R v Morrison[2010] QSC 446

SUPREME COURT OF QUEENSLAND

Introduction

[1] An indictment for the offence of conspiracy was presented in this Court on 3August 2009 against Stephen Brian Cox, John Reginald Cuffe and PeterJames Morrison.  In the indictment the Commonwealth Director of Public Prosecutions alleges that:

“Between the 1st day of May 1999 and the sixth day of February 2001 at Brisbane in the State of Queensland and elsewhere, Stephen Brian Cox, John Reginald Cuffe and Peter James Morrison conspired with each other to defraud the Commonwealth.”

The applicant, Peter James Morrison, seeks pre-trial rulings pursuant to s 590AA of the Criminal Code (Qld) in relation to two matters.  The first relates to the consent of the Commonwealth Director of Public Prosecutions to the prosecution, and seeks an order that the indictment be quashed on the ground that:

“The Crown failed to obtain, prior to commencement of the proceedings, the consent of the Commonwealth Director of Public Prosecutions to the commencement of proceedings for the offence of conspiracy to defraud with which the Applicant now stands charged, as required by section 86(9) of the Crimes Act 1914 (Cth).”

I shall refer to this matter as “the Director’s consent issue”.

[2] The second matter relates to the applicant’s contention that certain search warrants issued on 26 July 2002 that purported to authorise the search of various premises were “invalid and that the evidence obtained during, or as a result of, the search that was conducted at that property on 26 July 2002 is inadmissible.”  The applicant submits that the relevant search warrants “were each invalid because they failed to identify the issuing officer with sufficient detail to enable the people adversely affected by the warrant to ascertain that it was validly issued.”  I shall refer to this matter as “the validity of the warrants issue”. 

[3] There is no question that each person who issued the warrant was authorised to do so, and was in fact an authorised “issuing officer” within the meaning of the Crimes Act 1914 (Cth).  The validity issue is:

(a)whether his or her name should have been stated on the face of the warrant;  and

(b)whether it is sufficient that their status as a Justice of the Peace and the fact that they were said to be “an issuing officer within the meaning of the Crimes Act 1914” appeared on the face of the warrant, or whether the warrant should additionally have elaborated that the person was an issuing officer because he or she was a Justice of the Peace “employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest”.[1]

[4] The hearing before me did not address, and evidence was not called at it concerning, the circumstances under which the warrants were completed in the form they were, and whether the persons who executed them believed or had any reason to believe that they were invalid on the grounds alleged to render them invalid.  The respondent points out that if I was to reach the conclusion that each search warrant was invalid, this would not automatically render evidence obtained as a result of it inadmissible.  The question would then arise as to whether I would exercise the discretion to exclude evidence in accordance with the discretion recognised in Bunning v Cross.[2]  The respondent cites in this regard the observation of Gaudron J in Ousley v The Queen:[3]

“It follows from what has been said that the warrants in issue in this case are invalid.  However, it does not follow that the appeal should be allowed.  The purpose of the discretion to exclude illegally obtained evidence is ‘to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.’  In the present case, the conduct of the law enforcement officers was unlawful, if at all, only in a very technical sense:  there is nothing to suggest that they were aware that the warrants in question were even arguably defective, much less any culpable impropriety on their part.

Given the purpose of the discretion to exclude illegally obtained evidence, it could not, in my view, have been properly exercised in favour of the appellant in this case.” (footnotes omitted)

The parties conducted the hearing before me on the basis that if I should find the search warrants to be invalid, then the matter would need to be adjourned to receive further evidence and to consider whether grounds exist to exclude the evidence in the exercise of my discretion.

The Director’s consent issue

[5] On 11 October 2007 the Director of Public Prosecutions signed a form of consent “to the commencement of proceedings against Stephen Cox, John Cuffe, Alan Hong Choy and Peter Morrison for an offence of conspiracy to defraud under s 86(1) of the Crimes Act 1914 and s 29D of the Crimes Act 1914”.  The form of consent contained the following particulars:

“Between 1 July 1999 and 23 May 2001 at Brisbane in the State of Queensland and elsewhere, Stephen Cox, John Cuffe, Alan Hong Choy and Peter Morrison did, contrary to section 86(1) of the Crimes Act 1914 and section 29D of the Crimes Act 1914, conspire together to defraud the Commonwealth.”

[6] On 15 November 2007, a complaint and summons was issued to the applicant for the offence of conspiracy to defraud the Commonwealth.  The summons was served on the applicant on 17 November 2007.

[7] The committal proceedings for the four defendants commenced on 22 December 2008.  Those proceedings were completed on different dates in respect of separate defendants:

1.On 6 February 2009, Alan Hong Choy was committed to the District Court at Brisbane on a charge of defrauding the Commonwealth pursuant to s 29D of the Crimes Act 1914;

2.On 6 February 2009, Steven Cox and the applicant were each committed to the Supreme Court at Brisbane on a charge of conspiring with each other and John Cuffe, to defraud the Commonwealth, contrary to s 86 and s 29D of the Crimes Act 1914; and

3.On 26 March 2009, John Cuffe was committed on the same charge.

Relevantly for present purposes, at the conclusion of the committal proceeding it was accepted by the prosecution that there was insufficient evidence to prove that Alan Hong Choy was a party to the conspiracy. 

