Stevenson Transport Pty Ltd v State of Queensland
[2003] QSC 278
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- Unreported Judgment
- Stevenson Transport Pty Ltd v State of Queensland[2003] QSC 278
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Stevenson Transport Pty Ltd v State of Queensland[2003] QSC 278
Stevenson Transport Pty Ltd v State of Queensland[2003] QSC 278
SUPREME COURT OF QUEENSLAND
CITATION: | Stevenson Transport Pty Ltd v State of Queensland & Ors [2003] QCA 278 |
PARTIES: | STEVENSON TRANSPORT PTY LTD |
FILE NO/S: | SC No.10938 of 2002 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court Brisbane |
DELIVERED ON: | 14 February 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 December 2002 |
JUDGE: | Holmes J |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - ISSUE AND VALIDITY - CERTAINTY AND WIDTH - Requirements of the Transport Operations (Road Use Management) Act for valid search and seizure - whether evidence to be seized and offences sufficiently identified on the face of the warrant whether common law applicable whether sufficient identification of the boundaries of the search Criminal Code |
COUNSEL: | Mr A J Rafter for the applicant |
SOLICITORS: | O'Shea Corser & Wadley for the applicant |
Background
- The first applicant is a freight company specialising in the transport of liquid petroleum gas and bitumen. It seeks declarations that a search warrant issued by the third respondent, a magistrate, and executed by the second respondent, an inspector employed by the Department of Transport, on its premises, is invalid; a declaration that seizure of documents and items pursuant to the warrant was invalid; and an injunction requiring the second respondent and the first respondent, the State of Queensland, to deliver up the documents seized, copies made of them, and the original and any copies of the video tape recording of the execution of the warrant. It argues that the warrant is bad for generality. The first and second respondents oppose the application. The third respondent appeared by his solicitor merely to indicate, as is usual, that he would abide the order of the court.
The application for and issue of the warrant
- Section 28 of the Transport Operations (Road Use Management) Act 1995 provides for application for and issue of a warrant to enter a place. It is in these terms:
"28Warrants to enter.
- An authorised officer may apply to a magistrate for a warrant to enter a place.
- The application must be sworn and state the grounds on which the warrant is sought.
- The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
Example-
The magistrate may require additional information supporting the application to be given by statutory declaration.
- The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting-
(a)there is a particular thing or activity (the "evidence") that may provide evidence of an offence against a transport Act; and
(b)the evidence is, or may be within the next 7 days, at the place.
- The warrant must state-
- that an authorised officer may, with necessary and reasonable help and force, enter the place and exercise the officer's powers under this Act; and
- the offence for which the warrant is sought; and
- the evidence that may be seized under the warrant; and
- the hours when the place may be entered; and
- the date, within 7 days after the warrant's issue, the warrant ends."
- The second respondent deposes to having received "whistleblower" information, the effect of which was that the applicant as an owner of heavy vehicles and employer of drivers had been involved in fatigue offences and overloading offences. In respect of the former, the Transport Operations (Road Use Management - Fatigue Management) Regulation 1998 (title abbreviated hereafter to the "Fatigue Management Regulation") prescribes maximum driving and working times for drivers and makes it an offence to exceed those times (s 15 and s 16). Similarly, it prescribes minimum rest times for the drivers of heavy vehicles and commercial buses and makes it an offence to drive for a period in which the rest time is less than the minimum (sl 7). The Transport Operations (Road Use Management) Regulation 1995 (the "Road Use Management Regulation') creates offences of overloading in relation to vehicles, trailers and combinations (ss 14, 15 and 16). In addition, the second respondent says, Queensland Transport records disclose five instances of fatigue, overloading and other transport offences committed since August 2001 by drivers employed by the applicant.
- As a result of that information, the second respondent says, he formed a suspicion that there would be documents at the applicant's business premises which could provide evidence of commission of fatigue offences and overloading. The various documents listed in the search warrant were sought because they were capable of demonstrating vehicle movements, driver activities and any steps taken by the applicant to prevent overloading and fatigue offences. On 25 November 2002 he put the information in his possession before the third respondent, who issued the warrant.
