Flori v Commissioner of Police & another

Atkinson J

25 November 2014

This decision concerned the use in disciplinary proceedings brought against the Applicant, a police officer, under the Police Service Administration Act 1990 (PSAA) of information derived from property seized pursuant to a search warrant issued under s 150(1)(a) of the Police Powers and Responsibilities Act 2000 (PPRA). The Police suspected that the Applicant had obtained and improperly provided CCTV footage of an incident which occurred at a Queensland police station to the media. For the purpose of investigating offenses under ss 92A and 408C of the Criminal Code1899 which may thereby have been committed by the Applicant, a search warrant with regard to the Applicant’s personal residence was sought, issued and executed.

Disciplinary proceedings were subsequently commenced against the Applicant under s 7.4 of the PSAA on the ground of misconduct, listed in s 9(1)(f) of the Police Service (Discipline) Regulations 1990. The Respondents proposed to use information derived from the property seized under the search warrant in those disciplinary proceedings. The Applicant sought a declaration that the Respondents are not entitled to use, rely on or otherwise take into account in the disciplinary proceedings the property seized under the search warrant, nor any data, evidence or information derived from that property.

In her reasons Atkinson J first emphasised that there was no issue as to the validity of the search warrant itself, there being no allegation that it had been sought for an improper purpose, or that the Police’s suspicion of the commission of an offence was other than reasonable.

In that light, the sole issue in contention was the limit of the permissible uses of the property seized by the execution of the search warrant, and of any information derived therefrom. Her Honour accepted that the PPRA contained no express limit on the use of such property and information. However, her Honour nonetheless held that it was implied that the uses to which such property and information could lawfully be put were limited by the purposes for which the coercive power to seize the property in question were conferred. In so finding, her Honour applied by analogy to the PPRA a number of Commonwealth and New South Wales authorities relating to search warrants issued under the equivalent provisions of the Crimes Act 1914 (Cth): see Grollo v Macauley (1995) 56 FCR 533, 551; Williams v Keelty (2001) 111 FCR 175, [233] and ASIC v Rich (2005) 220 ALR 324, [262]. In each of those cases, the Court considered that use of the seized property and the information and evidence derived therefrom in parallel civil proceedings or investigations would be impermissible.

Her Honour held that the purpose of a search warrant issued under the PPRA was to obtain evidence in the investigation and prosecution of criminal offenses, and that such a purpose did not extend to the prosecution of administrative disciplinary proceedings against a police officer under the PSAA. Whilst her Honour accepted that this limitation on the use of the seized property and the information derived therefrom was subject to the owner of the seized property’s freely formed consent, it was clear that no such consent had been provided by the Applicant: c.f. ASIC v Rich (2005) 220 ALR 324. On that basis, her Honour granted the declaration sought.