R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Limited

1. [1]

   WARD JA: I have had the advantage of reading in draft the comprehensive reasons of N Adams J, with which I agree. For the reasons that her Honour gives, the appeal should be dismissed.

2. [2]

   GARLING J: I am grateful to N Adams J for her lucid exposition of the complex facts in this matter, and for her cogent reasoning explaining the principled basis for the order which she proposes. I entirely agree that the appeal should be dismissed.

3. [3]

   N ADAMS J:

Background

1. [4]

   The Commonwealth Director of Public Prosecutions (“CDPP”) appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a determination of Sweeney DCJ in the District Court at Sydney on 2 December 2015 excluding evidence sought to be led in a pending trial.

2. [5]

   Speedy Corporation Pty Ltd (“Speedy”) faces seven charges under s 134.2 of the Criminal Code (Cth) (“the Code”) of dishonestly obtaining a financial advantage from a Commonwealth entity by deception and two counts of attempt to commit an offence under s 134.2. Two of its directors, Leslie Rapolti (“the first respondent”) and Greg Russell (“the second respondent”) are charged with aiding and abetting the offences of the corporate accused. Briefly, the allegation is that Speedy misled the Australian Customs and Border Protection Service (“Customs”) in order to avoid dumping duty.

3. [6]

   The investigation of the respondents commenced in November 2011. On 1 July 2015, Customs merged with parts of the Department of Immigration and Border Protection to become the Australian Border Force (“ABF”). For convenience, I will refer to the agency as “Customs” throughout this judgment.

4. [7]

   Section 134.2 of the Code provides as follows:

5. [8]

   On 1 August 2013, a search warrant was issued under s 198 of the Customs Act 1901 (Cth) (“the s 198 warrant”) in relation to Speedy’s business premises. It was executed on 7 August 2013. Officers from Customs seized a computer tower and various business records. Criminal proceedings were initiated against the respondents nearly a year later, in June 2014. The respondents waived their right to a committal and were committed for trial on 14 April 2015.

6. [9]

   The trial before Sweeney DCJ commenced on 9 November 2015. Prior to the empanelment of a jury, the first and second respondents made application to have various pieces of evidence, including the items initially seized under the s 198 warrant, excluded. A voir dire commenced and proceeded over eleven days until 23 November 2015, at which time her Honour reserved her decision.

7. [10]

   Also on 9 November 2015, Australian Federal Police (“AFP”) officers executed a search warrant issued under s 3E of the Crimes Act 1914 (Cth) (“the s 3E warrant”) at the Sydney office of the CDPP to seize the documents that the respondents sought to exclude. The documents were then returned to the CDPP for use in the criminal proceedings.

8. [11]

   On 2 December 2014, Sweeney DCJ made a ruling excluding the material seized under the Customs Act search warrant and other evidence held to have been improperly obtained. The other rulings do not form part of this appeal.

9. [12]

   The threshold issue for this Court is whether the ruling of Sweeney DCJ “eliminates or substantially weakens the prosecution’s case”: s 5F(3A) of the Criminal Appeal Act. If it does not, then the appeal is not competent. Also raised by the respondents in relation to the threshold test was whether the relevant dumping notices were void for jurisdictional error. If the appeal is competent, the grounds of appeal are then, first, whether her Honour erred in her interpretation of s 203R of the Customs Act and secondly, in the alternative, whether her Honour erred in excluding the evidence obtained under the Customs Act search warrant pursuant to s 138 of the Evidence Act 1995 (NSW).

The Crown case

1. [13]

   It is convenient to set out briefly the allegations against the respondents. It will become necessary to consider the evidence upon which the appellant relies to prove its case in more detail below in order to determine whether this Court has jurisdiction to entertain the appeal.

2. [14]

   In 2012, Speedy was in the business of importing aluminium road wheels (“ARWs”) for motor vehicles into Australia and selling them domestically. Many of the ARWs were imported from the People’s Republic of China (“China”).

3. [15]

   The imposition of dumping and countervailing duties on certain imported goods is a means of protecting domestic industries manufacturing like goods. On 5 July 2012, the then Minister for Home Affairs published notices introducing dumping and countervailing duties on ARWs exported from China to Australia. The powers to impose dumping and countervailing duties are found in ss 269TG and 269TJ of the Customs Act respectively.

4. [16]

   The Crown alleges that Speedy, in late 2012 and 2013, imported into Australia ARWs that were manufactured in China and thus subject to dumping and countervailing duty. Speedy is said to have held out to Customs that the wheels were manufactured in Malaysia. By virtue of the Malaysia-Australia Free Trade Agreement (“MAFTA”), goods either produced entirely in Malaysia or that have a “regional value content” of at least 40% are not subject to the relevant duties. The Crown case is that Speedy arranged to have the ARWs merely trans-shipped through Malaysia in order to avoid dumping and countervailing duties and that no meaningful manufacturing work was done on them in that country.

5. [17]

   The first and second respondents are alleged to have acted as accessories in this endeavour by providing false information in the Full Import Declaration (“FID”) to Customs with respect to shipments of ARWs and falsely claiming that the goods originated in Malaysia, thereby disguising the true origin of imported ARWs into Australia in order to avoid dumping and countervailing duties.

6. [18]

   One particular importation, being that which formed the basis of Count 6 on the indictment, came to the attention of Customs when a shipment of ARWs imported by Speedy was examined and the wheels were found to have had their “Made in China” imprint ground off.

7. [19]

   The s 198 warrant was executed at Speedy’s business premises on 7 August 2013. The hard drive of the computer tower seized in the course of the execution of the search warrant was found to contain email chains, Microsoft Network (“MSN”) chat logs and Skype chat logs between the first and second respondents and Victor Liu. Mr Liu is another director of Speedy who resides outside of Australia. In them, the directors discuss various strategies for avoiding dumping duty, including removing the “Made in China” label on ARWs and shipping wheels from a factory known as “YQ” in China to Malaysia for further work, such that they would meet the MAFTA place of origin requirements. YQ was a factory whose goods would otherwise attract combined dumping and countervailing duty of 84.3% under the 2012 notice. Shipping documents, invoices, packing lists and bills of lading were also located.

8. [20]

   The Crown case is circumstantial. There is no direct evidence that YQ did or did not manufacture the wheels. There is also official documentation from Malaysia certifying that the wheels were manufactured in Malaysia. The Crown seeks to prove that the ARWs were manufactured in China largely through inferences to be drawn from the material seized, as explained through Customs Officer Christie Curtis (“Officer Curtis”). That material includes the shipping documents, invoices, packing lists and bills of lading as well as the electronic communications downloaded from the seized computer, summarised below at [28]-[46].

9. [21]

   Some of the shipping documents purport to be issued by the Malaysian Ministry of International Trade and Industry (“MITI”). The Crown acknowledged that they are authentic documents bearing authentic signatures and government seals. The Crown case is that they are based upon the provision of false information by the Taiwanese company “Rota Oriens”. The Crown alleges that Rota Oriens provided to Speedy the Malaysian documentation certifying that the final process of manufacture of the ARWs occurred in Malaysia. Speedy then provided those documents to its broker, who in turn provided them to Customs.

10. [22]

    The evidence of Officer Curtis is that she cross-referenced product names and codes from various invoices and compared them with product descriptions and codes in other invoices said to be from YQ. Based on these and other comparisons, she concluded that the wheels were in fact manufactured by YQ.

The evidence on the voir dire before Sweeney DCJ

1. [23]

   The appeal book in this matter comprised eight lever arch folders containing all of the exhibits that were before Sweeney DCJ as well as the eleven days of transcript of the submissions and evidence of witnesses called on the voir dire. Much of that material was relevant to the four other applications to exclude evidence that are not the subject of this appeal.

2. [24]

   Two categories of evidence were adduced on the voir dire that are relevant to this Court’s consideration. The first category is the evidence given by Officer Curtis. Her Honour relied upon that evidence in her assessment of the probative value of the search warrant evidence sought to be excluded. It is also relied upon by the respondents in this appeal in support of its contention that the Crown cannot prove its case, that being relevant to the question of whether this appeal is competent. That argument is considered below at [91]-[152]. The second category of evidence before her Honour concerned the application for and execution of the s 198 warrant, as well as the subsequent s 3E warrant.

Evidence adduced on the voir dire relevant to the strength of the Crown case

1. [25]

   Officer Curtis was called to give evidence on the voir dire. In cross-examination, she agreed that:

2. [26]

   Sweeney DCJ had before her a schedule, prepared by the Crown, setting out the communications contained in the hard drive of the computer seized under the Customs Act search warrant. At the hearing of the appeal, Mr Bourke SC, who appeared on behalf of the CDPP, took the Court to the most relevant of those in answer to the respondents’ submission that the Crown is unable to prove its case even with the impugned evidence. It is convenient to extract the communications upon which the Crown relied in support of its submission that the Crown case is viable if this material were to be admitted at trial.

3. [27]

   It was the Crown’s position that the exclusion of the evidence of the communications by the trial judge had the effect of eliminating the Crown case. Mr Bourke submitted that, although only a few of the communications seized refer to the specific shipments particularised in the indictment, the jury would be invited to view them as a whole, in which case it was open to the jury to conclude that the “whole thing was a sham”. The communications are relied upon by the Crown to demonstrate that, in 2012, the respondents had begun to consider ways of continuing to obtain ARWs from the same Chinese factories while persuading Customs that they were obtained elsewhere. Mr Bourke submitted that these communications were a “very, very important part of the Crown case” and that they were “extremely damaging”, as they suggested that Speedy had taken action to avoid the relevant duty.