- The warrant is directed to the second respondent and reads:
"Whereas an application has been made this day upon oath before the undersigned, a Magistrate for the said State that there are reasonable grounds of suspecting there is (or there may be within the next 7 days) in or on the premises, comprising business office and/or surrounding outbuildings, dwelling houses, sheds, and vehicles of one Stevenson Transport Pty Ltd, situated at, 1309 Kingsford Smith drive, Pinkenba Brisbane, in the said State, certain property ("the search object"), to wit
- log books/pages
- fuel dockets
- fuel records
- phone records
- daily trip sheets
- pay advice sheets
- pay calculation sheets
- training records
- policies and procedures
- weighbridge dockets
- rosters/schedules
- employment agreements
- personnel files
- consignment records
- subcontractor records/invoices
- vehicle list
- engine management system/data
- local area work records
- any other documents that record the movement of heavy vehicles including the transport of dangerous goods under the control of Stevenson Transport Pty Ltd
- computer equipment which may contain any of the above records
Which may afford evidence of the commission of an offence against the Transport Operations (Road Use Management) Act 1995 namely:
- being in control of a vehicle (being a motor vehicle and/or trailer) on a road, that is in contravention of regulations 15, 16, and 17 parts 2 and 3 of the Transport Operations (Road Use Management - Fatigue Management) Regulation 1995 as permitted by Section 171 of the Transport Operations (Road Use Management) Act 1995.
- exceeding a mass requirement applying to vehicles, in contravention of regulations 14, 15 and 16, of the Transport Operation (Road Use Management) Regulation 1995 as permitted by Section 171 of the Transport Operation (Road Use Management) Act 1995.
AND WHEREAS it appears to me there are reasonable grounds for so suspecting.
This warrant therefore authorises you with such assistance and by such force as is both necessary and reasonable, to enter the said premises of the said Stevenson Transport Pty Ltd between the hours of 8.00am-6.00pm to exercise the powers set out in Section 30 of the said Act and if the search object (or any part thereof) is found, to seize such object, and bring it before a Magistrate to be dealt with according to law."
The applicant’s contentions
- Mr Rafter, for the applicant, argued that the warrant was bad for generality in that it failed adequately to particularise the offences nominated in the warrant and to relate to them the documents sought, at least by class. The classes of documents nominated in the warrant contained no reference to driver or vehicle; nor was the category classified as "policies and procedures" limited by any relationship to driving or loading duties. The warrant was also bad for its failure to specify the offences by reference to time, date, place or offender. It ought to be declared invalid. Since there was no criminal proceeding on foot, an injunction should be granted requiring the documents' return.
The respondents’ contentions
- Mr Plunkett, for the first and second respondents, accepted that in other statutory contexts the warrant might be bad for generality. But, he said, the provisions of the Transport Operations (Road Use Management) Act 1995 showed that the warrant operated merely as an authority to enter. The second respondent's powers, once on the premises, derived from s 30 of the Act. As Lord Scarman put matters in Inland Revenue Commissioners v Rossminster Ltd, "the warrant is only the key of the door, it does not confer the power to seize and remove, although, until and unless it opens the door, the power to seize and remove does not arise."[1] A provision with similar effect, Mr Plunkett said, was s 89 of the Fair Trading Act 1989, which had recently been considered by Mullins J in TLC Consulting services Pty Ltd v White.[2]
Is this warrant no more than a “door key”?
- Section 30 deals with the powers of an authorised officer entering premises, either with the occupier's consent[3] or pursuant to a warrant. The powers of an officer entering in those circumstances are as follows:
"30.General powers after entering places
- The officer may, for monitoring orenforcing compliance with this Act-
- search any part of the place; or
- inspect, measure, test, photograph or film the place or anything in the place; or
- take samples of anything in the place; or
- copy a document in the place; or
- take the persons, equipment and materials the officer reasonably requires for exercising a power under this Act into the place; or
- require a person in the place to give the officer reasonable help to exercise the powers mentioned in paragraphs (a) to (e)."
- Unlike the provision under consideration in Rossminster, s 30 does not confer any power of seizure of evidence. That power must be found in s 40(2), which provides:
"An authorised officer who enters a place under this part with a warrant may seize the evidence for which the warrant was issued".
