it is stated:

``The warrant must specify the offence in relation to which the search is to be authorized. I agree with Fox J. in Newton's case when he said: `In my opinion the warrant should refer to a particular offence and authorize seizure by reference to that offence.''

Nor is Brewer v. Castles any authority for the statement for which it is cited. Far from it. The report in 1 FCR 55 actually contains two judgments of Beaumont J., the first of which was concerned with a preliminary question of the jurisdiction of the court to entertain the application. The second, which commences at 60, dealt with whether a warrant was ``too wide

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and therefore bad''. The relevant portion of the warrant (which is set out at 56-57) refers to:

``any offence against a law of the Commonwealth namely:

i. Section 86(1) of the Crimes Act 1914 (Cth) to wit, conspiracy to commit an offence against a law of the Commonwealth, to wit, s. 49 of the Sales Tax Assessment Act No. 1, 1930.

ii. Section 86(1)(e) of the Crimes Act 1914 (Cth), to wit, conspiracy to defraud the Commonwealth.

iii. Section 49 of the Sales Tax Assessment Act No. 1, [sic] 1930, to wit, by any wilful act, default or neglect, or by any fraud, art of [sic] contrivance whatsoever, avoids or attempts to avoid taxation.

By the aforesaid Briot, and the aforesaid named persons in any combination and with any other person or persons unknown.''

The warrant went on to authorise seizure of:

``correspondence, prospectuses, company records, opinions of counsel, purchase orders, sales invoices, receipts, journals... and other documents and instruments as to which there are reasonable grounds for believing that it [sic] will afford evidence as to the commission of any such offence.''

Beaumont J. (at 61) quoted the passage in R v. Tillett requiring a warrant to ``refer to a particular offence and authorize seizure by reference to that offence''. He did not mention the passage for which the Canadian authorities were cited. He pointed out (at 62) that in R v. Tillett ``the principal warrant made no reference to any offence in its operative words'' and in its recital referred only to ``an offence against the Commonwealth Crimes Act '', without specifying the nature of that offence. Beaumont J. distinguished the case before him in the following terms [at 62]:

``In the present case, three offences are nominated, notwithstanding that the description of the second offence is necessarily general in terms. But, in my opinion, the description of the apprehended offences in the subject warrant is sufficiently definite to indicate the nature of the documents, if any, to be seized.

In my view, the proper construction of the warrant calls for a consideration of the instrument as a whole... In particular, in my opinion, it is appropriate to employ language in the operative portion of the warrant which incorporates by reference material in the recitals, provided the process gives a result which is reasonably clear to the ordinary reader and is sufficiently specific in terms of identifying a particular offence: to incorporate material by reference in this manner is to do no more than to read the operative words in their general context.

In my opinion, the present warrant is reasonably clear in its operation and it does achieve the degree of specificity thus required.''

Any ``exact object'' rule for which Brewer v. Castles is cited as authority must be using the expression very loosely and inexactly. Yet it is plain from the citation of the case in Parker v. Churchill (at 348) that the Full Court did not intend to overrule Brewer v. Castles, but on the contrary to follow it.

The final case cited by Jackson J. was Australian Broadcasting Corporation and Masters v. Cloran & Ors (1984) 4 FCR 151 (incorrectly called Australian Broadcasting Commission v. Cloran ). That was a decision of Lockhart J. in which (at 153) his Honour referred to R v. Tillett as authority for the proposition that warrants were bad which:

``fail[ed] to describe the particular offences in relation to which the seizure [was] authorized so as to enable the persons to whom they [were] addressed and the persons whose premises [were] to be searched to know the exact object of the search.''

But Lockhart J. also referred to the passage in Crowley v. Murphy subsequently mentioned by Jackson J., and to the decision of Beaumont J. in Brewer v. Castles, without casting any doubt on the authority of what Beaumont J. decided.

There are, in fact, a large number of other authorities dealing with this question which support a broad practical approach, rather than a narrow rule requiring the identification of an ``exact object''. In Quartermaine v. Netto (supra), Toohey J. dealt with a search warrant referring to ``books, records, bankbooks,... letters, hand written notes,... and other such

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material relating directly or indirectly to the payment of commissions by Airline Companies to [a named individual and companies]''. The warrant recited there were reasonable grounds for believing that this material:

``will afford evidence as to the commission of offences by the aforesaid [individual] and other persons of offences of conspiring to defraud the Commonwealth, namely the Australian Taxation Office, contrary to Section 86(1)(e) of the Crimes Act 1914.''

The specification of the offence and the description of the material in this warrant were challenged in the proceeding, and R v. Tillett was cited. Toohey J. said:

``The applicant's attack on the failure of the warrant to identify an offence with sufficient particularity focused on the identification of the offence itself and the absence of any indication as to the time at which or the period during which the offences were said to have been committed. A defendant, faced with an indictment in terms of the warrant, would be entitled to particulars of the conspiracies including particulars of the alleged connection between the payment of commissions by airline companies and a conspiracy to defraud the Australian Taxation Office. The person would also be entitled to particulars of the time at which or the period during which each offence was alleged to have been committed. It does not follow that a search warrant, lacking the particularity required of an indictment, is invalid. The question is - how much particularity is required in the present case?

The requirement of particularity is not merely formal; it is aimed at insuring that the person whose premises are being searched knows the object of the search and can therefore make some assessment of the material likely to prove relevant. It is unacceptable that such a person be left in the dark as to the object of the search.

In Tillett's case at p. 113, Fox J. spoke of the absence of authority on the need for identification of the offence though there are Canadian cases that decide:

`... That the information must relate to a particular offence, that the description of the offence in the warrant must be sufficiently clear to enable the person where premises are being searched to know the exact object of the search, and that there must be in the warrant a sufficient description of the documents or things.'

It is apparent that too much precision cannot be required of a search warrant for, as Northrop J. pointed out in Coward v. Allen (1984) 52 ALR 320 at p. 332:

`At the stage of the investigation when a search warrant is granted, it may not be known what particular offence or offences have been committed. It is sufficient that the warrant specifies the offences in such a way as to enable the constable executing it, as well as those assisting him, to decide if the things seized come within the things described in the warrant.'''

Toohey J. went on to point out that in Coward v. Allen the offence was stated as consisting of untrue or misleading statements which were not specified in the warrant, nor was any date or time of the alleged offences stated. Toohey J. held that the offences mentioned in the warrant before him were ``sufficiently particularised'' and that ``there is sufficient precision to enable the officer executing the warrant to know what he is required to look for and for those in whose premises documents are found to make some assessment of what is required of them''. He pointed out that the naming of an offender gave some precision to the warrant, although there is clear authority, as he also pointed out, that a warrant is not required to identify any offender: see R v. Tillett (at 114). The comment may be made that this in itself provides a large breach in any exactitude a warrant may otherwise achieve.