4. [28]

   Given that the Crown case relies heavily on inferences to be drawn from these conversations, it is necessary to extract some of them in full rather than attempt to summarise the meaning that they are said to convey:

5. [29]

   There is reference made on 2 May 2012 to the Chinese factory YQ:

6. [30]

   On 1 June 2012, overseas director Mr Liu suggests to the first respondent that the wheels be moved to a secondary country before importation into Australia:

7. [31]

   In June 2012, there is discussion between the participants regarding the possibility of removing “Made in China” imprints from the ARWs:

8. [32]

   On the Crown case, a “sham story” begins to form, whereby the respondents propose to represent to Customs that the wheels are manufactured in Malaysia. Mr Bourke highlighted a chat conversation between the second respondent and Mr Liu on 13 June 2012:

9. [33]

   Mr Bourke referred to similar communications, which he submitted evidenced a “sham arrangement”, on 28 June 2012 and 29 June 2012. He conceded that some of the communications have an exculpatory flavour. For instance, the second respondent’s replies to the emails and chat messages of Mr Liu express concern about the penalties that would be imposed if they were to be caught avoiding dumping duty:

10. [34]

    The first respondent sends a similar email to Mr Liu on 15 June 2012, in which he writes, “So, taking wheels from China, shipping them to Malaysia and then declaring that they were manufactured in Malaysia IS NOT AN OPTION unless you want to visit Greg and I in jail.”

11. [35]

    The first respondent advances a new proposal in an email dated 29 July 2012. He suggests that, in order to obtain a more favourable rate of dumping duty than that attaching to YQ, Mr Liu create a new Chinese company that has never exported wheels to Australia before and therefore will be the subject of a new Customs investigation. Mr Bourke submitted that this was yet another example of the respondents’ planning of a “sham”.

12. [36]

    In chat messages exchanged on 30 July 2013, the second respondent and Mr Liu discuss removing “Made in China” from the wheels and placing “Made in Malaysia” on the wheel boxes.

13. [37]

    Mr Bourke drew the attention of the Court to the following chat messages on 3 August 2012, which, on one view, may be regarded as exculpatory of the second respondent:

14. [38]

    Mr Bourke submitted that other communications between Mr Liu and the first and second respondents effectively have Mr Liu saying, “Well don’t you worry about it, I’ll tell you certain things and just accept that information.” For instance:

15. [39]

    Here it is convenient to interpose the respondents’ argument that, contrary to the construction of this exchange expressed by the Crown, these communications are consistent with an intention on the part of the first respondent legitimately to avoid duty by arranging for a degree of manufacturing to occur in Malaysia.

16. [40]

    Mr Bourke referred next to an email sent by the second respondent to some of Speedy’s customers:

17. [41]

    Mr Bourke pointed to communications that indicated that the respondents continued to use YQ as its manufacturer. For example, there is a reference in an email on 15 March 2013 to “YQ drawings”.

18. [42]

    Communications between a person “Ben Hammond” and others on 13 May 2013 and 14 May 2015 refer to three shipping containers that had been held by Customs. Mr Bourke indicated at the hearing of the appeal that those containers relate to Counts 6, 15 and 24 on the indictment. Skype messages passing between “Joyce Liu” and the second respondent a few days later contain discussion of whether or not the cartons in those containers carry “Made in Malaysia” stickers:

19. [43]

    On 23 May 2013, Ben Hammond sends another email to the first respondent and Luke Tonkin:

20. [44]

    On 28 May 2013, the second respondent and Mr Liu use Skype’s chat function to discuss what they are going to tell Customs about why the “MADE IN CHINA” mark has been ground off the wheels:

21. [45]

    Mr Bourke highlighted that the first respondent then drafted a letter, which was to be sent by the Malaysian manufacturer Speedy Direct to Customs to explain the removal of the cast marks, in what the first respondent said was “poor English” because he wanted it to look “authentic – Asian”.

22. [46]

    There was further correspondence on 5 June 2013 between the first respondent and Mr Liu with respect to what the Malaysian company should say to Customs:

23. [47]

    Mr Bourke submitted that it would be extraordinary if Mr Liu were explaining this to the second respondent for the first time. The Crown submission is effectively that the second respondent and Mr Liu are rehearsing the story that they plan to convey to Customs through the Malaysian company Speedy Direct. There is no written agreement between Speedy Direct and the intermediary Rota Oriens in Taiwan.

24. [48]

    Mr Bourke submitted to this Court that, having regard to the totality of the communications, it would be open to a jury to infer that the ARWs were not worked on to the requisite degree in Malaysia but were in fact manufactured in China and merely transhipped through Malaysia.

Evidence on the voir dire relevant to the admissibility of the search warrant material

1. [49]

   The respondents’ objection to the Crown’s reliance upon the material seized under the s 198 warrant in a trial for charges under the Code was that the material seized under a Customs Act search warrant is only admissible in prosecutions for specified Customs Act offences. Evidence was called on the voir dire relevant to this discrete issue.

2. [50]

   The s 198 warrant was issued on 1 August 2013. Customs first considered criminal charges in February 2014 on the basis of the material seized pursuant to that warrant.

3. [51]

   On 29 April 2014, Customs received advice from the CDPP to the effect that it could retain the documents seized under the s 198 warrant and use them as evidence in proceedings for the criminal charges. Court attendance notices (“CANs”) were prepared on 20 May 2014. In June 2014, the third respondent was charged with the substantive offence under s 134.2 of the Code and the first and second respondents with aiding or abetting the corporate accused.

4. [52]

   On 26 October 2015, the respondents filed their Notice of Defence Response pursuant to ss 141(1)(b) and 143 of the Criminal Procedure Act 1986 (NSW), putting the Crown on notice that they would be seeking to have the material seized under the Customs Act search warrant excluded at trial under s 138 of the Evidence Act.

5. [53]

   On 28 October 2015, the Sydney office of the CDPP advised Customs that it would be “prudent to get a s 3E warrant and have AFP execute the warrant on the evidence”. Customs then approached the AFP to request that they execute a s 3E warrant.

6. [54]

   On 9 November 2015, Registrar Stephen Lister at the Downing Centre Local Court issued a s 3E warrant in relation to the premises of the Sydney office of the CDPP. The application was supported by the affidavit of Detective Sergeant Dwayne Robertson sworn on 9 November 2016.

7. [55]

   The s 3E warrant was executed at the Sydney premises of the CDPP on 9 November 2014. This was the day that the respondents’ trial commenced in the District Court at Sydney before Sweeney DCJ. None of the respondents was given any notice that this search warrant was to be executed at that time.

8. [56]

   The three witnesses who gave oral evidence relevant to the execution of both the s 198 warrant and the subsequent s 3E warrant were Detective Sergeant Robertson of the AFP and Officers Christie Curtis and Terry Baumgart of Customs. Their evidence can be summarised as follows.

9. [57]

   Detective Sergeant Robertson gave evidence that on 29 October 2015 he received an email from Customs, dated 28 October 2015, requesting that he obtain and execute a s 3E warrant on the Sydney office of the CDPP. The email stated that the items to be seized were still in Melbourne, but were coming to Sydney.

10. [58]

    The timeframe for the obtaining and execution of the search warrant was rather short as the respondents’ trial was to commence on 9 November 2015. Cross-examination on the voir dire exposed that Detective Sergeant Robertson had “cut and pasted” material in his supporting affidavit from a draft prepared by Officer Curtis.

11. [59]

    On 30 October 2015, Detective Sergeant Robertson contacted Officer Curtis and made some enquiries. She told him, “Arising from the DPP advice that there is a different definition of the word ‘offence’, that requires the execution of a s 3E search warrant to hold those items because it does not meet the definition of offence.” He had concerns as to whether Customs had the power to continue to hold the documents, but did not raise this with Officer Curtis.

12. [60]

    Detective Sergeant Robertson explained that he was obliged to query this unusual request because it was “very much outside of a normal practice” and “outside the normal actions of the AFP”. He was obliged to understand the request as the seeking and execution of a search warrant are significant powers that the AFP should exercise cautiously. He sought the advice of colleagues. A senior colleague expressed the view that he suspected that the requested action was not legal and that a former AFP officer had been criticised in court for doing the same thing.

13. [61]

    When Detective Sergeant Robertson reviewed the previous matter in which such a request had been made, he found that no legal advice was ever sought at that time as to the propriety and legality of obtaining a s 3E warrant in such circumstances. He thought that it was prudent to seek a solid opinion before a decision could be made for the AFP to accept the referral. The effect of the legal advice obtained from the AFP Legal Section was that it was lawful to proceed. That advice contained the following proviso, “for completeness I haven’t been able to find any case law indicating criticism of law enforcement for pursuing a similar process in the past”.

14. [62]

    During Detective Sergeant Robertson’s evidence, the respondents called for the relevant legal advice. The CDPP made a claim of legal professional privilege with respect to that advice. Sweeney DCJ refused that claim on the basis that there was sufficient evidence before her to support a prima facie case that the obtaining and execution of the warrant was an abuse of the power contained in s 3E of the Crimes Act and that the legal advice given was in furtherance of that abuse.