That is, it seems to me, a vital point of distinction: the warrant governs in the first instance those items which may be seized; although s 40(3) enables seizure also of items reasonably believed to be evidence of an offence against a transport Act if the thing in question may be lost or used in further offending. But it is clear from s 40(2) that the warrant which may be obtained under s 28 authorises not merely entry but also seizure; and the evidence of which it authorises seizure must, under s 28(5)(c), be identified on its face.
- The search provisions of this Act may also be distinguished from those under the Fair Trading Act 1989. Section 89 of that Act permits entry of premises under the authority of a warrant, but once premises are so entered there is a broad power of seizure unrelated to the terms of the warrant. For that reason I do not think that the decision of Mullins J in TLC Consulting Services Pty Ltd v White as to the powers conferred by the Fair Trading Act can assist in construction of the search warrant provisions of the Transport Operations (Road Use Management) Act. The warrant under the latter Act is more than a "key of the door".
Construning the s 28(5) reqirements
- Since the power of seizure under s 40(2) is dependent on the validity of the warrant, it is necessary to tum to the applicant's contention that the warrant is bad for generality in failing to describe in sufficient particularity the documents to be seized, the offences alleged to have been committed and the relationship between the two. It is not, of course, simply a matter of examining the level of generality apparent on the face of the warrant; the fundamental question is whether the requirements of s 28(5) (b) and (c), respectively that it state the offence for which it is sought and the evidence that may be seized, have been met. But in considering what those requirements entail, there is nothing in the Transport Operations (Road Use Management) Act, ins 28, or ins 3, which sets out the Act's objectives,[4] which would suggest that common law authority is inapplicable. It is appropriate, therefore, to construe the s 28(5) requirements that the suspected offence and evidence to be seized be stated in the warrant as having the purpose of enabling those involved in its execution to know at least the "bounds to the area of search which the execution of the warrant will involve"[5] and to consider in that light whether the warrant meets those requirements.
The intended area of inquiry
- The affidavit of the second respondent makes it clear that his aim in obtaining the search warrant was to further an investigation into the criminal responsibility of the applicant for fatigue and overloading offences committed by its drivers. He wished to obtain not only documents which would establish the hours worked and the loads driven by the applicant's employees, but also anything that might go to show the applicant's awareness of those matters, and whether any steps had been taken by the applicant to prevent the commission of overloading and fatigue offences by its employees. However those areas of inquiry are not apparent from the face of the warrant.
The statement of evidence that may be seized under the warrant
- The items sought, described collectively as "the search object", are in the most general terms; they are not limited to records which would relate to driving hours or loads. Without the qualification as to affording evidence of the commission of an offence, the specified documents might be those relating to any employee of the company, from receptionist to manager. The question, then, is whether the ensuing words "which may afford evidence of the commission of an offence against the Transport Operations (Road Use Management Act) 1995" and the offences thereafter described sufficiently identify the things which may be seized.
The statement of the offences for which the warrant is sought
- The first purported description of an offence, that is "being in control of a vehicle (being a motor vehicle and/or trailer) on a road that is in contravention of regs 15, 16 and 17 Parts 2 and 3 of the Transport Operations (Road Use Management - Fatigue Management) Regulation 1995" does not, in those terms, set out an offence under either the Act or the Fatigue Management Regulation. Each of ss 15 and 16 of the Regulation creates an offence committed by a driver whose driving time (s 15) or work time (s 16) exceeds a defined maximum; while s 17 creates an offence committed by a driver whose rest time is less than the defined minimum. There is no offence of "being in control of a vehicle ... in contravention of' any of those sections which appear in Part 2 of the Regulation. The confusion is increased by the reference in the warrant to Part 3 of the Regulation, without indication of what offence within that Part (which applies to drivers and employers who are registered in a Transitional Fatigue Management Scheme) might have been committed.
- The next setting-out of offences in the warrant is more straightforward. Sections 14, 15 and 16 of the Road Use Management Regulation create offences of failing to comply with mass requirements for, respectively, a vehicle, trailer and combination. But for neither group of offences - those under the Road Use Management Regulation or the Fatigue Management Regulation - is there any reference to the capacity in which the offences are alleged to have been committed.