Coghill v. McDermott & Ors (1982) 48 ALR 351 is a case often cited in this area of the law. There, Marks J. (at 357) commented on a submission that the warrant, which referred to s. 86(1)(b) and (e) of the Crimes Act, did not say what law of the Commonwealth it referred to as the subject of the conspiracy, nor whether the Commonwealth itself or a public authority was involved. Marks J. said:

``It is true, I think, that a charge or count in a presentment might well require greater particularity of the offence than did the search warrant. But the question here is whether greater particularity was required in

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order to ensure that the search, which otherwise might be a trespass, was to be within reasonable limits of identifiable objectives permitted by s 10 of the Crimes Act''

(emphasis added).

His further discussion on the following page shows how far he was from considering it essential that any ``exact object'' be specified.

In
The Queen v. Sing & Anor ; Ex parte Harrison & Ors v. Sing (1979) 36 FLR 322 , Southwell J. quashed a search warrant, relating to the offices of accountants, which gave no hint to identify which client's documents were sought or the type of document that was sought; the Judge deplored the imprecision of the warrant, but added (at 326):

``(G)reat precision would rarely be possible and is not required by law and I do not purport to hold that under no circumstances might it be possible to uphold the validity of a warrant in this form. Here, reasonable precision in describing the document was possible and should have been attained. For those reasons I am of the opinion the warrant was too wide and for that reason alone ought to be quashed.''

Less than a week before the Full Court decision in Parker v. Churchill, the decision of another Full Court ( Fox, Lockhart and Jackson JJ.) was delivered in Arno & Ors v. Forsyth (1986) 9 FCR 576. Fox J. (at 582) said: ``I am of the view that the warrant is excessively wide and uncertain and is bad for this reason.'' The use of the word ``excessively'' makes it clear that some degree of width and uncertainty might not invalidate a warrant. Exactitude is not a requisite of validity. The warrant in that case referred to legal opinions and advices and other documents at the chambers of one of Her Majesty's counsel during a six-year period:

``in relation to the implementation of tax avoidance schemes associated with [certain persons and companies] and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences...

(a) Offences against Section 86(1)(a) of the Crimes Act, 1914,... that is to say, conspiracies to commit an offence against a law of the Commonwealth, to wit Section 231 of the Income Tax Assessment Act, 1936...''

With similar generality, the warrant went on to allege offences against s. 86(1)(b), s. 86(1)(e) and s. 29A of the Crimes Act and offences against s. 231 of the Income Tax Assessment Act. Lockhart J. (at 590-592) considered a submission, which he upheld, that the warrant was ``too general in that it did not describe with sufficient particularity the things to be seized, the offences alleged to have been committed and the facts constituting the alleged offences''. He said:

``It is necessary to sound a cautionary note when considering this question. When investigations are proceeding into alleged tax evasion on a large scale it may be impossible to define documents in search warrants other than in rather general terms. If the terms are so general or vague as to suffer from the vice of a general warrant then plainly it is bad; but it must be remembered that at the time the warrant is issued the matter is obviously at an investigatory stage and there will not be sufficient evidence in a form admissible at a criminal trial to prove the alleged offences. The purpose of the search is to obtain such evidence.... The balancing of the claims of the due administration of justice and those of the citizen whose rights must be jealously protected is not determined in a sterile vacuum but with due regard to the legislation involved and criminal activity suspected. The complexity of taxation frauds which often involve numerous persons and entities, and the concomitant difficulties associated with the gathering of documentary evidence to support the laying of charges highlights the dangers of too readily striking down warrants on the ground of generality in cases of this kind: see generally
R v Inland Revenue Commissioners ; Ex parte Rossminster Ltd [1980] AC 952 , especially per Lord Diplock at 1010.

...

The warrant is so general in its terms that it leaves it to the Federal Police officers who are to execute it to determine in their absolute discretion what documents they may seize within the very broad class of

ATC 4896
documents described in the warrant.... The warrant does not identify the persons alleged to have committed the offences and the description of the alleged offences is itself exceedingly wide; three of them are conspiracies. These are all matters which must be considered in deciding whether a warrant is bad for generality. Of course, the existence of any of those matters taken in isolation, does not necessarily lead to the conclusion that the warrant is defective. In each case the warrant must be looked at as a whole and all of its provisions taken into account.

...

In my opinion the warrant is far too wide and vague. It is akin to a general warrant and is bad for uncertainty.''

The first paragraph of this passage was cited by the Review Committee chaired by Sir Harry Gibbs in its
Review of Commonwealth Criminal Law, Fourth Interim Report (1990) 271-272 . The Report (at 259) indicated the warrant ``must refer to a particular offence'', but did not suggest a requirement of ``a particularity sufficient to [show] the exact object of the search''. The note of caution sounded by Lockhart J. may be compared with the careful review of the same problem made by the Ontario Court of Appeal in its joint judgment in
Re Church of Scientology and the Queen (No. 6) (1987) 31 CCC 449 at 509-516 .

In his judgment in Arno v. Forsyth, Jackson J. (at 595-596) relied on the same passage from R v. Tillett which he quoted in Parker v. Churchill, and referred to the same authorities in support of it. He also said that ``similar views'' had been taken elsewhere and cited three additional authorities to which I shall refer. But he continued [at 595]:

``A further aspect of the need for particularity, a need brought about by similar considerations, is that the warrant should identify sufficiently specifically what items are authorized to be searched for and seized...

As Lockhart J. observes in this case, the practical application of these requirements will vary, of course, from instance to instance but I think that it is plain that the search warrant in this case does not satisfy those requirements either in relation to the way in which the documents which are to be the subject of the seizure are defined, or in relation to the way in which the offences in question are also defined.''

Plainly enough, this passage acknowledges the broader approach which Lockhart J. had taken; and therefore, it seems to me, Jackson J. could not have intended his earlier reference to ``the exact object of the search'' to be given the precise meaning which a careful analysis of the language compels one to find in it. Furthermore, in concluding this portion of his judgment (at 596) Jackson J. says:

``I think that the manner in which the offences are stated in the warrant shows vividly that not only is the warrant insufficiently particular in relation to the documents the subject of it, but also that it is insufficiently particular in relation to the matter of statement of the offences in question.''

He then says:

``In these circumstances, I do not regard the warrant as being sufficiently particular in either of the respects to which I have referred, and I think that the primary judge was correct in treating it as not authorized by s 10.''

When he came to apply the law to the particular warrant in question, it is thus plain that he did so on the footing that it was sufficient particularity which was in question, not any measure of exactitude.

Nothing in either Parker v. Churchill or Arno v. Forsyth would suggest that the judges who decided Parker v. Churchill thought they were overruling or modifying the view of the law, at least as expressed by Fox and Lockhart JJ., stated in Arno v. Forsyth, to which two of them had so recently been parties.