15. [63]

    Detective Sergeant Robertson agreed that the only purpose of the AFP being involved was to seize documents from Customs under the s 3E warrant and then to hand them back. There was to be no detailed analysis of the documents or use of the documents in evidence in any prosecution in which the AFP was involved. He agreed that he did not conduct any sample investigation to see if any background information that was provided to him was correct; he relied upon the information provided by Officer Curtis. Nobody else in the AFP made independent investigative enquiries because they relied upon the information provided by Customs and the involvement of the CDPP.

16. [64]

    When Detective Sergeant Robertson seized the documents from Officer Curtis, he quickly perused them to make sure that they were correct documents. It took him half an hour or an hour to carry out that exercise. At the time of the execution of the search warrant, he and Officer Curtis were the only people present.

17. [65]

    After Detective Sergeant Robertson satisfied himself that the documents fell within the terms of the s 3E warrant, he returned them to Officer Curtis. The documents were labelled and sealed, or placed in their exhibit bags. He did not remove any documents from their envelopes. The documents were identified by Officer Curtis and the CDPP solicitor with carriage as relevant to the case and he relied upon that information, their knowledge of the matter and the fact that the documents had already been seized and identified when forming his own views.

18. [66]

    In his affidavit, Detective Sergeant Robertson outlined that the search warrant was to be executed on the premises of the CDPP situated at Level 10, 175 Liverpool Street in Sydney. He stated that he based his application on the information that he obtained from his own inquiries and the inquiries of other AFP officers. He expressly stated that the material was initially seized under a s 198 warrant and transferred to the CDPP. He explained that that material now needed to be seized under a s 3E warrant because of the difference in the definition of the word “offence”. He stated that the trial was scheduled to commence on 9 November 2015. He stated that there were reasonable grounds for suspecting that there was evidentiary material at the premises of the CDPP; namely, documents including the hard drive of a computer that would provide evidence as to the commission of specified indictable offences. Detective Sergeant Robertson purported to rely on the summary of the affidavit in support of the s 198 warrant executed at the business premises of Speedy. However, he did not provide any details of that affidavit.

19. [67]

    The s 3E warrant authorised Detective Sergeant Robertson to enter and search the premises of the CDPP and, inter alia, search for and record any fingerprints found at the premises; take samples of things found at the premises for forensic purposes; search the premises for any evidential material; seize any such material that may be found and seize any other thing found at the premises that the executing officer believes to be evidential material or tainted property (within the meaning of the Proceeds of Crime Act). He was further authorised, inter alia, to seize any other thing found at the premises that would present a danger to a person or could be used to assist a person to escape from lawful custody if the officer believed that such seizure would be necessary to prevent its concealment, loss or destruction or its use in committing an offence.

20. [68]

    In executing the warrant, Detective Sergeant Robertson was authorised to obtain any assistance and use force against persons or things as reasonable and necessary in the circumstances.

21. [69]

    Officer Baumgart is a Senior Investigator with Customs. The s 198 warrant was obtained in her name and she executed it at the premises of Speedy at St Mary’s on 7 August 2013. At the time of the execution of the warrant, the understanding of Officer Baumgart was that the warrant was in relation to alleged breaches of s 234 of the Customs Act. Such a breach would be civil in nature and could result in imposition of a fine. The matter would be prosecuted by the Australian Government Solicitor (“AGS”), rather than the CDPP. She attended the premises to search for evidence that Speedy had avoided dumping duty by rerouting ARWs through other countries.

22. [70]

    Officer Baumgart stated that her investigative responsibilities were limited to breaches of the Customs Act. At that time, she was not aware of any breach of s 134 of the Code. It was not part of her general investigatory responsibilities as a Customs officer to investigate breaches of the Code.

23. [71]

    Officer Curtis gave evidence that she knew that the powers to search under the s 198 warrant were limited. She also knew that the alleged breaches of s 234 of the Customs Act that were the subject of her investigation were not criminal in nature. At the time that she made the retention application to the Magistrates Court in Victoria on 21 October 2013 under s 203S of the Customs Act, Customs was considering offences under the Customs Act. It was not until she received advice from the CDPP in February 2014 that she began considering criminal charges. On 29 April 2014, she received advice from the Melbourne office of the CDPP that she could retain the documents seized under the s 198 warrant to proceed with the criminal charges.

24. [72]

    On 28 October 2014, she was advised by the Sydney office of the CDPP that it would be prudent to obtain a s 3E warrant. That warrant was executed at the office of the CDPP in Sydney on 9 November 2015. She was present to hand over the evidence to the AFP officer Detective Sergeant Robertson at that time. She gave evidence that he handed the material back to her “almost immediately” after she gave it to him. She said that Detective Sergeant Robertson did not look at any of the documents individually and agreed that what happened was a “round robin” of documents.

Relevant statutory provisions

1. [73]

   Before turning to her Honour’s reasons, it is convenient to set out the relevant statutory provisions. Section 198(1) of the Customs Act relevantly provides that:

2. [74]

   Section 183UA of the Customs Act includes a definition of “evidential material” as follows:

3. [75]

   That section defines the word “offence as follows:

4. [76]

   An offence under s 72.13 of the Code is an offence with respect to importing or exporting unmarked plastic explosives. An offence under Division 307 or 361 of the Code relates to the import or export of border controlled drugs or plants or international firearm trafficking.

5. [77]

   Section 203R of the Customs Act provides that:

6. [78]

   Section 227AA of the Customs Act provides:

7. [79]

   Part 9.1 of the Criminal Code deals with “serious drug offences”.

8. [80]

   Section 138 of the Evidence Act is as follows:

The decision of Sweeney DCJ

1. [81]

   Her Honour’s decision on 2 December 2015 dealt with the five separate categories of evidence over which the respondents took objection. Her Honour upheld all five objections. This appeal relates only to her Honour’s rejection of evidence obtained by Customs pursuant to the s 198 warrant.

2. [82]

   Sweeney DCJ set out the relevant evidence and the relevant statutory provisions, being ss 198, 183UA and 203R of the Customs Act. Her Honour then addressed the submissions advanced by both parties.

3. [83]

   Her Honour observed that offences against s 134 of the Code have a different character to the offences against s 234 of the Customs Act. The statutory scheme applicable to the issue of a search warrant under the Customs Act is limited by the operation of s 183UA. The word “proceedings” in s 203R must be construed as proceedings for the offences specified in s 183UA. Her Honour observed that ss 183UA, 198 and 203R all appear in the same Part of the Act, headed “powers of officers”, and that they must be read as operating together. She then had regard to decisions of Grollo v MacAuley (1996) FCR 533; (1995) 80 A Crim R 175, Williams v Keelty (2001) 111 FCR 175; (2001) 184 ALR 411; (2001) 39 ACSR 127; 19 ACLC 1535; [2001] FCA 1301; ASIC v Rich [2005] NSWSC 62; 220 ALR 324; (2005) 188 FLR 416; (2005) 52 ACSCR 374; and Fiori v Commissioner of Police and Anor [2014] QSC 284. Her Honour stated that:

4. [84]

   Her Honour concluded that evidence seized under the s 198 warrant could only be used in proceedings for the offences specified in s 183UA of the Customs Act, such as the s 234 offences specified in the warrant. Accordingly, her Honour held it would be improper for the Crown to use the material so seized in a trial for offences against s 134.2 of the Code. Her Honour then stated that her conclusion was reinforced by the terms of s 227AA of the Customs Act (extracted above at [78]), stating:

5. [85]

   Her Honour was not satisfied that the s 198 warrant was executed for the improper purpose of obtaining evidence to use in criminal proceedings; it was executed for the purpose of the investigation of potential offences against s 234 of the Customs Act. However, at the point that a decision was made to proceed with charging the respondents with offences under the Code, the Customs officers were obliged to return the material. By retaining the material at that time, intending to use it in a criminal trial, Customs obtained the material by an impropriety contrary to s 203R and the applicable principles derived from the case law.

6. [86]

   Her Honour then turned to consider whether the execution of the s 3E warrant by the AFP “cured” the impropriety in Customs retaining the material seized under the s 198 warrant for use in the respondents’ trial.

7. [87]

   Her Honour concluded that the obtaining and execution of the search warrant by Detective Sergeant Robertson and the sharing of the seized material with Officer Curtis was not a genuine exercise of the power conferred by ss 3E and 3ZQU in the course of an investigation, but an artificial exercise of the powers in an attempt to “launder” the material improperly held by Officer Curtis. This conclusion was based on: the evidence of Officer Curtis as to the purpose of seeking the 3E warrant; the records of correspondence and discussion between the CDPP and AFP and within the AFP; the evidence of Detective Sergeant Robertson that the course requested was outside the usual powers of the AFP; the circumstances of the execution of the warrant and the almost immediate handing back of the material seized pursuant to the warrant; the fact that Detective Sergeant Robertson did not examine or analyse the material before it was made available to Ms Curtis and the terms of s 3E of the Crimes Act.

8. [88]

   Her Honour went on to conclude that the AFP in a corporate sense participated in “an improper use of that power” and “an abuse of power”. Her Honour went on to observe that the proper course, when Customs chose to prosecute the respondents for offences under s 134 of the Code, would have been to return the seized material to Speedy and then to seek the AFP’s assistance in executing a s 3E warrant on Speedy in order to obtain the material for use in the proposed criminal proceedings. Her Honour observed: “That would have been a proper exercise of the section 3E power and the evidence could therefore easily have been obtained without impropriety”.