[8] On 3 August 2009 the indictment charging the applicant, Mr Cox and Mr Cuffe with conspiracy was presented in this Court.  The offence charged in the indictment differs in two respects from the offence particularised in the Director’s consent:

(a)Mr Choy is no longer alleged to have been a conspirator;

(b)The dates particularised are different:  the period particularised in the Director’s consent was between 1 July 1999 and 23 May 2001, whereas the indictment particularises the period as between 1 May 1999 and 6 February 2001.

[9] The applicant submits that “the offence set out in the Indictment is a different offence to the one that was consented to on 11 October 2007 and on that basis the Indictment should be quashed pursuant to s 596 of the Criminal Code.”  The respondent submits that the differences between the offence to which the Director gave his consent and the offence charged in the indictment do not convert the proceeding into one to which the Director has not given consent.

Relevant principles

[10] The governing principle in a case in which consent is required to a prosecution was summarised by Thomas J in Dever v Creevey, ex parte Creevey,[4] who stated:

“Amendments may be permitted but not to such extent as will convert a non-conforming prosecution into a conforming one, or a conforming prosecution into a non-conforming one.  The extent of non-conformity in each case involves a question of degree.  The question is really one of identity of the particular prosecution as the one to which the official has consented.  It must be able to be seen as the same creature even though some of its features are differently described.”[5] 

[11] The requirement for the Director’s consent stems from the now-repealed s 86(9) of the Crimes Act 1914 because the charge was brought pursuant to s 86 of the Crimes Act 1914.  Section 86(9) provides:

“Proceedings for an offence of conspiracy  must not be commenced without the consent of the Director of Public Prosecutions.  However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.”

The same requirement appears in s 11.5(8) of the Criminal Code (Cth).

[12] A consent does not have to specify the precise terms of the charge to which consent is given.   In Berwin v Donohoe[6] a consent given in general terms sufficed.  However, if the consent is limited to a particular offence, it will not authorise the commencement of a prosecution in respect of “quite different conduct”.  This was stated by Bowen CJ, Deane and Toohey JJ in Traveland Pty Ltd v Doherty:[7]

“If the consent is, in terms, limited to the institution of proceedings for one particular offence, it will not operate as a consent to proceedings for a different offence. If the consent particularizes conduct in respect of which a prosecution may be instituted, it will not operate as a consent to the institution of a prosecution in respect of quite different conduct. Where there is variance between any description or particulars of the offence contained in the consent and the description or particulars contained in the information and summons, a question will arise whether it can properly be said that, in the light of the variance, the proceedings which have been instituted are proceedings to the institution of which the Minister has consented.”

In that case the Minister consented to the institution of proceedings against Traveland for the offence that on 11 October 1979 it contravened s 53(c) of the Trade Practices Act 1974 in connection with the promotion by advertising of  services.  The consent particularised certain representations.  There were variations in respect of the particulars of the falsity of the representation.  The Court rejected the contention that the Minister had not given his consent to the proceedings.  It stated:

“The conclusion which we have reached is that the proceedings were, in nature and in substance, proceedings to the institution of which the Minister had given his written consent.  We do not suggest that variations between consent and information  or summons in what we have described as particulars of misrepresentation may simply be disregarded.  Such variations may, in a particular case, so alter the substance of what is alleged that it may truly be said of the proceedings that they are not those to which the Minister consented.”

[13] Gilmour v Midways Springwood Pty Ltd[8] illustrates the operation of the principle in respect of different offences.  In that case, the Minister gave consent to the institution of a prosecution for a contravention of s 53(a) of the Trade Practices Act in connection with the supply of goods or services.  The information laid against the respondent was in respect of another offence.  Brennan J (as his Honour then was) stated that it was immaterial that the same body of evidence might support a conviction for either offence, and that a sufficiency of evidence to support a conviction for either offence did not establish the identity of the two offences.  The Minister consented to one offence, but another offence was to be found in the information, and the disparity between the offences meant that the offences laid in the information were not the offences consented to by the Minister. 

[14] The authorities were reviewed by the Full Court of Queensland in Dever v Creevey, ex parte Creevey.[9]  McPherson ACJ followed the decision in Traveland.  Thomas J (as his Honour then was) reviewed the authorities and summarised them as I have earlier indicated.  Byrne J agreed with the separate reasons of McPherson ACJ and Thomas J. 

[15] The authorities to which I have been referred appear to establish the following propositions:

1.The consent will not operate as a consent to the commencement of a prosecution in respect of “quite different conduct”.

2.The proceedings will not be proceedings to which consent was given where the consent particularises a specific offence, and a different offence is charged, and this conclusion will not be affected by the fact that the same evidence might have supported a conviction for either offence.

3.Differences in certain features of the proceeding to which consent was given and the proceeding that has been instituted may not lead to the conclusion that the proceeding is not one to which consent has been given.

4.The issue is whether the variation “so alters the substance of what is alleged” that it can truly be said that, in the light of the variance, the proceedings which have been instituted are not proceedings to which consent was given.

Application of these principles

[16] These principles are to be applied in the context of proceedings for conspiracy which allege a conspiracy to defraud the Commonwealth.  The charges are brought pursuant to s 86 of the now-repealed Crimes Act 1914.  It is appropriate to set out s 86, and to have reference to the requirements of subsections 3, 4 and 5.

“Section 86.  Conspiracy

(1)  A person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2)  Despite subsection (1), if the person conspires with another person to commit an offence against section 29D of this Act, the conspiracy is punishable by a fine not exceeding 2,000 penalty units, or imprisonment for a period not exceeding 20 years, or both.

Note:     Penalty units are defined in section 4AA.