Among the additional authorities to which, as I have said, Jackson J. referred in Arno v. Forsyth (at 595) is
Alder v. Attorney-General of Alberta (1977) 5 WWR 132 at 146-147 . That was a decision of Moshansky J. of the Alberta Supreme Court in which R v. Solloway Mills & Co. was followed. At the pages cited, it supports the necessity ``to state the nature of the offence''. But it is made plain that the nature of the offence is to be viewed in practical terms, and that it is possible to know it

ATC 4897

``in a reasonable fashion'', each case depending on its own facts.

The remaining cases to which Jackson J. referred were
Auckland Medical Aid Trust v. Taylor [1975] 1 NZLR 728 and Rosenberg v. Jaine [1983] NZLR 1. In the former (at 736-737), McCarthy P said:

``As, according to my view, s 198 [the New Zealand section closely corresponding to s 10 of the Crimes Act ] requires a warrant to be issued in respect of a particular offence, it seems to me to be a necessary requirement still that there be sufficient particularity to enable... the officer executing it to know to what offence the articles he is searching for must relate, and to enable the owner of the premises to understand, and if necessary to obtain legal advice about, the permissible limits of the search. I do not wish to suggest that a warrant must set out with precision as much detail as would be required in a charge sheet, and I agree with the submission made to us that whether the particulars given are adequate must turn in many cases on the individual crime.''

In Rosenberg v. Jaine (at 5) Davison C.J., pithily summarised the earlier decision, so far as it is relevant to the present question, in two propositions:

``The warrant should describe the alleged offence in respect of which the search is authorised so as not to mislead the reader as to the nature of the alleged offence''

(emphasis added);

and:

``The warrant must be in sufficiently specific terms in regard to what is authorised to be searched for and seized so as to enable the occupier of the premises to understand and, if necessary, obtain legal advice about the permissible limits of the search.''

In the latest New Zealand decision I have been able to obtain,
Rural Timber Ltd v. Hughes [1989] 3 NZLR 178 , the New Zealand Court of Appeal, in a judgment delivered by Cooke P., returned to the topic of the validity of search warrants. The warrants in question (as appears at 181) referred to an offence ``described simply as `conspiring to defraud the Commissioner of Works ( Crimes Act 1961, s. 257)'''. The court, however, considered (at 184) that by reference to the list of documents and things, the subject of the search, attached to the warrants:

``a reasonable reader would gather that hubodometers, instruments for tampering therewith, road user charges, and distances were involved. A reasonable reader would have little difficulty in gathering that the alleged conspiracy must involve misrepresentation of the distances travelled by the company's vehicles.''

Cooke P. added:

``In the absence of any limitation to a past period, it is also a reasonable inference from the warrant and the schedule that the offence might well be a continuing one. The warrant could not reasonably be expected to specify a commencement date, though at least approximate dates would be needed eventually if charges were laid.''

The decision, though influenced by the particular provisions of New Zealand statute law, supports a broad approach towards the requirement that a warrant contain a sufficient indication of the offence by reference to which it authorises seizure of the things described in it.

An approach which eschews overzealous technicality, while requiring the full measure of the substance to be observed, is also consistent with the fact that the legislature has entrusted to lay justices of the peace the task of issuing search warrants. If the courts were to insist upon the invalidation of a warrant for a legally incorrect formulation of an offence, although the substance of the offence could plainly be understood, they would not be interpreting the will of the Parliament but subverting it. For the Parliament cannot have intended lay justices to be held to such a standard, when it entrusted the task of issuing warrants to them. See Parker v. Churchill (supra at 323).

I have discussed the authorities dealing with the true test, for the sufficiency of the statement of the offence in a search warrant, at considerable length, because of the importance of the principle, and the difficulty which has arisen from the conflicting statements of it. In my opinion, the conclusion emerges clearly that there is no justification for an ``exact object'' test. The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. The question

ATC 4898

should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals. See Re Church of Scientology (ubi supra).

An application of this view of the principle to the two warrants, the contents of which I have indicated, leads to the conclusion that the warrants are not bad for generality. They limit the area of search by reference (inter alia) to offences sufficiently described to enable an ordinary reader to understand what are the subjects of the reasonable grounds for suspicion and belief that are recited. The language may not be elegant. It may do some violence to a fine appreciation of how the law expressed in s. 57AF of the Income Tax Assessment Act should be classified. But if paragraph (a) of the third condition of the first warrant be taken as an example, it plainly shows the nature of the offence as conspiracy to defraud the Commonwealth, identifies a number of suspected conspirators, and narrows the breadth of the suggested conspiracy to defraud by relating it to the leasing of luxury cars, and by specifying that the conspiracy was to defraud ``by failing to comply with the provisions of s. 57AF''. Of course, insofar as eight of those believed to be conspirators are identified, the warrant goes beyond what the law requires, since a number of authorities hold such an identification is unnecessary: R v. Tillett (supra at 114); Parker v. Churchill (supra at 322, 345); Quartermaine v. Netto (supra). In the last case, Toohey J. pointed out that by a specification of a suspected offender ``(g)reater precision is lent to the warrant''.

When it is argued that you cannot comply or not comply with s. 57AF, I am tempted simply to reply: how does that matter? The offence is not stated as a failure to comply with s. 57AF. The offence is conspiracy to defraud, of which some particulars are stated referring to s. 57AF and to the leasing of luxury cars. The language may be infelicitous, but at least it conveys that much. Nor should it be read in rigid isolation. It forms the first of a series of statements of offences, the next of which makes it clear that the same persons are suspected of conspiracy to defeat the execution of s. 57AF in relation to the leasing of luxury cars. That assists, on ordinary principles of construction in the light of context, to an understanding of what is meant by ``failing to comply with the provisions of S. 57AF'' in paragraph (a). It is, in any case, difficult to imagine what else might be meant by a conspiracy to defraud the Commonwealth in relation to s. 57AF and the leasing of luxury cars, if it is not some scheme to defeat unlawfully (if lawful tax minimisation only were involved there would be no criminal conspiracy) the operation of s. 57AF of reducing the available tax deduction for depreciation. Section 57AF is a fairly specific provision, and to indicate that a fraud is in relation to its operation is to provide a quite significant degree of specification of the fraud. (Cf.)
R v. Trottier , Ex parte McLaughlin (1966) 4 CCC 321 , which involved a reference to an inappropriate section.) When it is remembered that a search warrant, as Mason J. pointed out in
Baker v. Campbell (1983) 153 CLR 52 at 82 , and as the Full High Court emphasised in George v. Rockett (supra at 110), may be issued ``for use in [an] investigation'', which necessarily involves that many of the details may be still unknown, to regard this degree of particularisation as inadequate would be to stultify s. 10. It would certainly be inconsistent with the legislative intention that lay justices should be responsible for the issue of search warrants.

Similar considerations apply to paragraph (c) of the first warrant, and I do not think it calls for separate discussion.

When one turns to paragraphs (a), (b) and (c) of the second warrant, the position is even clearer. Those paragraphs contain similar allegations of offences, but expand them by some particulars of a modus operandi. The fact that these particulars would certainly be inadequate if furnished for the purposes of a criminal trial is beside the point. They narrow the statements of the offences so as to indicate that the offences relate to particular activities, and they indicate boundaries for the area of search. In my opinion, neither of these warrants is invalid by reason of its manner of stating the relevant offences.

