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More on the constraints on the use of information obtained under statutory powers

February 10th, 2015 · No Comments

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of the disciplinary investigation.  A search warrant was granted in aid of the criminal investigation, and executed.  The sergeant’s computers were seized from his home.

The evidence was incriminating: the email address used to leak the photos was associated with his computer.  No prosecution ensued.  Instead, disciplinary proceedings were issued.  The prosecutors sought to use the evidence seized in the search warrant.  The policeman sought a declaration that the evidence was inadmissible.  The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.

This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime.  The discussion of the law, which commences at [27], is set out in full below.

“Discussion

  • Where information or material is obtained under compulsion authorised by statute, the use that can be made of that information or material is limited by the statute.  In dealing with the related topic of dissemination or release of information obtained under compulsion, Brennan J[1] held in Johns v Australian Securities Commission:[2]

    [1]          With whom Dawson, Gaudron and McHugh JJ agreed.

    [2]          (1993) 178 CLR 408 at 423-424.


    “… when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself by limited by the purpose for which the power was conferred.  In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used.  In Marcel v. Commissioner of Police of the Metropolis[3] Sir Nicolas Browne-Wilkinson V.-C. said, in reference to a statutory power conferred on police to seize documents:

    ‘Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power.  Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes.’

    And in Morris v. Director of the Serious Fraud Office,[4] Sir Donald Nicholls V.-C. said in reference to information acquired by exercise of statutory powers:

    ‘The compulsory powers of investigation exist to facilitate the discharge by the S.F.O. of its statutory investigative functions.  The powers conferred to s. 2 are exercisable only for the purposes of an investigation under s. 1.  When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorized by statute, but not otherwise.  Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created.  That is to be taken as the intention of Parliament, unless the contrary is clearly apparent.’

    A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed.  The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose.  If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information.” (emphasis added)


    [3]          [1992] Ch 225 at 234.

    [4]          [1993] Ch 372 at 381.


  • In this case there is no suggestion that there was any abuse of process in obtaining or executing the search warrant or in seizing material covered by the warrant.  It was executed and materials were seized under the warrant for the purpose found under s 150(1)(a), ie to obtain evidence of the commission of an offence.[5]

    [5]          See Hart v Australian Federal Police (2002) 124 FCR 384 at [65].


  • However, it is now not intended to use the material seized to prosecute the offence which it was alleged was committed but rather to pursue disciplinary proceedings for misconduct against the police officer.
  • In Grollo v Macauley,[6] the Full Court of the Federal Court upheld the validity of the search warrant which had been issued on an application of the Australian Federal Police and executed by them to obtain evidence of criminal offences.  At the time the warrants were executed, proceedings were pending in the Federal Court between the appellants and members of the Federal Police concerning the validity of the execution of other search warrants.  There were also proceedings pending between the appellants and the Commissioner of Taxation and the Commonwealth Director of Public Prosecutions.  The court observed that if the warrants had been sought for an ulterior purpose, such as to obtain information to be used in legal proceedings other than the criminal offences specified in the application for the warrants, then the warrants would be invalid because they were sought for improper purposes.  There was however no suggestion that the respondents had such an improper purpose.

    [6]          (1995) 56 FCR 533.


  • It is implicit in the court’s reasoning that use of the information obtained by the search warrants in the pending civil proceedings would have been improper.  Northrop and Ryan JJ held with regard to the material seized:[7]

    “At this stage, it should be noted that the things seized pursuant to the warrants have been identified in the material before the Court.  Each of those things satisfied the third condition specified in the warrants, namely that there are reasonable grounds for believing that they afford evidence as to the commission of the offences specified in the warrants.  There was no suggestion that the things so seized would be used at the trial of the other proceedings.  Indeed, it is extremely unlikely that they would be so used since they were obtained for a particular purpose and could not be used for any other purpose.”


    [7]          At 550.


  • In Williams v Keelty,[8] Hely J citing Grollo v Macauley, made a similar distinction between the validity of a warrant and the use of material or information obtained as a result of the execution of the warrant.  His Honour held:[9]

    “If an application for a warrant is not a bona fide application for a warrant on the grounds stated, but is made for the ulterior purpose of obtaining information to be used in legal proceedings other than the criminal proceedings contemplated by the application, the warrant will be invalid, not because it authorises interference with the administration of justice in pending legal proceedings, but because the warrant was issued for an improper purpose: Grollo v Macauley at 551.

    But what if the warrant is not issued for an improper purpose?  In Grollo v Macauley at 551 Northrop and Ryan JJ said:

    ‘In many instances, in the course of executing search warrants, the persons making the search may discover information that could be used in pending legal proceedings.  That fact, of itself, could not make the search warrants invalid.  The remedy lies in action against a person making improper use of that information … the fact that there is a possibility that information might be discovered that could be used in pending legal proceedings cannot, by itself, invalidate a search warrant which otherwise complies with the law.’