(3)   For the person to be guilty:

(a)the person must have entered into an agreement with one or more other persons;  and

(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement;  and

(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(4)A person may be found guilty of conspiracy to commit an offence even if:

(a)committing the offence is impossible;  or

(b)the only other party to the agreement is a body corporate;  or

(c)each other party to the agreement is at least one of the following:

(i)a person who is not criminally responsible;

(ii)a person for whose benefit or protection the offence exists;  or

(d)subject to paragraph (5)(a), all other parties to the agreement have been acquitted of the conspiracy.

(5)A person cannot be found guilty of conspiracy to commit an offence if;

(a)all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal;  or

(b)he or she is a person for whose benefit or protection the offence exists.

(6)A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:

(a)withdrew from the agreement;  and

(b)took all reasonable steps to prevent the commission of the offence.

(7)A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

(8)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(9)Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions.  However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.

(10)In any law of the Commonwealth:

(a)a reference to paragraph 86(1)(a) of this Act is taken to be a reference to subsection (1) of this section;  and

(b)a reference to the application of subsection (1) of this section because of or by virtue of paragraph 86(1)(a) of this Act is taken to be a reference to subsection (1) of this section;  and

(c)a reference to section 86A of this Act is taken to be a reference to subsection (2) of this section.”

[17] Proof of an agreement is an essential feature of the offence.  The respondent submits in reliance upon Gerakiteys v The Queen[10] that the identification of any conspiracy is governed by its objects and purposes, and that the number and identify of all conspirators is not essential to identifying the subject matter of the conspiracy.  It submits that the fact that the evidence at the committal was not sufficient to prove that Mr Choy was part of the conspiracy does not change the essential nature of the conspiracy alleged or the nature of the proceeding against the applicant, Mr Cox and Mr Cuffe.  The absence of an allegation that Mr Choy was a party to the conspiracy and variations in the dates particularised are said to not convert the proceedings into proceedings to which the Director has not consented. 

[18] Gerakiteys involved conspiracy charges brought under s 393 of the Crimes Act 1900 (NSW).  Brennan J observed,  “the identity of a conspiracy is to be found in what the conspirators commonly agree to or accept:  a conspiracy is proved by evidence of the actual terms of the agreement made or accepted or by evidence from which an agreement to effect common objects or purposes is inferred”.[11]  His Honour continued:

“It is clear that an insufficiency of evidence to inculpate one alleged conspirator in a conspiracy does not entitle other conspirators to an acquittal, for the jury may find all or any of two or more alleged conspirators guilty of a conspiracy to effect all or some of the improper purposes alleged, provided those who are convicted had agreed to effect the same improper purposes.”[12]

In that case there was evidence that Gerakiteys and Harrison were parties to conspiracies to defraud diverse insurance companies and to carry out a series of social security frauds.  However, there was no evidence that the “divers[e] other persons” mentioned in “the insurance count” became parties to a conspiracy to defraud “divers[e] insurance companies” and there was no evidence that the “divers[e] other persons” named in the particulars to the “social security count” became parties to a single, wide-ranging conspiracy to defraud the Commonwealth.  By majority the appeal was allowed on the basis that the order for a new trial would theoretically have entitled the Crown to prosecute again on the charge which it had particularised, but which it had failed to support by evidence.  The convictions were quashed, leaving it open to the Crown to retry Gerakiteys and Harrison.  Brennan J, who would have dismissed the appeal, observed that the deficiency in the evidence would have been critical if the reference in the indictment to the alleged parties, rather than the reference to the alleged objects or purposes, had identified the conspiracies alleged.  But the identifying characteristic of each conspiracy, namely its object or purpose, was described as its governing description and the indictment’s false allegation that the claimants were parties to the conspiracy was not a sufficient reason to not require Gerakiteys and Harrison to be retried, provided the new indictment was amended to delete the references to the “divers[e] other persons” in each count. 

[19] Deane J[13] cited Jordan CJ in R v Ongley[14] in support of the proposition that where a count in conspiracy charges only one conspiracy to effect some one or more improper purposes “the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged.”  The gist of the crime lies in the making of the relevant agreement, and it is the subject-matter and purpose of the agreement which determines whether it is criminally unlawful.  Deane J observed:

“There must be at least two parties to a conspiracy.  That apart however, the number and identity of the co-conspirators may be inessential to the identification or proof of the particular conspiracy with which an accused is charged.  Indeed, as a matter of common law principle, an accused may be convicted of conspiring “with a person or persons unknown” to commit an  unlawful act.  ...  On the other hand, the number and the identity of the co-conspirators may be relevant and, conceivably, even essential to both the identification of the subject-matter of the conspiracy which is alleged against an accused and to the actual proof of guilt of that conspiracy.  For example, the question whether the intended perpetrator of an unlawful act is actually a party to a conspiracy is likely to be of critical importance on the question whether the conspiracy is a conspiracy to commit the act as distinct from a conspiracy to procure its commission by another.”[15]

[20] Gerakiteys does not establish that the number and the identity of co-conspirators is not relevant to identifying the subject matter of the conspiracy.  On the contrary, it illustrates that the number and identity of alleged co-conspirators may be critical in determining the nature and subject matter of the conspiracy.