If I had accepted the proposition which commended itself to the primary Judge, that

ATC 4899

paragraphs (a) and (c) of the first warrant, and as well paragraphs in the same form as (c), were bad, while paragraph (b) contained a valid statement of an offence, the correctness of the decision not to sever the warrant would have arisen directly for determination. In some circumstances, such a decision may be appropriate, having regard to the terms of the particular warrant, because severance is simply not possible. But his Honour did not approach the matter in that way. He decided that a search warrant is not severable, so that one invalid statement of an offence will render the warrant ``wholly invalid''. This view is not consistent with the Full Court decision in Parker v. Churchill (supra at 350). In my own first instance decision in Parker v. Churchill (supra at 321-322), I discussed in some detail Australian and Canadian authorities which establish a doctrine of severance in respect of search warrants. Later authority, both in Canada and here, has confirmed that doctrine:
R. v. J.E.B. (1989) 52 CCC 224 at 231-232 , a decision of the Nova Scotia Supreme Court, Appeal Division;
Fieldhouse & Ors v. FC of T (1989) 25 FCR 187 at 195, 204-205, 210 ;
Peters & Anor v. Attorney-General in and for the State of New South Wales & Anor (1988) 16 NSWLR 24 at 41 , affirmed on other grounds sub nom.
Love v. Attorney-General (NSW) & Anor ; Peters v. Attorney-General (NSW) & Anor (1990) 90 ALR 322 .

The severability of a search warrant has some importance for the present case because of the argument, further consideration of which I deferred earlier in these reasons, that the warrants contain an inaccurate reproduction of the language of s. 10(1)(a) of the Crimes Act, and thus purport to authorise inappropriately the seizure of things ``in respect to which there are reasonable grounds for suspecting that [the suspected offences] have been committed''. In my opinion, if this portion of the warrants is invalid, it is readily severable. As there has been no suggestion that any particular document has been, or is likely to have been, seized in reliance upon this portion of either of the warrants, it is unnecessary to decide whether the failure to follow precisely the wording of the statute did have any vitiating effect. I am unable to imagine anything in this case which could be a thing ``in respect to which'' the offence had been committed, yet would not fall within the terms of that part of the warrant which accurately reflects s. 10(1)(b). That has already been made clear in the discussion of the true meaning of the word ``and'' in this very special context. The reflection of s. 10(1)(a) in the drafting of the document cannot, in the circumstances, have made any practical difference to the search or the seizure. It would be an apotheosis of pedantry to refuse to sever the warrant, and to invalidate it on this ground.

The appellants then took exception to the words in the warrants immediately preceding the heading ``FIRST CONDITION'', `` THINGS which FIRSTLY are any one or more the following''. It was said the insertion of these words produced the result that:

``The Warrant does not say that the Justice was satisfied that the listed things were believed on reasonable grounds to afford evidence. It says that the satisfaction is in relation to one or more of the listed things. There was no satisfaction in relation to all the listed things. Those listed things in respect of which the satisfaction existed are not stated.''

But although a warrant must comply strictly with the statutory conditions of its issue ( George v. Rockett at 111), it should, like other documents, be read fairly, and not perversely. At the very commencement of the warrants, it is recited ``that there are reasonable grounds for suspecting that there is [ scilicet are] in, or upon [the premises]... certain THINGS which satisfy ALL of the three following conditions''. The first condition relates to the description of each document constituting a ``thing''; the second condition relates to an aspect of its subject matter; and the third condition is that there are reasonable grounds for believing that it will afford evidence as to the commission of the offences described. A further aspect of the third condition may, for the reasons I have given, be disregarded. The drafting technique is unnecessarily complicated, in itself an undesirable thing which could easily introduce error, but the warrant does state the requisite satisfaction of the Justice in relation to the existence of things in the premises answering the statutory description. Those things are records of information, and the warrant lists in detail the various forms which they may take. In doing so, it acknowledges, by the form of

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words on which the submission fastens, that a particular thing to be found on the premises will not fall within all of the categories, but may fall within any one or more of them. Also a category may be missing. But however unnecessarily complicated the language, the warrant does make it clear that the statutory requirements are fulfilled in respect of certain records the nature of which falls within the ambit of the categories listed. I think that to regard this as insufficient would be to elevate form above substance.

A number of fairly obvious drafting errors were drawn to our attention. In each of the two warrants the offences lettered (a) and (b) were stated to have been committed ``between 1st day of June 1983 and the date of swearing this Information''. It was argued that the date of the swearing of the information, as distinct from the date of the warrant, was not apparent. However, as I have pointed out, it is not necessary that an offence be stated with the precision required of an indictment; it would certainly be sufficient to specify the approximate date of an offence. In the circumstances, I cannot regard this error as vitiating the warrants.

Somewhat inconsistently, while complaining of the undue width of the warrants, the appellants also submitted that they were limited to documents which both constituted evidence and were things in respect of which the offences were suspected to have been committed. I have already explained why I think this is a misreading of the warrants.

It was pointed out that the offence lettered (c) in each of the warrants was described as ``committed between the 25th day of October 1984 and the 30th day of June 1986''. As this offence related to the income tax return for the financial year ended in 1985 (it was assumed that the financial year was that of the first appellant, and that it ended 30 June), the argument was that it could not have been committed as early as 25 October 1984. Similar arguments were advanced in respect of the corresponding offences for later years. But again the warrants were not required to specify the precise date of an offence, and a statement that an offence, which could only have been committed on a particular day, was committed between two dates over a year and a half apart necessarily acknowledges that it was not committed on any but one of the days between those dates. In any case, a reference merely to the furnishing of the relevant income tax return would have been quite specific and therefore must have been sufficient, and I do not think that the attempt at further specification vitiates the warrants.

The appellants also submitted that the warrants were defective because (it was said) they stated merely a suspicion, and not a belief, as to the commission of the offences. It was pointed out that, although the ``THIRD CONDITION'' commences by stating ``there are reasonable grounds for believing that [the things in question] will afford evidence as to the commission of the following offences'', it goes on to make an assertion of reasonable grounds for suspecting - first, in the portion of the warrant reflecting s. 10(1)(a); secondly, in the identification of ``[t]he persons reasonably suspected of having committed this offence''; and thirdly (in respect of those offences lettered (c) and following), in the amplification of the statement of persons suspected of having committed the offence to include persons suspected of ``having aided or abetted, counselled and procured the commission of the said offence contrary to S. 5 of the [Crimes] Act''. I do not think the particular matters adverted to are of any great significance. As for the first point, s. 10(1)(a) uses the expression ``suspected on reasonable grounds to have been committed'', so it is entirely appropriate that this portion of the warrant should refer to suspicion rather than belief. As for the second and third points, it will be remembered that the identity of the offenders is not required to be shown in a warrant. The provision of useful, but strictly unnecessary, additional information on the basis of suspicion, rather than on the basis of belief, and perhaps without the Justice turning his mind, on such an issue, to the question whether he could state the additional information as a matter of belief, is not something which should vitiate the warrant.