9. [89]

   Her Honour then considered the relevant factors in s 138(3) of the Evidence Act, including the probative value of the evidence. Sweeney DCJ highlighted the problems in the evidence of Officer Curtis revealed during her cross-examination, stating:

10. [90]

    Her Honour then concluded:

Threshold question: is the appeal competent?

1. [91]

   The respondents raised a threshold issue as to whether the appeal is competent. It is necessary to consider the question of the competency of the appeal as a preliminary issue. Section 5F(3A) of the Criminal Appeal Act provides that an appeal against an evidentiary ruling can only be brought by the “Attorney General or the Director of Public Prosecutions” if the decision or ruling “eliminates or substantially weakens the prosecution’s case”.

2. [92]

   The respondents conceded that if the Crown had a viable case the exclusion of the subject evidence would substantially weaken it. However, the respondents advanced the contention that the evidence that emerged during the 11-day voir dire in this matter demonstrates that the Crown does not have a viable case in any event. In those circumstances, it was submitted, the jurisdictional gateway in s 5F(3A) is not satisfied because it cannot be said that a ruling substantially weakens a prosecution case that is doomed to fail in any event.

3. [93]

   The respondents identified two issues in support of a submission that the Crown is incapable of proving the elements of the offence charged even if the seized material were admissible. The first is that, based upon the evidence of Officer Curtis on the voir dire, the Crown cannot prove that the relevant ARWs were in fact manufactured in China, or indeed where in the world they were manufactured. The second is that there is a defect in the notice under the hand of the then Minister for Home Affairs Jason Clare MP, issued under s 269TG of the Customs Act on 5 July 2012, imposing the relevant duty on ARWs imported from China. The respondents rely upon a decision of Mortimer J in GM Holden Ltd v Commissioner of the Anti-Dumping Commission (2014) 225 FCR 222; [2014] FCA 7078 (“GM Holden”) that the relevant notice was void for jurisdictional error.

The respondents’ first submission: the evidence of Officer Curtis does not establish that the ARWs were manufactured in China

1. [94]

   The first argument is that the evidence adduced on the voir dire shows that there is no evidence that the relevant shipments originated in China. It was submitted on behalf of the respondents that there is no evidence that Speedy provided false information to Customs in relation to each shipment because there is no evidence that the nine shipments did not originate in Malaysia. This submission relies upon the weaknesses in Officer Curtis’ evidence summarised above at [25].

2. [95]

   It was submitted that, although there is some circumstantial evidence to establish dishonesty, including emails and Skype and MSN chat logs, it cannot overcome the gaps in the proof regarding the allegedly false statements. Even if the evidence were admitted, it could not prove that the ARWs were manufactured and exported from China nor that they were not at least partially manufactured in Malaysia.

3. [96]

   The third respondent adopted the submissions made on behalf of the first and second respondents and added that it cannot be proved that the ARWs were manufactured in China or by any Chinese manufacturer attracting the imposition of duty and countervailing duties, nor that they were shipped to Malaysia in order to avoid the payment of the same.

4. [97]

   It was further noted that there is no evidence to prove the non-existence of the Malaysian manufacturers Zinaco and Speedy Direct, nor any evidence to prove that they did not contribute to the process of manufacturing the ARWs in Malaysia. On the contrary, the inquiries made into the authenticity of the Certificates of Origin stating that the ARWs were manufactured in Malaysia confirmed their authenticity.

5. [98]

   The third respondent finally submitted that evidence given during the voir dire demonstrates that the Crown is unable prove that the respondents either obtained a financial advantage through avoidance of payment of duty or engaged in deceptive behaviour in order to obtain such an advantage. Therefore, the elements of the offences under s 134.2(1) of the Code with which they have been charged cannot be established.

6. [99]

   The Crown submitted that the Crown case is circumstantial and that it is ultimately a matter for the tribunal of fact whether it is satisfied beyond reasonable doubt of the respondents’ guilt. The Crown relied upon the electronic communications between the first and second respondents and other persons, including overseas director Mr Liu, as extracted above at [28]-[46].

7. [100]

   Mr Bourke submitted to this Court that, having regard to the totality of the communications, it is open to a jury to infer that the ARWs were not worked on to the requisite degree in Malaysia but were in fact manufactured in China and merely transhipped through Malaysia. The Crown submitted that the evidence of Officer Curtis was that there was no direct evidence that the ARWs came from China, rather than no evidence at all. That does not mean that the Crown case is incapable of being proved.

8. [101]

   The Crown relied upon the findings of Sweeney DCJ, extracted above at [89], in relation to the evidence of Officer Curtis.

9. [102]

   Mr Bourke conceded that this Court was not bound by the findings of Sweeney DCJ on this question.

The respondents’ second submission: there is no evidence that the relevant duty applied

1. [103]

   The respondents’ second submission was that there is no evidence that dumping duty was in fact payable on the ARWs imported by Speedy from China as the 27 June 2012 notice purporting to impose dumping duty was affected by jurisdictional error. Hence, the Crown is incapable of establishing an element of the offence; namely, that the respondents obtained a financial advantage.

2. [104]

   The arguments urged upon this Court by the respondents to support this submission involved principles of administrative law of some complexity. At the conclusion of the first day of the hearing, the parties were invited to file and serve further submissions addressing the validity of the 2012 dumping duty notices and the retrospective effect, if any, of the 2015 notice. Further submissions on behalf of the Crown were filed on 3 June 2016 and further submissions in reply for the first and second respondents were filed on 8 June 2016.

3. [105]

   It is convenient to set out the decision of Mortimer J in GM Holden before turning to consider the respondents’ submissions.

4. [106]

   The applicant GM Holden sought judicial review of, inter alia, the decision of the Minister for Home Affairs to impose anti-dumping measures under the Customs Act in relation to certain ARWs imported from China. The applicant sought an order in the nature of certiorari quashing that decision. The applicant did not seek judicial review of the countervailing duty notices.

5. [107]

   The background to that case is as follows. In September 2011, an Australian manufacturer of ARWs made an application pursuant to s 269TB of the Customs Act seeking that the Minister for Immigration and Border Protection publish dumping and countervailing duty notices in relation to certain ARWs imported from China.

6. [108]

   The first respondent, then called the Chief Executive Officer of the Australian Customs and Border Protection Service (“the CEO”) and now known as the Commissioner of the Anti-Dumping Commission, performed an investigation. The CEO subsequently provided a report to the Minister recommending that dumping and countervailing duties be imposed in respect of goods that had been the subject of its investigation and like goods, with an exception for goods from exporters in respect of whom the CEO’s investigation had been terminated.

7. [109]

   As part of the investigation process, GM Holden had completed an importer questionnaire and facilitated a visit by Customs to its premises. The applicant provided written submissions to the CEO on several occasions.

8. [110]

   The Minister for Home Affairs, performing the responsibilities of the Minister for Immigration and Border Protection at the relevant time, accepted the recommendations of the CEO and on 27 June 2012 published a dumping duty notice under s 269TG and a countervailing duty notice under s 269TJ of the Customs Act in relation to ARWs that had been the subject of an investigation under Pt XVB of the Customs Act and to like goods exported to Australia from China after 31 May 2012. Goods from Chinese exporters in respect of which investigations had been terminated were excluded from the operation of the notices.

9. [111]

   Division 9 of Part XVB of the Customs Act provided for merits review of dumping duty and countervailing duty notices by the Trade Measures Review Officer (“TMRO”) on the application of an “interested party”. The TMRO is restricted to making recommendations to the Minister, who is not bound to accept them: s 269ZZK(1), (2). The review framework requires the TMRO to focus on whether the CEO should reinvestigate the Minister’s findings of fact, or conclusions based on findings of fact, forming the basis of the decision to issue a dumping duty notice: ss 269ZZE(3), 269ZX. The Anti-Dumping Review Panel (“ADRP”) now performs the functions of the TMRO: Schedule 1 of the Customs Amendment (Anti-Dumping Improvements) Act (No 1) 2012 (Cth).

10. [112]

    On 8 May 2013, the TMRO conducted a review of the 27 June 2012 dumping duty notice on the application of GM Holden that became the basis for the proceedings before Mortimer J in the Federal Court. The TMRO largely affirmed the Minister’s decision, but recommended that the Minister direct the CEO to reinvestigate the calculation of the dumping margins for all “residual exporters.” The TMRO agreed with GM Holden’s position that exporters who had not answered the exporter questionnaires could not fall within the definition of “selected exporter” in s 269T because it was not possible to describe their exportations as having been “investigated” just because they had been sent a questionnaire.

11. [113]

    Following reinvestigation, the CEO recommended that the Minister reaffirm the decision to issue the 2012 dumping and countervailing duty notices. The Minister subsequently affirmed his previous decision by issuing another dumping duty notice pursuant to s 269ZZM on 8 May 2013.

12. [114]

    GM Holden then made application to the Federal Court for judicial review of the Minister’s decision on a number of grounds. The only successful ground of review was Ground 12:

13. [115]

    By virtue of s 269T(1) of the Customs Act as it then was, a “selected exporter” was an exporter of goods the subject of the application, or like goods, “whose exportations were investigated for the purpose of deciding whether or not to publish” a dumping duty notice or a countervailing duty notice. [1] Section 269T deemed an exporter who was not a selected exporter to be a “residual exporter”.

