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

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Pincus J

I have read the reasons of Burchett J. and, being substantially in agreement with them, find it necessary to deal only with three of the issues raised in the appeal.

1. Burchett J. expresses the view that a warrant under s. 10(1) of the Crimes Act 1914 may be valid although it does not disclose the ``exact object'' of the search. I agree and would, if the matter were res integra, go somewhat further and hold that it is not essential to validity that the warrant ``should refer to a particular offence and authorize seizure by reference to that offence'':
R v. Tillett & Ors ; ex parte Newton & Ors (1969) 14 FLR 101 and 113 . This view has, as Burchett J. mentions, received approval, but seems difficult to reconcile with the language of the section, or with any reasonable implication which may arise from it.

Section 10(1) of the Crimes Act allows a search for things intended to be used for the commission of offences; see para. (1)(c). A valuable function of search warrants, when properly used, must surely be to prevent the commission of offences. Suppose there is evidence that people associated with a terrorist group are accumulating a store of explosive devices in a house. There may be every reason to think the commission of a crime is contemplated, but no basis for saying whether it is likely to be murder, wilful destruction of an aircraft, extortion or some other crime. If the Justice to whom the information is brought is satisfied that the devices in the house are likely to be used for some unlawful purpose, would it be right nevertheless to refuse a warrant for a search and seizure? The object of the search, viz. explosive devices, may be quite specific, but the nature of the proposed crime known only in the broadest sense. I can see nothing in the wording of s. 10(1), nor in the presumption against general warrants, to justify a refusal of a search warrant in circumstances of the kind I have postulated. More generally, the object of a search may be able to be stated precisely enough in many instances where only an indication of the categories of offences suspected can be given.

As Burchett J. points out, authorities are to be found in which wide statements in warrants of the nature of the offence have survived attack.
Brewer v. Castles (1984) 1 FCR 55 , which appears to have been approved by a Full Court of this Court, is a good example. There are indications in the authorities of questioning of the correctness of the ``particular offence'' test:
Coward & Ors v. Allen & Ors (1984) 52 ALR 320 at 332 ,
Arno & Ors v. Forsyth (1986) 9 FCR 576 at 590, 591 .

If those requesting the issue of a warrant have in view a search for evidence relating to a particular offence, no doubt the warrant should be limited accordingly. I respectfully agree with the view of Burchett J. that the precision required in a given case may vary with the nature of the offence and other circumstances.

2. I regret that I cannot accept the view of Burchett J., as to the first warrant discussed by his Honour, that the word ``and'' in the opening part of the statement of the third condition should be read as ``or as well''. Nor can I concur in the view that this is the only sensible meaning which can be attributed to the

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ATC 4884

word. No doubt documents may both afford evidence as to the commission of an offence and also be documents in respect of which an offence has been committed; but some may fall into the former category but not the latter. An accurate set of accounts may, with other material, afford evidence as to the commission of an offence, but not be a document in respect of which an offence - for example, lodgment of a false tax return - has been committed. It is certainly an odd proceeding to confine the search and seizure to documents which fall into both categories, but I think a court should be slow to read the rather plain word ``and'' in a special sense, so as to expand the scope of the search warrant.

It does not follow from my view on this point that the first warrant is invalid; it is simply narrow.

3. Next, I think it unnecessary to deal with the question of severability, discussed by Burchett J. I agree that each of the warrants in question is, read as a whole, valid. Severance is permissible in some circumstances:
Parker & Ors v. Churchill & Ors (1986) 9 FCR 334 at 350 . I would prefer to leave for another day discussion of the question of the extent to which severance may properly be effected and how substantial the severed parts may be. Further, I respectfully express the view that the absence of any ``suggestion that any particular document has been, or is likely to have been, seized in reliance upon'' a particular part of a warrant cannot assist the respondents. It cannot be incumbent upon the party challenging an executed warrant to show which documents were seized in reliance on particular parts of it.

With the reservations I have set out, I am in agreement with the reasons of Burchett J. I also agree with the orders his Honour proposes.