The real difficulty is not in the language of the warrant, which, so far as it relates to s. 10(1)(b), reflects accurately the language of the provision, but in the somewhat awkward dichotomy adopted by Parliament in the section itself. On the one hand, it is concerned with ``reasonable ground for suspecting'' the existence of ``anything'' in a particular place, and also, where paragraph (a) applies, with

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whether the thing is a thing ``with respect to which any offence is... suspected on reasonable grounds to have been committed''. On the other hand, under paragraph (b) the thing the presence of which is merely suspected must be ``anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence''. This language raises a number of problems. I have already adverted to the question whether the objective ground for suspecting, in the opening words, is reflected in paragraph (a), or whether that paragraph introduces for the first time a subjective suspicion. If it does so, paragraph (a) is, in that respect, disturbingly inconsistent with the objective concept embraced by the rest of the subsection. That the change of the manner of expression, from ``there is reasonable ground for suspecting'' to ``is suspected on reasonable grounds'' may not signal any change of concept seems to be suggested by the baffling variation from ``there are reasonable grounds for believing'' in paragraph (b) to ``there is reasonable ground for believing'' in paragraph (c). Perhaps the draftsman, like some painters, simply saw virtue in asymmetry. However, I have found it unnecessary to decide that point. But there is a distinct change of concept between the objectively expressed suspicion of the opening words of the subsection and the objectively expressed belief of paragraphs (b) and (c). The difficulty is not lessened when one asks what is ``any such offence'' in these paragraphs? The antecedent reference to an offence is in paragraph (a), concerned with a suspected offence. However, it may be that ``any such offence'' simply means ``any offence against any law of the Commonwealth or of a territory''. Paragraph (a) does not refer only to a suspected offence, but also to an offence which ``has been... committed''. Even so, paragraph (b) has a very wide ambit. It does not refer to anything that will prove an offence has been committed, but to ``anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission'' of an offence.

Paragraph (b) has not been amended since the Act was passed in 1914. As then enacted, the Act included s. 82 (which, though recast substantially, remains). That section is in Part VII, a special part concerned with breaches of official secrecy. It contains its own separate provision for the issue of a search warrant, which it is interesting to compare with s. 10. The original s. 82 read as follows:

``If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that an offence against this Part of this Act has been or is about to be committed, he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any premises or place named or described in the warrant, if necessary by force, and to search the premises or place and every person found therein, and to seize any sketch, plan, model, article, note, or document, or anything of a like nature, or anything which is evidence of an offence against this Part of this Act having been or being about to be committed, which he may find on the premises or place or on any such person, and with regard to or in connexion with which he has reasonable ground for suspecting that an offence against this Part of this Act has been or is about to be committed.''

Section 82 was war-time legislation in respect of breaches of official secrecy, and suspicion was obviously thought sufficient to justify the seizure of the things referred to in it. However, when it referred to evidence, it used the expression ``evidence of an offence''. Contrasted with s. 82, s. 10 appears to set a less restrictive criterion when it refers to ``evidence as to the commission'' of an offence. The draftsman of the Crimes Act in 1914, as I have pointed out, seems not to have been very concerned to maintain verbal consistency at all times, but while ``of'' can sometimes be used in the same loose sense in which ``as to'' is used (cf. George v. Rockett at 117 et seq., where the expressions are on several occasions used interchangeably, and cf. the definitions of ``as to'' and ``of'' in Macquarie Dictionary 2nd revsd ed. (1987)), it also has a more specific meaning. When one word is chosen for the purposes of s. 82 and the other for the purposes of s. 10, the word generally expressing the vaguer connection is likely to have been chosen to express that connection.

Flower's Modern English Usage, 2nd ed. (1982) at 36-37 castigates much use of ``as to''

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as use of ``a slovenly substitute for some simple preposition'' by which a more precise meaning could have been conveyed. Fowler's examples show that ``as to'' commonly has the sense of ``about'' or ``concerning''. In the immediate context of s. 10(1)(b), the expression ``evidence as to the commission'' follows directly upon the expression ``anything as to which there are reasonable grounds''. The earlier use must be in the sense of ``concerning'' or ``with reference to'' (cf. Webster Universal Dictionary (1975) International edition by Dr H.C. Wyld et al., ``as to''), and I think a similar meaning is expressed when the words are repeated. In George v. Rockett (at 119-120), it was said of the corresponding Queensland provision:

``An object will answer the description in par. (b) if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters.''

Later (at 121), the court referred to things ``tending... to establish an element of an offence''. This is a wide net. Although evidence which tends to show merely that no offence was committed will not (as the High Court said too at 121) satisfy the paragraph, evidence that a particular person has not committed an offence may well be evidence ``as to'' whether some other person has done so. Nor need evidence achieve, to be evidence, any high level of effect: see
Cheney v. Spooner (1929) 41 CLR 532 at 537-538 , per Isaacs and Gavan Duffy JJ.

The expression ``there are reasonable grounds for believing'' also casts a wide net. In George v. Rockett (at 116) the High Court said of it:

``(t)he assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.''

In the United States, where much the same concept is embraced by the Constitutional requirement of ``probable cause'', the courts have moved away from tests more appropriate to some species of proof. In the landmark decision of the Supreme Court,
Illinois v. Gates (1983) 462 US 213 , which concerned a search warrant issued upon an anonymous tip-off, Rehnquist J. (as Rehnquist C.J. then was) said (at 235):

``Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainly corresponding to `probable cause' may not be helpful, it is clear that `only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' Spinelli, 393 US at 419.''

The rejection of a standard of preponderance of the evidence makes it plain that the reference to the probability of criminal activity is not a reference to proof on the balance of probabilities, and that the evidence need not rise so high. The word ``probability'' is used here in a sense similar to that in which, in a comparable context, Blackstone used it in his Laws of England (1769) vol. IV ch. 21 when, claiming the authority of Sir Matthew Hale, he referred to ``the probability offered to [a justice of the peace] of... suspicion''. Indeed, Rehnquist J. (at 235) quoted a passage from Marshall C.J. suggesting that ``probable cause'' might be shown in respect of ``a seizure made under circumstances which warrant suspicion''. (Cf., in comparable, but different contexts,
Jones v. German [1897] 1 QB 374 at 377 ;
Karina Fisheries Pty Limited & Ors v. Mitson & Ors (1990) 26 FCR 473 at 491 .) But, although the cases mentioned show how fine is the line which, in this area of the law, may divide suspicion from belief, that would be to go rather further than George v. Rockett would allow.