14. [116]

    The classification of an exporter as “selected” or “residual” bore upon the calculation of the size of the dumping margin for particular exporters. Mortimer J observed at [192]:

15. [117]

    The CEO found that there were 117 entities that exported ARWs from China to Australia in the investigation period. A questionnaire was issued to all 117 entities. The CEO regarded the sending of the exporter questionnaire as sufficient to bring all 117 entities within the definition of “selected exporter” in that they had been the subject of an investigation. Those entities were then divided into “selected cooperating” and “selected non-cooperating” categories depending on whether and how they responded to the exporter questionnaires. 112 entities were categorised as “selected non-cooperating” exporters.

16. [118]

    The dumping duty margin for selected non-cooperating exporters was set at 29.3%, while the margin for selected cooperating exporters ranged between <2% and 9.9%.

17. [119]

    The issue for Mortimer J, expressed at [204], was whether the CEO correctly construed the definition of “selected exporter” in s 269T, enabling all of the Chinese entities to be characterised in that way. Mortimer J found that the CEO misconstrued the term “selected exporter” by, among other things, placing a gloss of “cooperating” or “non-cooperating” on the words of the statute. The statutory definition turned only on whether a particular exporter had been “investigated.”

18. [120]

    At [210], her Honour held that simply identifying the entities as exporters and then sending them a questionnaire was insufficient for the CEO to conclude that they had been “investigated”. Sending a questionnaire to an entity cannot constitute an enquiry into the transactions, or “exportations”, of that entity in exporting ARWs: at [213]. Her Honour concluded that the CEO misconstrued the terms “selected exporter” and “residual export” in s 269T of the Customs Act. That misconstruction was adopted and acted on by the Minister when he accepted the recommendation of the CEO as to dumping margins for those entities that the CEO identified as “selected non-cooperating exporters” and published notices under s 269TG using those margins.

19. [121]

    Although the TMRO identified an error in the approach taken, on further investigation the CEO adhered to the position originally taken and recommended, in Report 204 to the Minister, the same dumping margins based again on the same group of “selected non-cooperating exporters”, using the lowest export price and the highest normal value so as to produce a margin of 29.3% and not considering that calculation to be affected by the constraint imposed by s 269TG(3B).

20. [122]

    Her Honour found at [225] that the recommendations in the CEO report; the Minister’s decision to issue the dumping notice based on those recommendations; the CEO’s recommendations on reinvestigation in Report 204; and the Minister’s affirmation of the reviewable decision were affected by jurisdictional error. The parties were then invited to file draft proposed orders reflecting her Honour’s reasons.

21. [123]

    Her Honour made a formal order on 14 August 2014 setting aside the decision made by the Minister for Home Affairs on 8 May 2013 under s 269ZZM(1) of the Customs Act insofar as it affirmed the reviewable decision made on 27 June 2012 to publish dumping duty and countervailing duty notices under sub-ss 269TG(1) and (2) and sub-ss 269TJ(1) and (2) of the Customs Act. Her Honour made a further order that, pursuant to s 16(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the matter consisting of the reviewable decisions made on 27 June 2012 be referred to the Minister for further consideration under s 269ZZM(1) of the Customs Act in accordance with law.

22. [124]

    A subsequent dumping duty notice issued by the Minister on 23 September 2015 purported to have effect from 5 July 2012. The dumping duty imposed on wheels manufactured at YQ in China was 64.1%. The retrospective effect of the 2015 notice generally and for the purposes of these proceedings was the subject of submissions from the parties.

23. [125]

    Mr Game SC for the first and second respondents submitted that the validity or otherwise of the 2012 dumping duty notices is relevant to the “gateway” to s 5F(3A) of the Criminal Appeal Act, being whether the ruling of the trial judge eliminates or substantially weakens the prosecution’s case. That gateway is a jurisdictional fact of which the Court must be satisfied before considering the appeal.

24. [126]

    Mr Game contended that the Crown would be unable to prove that shipments of ARWs from YQ factory were dutiable. That is because, it was submitted, the effect of the finding of jurisdictional error in GM Holden was to render invalid, or void, the dumping duty notice issued by the Minister on 27 June 2012 even in the absence of an order setting aside the decision of the Minister. The decision was in law “no decision at all”. It was further submitted that the 2015 notices were also affected by jurisdictional error and therefore of no legal effect. In any case, the 2015 notices did not and cannot have retrospective application.

25. [127]

    When asked whether this was an issue that would be more properly dealt with in the pending permanent stay application in the District Court, Mr Game submitted that this Court has no choice but to consider the validity and effect of the 2012 and 2015 notices by reason of the threshold issue in s 5F(3A). Their validity or otherwise is justiciable in these proceedings by way of collateral challenge because of the threshold enquiry posed by s 5F(3A). The existence of dumping duty at the relevant time goes to the heart of proof of the second element of the offence alleged against the corporate respondent, from which flows the derivative liability of the individual respondents.

26. [128]

    Mr Game cited authority in favour of the proposition that it is open to the accused in a criminal proceeding to challenge the validity of administrative action. In Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ stated at 108 [36]:

27. [129]

    It was submitted that a collateral challenge is not limited to invalidity on the face of the record. On this point, Mr Game cited the observations of McLure P in Australian Crime Commission v Marrapodi [2012] WASCA 103 at [46]:

28. [130]

    It was submitted that that there is nothing in Part XVB of the Customs Act, properly construed, that would have the effect of displacing the right of the respondents to raise in these proceedings the validity of the 2012 and 2015 notices.

29. [131]

    Mr Game submitted that it is settled law that decisions affected by jurisdictional error are without legal effect. He relied upon the decision of the High Court in Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (“Bhardwaj”). Gaudron and Gummow JJ (McHugh J agreeing) stated at 614-615 [51]-[53]:

30. [132]

    The proposition that an administrative decision that involves jurisdictional error is no decision at all was affirmed by the High Court in, among other cases, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ) and Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3 at [31] (per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ).

31. [133]

    Mr Game’s submission hinged on this proposition. Accordingly, there was no need, it was submitted, for Mortimer J to make an order quashing the 2012 notice. The fact that a remedy may be available to the respondents by way of Federal Court challenge does not mean that the impugned decisions are valid until they are successfully challenged. Moreover, it was submitted that the retrospective attempt to “cure” the problem by revoking the 2012 notice and imposing the 2015 notice was also bad for jurisdictional error (and therefore incapable of applying retrospectively) for two reasons. First, because the text of the 2015 notice suggests that the Minister did not carry out the statutory preconditions for an exercise of power under s 269ZZM (as set out in s 268ZZB). Secondly, because the 2015 notice purported to be the result of a review of the void, and therefore unreviewable, 2012 notice.

32. [134]

    Finally, Mr Game submitted that there is nothing in the language of the relevant provisions of the Customs Act that either expressly or by necessary implication leads to the conclusion that they are intended to have retrospective application such as to expose the respondents to criminal liability retrospectively: Rodway v The Queen (1990) 169 CLR 515 at 518-523.

33. [135]

    The third respondent adopted the submissions of the first and second respondents in brief further submissions filed on 9 June 2016.

34. [136]

    In his further submissions, Mr Bourke on behalf of the Crown submitted, first, that Mortimer J made no order setting aside the Minister’s reviewable decision of 27 June 2012 imposing dumping duty and, secondly, that the 2015 notice was capable of imposing duty retrospectively. He submitted that there was no merit in the respondents’ submission that the Minister’s decision of 27 June 2012 should be regarded as void and without legal effect by reason of Mortimer J’s finding of jurisdictional error.

35. [137]

    Mr Bourke submitted that there is no general proposition to the effect that decisions affected by jurisdictional error will automatically have no legal consequences. In support of this position, he referred to the statement of Gaudron and Gummow JJ in Bhardwaj at [46] that, “In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’ ‘voidable’, ‘invalid’ or, even, as ‘nullities’”. Although in that case the High Court treated the decision in question as of no legal effect, subsequent decisions applying Bhardwaj have not considered that it is authority for the proposition that jurisdictional error on the part of a decision-maker will produce a legal nullity: see Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 at [40]-[42]; Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]. The effect of a finding of jurisdictional error is “relative to context” [2] and turns on an examination of the relevant legislation. Further, the grant of relief in the form of orders in the nature of the prerogative writs is discretionary.

36. [138]

    It was submitted that there are good reasons why the Minister’s decision of 27 June 2012 would not be treated as a nullity. Importantly, treating decisions made under anti-dumping legislation as nullities may frustrate the purpose of the legislation; namely, the protection of Australian industries from material injury. It was submitted that, by remitting the matter for reconsideration under s 269ZZM, Mortimer J enabled the correction of an error affecting the rates of duty payable without removing the protections afforded to the Australian ARW industry. Nor did her Honour’s order setting aside the Minister’s decision of 8 May 2013 have the effect of nullifying the 2012 notice; the 2013 notice was expressed to be “in addition to the anti-dumping notices…notified on 5 July 2012”.

37. [139]

    Dumping duty was therefore payable under the 2012 notice by the third respondent in the period particularised on the indictment, being 17 September 2012 to 19 August 2013.

38. [140]

    The Crown submitted that it is unnecessary to consider the effect of the 2015 notice, given that the ARWs from YQ were dutiable under the 2012 notice at the relevant time. In any case, the 2015 notice affirmed the decision of 27 June 2012 with effect from 5 July 2012. Part XVB of the Customs Act, it was submitted, contemplates the retrospective imposition of dumping duty: see sub-ss 269ZZM(2) and (6) and ss 269TG(1), 269TH(1), 259TJ(1) and 269TK(1) and 269ZI.