Extended liability
- It is probable that the second respondent in seeking to investigate the applicant's responsibility for driver offences had in mind extended liability provisions in the Act and respective Regulations. Section 57B of the Act extends liability for heavy vehicle offences declared by regulation to be extended liability offences to "influencing" persons: the owner, registered operator or anyone controlling or directly influencing loading or operation of the vehicle. An "influencing person" is taken to have committed the offence unless he or she proves to the contrary matters as prescribed by the section. The overloading offences contained ins 14, s 15 and s 16 of the Road Use Management Regulation are declared by s 26 of the Regulation to be extended liability offences.
- Provisions with the effect of expanding liability are also to be found in Part 5 of the Fatigue Management Regulation, s 70 of which makes it an offence to require the driver of a heavy vehicle to do something likely to result in, inter alia, as 15, 16 or 17 offence; and s 72 and s 73 which, in summary, impose special obligations on employers not to allow employees to drive and not to roster their driving, work or rest times and transport schedules where the result is likely to be a fatigue offence. It is also conceivable that the second respondent contemplated charges under s 7 of the Criminal Code against the applicant. (It is not necessary for present purposes to reach any view as to whether, as a matter of construction, s 7 applies to offences under the Transport Operations (Road Use Management) Act or the Regulations[6]).
Does the warrant meet the s 28(5) requirements?
- But unfortunately the warrant in no way indicates who, or even what class of individuals, is the subject of inquiry. The second respondent might, from the description of the offences in the warrant, have been seeking documents relevant to the activities of drivers, of the applicant itself as employer and owner of the vehicles, of supervisors or schedulers, or of anyone else in a position to exert influence over loading and control. The pem1issible extent of the search would vary considerably according to whose activities were its subject, but an individual reading the warrant would not have known who was the individual or which was the group to whose activities the search was directed. The list of documents and items described as the search object contains no limitation which might provide any clarification. The statements in the warrant of evidence to be seized and offences for which it was sought were not framed so as to enable even a general identification of the boundaries of the search.
Conclusions
- The inevitable conclusion is that neither of the requirements in s 28(5) (b) and (c) was met, and the warrant was accordingly invalid. It was not contended by the respondents that seizure of the items could be supported on any other statutory basis, for example under s 40(3). It was, however, suggested in Mr Plunkett's written submissions that the second respondent was entitled to rely on common law powers of the kind identified in Ghani v Jones.[7] Without entering into questions of whether Ghani v Jones should be followed, it suffices for the purposes of this case to say that the second respondent swore to none of the beliefs identified by Lord Denning MR as fundamental to an entitlement to seize, absent a valid warrant;[8] not surprisingly, since he regarded his actions as having been carried out pursuant to such a warrant.
- It follows that seizure of the documents taken from the applicant's premises on 28 November 2002 was unlawful. There are no criminal proceedings on foot against the applicant which would militate against the exercise of a discretion in favour of their return. The applicant is entitled to the orders sought by it.
Orders
- I declare that the search warrant issued by the third respondent on 25 November 2002 in respect of the premises at 1309 Kingsford Smith Drive, Pinkenba is invalid.
- I declare that the seizure by the second respondent of documents and items from the premises at 1309 Kingsford Smith Drive, Pinkenba on 28 November 2002 was unlawful.
- I order that the first and second respondents deliver up to the applicant all documents and items seized from the premises at 1309 Kingsford Smith Drive, Pinkenba on 28 November 2002 as well as all copies of such documents and items and the original and any copies or transcripts of the video tape recording the execution of the warrant.
- Subject to submissions, I will order that the first respondent pay the applicant's costs of and incidental to the application.
Footnotes
[1] [1980] AC 952 at 1023.
[2] [2002] QSC 434.
[3] Section 27 of the Act deals with entry by consent. It requires an officer intending to ask an occupier for consent to his entry to give the occupier certain information and permits the officer to ask the occupier to sign an acknowledgement of the consent.
[4] Which are, in general terms, efficient and effective road use and vehicle management.
[5] Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] 103 ALR 167 at 178; Harts v Australian Federal Police (1997) 75 FCR 145 at 152. For a more stringent approach, suggesting that the "exact object of the search" must be identified, see, for example, Australian Broadcasting Corporation v colran (1984) 4 FCR 151; Parker v churchill (1986) 9 FCR 334 per Jackson J at 348.
[6] See Renwick v Bell [2002] Qd R 326.
[7] [1970] 1 QB 693.
[8] At pages 708-709.