In Canada, it has been held that ``the standard of `reasonable ground to believe' and that of `probable cause', which is contained in the Fourth Amendment to the American Constitution, are identical''.
R v. DeBot (1986) 30 CCC 207 at 219 , a decision of the Ontario Court of Appeal citing the judgment of

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Dickson J. (as he then was), speaking for the Supreme Court of Canada, in
Hunter v. Southam Inc. (1984) 14 CCC 97 . And it has been asserted of that standard that it is not to be equated with either proof beyond a reasonable doubt or a prima facie case. ``The standard to be met is one of reasonable probability''. R v. DeBot (ubi supra);
R v. Borowski (1990) 57 CCC 87 at 91 , a decision of the Manitoba Court of Appeal. See also Re Church of Scientology (supra, at 500-503). R v. DeBot was affirmed by the Supreme Court of Canada sub nom.
DeBot v. The Queen (1989) 52 CCC 193 , though the members of the Supreme Court differed in some aspects of their reasons. However, the whole court agreed with Wilson J. when she said (at 213):

``The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of `reasonable probability', rather than `proof beyond a reasonable doubt' or ` prima facie case'. The phrase `reasonable belief' also approximates the requisite standard.''

The statutory tests are required to be applied by the Justice. It has been emphasised by the courts that the responsibility is an important one: George v. Rockett at 111. There is, in this case, no reason to think it was not shouldered conscientiously, nor is there any ground for a contention that the Justice fell into error of law in finding the statutory conditions satisfied.

That leaves (in respect of the first and second warrants) the question whether the appellants should have been permitted by the learned primary Judge to examine the material that was before the justice of the peace, in order to see if they could find a foothold for an argument against its sufficiency. The Judge accepted the respondents' objection of public interest immunity, after examining the material for himself. At the hearing of the appeal, though with some hesitation, we also took the course of examining the material. It is appropriate to note at once that it confirms the claims made about it in the affidavit in support of the objection of public interest immunity.

The argument raised some fundamental issues. For the applicants, reliance was placed upon a number of cases, in Australia and overseas, where an information was made available to a person challenging the sufficiency of the evidence upon which a search warrant had issued. In some cases, a justice who had issued a search warrant has even been called to give evidence concerning the basis on which he proceeded:
Montague v. Ah Shen [1907] VLR 458 ; Parker v. Churchill (supra at 325). That is not usual. If, in a case under s. 10, an issue is raised as to the sufficiency of the ``information on oath'' which was placed before the Justice, I do not think the nature of the proceedings is such as to preclude an applicant having access to the information, in the absence of a specific objection. It was argued for the respondents that the right time to consider the sufficiency of the evidence is during the course of any prosecution proceedings which may eventuate: cf. the remarks of Mason, C.J. in
Australian Broadcasting Tribunal v. Bond & Ors (1990) 170 CLR 321 at 338-339 ; and see Coghill v. McDermott (supra at 360). At the stage when a search warrant is issued, premature disclosure of how much the police know may lead to the stultification of their enquiries, whereas a general rule of non-disclosure would merely postpone the right of an accused person, without extinguishing it. However, search warrants may be issued against innocent third parties who, on this view, might never have an opportunity to test the validity of the basis on which their privacy and their property were invaded. In my opinion, Toohey J. expressed the true rule in Quartermaine v. Netto (supra) when he said:

``I do not think that the information itself necessarily enjoys an immunity from production. It may be largely formal in its language. But it may be, on examination, that it details investigations being conducted, material which is protected by the public interest immunity of which Lord Wilberforce spoke [i.e. in Inland Revenue Commissioners v. Rossminster Ltd [1980] AC 952 at 999].''

In the particular case, Toohey J. inspected the information in order to determine the validity of the public interest immunity objection. But he did so at the invitation of the police.

If a subpoena is issued to obtain the information upon which a search warrant was issued, and the objection of public interest immunity is raised, should the court generally

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accede to an invitation from one or the other party to examine the information itself? The immunity is a very important one, and its basis is well understood:
Young v. Quin (1985) 4 FCR 483 at 494-495 ;
Marks v. Beyfus (1890) 25 QBD 494 ;
R v. Governor of Brixton Prison , Ex parte Osman [1991] 1 WLR 281 at 290 . But its application may not be so straightforward under circumstances of which a judge's knowledge must necessarily be incomplete. The difficulty was examined in some detail in
Alister & Ors v. The Queen (1983-1984) 154 CLR 404 . Murphy J. (dissenting in respect of the ultimate result) underlined (at 470) the disadvantage of the judge in such a situation.

In Alister v. The Queen, a majority ( Gibbs C.J., Murphy and Brennan JJ.) held that the trial Judge had been wrong to uphold a claim of public interest immunity without looking at the documents himself. Wilson and Dawson JJ. dissented. However, the problem had arisen at a trial for a serious criminal offence, not upon proceedings of the kind here in question. Gibbs C.J. (at 414) said ``the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings''. Furthermore, he was unpersuaded (as appears at 415) of the reality of the claim of public interest immunity. Murphy J. (at 431) appeared to take the same approach to this question as the Chief Justice. Reference was made by Brennan J. (at 454) to what Lord Edmund-Davies said in
Burmah Oil Co. Ltd v. Governor and Company of the Bank of England [1980] AC 1090 at 1,129 about the question whether a judge, faced with a claim of public interest immunity, should ``take a peep'' at the documents. Brennan J. commented: ``His Lordship thought it right to take a peep in that case, but it is not always necessary, nor even right, to do so.'' The basis, as Brennan J. made clear (at 455), on which he thought he should evaluate the documents for himself was that ``the innocence of a person accused might depend'' upon access to the documents. It was in this situation that he said (at 456):

``It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way...''

He added that the power of a criminal court to compel the production of government documents on the application of an accused person ``must be carefully used'', and continued:

``The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents.''

Alister v. The Queen may be distinguished in two important respects. For one thing, the considerations which there swayed the majority of the High Court are not to be found in a challenge to the issue of a search warrant. There is no question of grave and final issues of guilt or innocence turning upon the production of the information. The procedure is, and may remain, part of an investigation. While that distinction suggests inspection may not have been necessary here, the other points in the opposite direction. Nothing put before the court in Alister v. The Queen raised more than a possibility that relevant documents existed; it was not a case involving a known document of conceded or undoubted relevance. This aspect of the decision was pointed out in Commonwealth of Australia v. Northern Land Council ( Black C.J., Gummow and French JJ., unreported, 3 September 1991) at 76. There, the Full Court was concerned with documents listed for the purposes of discovery, and thus concededly relevant. Here, the nature of an information equally ensures that it must be relevant, provided there is an issue concerning the justification for the grant of the warrant.

In Northern Land Council, which was also a rather special case, the joint judgment (at 81) made a general comment (but not in the context - which is in some respects peculiar - of a challenge to a search warrant) about the nature of a decision by a judge to inspect documents the subject of a claim of public interest immunity:

``Inspection by the judge can be undertaken as an aid to the Court in assessing whether or not documents for which public interest immunity is claimed should be produced. It may enable the judge to identify and weigh with greater confidence than might be

ATC 4905
possible in the absence of such inspection, the factors to which reference has already been made. The decision whether or not to inspect itself involves a kind of anticipatory balancing exercise. It is certainly in the nature of a screening process but one well within the province of the courts. It is multi-factorial and does not require the application of some rule of thumb which may distract the judicial mind from the demands of the particular case.''