Consideration

1. [141]

   Having regard to the material upon which the Crown relies, it could not be said that there is no evidence capable of establishing that the ARWs were manufactured in China.

2. [142]

   I accept that some of the communications extracted above may bear an interpretation that is exculpatory in nature. However, the inferences to be drawn from that material are for the tribunal of fact. The jury will be required to consider the communications in the context of other circumstantial evidence, such as the grinding off of “Made in China” stamps of the ARWs, the evidence of Officer Curtis and the ostensibly authentic Malaysian certificates of origin. Taking all of the evidence into account, it would be open to a jury to infer that, in order to avoid dumping duty on ARWs imported from China, the third respondent provided false documentation to Customs in order to represent that the wheels had been worked on in Malaysia. Some of the communications would lend themselves to this inference even though they are capable of multiple competing inferences, some of which are inculpatory. These include the following:

3. [143]

   In reaching this conclusion I accept that the evidence of Officer Curtis given on the voir dire as to her suspicions and assumptions has weakened the Crown case considerably. Although I am clearly not bound by the findings of Sweeney DCJ extracted at [89] above, I share her Honour’s concerns in this regard. Despite this, it is important to note that when Officer Curtis conceded there was “no evidence” of certain matters, she clearly meant that there was no “direct evidence” of those matters. This is because the Crown case is a wholly circumstantial one and relies upon the drawing of inferences. Overall, despite the obvious weaknesses in the Crown case, I am not satisfied that there is no evidence that the ARWs were manufactured in China as alleged by the Crown.

4. [144]

   The respondents’ second submission that there is no evidence to establish that a duty (sought to be avoided) was payable in the first place is less straightforward. That argument involves a number of complex issues including whether the finding by Mortimer J in GM Holden means that the 2012 notice is void without any need for further assessment by this Court or whether this Court should consider that issue afresh and make a determination regarding whether the notice is infected with jurisdictional error. Even if it is to be assumed that this Court would accept that the 2012 notice is void, that is not the end of the matter. The question then becomes whether, even if this Court made a finding that the 2012 notice was void for jurisdictional error, the issue of the 2015 notice cured that invalidity or whether it too is void for jurisdictional error; and finally, whether the 2015 notice nonetheless cannot apply retrospectively.

5. [145]

   The first and second respondents relied upon the decision in GM Holden before Sweeney DCJ, albeit on a more limited basis than in this Court. They submitted to her Honour that, on the basis of the decision of Mortimer J, the factory YQ was miscategorised for the purpose of the calculation of dumping duty at the time of the alleged offences and any attempt to reclassify it retrospectively cannot impute criminal liability to the respondents for avoiding the payment of the relevant duty. Despite this argument being before Sweeney DCJ, her Honour did not determine the effect of the 2012 notice for the purposes of her evidentiary rulings. Rather, her Honour considered the Crown case on the basis that she accepted that the dumping duty was payable. Significantly, her Honour noted the Crown submission that not all of the evidence relevant to determining that issue was before the District Court on the voir dire in any event. Similarly, Mr Bourke submitted that Mortimer J had a great deal more material before her in GM Holden than has been adduced on the question of the validity of the 2012 and 2015 notices in this Court.

6. [146]

   The determination of this second part of the respondent’s objection to jurisdiction under s 5F(3A) turns on this Court’s application of the terms of that provision and in particular the meaning of the phrase “if the decision or ruling eliminates or substantially weakens the prosecution’s case”. The decisions concerning the threshold test in s 5F(3A) have focused on the words “substantially weakens”. The focus of the respondents’ argument here, however, is on the phrase “prosecution’s case”. In essence, the respondents argue that a ruling cannot eliminate or substantially weaken a prosecution case that is doomed to fail in any event. The question is whether that phrase should encompass the Crown case taken at its highest, as Sweeney DCJ took it to be, or whether this Court is statutorily required as part of its task in assessing the competence of the appeal to consider arguments that did not form any part of the trial judge’s findings.

7. [147]

   In R v Shamouil [2006] (2006) 66 NSWLR 228; [2006] NSWCCA 112 Spigelman CJ, with whom Simpson and Adams JJ agreed, considered s 5F(3A) and observed at [29] that, “In accordance with the authorities, this Court must assess the Crown case in order to determine whether or not the excluded evidence substantially weakens it”. His Honour went on to observe at [39]:

8. [148]

   The decision in R v Shamouil was applied in R v SJRC [2007] NSWCCA 142. James J, with whom Rothman and Harrison JJ agreed, applied the principle stated by Spigelman CJ at [37] of R v Shamouil that “even a case which is otherwise likely, even very likely, to succeed, may still be ‘substantially weakened’, if evidence of cogency or force is withheld.” In R v SJRC, Rothman J observed at [56]:

9. [149]

   On the first day of the hearing, Mr Bourke submitted that the evidence excluded by Sweeney DCJ substantially weakened the prosecution case. He also conceded that it in fact eliminated it, such that if this appeal were not successful there could not be any further proceedings in this matter.

10. [150]

    The subject matter of an appeal under s 5F(3A) of the Criminal Appeal Act is an evidentiary ruling, not a collateral challenge to the validity of administrative decisions or legislative instruments upon which the “prosecution’s case” might depend. Just as this Court does not embark upon a consideration of the weight of evidence when determining the effect of the excluded evidence on the prosecution’s case for the purposes of s 5F(3A), nor does it embark upon hearing collateral challenges. Instead, for the prosecution case to be considered as “a case”, the Court proceeds upon the assumption that the evidence will be accepted by the jury and that such administrative decisions or instruments upon which the prosecutions depend are valid. Collateral challenges can be addressed in the first instance to the trial judge and, if appropriate by the grant of leave under s 5F(3). The concluding words to s 5F(3A) are not a backdoor means for a cross appeal.

11. [151]

    Both the basis and timing of the application considered by Sweeney DCJ lead me to conclude that the “prosecution’s case” to be considered for the purpose of this appeal must be taken to be the case presented by the CDPP on the voir dire. That was the “prosecution’s case” as assessed by her Honour before the trial commenced. In reaching this conclusion I accept that there may be other appeals brought under s 5F(3A) in which the “prosecution’s case“ will fall to be assessed on a different basis depending on the timing and basis of those appeals.

12. [152]

    In light of the above, and in circumstances where we may not have all of the relevant material in any event (see at [145] above), I accept that the ruling of Sweeney DCJ excluding the evidence of the seized material under s 138 of the Evidence Act eliminates the Crown case and accordingly I am satisfied that this Court has jurisdiction to hear the appeal.

Grounds of appeal

1. [153]

   Leave was granted to the Crown at hearing of the appeal to rely upon amended grounds of appeal filed on 6 May 2015 in the following terms:

2. [154]

   In effect, the Crown relies upon one ground of appeal comprising two specific errors. Those two errors will be considered in turn. For ease of reference, I will refer to the two errors as “Ground 1” and “Ground 2”.

Ground 1: Her Honour erred in her interpretation of s 203R of the Customs Act

1. [155]

   The Crown’s primary submission is that Sweeney DCJ’s conclusion that evidentiary material lawfully seized under the s 198 warrant could only be used in proceedings for offences to which the definition of “offence” in s 183UA of the Customs Act refers involved an unjustified reading down of the relevant provisions. The Crown relied upon four arguments in support of this submission.

2. [156]

   First, it was submitted that s 203R does not deal with the “use” or admissibility of evidentiary material. Rather, it deals with the “retention” of evidentiary material. Her Honour concluded that “evidence seized under the s 198 search warrant could only be used in proceedings for the offences specified in section 183UA of the Customs Act”, but that section does not refer to use. Additionally, the appellant asserts that the authorities quoted by her Honour in her reasons (as cited above at [83]) do not assist. Each of those cases involved consideration of whether evidence seized through the compulsive power of a search warrant for criminal proceedings could be used in civil proceedings. It was submitted that those cases do not assist in determining the operation of the particular provisions of the Customs Act under consideration in this appeal.

3. [157]

   Second, it was submitted that there is no basis to conclude that s 203R of the Customs Act only permits the retention of evidentiary material for the purposes of prosecuting an offence as defined in s 183UA of the Customs Act. The Crown relies upon what is said to be the intentionally general words used in the section. The Crown also relies upon the fact that s 203R refers to the word “proceedings” rather than the phrase “proceedings for the prosecution of an offence as defined in s 183UA”. The appellant contends that, if the intention of s 203R were only to permit the retention of evidentiary material to be used in proceedings for an offence as defined in s 183UA, then that intention would have been clearly stated.

4. [158]

   Third, the Crown submits that her Honour misapplied s 203R insofar as that section affects the rights of Customs officers to retain evidentiary material. Her Honour found that, once the decision was made to prosecute for an offence under s 134.2 of the Code rather than under the Customs Act, the operation of s 203R and principles concerning the limits on the use of material obtained for one purpose under a search warrant meant that Customs no longer had a power to retain the seized material. The Crown asserts error in the fact that her Honour at this stage makes no mention of the fact that Customs had already sought a retention order on 27 November 2013 to retain the evidence until 5 September 2014. The Crown submitted that, even if the words “reason for its seizure” in s 203R mean seizure for use in prosecutions for Customs Act offences, that reason had not ceased to exist. What had changed was the precise use to which the evidence might be put. It was noted that the Customs Act charges remained open.