[21] Subject to s 86(5)(a), the insufficiency of evidence to inculpate one alleged conspirator in a conspiracy does not entitle other conspirators to an acquittal, and had a prosecution been continued or commenced in this Court against all four parties to whom the Director gave his consent to prosecute, then the acquittal of Mr Choy would still have permitted the applicant to be found guilty of conspiracy.  However, the issue that arises for determination is not resolved by the simple fact that it is open for the applicant and the other two parties charged on the indictment to be convicted notwithstanding an insufficiency of evidence to prove that Mr Choy was a party to the conspiracy originally charged.  The issue for my determination is whether the identity of Mr Choy as a co-conspirator to the offence to which the Director gave his consent is such that the offence with which the applicant is charged upon indictment is, in substance, a different charge to which the Director’s consent cannot be said to apply.

[22] Gerakiteys illustrates that the identity and number of parties to an alleged conspiracy is not inconsequential.  In some cases, the number and the identity of the co-conspirators may be highly relevant to the nature of the conspiracy alleged.  In some cases, the inclusion of a particular party as an alleged co-conspirator may be critical to the identification of the object or purpose of any conspiracy.  However, in this matter there is no evidence or proper basis to conclude that the previously alleged participation of Mr Choy in the alleged conspiracy was relevant to the nature of the conspiracy or its subject matter.  At the commencement of the committal proceeding, counsel for the prosecution outlined the nature of the case and the nature of the conspiracy which was alleged to have been entered into by each of the four defendants.  Particulars were given which allege the overt acts allegedly committed by each defendant.  The nature of the conspiracy alleged against the applicant does not appear to be one which depended upon proof that Mr Choy was a party to it.  The conclusion reached at the end of the committal that there was insufficient evidence to prove that he was a party to the conspiracy has not altered the nature of the conspiracy alleged.

[23] The applicant did not advance any substantial argument to the effect that the nature of the conspiracy alleged against him, Mr Cox and Mr Cuffe has altered by reason of the decision to no longer allege that Mr Choy was also a party to the alleged conspiracy.  The fact that it was concluded that there was insufficient evidence to support the contention that Mr Choy was a party to the alleged conspiracy does not alter the essential nature of the conspiracy alleged or the nature of the prosecution case against the applicant, Mr Cox and Mr Cuffe.  It has not converted the proceeding that has been initiated in this Court into a proceeding to which the Director has not consented. 

[24] The Director’s consent of 11 October 2007 to the prosecution of each of the four named individuals on the count of conspiracy was given in circumstances in which the law permits, subject to s 86, the prosecution to continue against three of those individuals in circumstances in which a conclusion is reached that there is insufficient evidence to convict the fourth alleged member of the conspiracy.  The Director may be taken to have consented to the commencement of such a prosecution, knowing the possibility that a magistrate may have concluded that there was insufficient evidence to commit one of the co-conspirators to stand trial on the charge of conspiracy.  There is no reason to suppose that the consent given by the Director was not intended to apply to an indictment brought in respect of the remaining three co-conspirators.  The applicant did not advance any evidence or substantial reason to suppose that the Director did not intend to consent to the continuation of proceedings against three out of the four alleged co-conspirators, or that he did not consent to the initiation of proceedings in this Court against three out of the four alleged co-conspirators identified in the document recording his consent.

[25] The fact that Mr Choy is not alleged in the indictment to be a co-conspirator does not alter the substance of the alleged conspiracy.  The nature and object of the conspiracy remains the same.  The reduction by one in the number of alleged co-conspirators does not alter the substance of what is alleged against each of the co-conspirators.  The nature of their agreement and the conduct that they are alleged to have engaged in remains essentially the same.  The variation in the number of alleged conspirators and the fact that Mr Choy is no longer alleged to be a conspirator does not mean that the proceeding instituted in this Court by the presentation of the indictment is a proceeding to which the Director has not consented.  The variation in the identity of the alleged co-conspirators and in the number of alleged co-conspirators does not alter the substance of the proceeding so that it may truly be said that the proceeding in this Court is not one to which the Director consented.

[26] The dates when an offence is alleged to have occurred is usually a matter for particulars rather than an element of the offence, but depending on the circumstances, particulars may be so crucial to the prosecution case that the charge may fail if those particulars are not established.[16]  The dates particularised in the Director’s consent did not prevent evidence being given at the committal of events outside that period.

[27] The essential nature of the conspiracy alleged in this case is that each of the defendants agreed to defraud the Commonwealth by the promotion to taxpayers (investors) of tax minimisation schemes which purported to entitle them to a legitimate taxation deduction.  The prosecution case, as formally particularised and as presented, is that the defendants were aware that taxpayers (investors) who entered into the schemes, as promoted, would ultimately file with the Australian Taxation Office taxation returns in which  those taxpayers claimed what had been promoted to be available as legitimate taxation deductions in circumstances in which each of the defendants was aware that the documentation supplied to each of the taxpayers gave a false impression of a legitimate taxation deduction.

[28] This is not a matter in which an offence is alleged to have occurred on a particular date, such that it is incumbent on the prosecution to prove that the offence occurred on that particular day.  The dates particularised have varied but these variations do not affect the nature of the prosecution alleged and does not alter the substance of the prosecution.  It remains, in substance, a conspiracy that is alleged to have been perpetrated between mid-1999 and the first half of 2001.  The variation by a few months in the date the conspiracy is particularised to have commenced does not alter the substance of the proceeding.  It cannot be truly said that the variation in the dates particularised so alters the substance of what is alleged that it may truly be said of the proceeding in this Court that it is not a proceeding to which the Director consented.  To adopt the words of Thomas J in Dever the prosecution is “able to be seen as the same creature even though some of its features are differently described.”  The differences in the dates particularised do not alter the nature of the conspiracy alleged or support the conclusion that the proceeding upon indictment is not one to which the Director consented.

