Search warrants AU by Sweeney judge

Arno, Re; Exp Forsyth

Goto First Hit
(1985) 9 FCR 557
63 ALR 130; No. VG 149 of 1985

(Judgment by: Sweeney)
Re: Application for Injunction Against Liane Arno, Alan Richard Bradley, Richard Denis O’Donovan, Major Patrick Eaton, Philip George Curry and Peter James Butterfield
Ex Parte: Neil Harry Mark Forsyth

Court:
Federal Court of Australia Victoria District Registry General Division

Judge:
Sweeney

Subject references:
Application for injunction

Judgment date: 26 November 1985

Judgment by:
Sweeney
The applicant is one of Her Majesty’s Counsel and the respondents are members of the Australian Federal Police. Pursuant to s.39B of the Judiciary Act 1903 (Comm.) (“the Judiciary Act”) the applicant sought orders against the respondents in relation to a search warrant issued on 18 June 1985 by Bryan Joseph Clothier in his capacity as a Justice of the Peace. Mr. Clothier is a Victorian Stipendiary Magistrate.

The present application was first made to the Court on 18 June 1985 on an ex parte basis before any application had been filed. On that day, an interim injunction to restrain execution of the warrant was sought against the respondents and Mr. Clothier. The application was made by Mr. Finkelstein of Counsel, while the warrant was being executed. Mr Kirkham Q.C. appeared with Mr. Glick on behalf of the respondents, who had not been notified of the application, but who had evidently prepared in advance to meet it. After some debate, in which all parties participated, consent orders were made whereby any documents seized pursuant to the warrant, the subject of the ex parte application, were to be handed to the Registrar of the Federal Court forthwith, to be held by him until further order. Provision was made for the filing of an application and an early directions hearing.

An initial directions hearing took place on 21 June 1985 . No substantive orders were made, and the matter was adjourned for a further directions hearing on 24 June 1985 . A number of developments occurred on the adjourned date. By leave, the name of Mr. Clothier, who had up until then been included as a respondent, was deleted from the title of the proceedings, the parties taking the view, in reliance upon Coward v Allen (1984) 52 A.L.R. 320 , that he was not an officer of the Commonwealth within the meaning of s.39B, and that there was no jurisdiction to entertain an application against him.

By consent of the parties, on the oral application of a member of a Melbourne firm of solicitors, the legal opinions and advices given by the applicant to certain of the clients of that firm, and such other opinions and advices as counsel for the parties agreed to signify in writing to the Registrar, were ordered to be immediately available for collection by the applicant, who was then the fourth of four named applicants, the others being former clients of the applicant. This order was designed to facilitate the return of documents which, it was agreed, had nothing to do with any alleged offence with which the warrant was concerned, without the need for any formal application in respect of those documents.

Directions in reference to pleadings and to a notice of motion mooted by counsel for the applicant to permit his client to have access to and photocopy the documents being held by the Registrar were made, and the directions hearing was further adjourned, with liberty to apply being reserved to any party on 72 hours’ notice. On 1 July the anticipated motion was brought and consent orders were made permitting the access sought by the applicant.

When the present application was filed, no charge had been laid against the applicant, but on 22 July he was charged on information on four counts, two of conspiracy under s.86 of the Crimes Act 1914 with five members of one of the groups named in the warrant, and two of inciting them, contrary to s.7A of that Act, to commit offences against a law of the Commonwealth.

The next directions hearing occurred on 24 July 1985 , by which date the present applicant was the sole remaining applicant on the record, those who had previously been the first, second and third applicants, being amongst those referred to in the warrant, having filed notices of discontinuance. There had also been a change of solicitors for the applicant. Mr. O’Callaghan Q.C. appeared with Mr. Finkelstein for the applicant and Mr. Hayne Q.C. appeared with Dr. Jessup for the respondents. In addition, a solicitor from a second firm of Melbourne solicitors sought and obtained an order, by consent of the parties, in similar terms to that of 24 June making available for collection documents belonging to its clients, which, it was agreed, had no relevance to issues between the applicant and the respondents.

The warrant, which purported to authorise the search of the applicant’s chambers, read as follows:

“COMMONWEALTH OF AUSTRALIA
CRIMES ACT 1914
SEARCH WARRANT
TO: Liane ARNO
Alan Richard BRADLEY
Richard Denis O’DONOVAN
Major Patrick EATON
Philip George CURRY
Peter James BUTTERFIELD
Australian Federal Police Officers attached to the Office of the Director of Public Prosecutions, Major Fraud Division, 200 Queen Street, Melbourne in the State of Victoria.
WHEREAS, I Bryan Joseph Clothier, a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act, 1914, Being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there are in a place being the chambers of Neil H.M. Forsyth, Queen’s Counsel, situated at Room 45, 11th floor, Latham Chambers, 500 Bourke Street, Melbourne, in the State of Victoria, certain things, being; legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st 1976 to June 30th 1982 in relation to the implementation of tax avoidance schemes associated with the following persons and entities:”
(37 names were then set out at the foot of page 1 and on the whole of page 2 of the warrant, of ‘persons and entities’, who were later said to fall into seven groups. Some of the 37 had not been charged with any offence, some had been charged but no proceedings had been commenced against them, some had been committed for trial, some were being tried, and one had been convicted and was serving a sentence of imprisonment)
“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; and in respect to which there are reasonable grounds for believing that the following offences have been committed;
(a)
offences against Section 86(1)(a) of the Crimes Act, 1914, a law of the Commonwealth, 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;
(b)
offences against Section 86(1)(b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit the Income Tax Assessment Act, 1936.
(c)
offences against Section 86(1)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.
(d)
offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.
(e)
offences against Section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by an (sic) fraud, art or contrivance whatever.
YOU ARE HEREBY AUTHORISED, with such assistance as you think necessary, to enter at any time the said premises, if necessary by force, and to seize the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences, and in respect to which it is suspected on reasonable grounds that the said offences have been committed, and for so doing this shall be your sufficient warrant.
GIVEN under my hand at Melbourne in the State of Victoria this 18th day of June 1985
B.J. Clothier
A Justice of the Peace and a Stipendary Magistrate in and for the State of Victoria”

The parties have agreed that the court should decide in the first instance the question of the validity or otherwise of the warrant on its face (see Order 29 R 2 (a) of the Federal Court Rules). It was common ground that the trial of all the issues in the case would occupy a very long time.

Section 10 of the Crimes Act 1914 reads as follows:

“10.
If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, 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;
he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place.”
The draftsman of the warrant was no doubt concerned to comply with the requirement that a warrant should disclose jurisdiction on its face.

(See The Queen v Tillett ex parte Newton (1969) 14 FLR 101 and cases cited therein: Gossett v Howard [1845] 10 Q.B. 411 ; 116 E.R. 158 Caudel v Seymour (1841) 10 L.J.M.C. 130 ; 113 E.R. 1372 Yirrell v Yirrell (1939) 62 CLR 287 Posner v Collector for Interstate Destitute Persons (Vic) (1946) 74 CLR 461 ).

When he used the words in the recital in relation to the things designated in it,

“in respect to which there are reasonable grounds for believing that the following offences have been committed”,

he did so in apparent reliance upon the language of para. (a) of s.10, which so far as is material, reads:

“anything with respect to which any offence … is suspected on reasonable grounds to have been committed”.

This requirement of the section, which is a condition necessary to give jurisdiction for the grant of a warrant, is two-fold. The Justice must be satisfied by information on oath that a designated thing, the seizure of which is authorised by the warrant, is one with respect to which any offence is suspected to have been committed, and that it so suspected on reasonable grounds.

The recital that there are reasonable grounds for believing that an offence has been committed uses the word “believing”, which is stronger than “suspecting”, but it does not say that the Justice was satisfied on oath that anyone in fact held such a belief. The recital does not disclose that the prescribed suspicion was held and that it was held on reasonable grounds. However, as the applicant did not contend that this discrepancy supported the conclusion that the warrant did not disclose jurisdiction on its face, I do not propose to rely upon it for that purpose.

There was much debate as to whether the words in the recital “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences and in respect to which there are reasonable grounds for believing that the following offences have been committed” qualify only the phrase “tax avoidance schemes” which immediately precedes them on page 3 of the warrant or whether they also qualify the same phrase appearing on page 1 of the warrant. If the applicant’s submission that they qualified only the phrase on page 3 were accepted, there would be no recital of any kind which purported to disclose jurisdiction under s.10 for the issue of a warrant in relation to the schemes referred to on page 1. The applicant pointed to and relied upon the absence of any comma after the phrase “tax avoidance schemes” on page 3.

The question is not free from doubt but I prefer to accept the submission of the respondents that when one reads the recital as a whole the words in question should be understood as also qualifying “tax avoidance schemes” where the phrase appears on page 1.

The operative clause of the warrant authorised the seizure of “the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and in respect to which it is suspected on reasonable grounds that the said offences have been committed”. “The said offences” may be taken to be those specified in the four paragraphs of the recital, lettered (a) to (d), which read:

(a)
offences against Section 86(1)(a) of the Crimes Act, 1914, a law of the Commonwealth, 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;
(b)
offences against Section 86(1)(b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit the Income Tax Assessment Act, 1936.
(c)
offences against Section 86(1)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.
(d)
offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.
(e)
offences against Section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by an (sic) fraud, art or contrivance whatever.”
Section 86 of the Crimes Act, 1914, deals with conspiracies-

(1)(a)
to commit an offence against a law of the Commonwealth
(1)(b)
to prevent or defeat the execution or enforcement of a law of the Commonwealth
(1)(e)
to defraud the Commonwealth or a public authority under the Commonwealth.
18. Section 231 of the Income Tax Assessment Act, 1936 read as follows:

“231(1)
Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, by any wilful act, default or neglect, or by any fraud, art or contrivance whatever, avoids or attempts to avoid assessment or taxation shall be guilty of an offence.
Penalty»: Not less than Fifty dollars, or more than One thousand dollars and, in addition, the Court may order the person to pay to the Commissioner a sum not exceeding double the amount of tax that has been avoided or attempted to be avoided.
(2)
A prosecution for an offence against this section may be commenced at any time within six years after the commission of the offence.”
This section was repealed by Act No. 123 of 1984, with effect from 14 December 1984.