The court must bear in mind the strength of the circumstances which were required to be shown in Alister v. The Queen, and at the same time that an information will be a relevant document (though, of course, also possibly immune from production to a party - that is the ultimate question) where the basis for the issue of the warrant is challenged. The reconciliation of those and other relevant considerations must be performed in the light of all the material before the court. It will involve essentially an exercise of discretion, so that a particular decision, whether to inspect or not to inspect, will hardly be overturned in the ordinary case.

Where the affidavit supporting a claim to public interest immunity is, on its face, sufficient to sustain the claim, the court will frequently act upon that affidavit. In such a case, there may be nothing in the particular circumstances of a challenge to the issue of a search warrant, or in the terms of the affidavit claiming public interest immunity, to suggest the existence of a good reason why the Judge should look at the documents for himself. Not to do so would be in keeping with Young v. Quin (supra), where it was held that cross-examination of a deponent claiming public interest immunity should not be allowed unless in a very rare case indeed. Bowen C.J. (at 484) delivered a dictum concerning a claim to public interest immunity in respect of documents. He said:

``The court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, the better view appears to be that the court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced:
Conway v. Rimmer [1968] AC 910 at 952, 953 and 971 and see
Air Canada v. Secretary of State for Trade (No 2) [1983] 2 AC 394 .''

However, in the present case, the court decided to inspect the documents. That inspection confirmed the decision of the trial Judge, who had done the same, and had concluded that he should uphold the claim to public interest immunity. Therefore, the appeal fails on this issue. I agree with the learned primary Judge that a consequence is the final failure also of the appellants' attack on the sufficiency of the evidence to justify the issue of the warrants. The appellants contended that his Honour erred in not ordering a separate trial of this issue. But that was a decision on a point of procedure with which an appellate court would not readily interfere, assuming leave to appeal in respect of it, being necessary, were granted. I can see no ground for interference. A separation of issues at a final hearing always raises questions of discretion; here, the application for it was both belated and unsupported by any clear rationale.

It remains to consider the questions raised in respect of the third warrant, which was issued by a judge of the Supreme Court of South Australia under s. 71 of the Proceeds of Crime Act 1987.

In the third warrant, the offences to which it related were set out in the same language which was employed in the first warrant. Consistently with his findings in respect of the first warrant, the learned primary Judge held that only the second of the offences stated was an offence known to the law; that the warrant could not be severed; and that accordingly it was wholly bad. For reasons which I have already given, I respectfully disagree. But the cross-appellants went further and submitted that this court should also hold, in relation to a warrant under s. 71 of the Proceeds of Crime Act, that a less complete statement of an indictable offence will suffice than would be required for a warrant under s. 10 of the Crimes Act. The cross-respondents disputed this, and made the following further submissions:

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(a) that the warrant failed to state a proper purpose for which it was issued within the meaning of s. 71(7)(a);
(b) that the warrant failed to state a proper description of the kind of documents authorised to be seized within the meaning of s. 71(7)(c);
(c) that the warrant failed to comply with s. 71(7)(a) in failing to state that it is believed that an indictable offence has been committed.

The third submission was put formally, but not argued, in view of what was held in Karina Fisheries (supra at 491). The other submissions require some reference to be made to the terms of the legislation, and to the terms of the warrant.

The objects of the Proceeds of Crime Act include that set out in s. 3(1)(c): ``to enable law enforcement authorities effectively to trace... proceeds, benefits and property'' derived by the commission of offences against laws of the Commonwealth or the Territories. The Act, of course, also makes provision for forfeiture, confiscation, pecuniary penalties and other matters. A number of the terms used in the Act have special meanings, defined in s. 4. In particular, ``property-tracking document'' is defined, in relation to an offence, to mean:

``(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;''

``Tainted property'', in relation to an offence, is defined to mean:

``(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.''

Section 71 includes the following provisions:

``71(1) Where:

...

(b) a police officer has reasonable grounds for suspecting that:

(i) a person has committed an indictable offence; and

(ii) there is, or may be within the next following 72 hours, upon any land, or upon or in any premises, in a State or Territory 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 offence is believed to have been committed; or

(ii) the State or Territory referred to in paragraph... (b);

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.

...

71(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.

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71(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.

71(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.

71(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 authorised 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.''

The warrant under s. 71 issued in the present case, which I have called the third warrant, referred to an information on oath asserting reasonable grounds for suspecting a number of offences (which were set out), and asserting that the informant:

``has reasonable grounds for suspecting that there are `property tracking [ sic ] documents' as defined in Section 4(1) of the Proceeds of Crime Act 1987 as amended (`the Act') in relation to the said offences namely originals, duplicates or copies of the following documents which relate to the affairs of any one or more of the persons or entities named in the first paragraph hereof [i.e. Beneficial Finance Corporation Ltd, another company and five individuals said to be reasonably suspected of having committed offences] or which relate to property of or under the effective control, within the meaning of Section 9A of the Act, of any one or more of the said persons or entities namely: -

(a) Certificates of Title to real property, mortgage or charge documents, title deeds, memoranda of transfer of land, leases of land, contracts for the sale and purchase or [ sic ] real property, encumbrances and any other documents relating to the ownership of, or the exercise of effective control of, interests in real property;''

There followed, lettered (b) to (g), lists of other documents such as share certificates, income tax returns, banking documents, minute books, trust deeds and ``any other document relevant to... identifying, locating or quantifying property of, or under the effective control of, any one or more of the persons [suspected of committing the offences]'' or ``identifying, locating or quantifying tainted property in relation to the offences specified above''. Addresses in South Australia were specified where these documents were suspected to be. The warrant proceeded to recite a number of matters of which s. 71 requires a judge issuing such a warrant to be satisfied, and contained further statements, including a statement of the date when it would cease to have effect and a proviso in respect of legal professional privilege. Among the matters recited was the following:

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``AND WHEREAS the purpose for which this warrant is issued is to authorise those members of the Australian Federal Police to whom it is directed, pursuant to Section 70 of the Proceeds of Crime Act 1987, with such assistance, and by such force as is necessary and reasonable:

(a) To enter at any time of the day or night upon or into the premises specified above;

(b) To search such premises for any property tracking [ sic ] documents of the kinds described in paragraph 2 hereof in relation to the offences referred to in paragraph 1 hereof; and,

(c) To seize any documents found in the course of such search that you believe on reasonable grounds to be a property tracking document in relation to the offences referred to in paragraph 1 hereof.''