Conclusion -  the Director’s consent issue

[29] I do not accept the applicant’s contention that the proceeding commenced in this Court upon the presentation of the indictment is a proceeding that was commenced without the consent of the Commonwealth Director of Public Prosecutions, as required by s 86(9) of the Crimes Act 1914 (Cth).  As a result, I decline the application to quash the indictment. 

The validity of the warrants issued

[30] Section 3E of the Crimes Act 1914 (Cth) provides that in certain circumstances an “issuing officer” may issue a warrant to search premises.  Section 3C defines an “issuing officer” in relation to a warrant to search premises to mean:

“(a)a magistrate;  or

(b)a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants ...”

The search warrants under challenge in this case were each issued by an “issuing officer”.  Each issuing officer held the office of a Justice of the Peace (Qualified)[17] and was employed at the Brisbane Magistrates Court at the relevant time.  Sections 150 and 151 of the Police Powers and Responsibilities Act 2000 (Qld) authorise Justices of the Peace, subject to the provisions of s 150(3) and (4), to issue a search warrant.

[31] Subsections 3E(5), (6) and (7) of the Crimes Act 1914 provide a variety of matters which the issuing officer is to state in the warrant.  These do not include the name of the issuing officer or details of the matters that qualify him or her to be an issuing officer.  There is no prescribed form for a search warrant issued under s 3E. 

[32] The search warrants issued in this matter were in a form that allowed for the name of the issuing officer to be inserted.  The relevant part of the search warrants stated:

“WHEREAS I .............................., an issuing officer within the meaning of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is at premises located at ...”

This part was completed by the handwritten words “the undersigned Justice” or “the undersigned” being inserted after the word “I”.[18]  On each page of the warrant the issuing officer affixed his or her seal as a Justice of the Peace (Qualified), signed the seal and inserted his or her registration number as a Justice of the Peace.  The warrant concludes with an attestation clause indicating that it was given at Brisbane on a stated date.  The warrant was signed by the issuing officer who again affixed the seal.  Beneath the space in which his or her signature was included are the typed words “A JP/Magistrate in and for the State of Queensland”.  In most cases the word “Magistrate” was struck through in pen so as to confirm that the issuing officer was a Justice of the Peace in and for the State of Queensland.

[33] The applicant submits that the search warrants were each invalid because they failed to identify the issuing officer with sufficient detail to enable the people adversely affected by the warrant to ascertain that it was invalidly issued.  The applicant’s written submissions noted that the issuing officers’ names were missing and those issuing officers could not be readily identified “by a property occupier standing at the door of their premises which are about to be searched.”  They observe that even if that property owner had the benefit of having a lawyer with them it would take a substantial time to investigate whether the Justice of the Peace worked in a State court.  The applicant’s ultimate submission was that:

“As the identity and jurisdiction of the issuing officers were not disclosed on the face of the warrants, and because the warrants did not contain sufficient information that would enable a person adversely affected by them to even make reasonably simple and quick enquiries to satisfy themselves of the power to issue the warrants, declarations should issue to the effect that each of them were invalid.”

The applicant invokes the principle derived from cases such as R v Tillett; Ex parte Newton[19] that the jurisdiction of a justice to issue a search warrant must appear on the face of the document, otherwise it is a nullity. 

[34] The respondent submits that the omission of the name of the issuing officer and other details that explained why the person was an issuing officer does not invalidate the warrant.  It relies upon Ousley v The Queen to support the proposition that s 3E itself lists the matters which must be stated in the warrant and that “when a legislature specifies what must appear in a warrant it intends its statement to be exhaustive of the matters that the warrant must disclose”.[20]  It further submits that even if it may be concluded that the requirements of s 3E do not exhaustively list those matters which are required to be included in a search warrant, and to the extent that there may remain a requirement of identification of the authority or capacity to which the warrants were issued, this was satisfied by the stamping and endorsing of these warrants as being issued by the respective registered justices.  It relies in this respect upon the judgment of Spender J in Seeter Pty Ltd v Commonwealth of Australia.[21]

Ousley v The Queen

[35] Ousley was concerned with the validity of warrants issued by judges of the Supreme Court of Victoria pursuant to s 4A of the Listening Devices Act 1969 (Vic).  An issue arose as to whether s 4A(3) and (4) of that Act exhaustively stated the matters required to be specified in a warrant for the use of a listening device.  Toohey J observed that it was apparent that the Act did not expressly require that the basis of jurisdiction be disclosed on the face of the warrant.  Following earlier authority in relation to statutes that specifically set out the matters that were required to be stated in a warrant issued pursuant to statute, Toohey J concluded that ss 4A(3) and (4) set out comprehensively all the matters to be stated in a warrant and there was otherwise no statutory requirement to disclose jurisdiction on the face of the warrant.  As a result, the omission of one pre-condition did not, of itself, invalidate the warrant.[22] 

[36] Gaudron J, who dissented from the majority’s conclusion on this issue, observed that the warrants derived their force entirely from statute and, necessarily, the question of whether they are valid only if they recite the matters upon which their validity depends was a question of statutory construction.  The precise question was whether an inference should be drawn that recital of those matters was or was not necessary, the Act making no provision one way or the other in that regard.[23]  Her Honour had regard to the nature of the matters referred to in ss 4A(3) and (4) of the Act and was unable to conclude that those subsections evinced an intention that they were the only matters which need to be stated in a warrant.  The Act was said to assume that a warrant would state matters upon which its validity depended. 