20. Section 29A of the Crimes Act, 1914, reads as follows:

“29A(1)
Any person who, with intent to defraud, by any false pretence obtains from the Commonwealth or from any public authority under the Commonwealth any chattel, money, valuable security or benefit, shall be guilty of an offence.
(2)
Any person who, with intent to defraud, by any false pretence, causes or procures any money to be paid, or any chattel, valuable security or benefit to be delivered or given, by the Commonwealth or by any public authority under the Commonwealth to any person, shall be guilty of an offence.
«Penalty»: Imprisonment for five years.”
Paragraph (a) of the recital, which is adopted by reference in the operative clause, can be seen to be very wide in its scope. It embraces conspiracies by any person or any company, by any wilful act, default or neglect, or by any fraud, act or connivance whatever, to avoid or attempt to avoid assessment or taxation.

Paragraph (e) brings within the reach of the warrant offences against s.231, without reference to conspiracy.

Paragraph (b) includes conspiracies to prevent or defeat the execution or enforcement of the Income Tax Assessment Act 1936. When one contemplates the nature of that Act, its scope and complexity, it is at once apparent that this paragraph alone embraces many possible conspiracies.

Paragraph (c) is also very wide reaching, in its reference to conspiracies to defraud the Commonwealth, as is paragraph (d) in its reference to offences of falsely pretending with intent to defraud and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.

When paragraphs (a) to (e) are read together, they embrace a multitude of possible offences, bringing within their reach offences against detailed and complicated Acts. Many cases have emphasised that it is difficult to define the boundaries of alleged conspiracies. This has particular force in relation to this warrant, which refers to conspiracies to commit one or more of so many possible offences.

In Australian Broadcasting Corporation v Cloran (1984) 4 F.C.R. 151 the Court was asked to determine, as a preliminary question, whether two warrants issued under s.10 were invalid on their face. The applicants contended that the warrants failed to describe the offences in relation to which they were issued with sufficient certainty and particularity.

The recital to the warrants referred to a diary, notebooks, tapes, film, documentation and records maintained by the corporation in the preparation, production and transmission of a particular program titled “Branded”, “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against s.70 of the Crimes Act 1914 a law of the Commonwealth”.

The operative provision of the warrants authorised the seizure of “the said things”, which phrase was followed by an inclusive description corresponding with that in the recital, “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against a law of the Commonwealth”.

Lockhart J. pointed out (at p.153) that the operative provision did not go on to say that those offences were “the said offences” or otherwise to import by reference the description of the offences appearing in the recital, and held that it was “impermissible to construe the warrant as defining in its operative provisions the alleged offences as being offences against s.70 of the Crimes Act 1970”. Accordingly the warrants were held to be bad, “because they fail to describe the particular offences in relation to which the seizure is authorised so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search”.

30. His Honour went on to hold (at p.154):

“Even if it is permissible to read the description of the offence in the operative part of the warrant as incorporating the description in the recital the warrants would still in my view be bad for failing to specify the particular offence or offences alleged to be involved.

Section 70(1) of the Crimes Act 1914 (Cth) provides:

‘Any person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of his office, and which it is his duty not to disclose, shall be guilty of an offence.’

Section 70(2) provides a like offence in the case of a person who

‘having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of his office and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose …’ .

A «penalty» is provided of imprisonment for two years, Section 70 thus provides for the commission of a somewhat indeterminate number of offences. Although perhaps as a matter of pure logic it may be that each subsection provides for the possible commission of four offences, this, of course, overlooks the consideration which may arise in practice of more than one person being involved in the publication or communication of the relevant material to more than one person. Thus, the possible combinations of people who communicate information and of those to whom information is imparted are manifold.

The warrants in this case are fairly open to the construction that, on the assumption that it is permissible to read the operative provisions in light of the recital (insofar as the delineation of the offences is concerned), it is impossible to know with any degree of particularity or precision what are the offences alleged to be committed against s.70.”

If one applies the reasoning in Cloran’s case, with which I respectfully agree, to the terms of the warrant in the present case, it supports the opinion, to which I have come, that it is impossible to know with any degree of particularity or precision what are the offences alleged in the present warrant to have been committed.

The warrant fails the test laid down by Marks J. in Coghill v McDermott 1983 V.R. 751 that a search warrant must disclose with sufficient particularity the suspected offences although not to the same degree of particularity required of a charge or count in a presentment.