    If entry is gained to premises by means of the compelling nature of a search warrant, and documents are seized, in my view it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant.” (emphasis added)


    [8]          (2001) 111 FCR 175.

    [9]          At [228], [229] and [233].


  • In Williams v Keelty, the Australian Securities and Investment Commission (“ASIC”) was investigating the applicant under the ASIC Act.  ASIC commenced civil proceedings for a pecuniary penalty and other relief against Williams and Adler, who were directors of HIH Insurance.  The investigation of criminal offences with regard to the same behaviour by the directors continued.  ASIC obtained a search warrant to search for and seize documents relevant to criminal offences.  It would have been improper for ASIC to obtain search warrants to assist it in the civil rather than criminal proceedings.  The search warrants were not issued for that purpose or for any other collateral or ulterior purpose and so were not invalid.  Nevertheless the court held that it would be improper for ASIC to use the documents or the information obtained pursuant to the warrants other than for the criminal proceedings, ie the prosecution of the criminal offences, the investigation of which was the purpose of the warrants.
  • The cases herein referred to were considered by Austin J in the Supreme Court of New South Wales in ASIC v Rich[10] regarding the admissibility in civil proceedings brought by ASIC against directors of One.Tel of material obtained by the execution of search warrants issued in relation to suspected criminal offences.  In that case, ASIC was investigating the directors for both criminal and civil liability.  The warrants set out that “there were reasonable grounds for suspecting the things to be seized would afford evidence as to the commission of [specified] offences.”  Austin J referred to the decision of Full Court of the Federal Court in Hart v Australian Federal Police[11] in observing that “the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them.”

    [10]         [2005] 220 ALR 324; [2005] NSWSC 62.

    [11]         (2002) 124 FCR 384 at [65].


  • This is reflected in the wording of s 150(1)(a) of the PPRA which provides that a warrant may be executed to obtain evidence of the commission of an offence.  That is the only ground for the validity of the search warrant in this case.  However Austin J observed of similar wording in the Crimes Act 1914 (Cth):[12]

    “All of this falls well short of an express prohibition on any use of the seized things, by the executing officer …, for the purposes other than the investigation and prosecution of criminal offences to which the seized things relate.”


    [12]         ASIC v Rich [2005] 220 ALR 324; [2005] NSWSC 62 at 372, [244].


  • His Honour then asked if such a limitation could be implied from the statutory scheme.  He reviewed the cases referred to and concluded that such a limitation was implied:[13]

    “It appears from the cases that the search warrant materials cannot be used for a later civil proceeding even if those materials have been used for the purposes of a single investigation with criminal and civil elements, prior to the commencement of the civil proceedings.

    This entails that if a regulatory agency has used search warrant materials during the course of an investigation, and decides to initiate a civil proceeding, care will need to be taken not to use, for evidentiary purposes or otherwise in connection with the civil proceeding, any of the search warrant materials … .”


    [13]         Ibid at 376, [262]-[263].


  • This problem was overcome in ASIC v Rich because the liquidators of One.Tel consented to ASIC retaining the documents seized.  The liquidator’s consent meant that the documents seized could be used in civil litigation.
  • This conclusion was summarised as follows:[14]

    “[305]    The constraint upon use of the seized materials as evidence in a civil proceeding is not itself an express statutory constraint.  It is, as I have shown, an implied limitation emerging out of the structure and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred.  Williams v Keelty and the Marshall Bell Hawkins case drew from this general proposition the more particular conclusion that seized materials could not be used as evidence in civil litigation.  But it was not necessary for the judge in either case to consider whether that proposition was subject to a qualification that would permit the owner of the seized documents freely to consent to their prospective use in proposed civil litigation from which the owner would benefit.” (emphasis added)


    [14]         Ibid at 386, [305].


  • His Honour concluded that the freely formed consent of the owner of seized documents to their prospective use in a proposed civil proceeding for the owner’s potential benefit is effective to remove the constraint that would otherwise prevent their use in civil proceedings.[15]

    [15]         Ibid at 388, [310].


  • There has been no such consent to the use of the seized material by Mr Flori.  The implied limitation arising from the structure and purposes of search warrant legislation applies to the use of the material seized pursuant to the search warrant in this case.  The material may not be used for purposes other than those comprehended by the warrant.[16]

    [16]         See also Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594 at [81].


    Conclusion

  • The material obtained pursuant to the compulsion of a search warrant may only be used for the statutory purpose for which the warrant was granted, that is to obtain evidence of the commission of an offence.  The evidence seized pursuant to the warrant may be used in the investigation and prosecution of criminal offences to which the seized things relate but cannot be used as evidence in disciplinary proceedings against Sergeant Flori.

 

 

See also:

Tags: Criminal liability · Discipline · Evidence · procedure · prosecutors' duties