5. [159]

   Finally, the Crown submitted that Sweeney DCJ erred in finding that her interpretation of s 203R was reinforced by the terms of s 227AA of the Customs Act. That section appears in a different Division of the Customs Act. Her Honour relied upon s 227AA to conclude that the legislature chose to broaden Customs officers’ powers only to the extent set out in that section. The Crown contended that s 227AA does not purport to set out in full or impose limits upon all of the powers exercisable by Customs officers. If her Honour’s interpretation of this section is correct, it was submitted, a Customs officer can only use evidence or give evidence to another body for use if the evidence falls within Part 9.1 or Subdivision B of Division 72 of the Code. The Crown submits that there are many powers conferred by the Customs Act on officers that are capable of detecting or likely to detect evidence of a wide range of offences such as ss 186, 187, 195 and 195C. Sections such as these demonstrate that, in the course of exercising powers under the Customs Act, officers are likely frequently to obtain evidence of the commission of an offence in circumstances that do not fall within the terms of s 227AA. Therefore, that section does not have the limiting effect that her Honour gave to it.

6. [160]

   Mr Game submitted on behalf of the first and second respondents that the Crown’s interpretation of s 203R is incorrect because “use in evidence” is one of the specifically identified purposes for which evidence may be retained: see s 203R(1)(a). The first and second respondents also submitted that the word “retention” in s 203R is followed immediately by the words “of things seized as evidential material”. These subsequent words inform and qualify the purpose of the retention. The phrase “evidential material” in s 203R is referable to the word “offence” as defined in s 183UA.

7. [161]

   It was submitted that, in light of the language of s 203R and the subdivision in which it is contained, there is no other conceivable purpose for retention of evidential material seized other than use as “evidential material”. It was submitted that the Crown’s construction of s 203R as applying to retention but not use is artificial and leaves no work for the section to do. If retention of things seized as evidential material is not for the purpose of use in evidence, then what other purpose for retention could there be? “Possession”, “retention” and “use” are all concepts that are inextricably connected and circumscribed by the definition of “offence” in s 183UA.

8. [162]

   As for the Crown’s second point, Mr Game noted that it is premised on an acknowledgement that retention can only be for use as evidence, though the Crown submitted that the purpose of such retention should not be limited to offences as defined in s 183UA. It was submitted that the text of the Act provides no support for such an interpretation. Had Parliament intended the power of retention in s 203R to extend to things relevant to offences under legislation other than the Customs Act (or the other confined group of offences to which the definition of “offence” in s 183UA refers), one might expect the section to have referred to “anything seized in the course of the execution of a search warrant” or “evidential material in respect of any offence against any Act”.

9. [163]

   As for the Crown’s reliance upon the fact that an order pursuant to s 203S of the Customs Act was in force at the relevant time, it was submitted that such retention as a matter of construction is for offences within the meaning of s 183UA. To define “offence” in any other way would mean that the evidential material could be retained indefinitely for any prosecuting body to commence proceedings at an undetermined point in time for offences falling outside that definition. The reason for the seizure was potential prosecution for offences under s 234 of the Customs Act, not a criminal offence under s 134.2 of the Code.

10. [164]

    With respect to the Crown’s suggestion that Customs Act charges still remain open, the first and second respondents submitted that the decision has been made to proceed under the Code rather than the Customs Act. To commence proceedings for Customs Act offences now would amount to an abuse of process.

11. [165]

    It was submitted that s 227AA of the Customs Act provides for the only two circumstances in which a Customs officer may seize evidence of Code offences and use it, or give it another body for use, in investigating prosecuting those offences. Her Honour found on the evidence (and this was unchallenged by the Crown) that the relevant Customs officers did not possess a suspicion that material other than material relating to the commission of civil breaches of s 234 of the Customs Act would be found on Speedy’s business premises.

12. [166]

    Finally, the respondents relied upon the decisions that her Honour cited in her judgment as being authority for the proposition upon which she ultimately relied: Grollo v Macauley; Williams v Keelty, ASIC v Rich; and Fiori v Commissioner of Police and Anor (cited above at [83]).

13. [167]

    The resolution of this ground turns on whether Sweeney DCJ erred in finding that material seized under a s 198 warrant was not admissible in criminal proceedings for an offence under the Code. Her Honour found that it would be improper for the Crown to seek to lead this material based on common law principles and the relevant provisions in Part XII of the Customs Act. In terms, her conclusion was that:

14. [168]

    The Crown focussed its complaint regarding this finding on her Honour’s construction of s 203R of the Customs Act and advanced an alternate construction that would have permitted Customs to have retained the material for use in the prosecution under the Code. The Crown takes no issue with her Honour’s construction of ss 198 and 183UA of the Customs Act. There was no dispute as between the parties that a search warrant could not be issued under s 198 of the Customs Act for offences under s 134.2 of the Code, because the power under s 198 of the Customs Act was to seize “evidential material” meaning “a thing relevant to the offence”. “Offence” is defined in s 183UA of the Customs Act and does not extend to an offence under s 134.2 of the Code. Nor was it disputed that when Customs officers executed the search warrant on the premises of Speedy on 7 August 2014 they were contemplating a potential civil prosecution under the Customs Act, rather than a criminal prosecution under the Code.

15. [169]

    Where the parties joined issue was whether s 203R permitted the material seized under a s 198 search warrant to be used in a prosecution under the Code even when it was not seized for that purpose.

16. [170]

    Section 203R of the Customs Act provides that material seized as “evidential material” by an officer under the Customs Act must be returned in two situations. The first of these is when the reason for its seizure no longer exists or if it is decided that it will not be used in “evidence”: s 203R(1)(a). The second situation is, if 120 days after seizure of an item, proceedings “in respect of which the thing may afford evidence” have not been started and no court orders have been sought and made under s 203S permitting its retention: s 203R(1)(b). I shall consider the applicability of each of these situations to the facts in this appeal in turn.

17. [171]

    As for the first situation, s 203R(1)(a) contemplates that seized items must be returned when the reason for their seizure no longer exists or if it is decided that it will not be used in “evidence”. The reason for the seizure of the material in this matter was contemplation of proceedings under the Customs Act. When a decision was made not to pursue such a prosecution, the reason for its retention no longer existed. Section 203R then became operative and there was a requirement for the seized items to be returned.

18. [172]

    The reference to “evidential material” in s 203R(1) of the Customs Act should be read consistently with the meaning given to that term in s 183UA. When the provision is read in this context, the reference to the material being “used in evidence" in s 203R(1)(a) can only mean used in evidence in a proceeding for an offence under the Customs Act. I do not accept that this construction involves the reading down of s 203R for which the Crown contended.

19. [173]

    Section 203R of the Customs Act is concerned with the circumstances in which seized material can be retained. I do not accept the Crown submission that this means that it is concerned with the concept of retention alone rather than the subsequent use of the seized material. The power to retain the material must be for a particular purpose. No basis for retaining the material other than for use in proceedings for an offence was advanced in this matter. As the respondents submitted, “possession”, “use” and “retention” are connected concepts in that seizure and subsequent retention are prerequisites for the ultimate use of the material.

20. [174]

    The suggestion by the Crown that the “reason for its seizure” in s 203R(1)(a) had technically not ceased to exist because a prosecution under the Customs Act remained open was an unsatisfactory response to the argument put against it. Customs officers had received advice to proceed with the criminal charges rather than charges under the Customs Act. If the section were to be given the meaning advanced by the Crown then the original intention to prosecute under the Customs Act would always exist. In those circumstances the words “no longer exists” in s 203R would have no work to do.

21. [175]

    Turning to the second of the two situations in which the seized material must be returned under s 203R, it is to be noted that on 27 November 2013 an order was sought under s 203S of the Customs Act to retain the evidence until 5 September 2014. Section 203R(1)(b) only applies until such time as “proceedings in respect of which a thing may afford evidence” have been commenced. As at 27 November 2013, no decision had been made as to whether charges should be laid and certainly no “proceedings in respect of which a thing may afford evidence” had been commenced. I am satisfied that this phrase is to be read in the context of Part XII of the Customs Act. As such the word “proceedings” in s 203R must be construed as meaning proceedings for offences specified in s 183UA.

22. [176]

    I am unable to accept the Crown submission that the use of the word “proceedings” in s 203R, rather than the phrase “proceedings for the prosecution of an offence as defined in section 183UA”, means that the word “proceedings” should be read broadly to mean proceedings for any offence, even offences beyond the definition in s 183UA. When the Division is read as a whole then “proceedings” must refer to proceedings for offences in relation to which a s 198 warrant has been issued. In this context, the failure by Sweeney DCJ to refer to the s 203S retention order in her reasons does not suggest any error. Her Honour was aware of the retention order, but on the construction found by her Honour it would not have had any relevance.

23. [177]

    Her Honour construed s 203R on the basis that its text was to be read in the context of the Customs Act as a whole thus the reference therein to “proceedings in respect of which a thing may afford evidence” must be read as meaning proceedings for offences specified in s183UA. This was because, as her Honour noted:

24. [178]

    It is well established that in construing a provision such as s 203R of the Customs Act it is necessary to have regard to its text. The context of s 203R in Part XII of the Customs Act assists in this task, but it cannot displace the meaning of the text itself: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. Her Honour was correct in stating that her primary object was to construe the provision so that it was consistent with the language and purpose of all the provisions of the statute.