The warrant refers to documents prepared by the applicant over a period of six years in relation to the implementation of “tax avoidance schemes”. The warrant does not refer to tax evasion schemes but uses a term which would ordinarily be understood as referring to schemes designed so as not to offend against the provisions of the revenue law, let alone the criminal law. The expression “tax avoidance schemes” is very broad in its reach and would cover a wide field of legal opinion and advice.

The recital at first refers to tax avoidance schemes associated with the named persons and entities, which, standing alone, would have some narrowing effect upon the scope of the warrant. However, it then changes direction and refers to “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 of the commission” of the listed offences “and in respect to which there are reasonable grounds for believing” that they have been committed.

Counsel for the respondents submitted that this produced the result that the schemes so characterised were within the terms of the warrant, whether they were associated with the named, or any other persons and entities. At first reading, the change in direction in the warrant appeared puzzling but in the end I have come to the view that the respondent’s submission should be accepted. This produces the result that the warrant authorises the seizure of documents in relation to tax avoidance schemes in which any member of an unlimited class of persons and companies is involved.

The operative clause of the warrant authorises the respondents, with such assistance as they think necessary, to enter at any time the applicant’s chambers, if necessary by force. Looking at the warrant on its face, it was thus capable of being executed in the absence of the applicant, or anyone representing him, so that he might have been ignorant of its existence, until the documents seized had passed into the possession of the respondents.

The operative clause continues “and to seize the said things more fully described above” (that is to say, in the recital) “which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences, and in respect to which it is suspected on reasonable grounds that the said offences have been committed”.

When one turns back to the recital, one finds on page 3 the words “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect to which there are reasonable grounds for believing that the following offences have been committed”.

The underlined words are common to the recital and the operative clause but there is a difference between the words which are not underlined. The operative clause refers to things “in respect to which it is suspected on reasonable grounds that the said offences have been committed”. It thus follows the language of s.10(a) of the Crimes Act.

There remains the difficulty that the operative clause begins by authorising the seizure of “the said things”, a phrase which plainly imports the words of the recital, but then adds the qualification “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and in respect to which it is suspected on reasonable grounds that the said offences have been committed”. If the qualification had been in the same terms which are found in the recital it would have been possible to read it as a simple adoption of the those terms, with the result that the recital and the operative clause would have been consistent with each other. As it is, although the operative clause refers to the “said things more fully described above”, it adds a qualification in terms different from those in the recital. The belief and suspicion referred to in the operative clause cannot be read as a reference back to the language of the recital, which does not contain the words “and in respect to which it is suspected on reasonable grounds that the said offences have been committed”.

The operative clause should, in my opinion, be read, as the respondents submitted, as referring to belief and suspicion in the mind of a person seeking to execute the warrant. In the result, the identity of the things which may be seized may turn upon the existence in the mind of a searcher of a belief or suspicion based upon reasonable grounds. A person whose premises are being searched would have difficulty in ascertaining whether such a belief or suspicion existed and whether it was based upon reasonable grounds.

The person who places information before the Justice on oath may well be different from the person executing the warrant. In the present case, the warrant authorises six respondents to enter the premises and seize things. For all that appears on the face of the warrant, some of them may have suspected on reasonable grounds that some or all of the said offences had been committed. Others may have entertained a different suspicion. A warrant should not be capable of meaning different things to different searchers.

The warrant would have been easier to understand had the recital followed the language of s.10(a) and had the operative clause referred merely to “the said things more fully described above”. In that case, in relation to the point presently under consideration the warrant would have disclosed jurisdiction on its face, and there would not have been this occasion for confusion, always provided that the recital had sufficiently identified the things to be seized.

When the operative clause of the warrant uses the words “as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences”, it is using the same words as those in the recital, but the latter speak of something of which the Justice has been satisfied by information on oath. The words of the recital go to disclosing jurisdiction on the face of the warrant, and do not refer to the state of mind of any person executing the warrant. The issue of the warrant and its terms are what should concern such a person. If that belief in the mind of the searcher extended to things outside the belief of the informant on oath, the warrant would purport to authorise seizure of a thing in respect of which the Justice had not been satisfied that the necessary belief was held.

The warrant here in question is dated 18 June 1985 . On October 26, 1983 the High Court in Baker v Campbell ( 153 CLR 52 ) held that the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings.

The circumstances which gave rise to that case are set out in the judgment of Gibbs, C.J. at pp.57-8, as follows:

“The question for decision in this case is whether an officer of the Australian Federal Police force, acting under the authority of a search warrant issued pursuant to s.10 of the Crimes Act 1914 (Cth), as amended, is entitled to seize documents kept by a solicitor at his office, notwithstanding that the documents would be privileged from disclosure or production in the course of legal proceedings.