[37] McHugh J concluded that it was not necessary for a warrant issued under the Listening Devices Act to disclose jurisdiction on its face.  His Honour reviewed the authorities including R v Tillett;  ex Parte Newton[24] in which Fox J stated that “a warrant issued by subordinate authority should disclose jurisdiction on its face.”  McHugh J remarked that this statement is not universally true, and quoted Lord Diplock in R v Inland Revenue Commissioner Ex parte Rossminster Ltd[25] that:

“What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute.”

McHugh J concluded:

“... where the statute prescribes the form of warrant, a warrant in this form will be valid even when it does not recite all the jurisdictional conditions.  Similarly, where the legislation specifies what the warrant must contain, nothing more can be required. ...

Against the background of the common law tradition of invalidating warrants, a legislature’s statement as to what a warrant must contain should be regarded as exhaustive.  Expressio unius est exclusio alterius.  No doubt in interpreting legislation, the expressio unius est exclusio alterius rule is one to be applied with caution.  But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that, when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose.”[26]  (footnotes omitted)

McHugh J rejected the appellant’s submission that s 4A(4) could not be construed as an exhaustive list.  The express mention of seven matters to be contained on the face of the warrant issued under the Act was regarded as excluding the need for any other unspecified matters to be disclosed.  This conclusion was reinforced by the fact that the Act dealt with listening device warrants, rather than search warrants. 

[38] Gummow J reached the same conclusion.  The matters listed in ss 4A(3) and (4) were said to constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a warrant granted under the section.  His Honour quoted the comments of Lord Wilberforce in Rossminster that were made in the context of a challenge to search warrants that:

“It would be wise to add to [the warrant] a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.”

His Honour also quoted with approval the following passage from the judgment of the Victorian Court of Appeal in Ousley about matters which it might be desirable to record, and impermissibly adding to the legislative statement on what is to be specified in the warrant:   

“In our opinion neither of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant.  That is not to say that it may not be desirable to record the judge’s satisfaction with the pars (a) and (b) matters on the face of the warrant but we consider that to require such a statement to be made would be to add to the list of matters specified by the legislature as the matters that must appear in the warrant when the statutory list was intended to be an exhaustive list of the mandatory requirements.”[27]

[39] Kirby J found it unnecessary to decide whether recital of the prerequisites contained in s 4A(1) was essential to establish validity of the warrant on its face.[28]

[40] I should apply the approach of the majority of the Court in Ousley.  I do so against the background of the common law’s insistence that a search warrant issued by a Justice of the Peace should disclose jurisdiction on its face.  A legislature’s statement as to what a warrant must contain should not necessarily be regarded as exhaustive.  What must be disclosed upon the face of the warrant is a question of statutory construction in the context of the particular statute under consideration.  In the case of s 3E of the Crimes Act 1914 I conclude that the matters listed in s 3E(5), (6) and (7) constitute a comprehensive list of the matters that must be stated in the warrant for it to be valid.  The express mention of those numerous matters should be regarded as excluding the need for any other unspecified matters to be disclosed.  I do not interpret s 3E as assuming that a warrant will need to state additional matters in order to be valid.

Seeter Pty Ltd v The Commonwealth

[41] The applicants in Seeter challenged the validity of warrants issued pursuant to s 3E(1) of the Crimes Act 1914 (Cth).  The warrants were issued by a Justice of the Peace who was in the employ of the Magistrates Court of Queensland.  The applicants complained that the warrants failed to name the issuing officer and submitted that, as a consequence, they were invalid.  As in this case, each warrant bore a signature, albeit a signature which itself was difficult to decipher.  The foot of each page of the warrant was signed and had the official stamp of the Justice of the Peace and a handwritten registration number.  The warrants also had an attestation clause indicating that the warrant was given under the hand of the issuing justice.  The stamp of the issuing officer recorded that the justice was a Justice of the Peace (Magistrates Court).  This aspect is relied upon by the applicant in this case as a material point of distinction and requires reference to categories of Justice of the Peace in Queensland.  Section 15 of the Justices of the Peace and Commissioners for Declarations Act 1991 provides that a Justice of the Peace is to be appointed to one of the categories: 

(a)Justice of the Peace (Qualified);  or 

(b)Justice of the Peace (Magistrates Court).

Section 19 additionally provides for a person who holds office as a Clerk of the Court or Registrar of a Magistrates Court, not being a police officer, who is “an Australian lawyer” to be a Justice of the Peace (Magistrates Court) without further appointment for so long as the person holds the office.  Appointment pursuant to s 15(1) of a person as a Justice of the Peace (Magistrates Court) does not necessarily indicate that the person is employed in a court.  Instead, it has implications for their powers.  Section 29 of the Justices of the Peace and Commissioners for Declarations Act 1991 addresses the powers of justices, including the powers conferred on a Justice of the Peace by the Justices Act 1886.  It provides that a Justice of the Peace (Qualified) in the exercise of any power “to constitute a court for the purpose of a proceeding” is limited to taking or making a procedural action or order.  By contrast, a Justice of the Peace (Magistrates Court) in the exercise of any power to constitute a court for the purpose of a proceeding, is limited to certain specified hearings.  In short, appointment to the category of Justice of Peace (Magistrates Court) has a bearing upon the exercise of the power to constitute a court.  It does not bear upon the power conferred upon a Justice of the Peace to issue a search warrant pursuant to s 151 of the Police Powers and Responsibilities Act 2000. 

