High Court invalidates AFP search warrant, but the seized records are not returned

On 15 April 2020 a majority of the High Court allowed the Australian Federal Police to retain material collected under a warrant to search the home of journalist Annika Smethurst, despite the Court having unanimously ruled the warrant invalid. The decision has implications for a range of search warrants and white collar crime investigations.

The decision (Smethurst v Commissioner of Police [2020] HCA 14) makes clear:

• the importance of checking the conditions of any search warrant, to prevent the unauthorised seizure of materials; and
  
  
• the need to act quickly to prevent access to materials that may have been seized under an invalid Commonwealth Crimes Act warrant. This may be through an arrangement negotiated with the executing officer for the materials to be held by an independent third party.

The background

Annika Smethurst is a journalist employed by Nationwide News Pty Ltd (Plaintiffs). On 4 June 2019 she was the subject of a raid by the Australian Federal Police (AFP). 

The AFP investigation was triggered by a series of articles published in Nationwide’s newspaper and on its website. The articles reported on a leaked memo from the Department of Defence, and suggested that the Department of Home Affairs and Department of Defence had discussed legislative amendments to extend the powers of the Australian Signals Directorate. 

After obtaining a search warrant under the Crimes Act 1914 (Cth) (Crimes Act), AFP agents searched Ms Smethurst’s home. After purporting to locate material falling within the warrant, the AFP agents copied the material onto a USB stick which was owned by the AFP and taken from the premises. 

The Plaintiffs asked the High Court to invalidate the search warrant. The USB stick removed from the premises was held by the AFP (without being accessed) pending the outcome of the court hearing. 

The High Court’s decision

What did the Plaintiffs seek?

The Plaintiffs sought to invalidate the search warrant on the basis that it did not identify the suspected offence being investigated, and consequently could not identify the scope of material that could be seized pursuant to it.

They also sought an injunction compelling the AFP to return – or ‘deliver up’ – the material seized, without accessing it. Alternatively, they sought an injunction restraining the AFP from making the material available to the prosecuting authorities. The injunctions were sought on a number of bases, including that the material ought to be returned as it was obtained as a result of trespass by the AFP, or via a breach of statutory power. 

The search warrant

The warrant was in the form commonly used in criminal investigations, including those undertaken by the AFP, ASIC and ACCC. 

These are ‘three condition’ warrants under section 3E5 (a)-(c) of the Crimes Act. A warrant must satisfy all three conditions before an item set out in it may be seized:

1. The warrant must describe the ‘the kinds of evidential material that are to be searched for under the warrant’ – this is usually a description of types of documents, or electronic devices and storage media.
   
   
2. The warrant must describe the premises to which it relates, or the name or description of the person to whom it relates. That person does not need to be a suspect, and the warrant can refer to natural people as well as corporations or organisations.
   
   
3. The warrant must specify the offence to which it relates – that is, the legislative provision that may have been contravened.

As a warrant is a significant interference with a person’s liberty, the conditions are protective in nature. As three of the High Court justices stated, they operate to ‘[ensure] that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it’.

However, as was pointed out by Justice Wigney in a 2016 case:

‘The[se] warrants are often lengthy, overly complex and, regrettably, sometimes poorly drafted. The Full Court of the Federal Court has indicated that the warrants work best when a narrow formulation is taken, as there is then greater clarity about the actual documents that can be seized. If the first two conditions are too wide, the narrowing of the types of documents to be seized is undertaken by the third condition’ [the description of the suspected offence].

The conditions illustrate the importance of properly examining a warrant to determine if it is valid.

Was the warrant valid?

In five separate judgments, the High Court unanimously upheld the Plaintiffs’ arguments that the warrant was invalid. This finding was made on two grounds:

• The warrant failed to satisfy the condition in s 3E(5) of the Crimes Act that it state the offence to which it related. The relevant provisions of the Crimes Act were very complex, and covered permutations and combinations of a very wide range of offences. The warrant referred to the provisions at too high or general a level, which made it impossible to identify the actual suspected offence. 

If the law is complex, a warrant must adequately describe the particular offence and how it is said to arise. A brief reference to the relevant provision and nothing further will not suffice. However where the offence being investigated is simple, a reference to the relevant provision alone may be sufficient – see for example the High Court’s decision in NSW v Corbett (2007) 230 CLR 606.

• The warrant was poorly worded. It misstated the offence said to arise under s 79(3) of the Crimes Act, to the extent that readers of the warrant were uninformed about the offence under that provision. This ‘made the authorisation for the search appear impossibly wide’.

The High Court restated the principle from earlier decisions that a warrant is not valid just because a person reading it could deduce or infer the offence intended to be referred to. The offence must be specified in the warrant.