In about February 1979 the plaintiff in the present proceedings retained a member of a firm of solicitors to act as his solicitor to advise him in relation to certain aspects of a scheme which he had devised to minimize liability for sales tax. The defendant is a member of the Australian Federal Police, and therefore a constable within the meaning of the Crimes Act: see s.3 of that Act and s.5(1) of the Australian Federal Police Act 1979 (Cth). On 7 July 1982 the defendant, acting pursuant to a search warrant granted to him on the preceding day, attempted to seize documents held by the firm of solicitors at their office. The documents were all brought into existence for the purpose of obtaining or giving legal advice, and include documents created solely for the purpose of tendering professional advice to the plaintiff otherwise than in relation to any civil or criminal proceedings then existing or in contemplation. The documents do not relate to any particular transaction that was entered into. The warrant, which was issued under s.10 of the Crimes Act, recited that the justice issuing it was satisfied by information on oath placed before him that there were reasonable grounds for suspecting that there were, in a place, namely the premises occupied by the firm of solicitors, things, being the original or copies of certain documents, all of which had been produced or held by, for, or in respect of the plaintiff and certain other named persons, and as to which there were reasonable grounds for suspecting that the same would afford evidence as to the commission by the plaintiff and other persons of offences against the Sales Tax Assessment Acts (Cth) and the Crimes Act, and went on to authorize the defendant to enter the said place and to seize the said documents.

The plaintiff contends that the documents are the subject of legal professional privilege whereas the defendant contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm. Having regard to the form of the question asked, it is unnecessary to resolve that dispute. The defendant further contends, but the plaintiff disputes, that even if legal professional privilege attaches to the documents they may lawfully be seized under the search warrant. On or about 5 October 1982 the plaintiff and certain other persons were charged with offences against s.86(1)(e) of the Crimes Act (conspiracy to defraud the Commonwealth), s.86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or endorsement of a law of the Commonwealth, namely s.9 of the Sales Tax Assessment Act (No.3) 1930) and s.86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s.9 of the Sales Tax Assessment Act (No.7) 1930).

In these circumstances the Court is asked the following question:

‘In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm, can those documents be properly made the subject of a search warrant issued under s.10 of the Crimes Act.'”

47. The Court’s answer to this question was, by majority, “No.”

Two members of the majority referred to procedural problems which may arise in testing a question of privilege in a context other than that of judicial or quasi-judicial proceedings.

49. At pp.131-2 Dawson J. said:

“It is necessary only to add a few words about one justification which is put forward for restricting the application of the doctrine of legal professional privilege to judicial or quasi-judicial proceedings. It is said that there is no appropriate means by which a question of privilege might be tested in a context other than that of judicial or quasi-judicial proceedings and that this is a factor indicating that the privilege should be limited to those proceedings. See, e.g., O’Reilly’s Case. I am bound to say, with respect, that in my view this would be an entirely inadequate reason, even if it existed for restricting the application of a fundamental principle. However, it does not seem to me that there is any real difficulty. In the first place, the doctrine of legal professional privilege is not ordinarily difficult to apply and there is no reason to suppose that its application in a non-judicial context is any less appropriate than the application of the many other rules of law which must frequently be applied in proceedings other than judicial proceedings. Moreover, should any dispute arise, the means exist whereby a judicial determination of the dispute may be obtained as is indicated by this and the other cases in which such a dispute has arisen. Such a reason was not thought to justify the exclusion of the privilege against self-incrimination from extra-judicial proceedings (see Sorby v. The Commonwealth) nor should it do so in the case of legal professional privilege.”

50. Wilson J. said (at 97):

“It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem.”

The present case, unlike Baker v Campbell, does not fall to be determined on the assumption that legal professional privilege attaches to and is maintained in respect of the documents described in the warrant. In Baker’s case the plaintiff was the client; here the applicant is counsel in whose chambers the documents were said to be.

52. In the present case, the respondents say in their defence that none of the documents was or is a document to which legal professional privilege attaches, and in particular that:

“(a)
such of the documents as are fee books, indexes or lists of opinions, diaries and like documents were not created for the purpose of giving or receiving legal advice and do not record any legal advice and in the premises are not privileged, whether as alleged or at all;
(b)
further or alternatively such of the documents as are or purport to be legal opinions were not given and further or alternatively were not received in confidence but were given and further or alternatively were received or later were used for the purpose of being shown to and their contents revealed to persons other than the person requesting the preparation of the opinions and in the premises are not privileged whether as alleged or at all;
(c)
further or alternatively in so far as the documents constitute legal opinions such opinions were obtained and further or alternatively were used in furtherance of fraud or crime namely the several offences referred to in the said warrants and in the premises are not privileged whether as alleged or at all.”
In O’Rourke v Darbyshire and Others 1920 AC 581, the appellant relied upon the proposition that no privilege comes into existence with regard to communications made in order to get advice for the purpose of carrying out a fraud. Viscount Finley said (at p.604):

“This is clear law, and, if such guilty purpose was in the client’s mind when he sought the solicitor’s advice, professional privilege is out of the question. But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications. In the present case it seems to me clear that the appellant has not shown such a prima facie case as would make it right to treat the claim of professional privilege as unfounded.”