[42] I do not interpret Seeter as turning upon the fact that the issuing officer in that case was a Justice of the Peace (Magistrates Court), rather than a Justice of the Peace (Qualified).

[43] Spender J rejected the submission that the warrants were invalid because they failed to name the issuing Justice of the Peace.  His Honour noted that counsel for the applicants in that case was unable to point to any authority for the proposition that a search warrant is invalid if the name of the issuing officer is not clearly marked on its face.  His Honour referred to s 3E and continued:

“In my opinion, the Justice of the Peace who signed each of the search warrants in this case adequately identified her capacity to issue the warrants by signing the document and recording her registration number as a Justice of the Peace.”

I reach the same conclusion in this case.

[44] I have earlier concluded, in reliance upon Ousley, that the validity of the warrants in this case did not depend upon the name of the issuing officer being stated in it.  The warrant in each case contained the issuing officer’s signature, his or her Justice of the Peace seal, registration number and the statement that the person was “an issuing officer within the meaning of the Crimes Act 1914”.  If, in addition to the matters that s 3E of the Crimes Act required the warrant to state, the issuing officer was required to state that he or she was an issuing officer and the capacity in which the warrant was issued, then the warrants in this case did so.  They sufficiently indicated that the warrant was issued by the issuing officer in his or her capacity as a Justice of the Peace in and for the State of Queensland.

[45] The decision in Seeter does not support the applicant’s submission that each warrant in this case is invalid.  Seeter is not materially distinguishable from the facts of this case.  As in this case, the authority of the Justice of the Peace who issued the warrant rested on her appointment as a Justice of the Peace who, as a matter of fact, was employed in a Queensland court, and who was authorised as a Justice of the Peace to issue search warrants.  As in this case, the authorised issuing officer adequately identified her capacity to issue the warrants by signing the document, placing her seal as a Justice of the Peace on each page and recording her registration number as a Justice of the Peace.

Oke v Commissioner of Australian Federal Police

[46] Oke[29] was not concerned with the validity of a search warrant.  Instead, it was concerned with the execution of a search warrant and compliance with the requirements of s 3H(1) which requires the executing officer or a constable assisting to make available to the occupier of the premises a copy of the warrant.  Unlike the warrants in this case, the warrant in Oke included the name of the issuing officer.  An issue arose concerning the form of the document that was provided to the applicant at the commencement of the execution of the warrant in purported compliance with s 3H.  It was not a copy of the warrant in at least two respects.  One was that it did not have the name of the issuing officer on it.  The attestation clause was not completed.  The document provided was the draft form of warrant presented to the issuing officer.  It did not contain any marking to signify its authenticity or that it was issued by a person who had the capacity to issue search warrants.  For example, it did not contain the information that it was issued in Sydney on 23 June 2004, apparently by a New South Wales magistrate. 

[47] The challenge to the execution of the warrant included reliance upon the absence of the name of the issuing officer and the completed attestation clause in the document that was provided to the applicant.  Mansfield J was concerned with a different issue to the issue that arises for my determination and the issue determined by Spender J in Seeter, namely the validity of a warrant.  Mansfield J did not think that Seeter assisted in resolving the issue before him in which the warrant was not under attack, being a warrant that contained the name of the issuing officer as well as a completed attestation clause.

[48] After describing the apparent purpose of s 3H, the fact that there is no prescribed form for a search warrant issued under s 3E and the requirements of s 3E(5), (6) and (7) concerning the information which must be specified in a search warrant, Mansfield J stated:

“However, in my view, it is implicit that a search warrant will also bear on its face sufficient information to identify that it has in fact been issued by an issuing officer, so that any person entitled to see a copy of the search warrant under s 3H(1) can be satisfied as to its authenticity.  That was the point made by Spender J in Seeter at [63].  Section 3H(5) also supports the inference that a search warrant issued under s 3E should bear the signature of the issuing officer or some means of identifying that the issuing officer is in fact a person falling within the definition of “issuing officer” in s 3C(1) of the Act.  That is because it expressly permits the copy of a search warrant made available under s 3H(1) not to include the signature of the issuing officer.  The use of the seal of a court as part of that identification would not necessarily be expected, as the issue of a search warrant under the Act is an administrative or executive act rather than a judicial one.”[30]

Because s 3H(5) permitted only the signature of the issuing officer and the seal of the Court to be excluded from the copy made available to the applicant, the copy of the relevant warrant provided to the applicant did not, in the circumstances, satisfy the requirements of s 3H(1).  Mansfield J observed that by reason of s 3H(5) the fact that the warrant did not have the name of the issuing officer on it “may not be critical”.[31]  Nor was the absence of the court stamp.  It was the absence of any marking to signify the warrant’s authenticity or that it was issued by a person who had the capacity to issue search warrants that was significant.

[49] His Honour later referred to ss 3E(5), (6) and (7) and cited Ousley in concluding that those provisions “appear to exhaustively state the matters the warrant must disclose to make it valid.”[32]  His Honour went on to state:

“Section 3E does not expressly require the name of the issuing officer to be included in the warrant.  However, s 3H(5) indicates that the issuing officer will have signed the search warrant and by implication that the name of the issuing officer will appear on it.”