This further emphasises the importance of analysing a warrant critically when the police arrive – to determine if it clearly discloses the offence being investigated. The warrant should be read with direct reference to the legislative provisions referred to in the warrant. 

Could the AFP keep the documents even though the warrant was invalid?

Although the members of the High Court ‘sang from the same hymn sheet’ with respect to the warrant’s invalidity, they split over the question of whether the AFP ought to be able to retain the seized material on the USB. 

The majority: the AFP could retain the material

Four of the seven judges (Keifel CJ, Bell and Keane JJ and, writing separately, Nettle J) held that the AFP should be able to retain the seized material for the purposes of investigating and, if appropriate, prosecuting an offence or offences under Commonwealth law. They found that the AFP could do this even though the search warrant was invalid. 

The majority’s refusal to order the return of the material was based on several factors arising from arguments that were made – or, tellingly, were not made – by the Plaintiffs.

1. The Plaintiffs did not argue that the information on the USB was ‘confidential to them’, which would have supported an injunction to prevent the publication of the seized material. Presumably this was because such an argument was not supported by the facts. As it was not claimed by the Plaintiffs, this basis of relief was not dismissed by the court – which means it would still be available in a case whose facts supported it.
   
   
2. The Plaintiffs did not invite the High Court to consider whether the retention of materials amounted to a breach of privacy, and if so, whether a breach of privacy would be actionable at law. The scope of a ‘right to privacy’ has not been determined, and the issue has not been substantively considered by the High Court since 2001.
   
   
3. It is accepted law that the seizure of property under an invalid warrant is a trespass, and the Plaintiffs argued that this was the case here. However the remedy is an award of damages – not the grant of an injunction for the destruction or return of the seized property. The majority considered the detailed arguments raised by the Plaintiffs, but ultimately concluded that no injunction was available.
   
   
4. The Plaintiffs did not argue that the physical USB which was retained by the AFP was the Plaintiff’s property – because it was the AFP’s property. The majority did not consider whether a different result would be reached in a case in which the thing seized under an invalid warrant is the property of the plaintiff – for example the original of a hard copy note.
   
   
5. The Plaintiffs also argued that there was a statutory basis for an injunction, as the Crimes Act only permitted the use of ‘things seized under [the legislation]’. They argued that as the materials were seized under an invalid warrant, they were not seized under the legislation. Accordingly, there was an implied statutory prohibition on their use. However, the majority found that the Crimes Act did not essentially ‘cover the field’ and govern how the AFP is to handle materials that have been improperly seized. 

The majority found that a relevant section of the Crimes Act which identified how seized materials could be used did ‘not affect the operation of any other Commonwealth law’. They considered section 8 of the Australian Federal Police Act 1979 (Cth) – which prescribed the functions of the AFP – and held that the retention of the USB was part of the AFP’s functions. These included ‘police services,’ which courts have previously found to encompass ‘the investigation of complaints about the commission of crimes with a view to the identification of offenders’.

This finding by the majority is significant. It essentially means that in the absence of any other basis of relief (such as confidentiality as described above) – the AFP is able to retain any materials seized under an invalid warrant and use them in its investigation.

Earlier cases have also recognised that there is a ’discretion’ in a court to decide to grant mandatory injunctions for the return of property illegally obtained and being retained by police.  Justice Gordon said that line of authorities was wrong.  However, it stands, but this potential ’remedy’ is purely discretionary.

Although the AFP may retain material seized under an invalid warrant, section 138 of the Evidence Act 1995 (Cth) will still apply in any resulting prosecution. The section permits a court to exclude improperly or illegally-obtained material from being admitted as evidence. 

However, this is not a cast iron safeguard. The section gives the trial judge a discretion to admit improperly or illegally-obtained material if the desirability of doing so outweighs the desirability of excluding the material; and the section has nothing to say about the police using the illegally seized material to further their investigation. 

The minority: the AFP should not retain the material

The remaining three judges (Gageler, Gordon and Edelman JJ) disagreed with the conclusion reached by the majority. In separate judgments, they reasoned that the Court should grant an injunction compelling the return of the seized material. 

Further considerations

Key takeaways for business 

This case underscores the need to examine warrants critically when they are received, to consider whether they are valid.

If there is a concern that a warrant is not valid, the AFP should not be permitted to remove the material sought under the warrant. The High Court’s decision in Smethurst makes it clear that the AFP may be able to use that material in their investigations and in evidence, even if the warrant is later found to have been invalid.

However this needs to be managed carefully, as hindering the execution of a warrant is a criminal offence. If you believe that the AFP is trying to enforce a warrant that may be invalid, you should:

• seek urgent legal advice; and
  
  
• rather than allowing the seized materials to be held by the AFP, try to arrange a regime with the executing officer under which the materials are held by an independent third party until a Court has ruled on the warrant’s validity.