The warrant describes the premises to be searched as “the chambers of Neil H.M. Forsyth, Queen’s Counsel” and describes the things to be seized as “legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st 1976 to June 30th 1982 in relation to the implementation of tax avoidance schemes” which are described in the warrant.

Since Baker v Campbell, what are the considerations governing the question whether a warrant such as that in question here should be held to be bad on its face?

It is plain from the nature of the applicant’s profession, the fact that his professional chambers were to be searched, and from the description of the things to be seized, that the warrant was authorising the seizure of documents to which legal professional privilege would, prima facie, attach. The warrant, as has been noted, authorized entry at any time, if necessary by force, and seizure of the documents without the knowledge of the applicant or of any of his clients. It is no answer to a question of the validity of the warrant on its face to say that, as events turned out, the applicant was present, and it has proved possible to bring this application before the Court and have the documents placed in the custody of the Registrar.

In Baker v Campbell, members of the Court discussed the rule relating to the manner in which legal professional privilege might be lost. Gibbs, C.J. at pp. 67-8 said:

“One cannot, however, ignore the rather remarkable rule that if the privileged document, or a copy of it, has been obtained by the opposing party, by accident, trickery, or even by theft, it may be given in evidence although the party entitled to the privilege or his solicitor could not have been compelled to produce it: see Lloyd v. Mostyn (93); Calcraft v. Guest (94); Bell v. David Jones Ltd. (95); Kuruma v. The Queen (96); Butler v. Board of Trade (97); Reg. v. Tompkins (98); Waugh v. British Railways Board (99). This rule has recently been recognized in Canada (see Descoteaux v. Mierzwinski (1)) but rejected by the Court of Appeal in New Zealand. In Reg v. Uljee (2) it was held that a constable who happened to overhear a confidential discussion between an accused person and his solicitor which was taking place for the purpose of obtaining legal advice should not be allowed to give evidence of the conversation unless the accused waived the privilege. The court declined to follow the English authorities, which it regarded as “of limited cogency in New Zealand in 1982″ (see per Cooke J. (3)), and derived some support for its conclusion from the provisions of a New Zealand statute which revealed a legislative policy that evidence of communications which would otherwise have been privileged should not be given by a person who had lawfully intercepted them (4). There are some qualifications to the rule stated in the English cases and recognized in Australia in Bell v. David Jones Ltd. (5): the owner of the document which has been improperly obtained may secure an injunction prohibiting the use of the document, including its use in evidence, provided that he does so in separate proceedings and before the document has been put in evidence: Ashburton v. Pape (6): and in some circumstances the document may not be admitted because it was obtained by means which amounted to a contempt of court (e.g. by stealth or trickery within the precincts of the court): I.T.C. Ltd. v. Video Exchange Ltd. (7): Further, it had been held that if a privileged communication would tend to establish the innocence of a person charged with a crime, the requirements of natural justice override the privilege and the document must be produced: Reg v. Barton (8): Finally, although a report prepared by a proposed medical witness for the purpose of a pending action will be privileged from production by the defendant for whom it was prepared, it will not be privileged in a subsequent action for libel brought against the doctor who prepared the report: Schneider v. Leigh (9): In that case the denial of the privilege did not destroy the confidentiality as between solicitor and client, and may be explained because the privilege was that of the litigant and not of his witness, but it shows that the rule of confidentiality which is necessary in order to inspire candour is only carried so far.”

58. Mason J. (at p.80) said:

“According to authority, it seems that the availability of the claim for privilege is lost once the document passes into the possession of another who may then tender it in evidence (Waugh v. British Railways Board (37)). The same holds true for a copy (see generally Bell v. David Jones Ltd. (38); Kuruma v. The Queen (39); Calcraft v. Guest (40)). These rules have been criticized and the decisions on which they are based may perhaps require some qualification, particularly in relation to documents obtained by illegal means or by deception (see I.TC Film Distributors Ltd. v. Video Exchange Ltd. (41); G.L. Peiris. “Legal Professional Privilege in Commonwealth Law”, The International and Comparative Law Quarterly, vol.31 (1982), 609, esp. at pp.630-633; Polyvios G. Polyviou, Search & Seizure (1982), pp.325 et seq.). And in a very recent decision the New Zealand Court of Appeal has held that a third party who overheard a communication made between a solicitor and an accused person for the purpose of giving or obtaining legal advice or assistance in confidence should not be allowed to give evidence of it unless the client waived the privilege (Reg. v. Uljee (42)). In arriving at its decision the New Zealand Court of Appeal, acknowledging that Calcraft v. Guest seemed to point in a contrary direction, held that no valid distinction could be drawn between oral and documentary evidence in this context. However, it is not necessary for us to resolve all these difficulties in the present case.”