To the extent that this passage might suggest that the name of the issuing officer must be specified in the warrant (in addition to the name appearing in the form of the issuing officer’s signature) then it is not supported by Ousley or Seeter.  I do not consider that this passage should be interpreted in this way.  Earlier at [49] Mansfield J had stated that the omission of the name of the issuing officer from the copy of the warrant may not be critical.  In its context, I interpret the passage I have quoted as indicating that whilst the actual signature of the issuing officer need not be placed upon the copy provided in compliance with s 3H, the copy which is provided in compliance with s 3H must be in a form that signifies its authenticity and this may require words to be written on it that indicate that the warrant was signed by the issuing officer in these places.  It is unnecessary for me to reach any conclusion as to whether this passage supports the inclusion of merely a reference such as “signed” or “signature” or the actual name of the issuing officer.  The relevant passage should be interpreted in its context, namely compliance with s 3H in a case in which the document that was made available to the applicant “had nothing on it to indicate it had been issued by any person.”[33]  I do not interpret Oke as authority for the proposition that s 3E requires the name of the issuing officer to be included in the warrant (save insofar as the name appears in the issuing officer’s signature) or that a failure to include the name of the issuing officer in the warrant renders it invalid.  Ousley and Seeter are authorities to the opposite effect.

[50] Oke is authority for the proposition that the purpose of s 3H(1) is that the occupier of premises about to be searched has available a copy of the search warrant “so as to be able to see the nature and scope of the authority it gives.”[34]  The copy must have “the appearance of authenticity”.  The omission from the copy provided in that case of any detail of the issuing officer, the status of the issuing officer or the date and place of its issue led to the conclusion that the execution of the relevant warrant did not proceed lawfully.[35]

Conclusion – validity of warrants issue

[51] I have earlier reached the conclusion that s 3E sets out the matters which must be stated in a search warrant.  There is no reason to suppose that those matters do not constitute a complete list, since “when a legislature specifies what must appear in a warrant it intends its statement to be exhaustive of the matters that the warrant must disclose.”[36]

[52] If, however, one was to take the view of Gaudron J in Ousley that the warrant must state those matters upon which its validity depends and which define the extent of the authority conferred, then the warrants in this case did so.  Each warrant stated that it was issued by “an issuing officer within the meaning of the Crimes Act 1914.”  The issuing officer was identified as being a Justice of the Peace.  Each page of the warrant contained the seal and signature of the Justice of the Peace and recorded his or her registration number as a Justice of the Peace in Queensland.  The final page of the warrant indicated where and when it was given and the capacity in which it was issued, namely by a Justice of the Peace in and for the State of Queensland.  These matters were sufficient to identify the capacity in which the warrants were issued.

[53] The warrant might have included additional details, including the fact that the issuing officer was employed in a Magistrates Court of Queensland.  However, the inclusion of this detail was not essential to the warrant’s validity.

[54] The applicant submits that without recording the additional fact that the issuing officer was employed in a State court the warrant was not sufficient for the occupier of the premises to be searched to verify that the issuing officer was in fact an issuing officer within the meaning of the Crimes Act 1914.  However, I am not persuaded that the inclusion of this additional unstated, but implicit fact was essential to the warrant’s validity.  It may be helpful to include in a warrant information that may enable a person adversely affected by it to make reasonably simple and quick inquiries to satisfy themselves of its validity.  However, the inclusion of the additional information that the issuing officer was employed at a Magistrates Court in Queensland would not have done so.  Any person affected by the warrant would still have been required to undertake inquiries.

[55] It is possible to imagine other things that could have been included in the warrant that might assist the early verification of the issuing officer’s capacity to issue the warrant.  These things include the issuing officer’s full name, contact details and usual place of employment.  However, these details are not required by the Act, the provisions of which should be interpreted to constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be valid.  It may be desirable as a matter of practice in some cases for additional information to be included on a warrant so as to facilitate its execution by enabling persons adversely affected by it to take reasonable steps to satisfy themselves of its authenticity and validity.  However, it is impermissible for a court to add to the legislature’s comprehensive statement of what is to be specified in a warrant.  The legislature has seen fit to not add in s 3E a requirement for the name, occupation or contact details of an issuing officer to be stated in such a warrant.  Such additional requirements should not be added by judicial decision in circumstances where “it seems safe to proceed on the assumption that, when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose.”[37]

[56] The fact that each search warrant did not name the issuing officer (save for their signature) did not invalidate the warrant.  Each warrant contained the matters required by s 3E.  In addition, it identified the issuing officer with sufficient detail to enable persons adversely affected by it to ascertain whether the warrant was issued by an “issuing officer”.  The warrant made apparent that it was issued by a person in their capacity as a Justice of the Peace (Qualified).  It included the registration number of the Justice of the Peace and their signature.  It permitted inquiries to be made to verify the asserted fact that the Justice of the Peace was “an issuing officer within the meaning of the Crimes Act 1914.”  The fact that these inquiries could not be undertaken and concluded quickly does not render the warrants invalid.  The warrants might have added the fact that the issuing officer was employed in a Magistrates Court in Queensland.  The warrant was valid without this additional information.  The addition of these or similar additional words would have added very little.  It would have made explicit what was implicit in the assertion by a Queensland Justice of the Peace that he or she was an “issuing officer” within the meaning of the Crimes Act 1914.  The occupier of the premises that was to be searched or other persons adversely affected by the search would still have been required to make inquiries, if so advised, to verify the fact that the issuing officer was in fact an issuing officer within the meaning of the Crimes Act 1914.

[57] The applicant has not established that the relevant search warrants were invalid and that the evidence obtained as a result of them is inadmissible.

Order

[58] The applications are refused.