It is now possible to deal with the remaining questions. First, as to the requirement of s. 71(7)(a) to include in the warrant ``a reference to the nature of the indictable offence that has been or is believed to have been committed'', I do not think there is any reason to read this as contemplating something less than is necessary to comply with s. 10 of the Crimes Act. On the contrary, I think the legislature has adopted for this new provision the principle which had been worked out in the case law for s. 10 and similar provisions. I have already referred to leading authorities in Canada and New Zealand which use the very expressions ``the nature of the offence'' and ``the nature of the alleged offence'' to describe the relevant requirement: R v. Solloway Mills & Co. (supra); Rosenberg v. Jaine (supra).

The next matter is the question of the sufficiency of the ``statement of the purpose for which the warrant was [issued]'' required by subs. (7)(a). The warrant certainly purports to comply, but counsel for the cross-respondents argued that the purported compliance was misconceived. According to their submission, the statement in the warrant did not identify a sufficiently precise purpose. The court was referred to Karina Fisheries (supra). That was an appeal from
Karina Fisheries Pty Ltd v. Mitson (1990) 95 ALR 557 , where O'Loughlin J. (at 573) pointed out:

``In the Shorter Oxford English Dictionary the first meaning attributed to the word [purpose] is `The object which one has in view'.''

In Karina Fisheries, the warrant contained no statement of the purpose, and the argument was that the statement was implicit in the authority to enter and search. The joint judgment of the Full Court ( Sheppard, Foster and Hill JJ.) stated (at 490-491):

``To treat the words of authorisation, which described the ambit of the permitted invasion of privacy under the warrant as the purpose, is in our view to confuse the effect of the warrant with the purpose for which it is issued. This is not to say that there is no relationship between the two.

Where the legislature has required that the warrant state the purpose for which it is issued, it has done so in order that a person whose premises are to be entered and searched can see from the face of the warrant itself that the legislative requirement has been complied with. A warrant issued for a purpose foreign to the Act would be issued in excess of power and would be invalid. The legislative purpose is to enable such persons to determine on the face of the warrant itself whether the warrant has in this respect been validly issued and is being validly executed. Thus, although s 71(8) authorises an officer conducting a search to seize anything which he believes on reasonable grounds to afford evidence as to the commission of a criminal offence, a warrant issued for that purpose would be issued for a purpose foreign to the Proceeds of Crime Act and would be for that reason invalid.

It may well be that if the present warrants had merely stated that the purpose of the warrants was to authorise entry of the relevant premises or to authorise search of those premises for tracking documents as specified and to seize them, that the warrants would have been valid on their face. It may be said that the view we take prefers form at the expense of substance. But s 71(7) is a provision inserted by Parliament for the protection of the citizen. It must in our view be construed strictly and failure to comply with it will lead as in the

ATC 4909
present case to the warrants being declared invalid.''

It will be observed the Full Court contemplated that a statement in the form which has been adopted in the present case might be sufficient, although it did not decide that point, which was not before it. The joint judgment takes a view which the court recognised as somewhat formal. But subs. (7) is concerned with matters of form. It provides, not only for a statement of the purpose for which the warrant is issued, but also for the matters set out in paragraphs (b), (c) and (d). In my view, the subsection is more easily understood if its setting in the Act is borne in mind. The whole of s. 71 elaborates a condition of s. 70. That section provides:

``A police officer may:

(a) enter upon land, or upon or into premises;

(b) search the land or premises for any property-tracking document in relation to an indictable offence; and

(c) seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a property-tracking document in relation to an indictable offence;

but only if the entry, search or seizure, as the case may be, is made:

(d) with the consent of the occupier of the land or premises; or

(e) under a warrant issued under section 71.''

In a very real sense, the purpose of the issue of a warrant under s. 71 is simply to enable the search, for which s. 70 provides, to be carried out without the consent of the occupier. This, of course, is just what the statement in the present warrant asserts, on a fair reading of it. Particularly in a case involving a suspected indictable offence, as distinct from a case involving a conviction, it is quite likely that no more definite purpose could be stated; and I think paragraph (a) of subs. (7), like paragraphs (b) and (d), is concerned merely to ensure that the warrant shows on its face the specified particulars demonstrating that its execution is in accordance with law. The very use, in subs. (7)(a), of the singular, ``the purpose'', suggests that a statement of the statutory purpose, on the face of the warrant, would be sufficient, since if more individual purposes had been contemplated by the legislature, the singular would have appeared inappropriate. Cf. subs. (5)(d), which refers to ``the investigation for the purposes of which the search warrant is being sought''. The subject matter of subs. (5)(d) in itself suggests that Parliament would have been unlikely to have intended to require a statement of ultimate purposes which, in many cases, could only be made at the cost of making prejudicial disclosures to persons who might take dishonest advantage.

Disclosure, in the statutory scheme, is intended to be made to the judge before the warrant is issued. A warrant under s. 71 may only be issued by a Supreme Court judge. Subsections (5) and (6) show clearly that he is intended to make a searching examination of the information laid before him, on the footing that the warrant shall not issue except in the rather exceptional circumstances set forth in those subsections. In my opinion, he should not be easily satisfied. The consideration mentioned by Lord Camden L.C.J. in
Entick v. Carrington (1765) 19 St. Tr. 1029 at 1073 , ``that such a power would be more pernicious to the innocent than useful to the public'', provides only a part of the reason. The effect of the issue of a warrant as sweeping as the present may be quite horrendous. The comprehensiveness of the definition of a ``property-tracking document'' must make total disruption of a business a real possibility. So grave a possible consequence cannot be left out of account when the judge determines whether he is satisfied of the matters set out in subss. (5) and (6). For, as Dixon J. said in
Wright v. Wright (1948) 77 CLR 191 at 210 :

``(T)he nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue...''

This passage was taken up and applied by Lord Scarman in Khera v. Secretary of State for the Home Department
(Reg. v. Secretary of State for the Home Department. Ex parte Khawaja) [1984] AC 74 at 113-114 , where he said:

``The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.''

See also the interesting note in (1991) 107 LQR 194.

ATC 4910

In the present case, wide-ranging though the attack on the third warrant was, there was no submission on the appeal that the material before the Supreme Court Judge was not capable of satisfying him, or should not have satisfied him, of the special matters set out in subss. (5) and (6).

The final question is whether the third warrant is defective in failing to provide, within the meaning of s. 71(7)(c), ``a description of the kind of documents authorised to be seized''. The cross-respondents submitted that a specific description is here required. This submission must fail since the paragraph refers to ``the kind of documents'', which is quite incompatible with any requirement that specific documents be indicated. Furthermore, the statutory effect of the warrant, as set out in s. 70, makes clear Parliament's intention to stretch the net widely, and not to restrict it.

For these reasons, the appeal should be dismissed, and the cross-appeal allowed. As the appeal and cross-appeal concern so small a representative sample of a large number of warrants, and in view of the complexities of the matter generally, I think the only order that should be made at this stage is an order requiring the cross-appellant to bring in short minutes of the orders appropriate to be made in accordance with these reasons. The appellants should pay the costs of the proceedings below and of the appeal and cross-appeal.

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