59. Wilson J. (at p.95-96) said:

“Finally, I have been burdened by the consideration that to deny the relevance of a valid claim to legal professional privilege in the face of a search warrant would effectively deny the availability of the privilege in any prosecution that followed. The same is probably true in the case of other forms of legislation which provide statutory authority to extra-judicial measures requiring compulsory disclosure. The very existence of the privilege as providing any significant protection and thereby making its contribution to the public welfare must be threatened unless as a matter of principle the protection extends to all forms of compulsory disclosure: cf. the words of Thurlow J. quoted below.”

Deane J. (at p.112) said that “the privilege may be lost by «waiver and, arguably, by the content of the communication ceasing to be confidential” (Lloyd v Mostyn, Calcraft v Guest, but cf. Ashburton (Lord) v Pape, 1913 2Ch. 469).

61. Dawson J. (at p.129) said that:

“there is authority for the proposition that the privilege may be lost if a document to which it attaches comes into the hands of someone other than the legal adviser or his client, even dishonestly, so that secondary evidence of it may be given.”

There is, to put it at its lowest, a grave risk that, if documents to which legal professional privilege attaches and in respect of which it would otherwise be maintained are seized under a warrant, that privilege will be destroyed. Even if the privilege were not destroyed, the knowledge of the contents of the documents gained by a person who seized them, might reduce the practical benefits of the privilege. It might, for example, be of great assistance to counsel cross-examining a client of the party whose premises had been searched, or the party himself, and might serve as a pointer to the existence of facts which might be capable of proof by other means.

In the present case, the warrant recites the matters of which the Justice was satisfied by information on oath. It is silent as to any claim that legal professional privilege did not attach to the documents to be seized or was not maintained in respect of them. Similarly, the operative clause of the warrant does not restrict seizure to those documents in respect of which privilege did not apply.

The form of the warrant appears to pay no regard to the fact that Baker v Campbell had laid down the principle that the doctrine of legal professional privilege applies in relation to warrants under s.10 of the Crimes Act. There is nothing in it to suggest that the Justice ever had his mind directed to that principle or to the alleged existence of any exception to it, or to show that he was satisfied by information on oath that the documents covered by the warrant were within any such an exception. Had his mind been directed to these questions, it would have been for him to consider whether he would grant a warrant, and if so, in respect of what documents, and to consider whether he would lay down in the warrant a procedure that would provide an opportunity for the applicant to raise the question of privilege and have it determined. This may have been done, for example, by an order that the designated documents be placed in a sealed envelope, to be held in neutral hands, for a stipulated time, to enable an application to have questions of privilege determined to be brought (see Descoteaux v Mierzwinski 1982 ( 141 DLR 590 ) at pp. 595, 616).

For the purpose of deciding whether the present warrant is, or is not, bad on its face, it is not to be assumed that it will be held, in the end, that legal professional privilege attaches to and is maintained in respect of the documents referred to in it. Nor is it to be assumed that the contrary will be held. In my opinion, it is sufficient to conclude, as I do, that it appears on the face of the warrant that the documents, by their location and description are prima facie covered by legal professional privilege, and will remain so unless the privilege is waived or it is shown that they are within one of the exceptions which take them outside the privilege. The warrant authorises the seizure of all of them, without any indication on its face that the Justice has even turned his mind to the considerations involved in determining these questions, or to the question whether he should set out appropriate execution procedures in the warrant. It contains no recital that he has been satisfied by information on oath of the existence of facts relevant to deciding whether the documents were within any alleged exception.

The High Court decided in Baker v Campbell that the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings, and rejected the argument that, even if that privilege attaches to documents, they may lawfully be seized under a search warrant. Officers who seek the grant of a search warrant must do so in the light of that extended doctrine. A Justice who is asked to grant such a warrant will need to decide whether, in view of the doctrine he should grant the warrant, and, if so, what procedures should be prescribed in the warrant to ensure that the doctrine is not breached and the privilege lost, without any proper examination of the questions whether it exists and should be preserved.

The public interest in fostering the confidential relationship which is of fundamental importance in serving the ends of justice cannot be put aside by a lack of thought or ingenuity at the stage when a warrant is being sought. It is not appropriate to attempt to prescribe a code in respect of those possible procedures. The Canadian authorities show that the problem can be dealt with satisfactorily. It is sufficient to conclude, as I do, that a warrant which is completely silent on the subject is in the circumstances of the present case, for that reason, bad on its face.

68. The defects in the warrant on its face are:

1.
it fails to disclose with any sufficient particularity the offences alleged to have been committed;
2.
it fails to identify the things which may be seized in a way which makes it practicable for the person whose premises are being searched to form an opinion as to whether the seizure of a particular thing is authorised by it;
3.
its operative clause lays down a test whether in respect to the goods to be seized “it is suspected on reasonable grounds that the said offences have been committed” which depends upon the state of mind of the individual respondent who is the searcher and which may vary from respondent to respondent and is accordingly uncertain;
4.
the application of that test may, because of the state of mind of the particular searcher, cover a wider class of things than that set out in the recital;
5.
that test is a departure from the test set out in the recital, “in respect to which there are reasonable grounds for believing that the offences have been committed,” as to which the Justice was said to have been satisfied by information on oath;
6.
the warrant fails to recognize and give effect to the doctrine of legal professional privilege.
The question remains whether the defects in the warrant can be overcome by severance, in accordance with s.46(b) of the Acts Interpretation Act 1901.

In Coward v Allen (1984) 52 A.L.R. 320 , Northrop J. was considering warrants which authorised entry to “the said place and the said vehicle”. His Honour held that a vehicle was not a “place” within the meaning of s.10 of the Crimes Act and severed the words “and the said vehicle”.

In Brewer v Castles (1984) 52 A.L.R. 581 Beaumont J. had before him a warrant which authorised the seizure of:

“correspondence, prospectuses, company records, opinions of counsel, purchase orders, sales invoices, receipts, journals, ledgers, accounting records, bank statements, cheque butts, diaries, books, contracts, agreements, memoranda of understanding, leases, mortgages, microfilm copies of documents, computer tapes, cards and print-outs, assignments of debt, power of attorney and documents referring to or quoting Sales Tax Certificate of Registration numbers, common seals, and other documents and instruments”.

After referring to the documents other than “opinions of counsel”, his Honour said (at p.583):

“The attempt to authorize the seizure of documents described as ‘opinions of counsel’ is different. Prima facie, material of that character is the subject of a proper claim of legal professional privilege. It may be accepted, as the respondents urge, that it is possible, on the facts of a particular case that the privilege has been waived or is otherwise not available for some special reason, for example, if the relevant purpose were not the sole purpose required as a result of the decision in Grant v Downs (1976) 11 ALR 577 ; 135 CLR 674 . More extreme cases, involving crime or fraud, could be imagined, where the privilege would be denied (see Cross on Evidence, 2nd Aust ed (1979) by Gobbo, Byrne and Heydon at p.278).

None the less, prima facie at least, a reference to documents described as ‘opinions of counsel’ is a reference to material which is privileged, and there is no suggestion in the evidence of the present case that any reason exists for thinking that the opinions in question have somehow lost that status. In my opinion, on the material before the court and, so far as I am aware, on the material available to the respondents, no case has been established for displacing the prima facie position that the ‘opinions of counsel’ were and are privileged.

But, given that conclusion, it does not follow that the warrant is wholly bad. The result is that only one of the several classes of documents specified in the warrant is beyond power. Yet the applicant argues that the impermissible attempt in the warrant to nominate certain privileged material in some fashion infects the remaining parts of the warrant. In my view, no such process of infection occurs, even accepting the geneal context, namely, a warrant addressed to the seizure of documents on the premises of a firm of solicitors. On the contrary, in my opinion, having regard to the structure of the warrant, it is quite possible to sever from the warrant the offending class of documents and thus to leave the balance of the warrant undisturbed in point of validity.”

72. The documents referred to in the present warrant are:

“Legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st 1976 to June 30th 1982.”

Most of the documents referred to in the present warrant are documents to which, prima facie, legal professional privilege would clearly attach. The position in relation to appointment books, telephone message books, notes of fees, accounts, and fee slips is not so clear, but it is to be remembered that they are all qualified by the phrase “relating to legal opinions and advices”. On balance, I prefer the view that they also, in their context, prima facie attract legal professional privilege. In any event, severance of the words quoted would not save the warrant in respect of its other defects.

It was submitted that, if the words in the recital, following the names of the 37 persons and entities, beginning with “and with other persons and entities associated with the implementation of tax avoidance schemes” led to invalidity in the warrant, they should be severed from it. If those words were severed, it would reduce the range of persons and entities, and correspondingly reduce the number of tax avoidance schemes, but the warrant would still fall on other grounds.

If it were suggested that the list of offences should be reduced by severance, it is not for the Court to make the policy decisions involved in deciding whether a particular offence or group of offences is still to be relied upon in the warrant. In order to save the warrant, it would be necessary to sever

(a)
the reference to “other persons and entities associated with the implementation of tax avoidance schemes”, and
(b)
some of the references to offences in paragraphs (a) to (d) of the recital.
If the view be open that it is possible to grant a warrant which will not be bad on its face, that task should be left to a Justice, upon his being suitably informed by information on oath which is directly related to a warrant which he is asked to grant.

77. The question asked is accordingly answered as follows:

“The warrant is bad on its face.”

The documents seized will remain in the custody of the Registrar until further order. Liberty to apply is reserved generally to any party. The matter will be listed on 4 December, 1985 at 10 .15 to hear submissions as to the orders which should be made.

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