25. [179]

    The finding by Sweeney DCJ that the retention of the material was improper was not confined to her construction of s 203R. Her Honour also relied upon s 227AA of the Customs Act and relevant common law principles. Her Honour found that s 227AA of the Customs Act strengthened her construction of s 203R. Although, as the Crown pointed out, that section appears in a different Division of the Customs Act, it nonetheless appears in the same Part and is the only section in Division 3 of that Part which is headed “Evidence.” In those circumstances it is clearly referable to the seized material under Part XII. If not referable to that Part, it is difficult to see to what else s 227A could relate, given that it is the only provision in that Division 3 of Part XII. In its terms it evinces a legislative intention to broaden Customs officers’ powers to the extent set out in that section and no more. No error is disclosed in her Honour’s consideration in this regard.

26. [180]

    I have given consideration to the Crown’s submission that the construction of s 227AA found by her Honour would unnecessarily limit the powers of Customs officers. This submission does not assist in the proper construction of the provision, which requires the Court to have regard to its text in the context of the Customs Act as a whole. The fact that there may be policy reasons for broadening the powers is not to the point. The fact is that the powers of Customs officers in the Customs Act as currently enacted are confined to the terms of the provisions in Part XII of the Act.

27. [181]

    I note the Crown’s reliance upon the powers in ss 186, 187, 195, 195A and 196C of the Customs Act in support of its contention that Customs officers may well obtain evidence of the commission of an offence that does not fall within the limited terms of s 227A of the Customs Act and be permitted by the statute to use it in proceedings. In this way, it was submitted, it can be seen that s 227AA cannot have the limiting effect Sweeney DCJ apparently gave it. The difficulty with this submission is that it cannot overcome the fact that an analysis of the provisions in Part XII the Customs Act shows a clear legislative intention to circumscribe the power to seize and to deal with evidence. The complaint by the Crown as to the effect of s 227AA cannot overcome the clear and unambiguous words of that provision.

28. [182]

    On this issue, the respondents relied upon specific provisions of the Customs Act circumscribing the powers of Customs officers in dealing with seized goods. In each instance in which the Customs Act authorises seizure, obligations are imposed as to the manner in which goods so seized are to be dealt with, either by disposal or transferal of custody. An analysis of the provisions upon which the respondents relied supports the conclusion that none of the other powers conferred under the Customs Act to seize documents allows for any residual use. [3] This is to be contrasted with material seized under a s 3E warrant. In s 3C(1) of the Crimes Act, “evidential material” is defined as “a thing relevant to an indictable offence or a thing relevant to a summary offence”. “Offence” is defined broadly. The provisions pertaining to the circumstances in which seized material may be retained in the Crimes Act, namely ss3ZQX, 3ZQY, 3ZQZA, 3UF, are extensive. Section 3ZQU of the Crimes Act provides for the purposes for which things and documents may be used or shared and is in broad terms. There is no similar provision to be found in the Customs Act.

29. [183]

    Finally, the Crown submitted that the authorities upon which Sweeney DCJ relied should be distinguished because they were dealing with different legislation and factual situations. It was submitted that those authorities did not assist because they were concerned with whether material seized pursuant to warrants executed in relation to pending criminal proceedings could be used in civil proceedings and are thus not analogous. Despite this, the Crown did not challenge the general principles established in those authorities.

30. [184]

    Grollo v McAuley was concerned with whether a search warrant sought for an ulterior purpose should not be issued because to do so would amount to either an authorisation of an act interfering with the course of justice or a contempt of court. The Federal Court held that such a search warrant would be invalid because it was sought for an improper purpose. Although the decision in Grollo v McAuley was primarily concerned with the situation when warrants are alleged to have been sought for an improper purpose, which is not the case here, the Court made some helpful observations concerning the improper use of material seized pursuant to an otherwise valid warrant. Northropp and Ryan JJ observed, at 550, that the material seized pursuant to the warrants in that matter was clearly identified and that it satisfied the condition that there were reasonable grounds for believing that the material afforded evidence as to the commission of the offences specified in the warrants. Their Honours then noted:

31. [185]

    Their Honours further observed at 551:

32. [186]

    In Williams v Keelty, the Australian Securities and Investment Commission (“ASIC”) was investigating the applicant in relation to both civil and criminal proceedings. Civil proceedings for the recovery of a pecuniary penalty were on foot at a time when ASIC obtained search warrants under s 3E of the Crimes Act to search for and seize documents relevant to the criminal offences. The applicants challenged the validity of these warrants on the basis, inter alia, that they were obtained for an improper purpose. Hely J found that they were not sought for an improper purpose because both the civil and criminal proceedings were based on the same conduct. Despite this, his Honour found that it would be improper for ASIC to use the documents seized under the s 3E warrant for a purpose other than the prosecution of criminal offences, because that was the purpose of the warrants. His Honour observed at [233]:

33. [187]

    Flori v Commissioner of Police and Anor is a decision of Atkinson J of the Supreme Court of Queensland. In that matter, the applicant was a serving police officer who was suspected of releasing CCTV footage of an arrest to the media without authorisation. A search warrant was granted pursuant to s 150(1)(a) of the Police Powers and Responsibilities Act 2000 (Qld) which authorised investigation of particular criminal offences. A recommendation was made not to prosecute any criminal charges but instead to commence disciplinary proceedings against the applicant. Atkinson J concluded that the evidence seized could be used in the investigation and prosecution of criminal offences to which the seized things related, but not disciplinary proceedings. Her Honour observed at [40]-[41] (citations omitted):

34. [188]

    Finally, in ASIC v Rich, Austin J was concerned with the issue of whether material seized pursuant to a warrant issued under the then provisions of Part1AA of the Crimes Act, which contemplated criminal offences committed contrary to various sections of the Corporations Act 2001 (Cth), could subsequently be used in civil penalty proceedings brought by ASIC. His Honour referred to a number of authorities, including Williams v Keelty, and confirmed the general principle that where a coercive power has been conferred it may be exercised only for the purpose for which it was conferred. Austin J’s conclusion at [305] (a passage cited by Sweeney DCJ in her reasons) was as follows:

35. [189]

    The s 198 warrant was obtained to locate documents to be used in a prosecution for breaches of sub-ss 234(1)(a) and (d) of the Customs Act. Prosecutions for those breaches are civil rather than criminal in nature. Although the elements of those offences must be proved beyond reasonable doubt (see Chief Executive Officer of Customs v Labrador Liquor Pty Ltd (2003) 216 CLR 49), such proceedings are conducted as civil proceedings for the recovery of penalties in accordance with Part XIV of the Customs Act. Convictions can only result in the imposition of pecuniary or monetary penalties calculated in accordance with s 234(2) of the Customs Act.

36. [190]

    It seems to me that if the principles in the decisions cited above establish that material seized under a warrant in respect of criminal proceedings cannot be used in civil proceedings, a fortiori material seized for use in civil proceedings cannot be used in criminal proceedings. As her Honour observed in her reasons, “Potential loss of liberty is a more serious outcome than any considered in the abovementioned cases.”

37. [191]

    I am satisfied that her Honour did not err in her construction of the relevant legislation. Her Honour construed the relevant provisions, being ss 183UA, 198 and 203R as informed by s 227AA, and concluded that the use to which things seized under a s 198 warrant may be put is restricted to the use of those things as evidence in proof of offences as defined in s 183UA(1), unless they fall within the terms of s 227A.

38. [192]

    I can find no error in the approach taken by the trial judge concerning the construction of s 203R of the Customs Act.

Ground 2: Her Honour erred in finding that by reason of any impropriety caused by retaining the seized material that material should, pursuant to s 138 of the Evidence Act, not be admitted into evidence

1. [193]

   Mr Bourke submitted on behalf of the Crown that the evidence could not be said to have been “obtained unlawfully” for the purposes of s 138 because Customs initially came into possession of it pursuant to a lawful search warrant. It would be an absurd result, it was submitted, to find that the nature of the holding of evidentiary material had become unlawful due to the formation in the mind of a Customs official an intention to use the material in criminal proceedings. Further, Officer Curtis acted on legal advice to the effect that she was entitled to retain the material even after preferring criminal charges against the respondents. It was submitted that, in these circumstances, any impropriety or contravention of law in retaining the material would be regarded as of minimal significance.

2. [194]

   It was submitted on behalf of the Crown that the findings of Sweeney DCJ as to the use of the s 3E warrant being “a serious misuse of the power” were either “not open” or “unreasonable or plainly unjust”. The s 3E warrant was a validly issued document. Her Honour found Detective Sergeant Robertson to have been “conscientious”. The warrant was executed at the Sydney office of the CDPP and therefore did not involve any invasion of the privacy of the respondents. The re-seizure pursuant to the s 3E warrant, it was submitted, did not encroach on the rights of any individual. Moreover, the step was taken as a result of legal advice. It was submitted that it would be “an affront to common sense” to find that the circumstances surrounding the s 3E warrant amounted to a serious impropriety.

3. [195]

   Mr Bourke submitted that it would produce “absurd results” to require evidential material to be returned to the respondents upon a decision to prosecute criminal charges against them. Such an exercise would involve “document shuffling” of the same nature as that found to have been seriously improper by Sweeney DCJ in this case. It could not be guaranteed that the AFP would cooperate in the execution of a s 3E warrant in those circumstances.

4. [196]

   On the second day of the hearing of the appeal, the Crown relied upon a further argument as part of this second ground; namely, that the seized material was not obtained improperly within the meaning of s 138(1)(b) of the Evidence Act, in that any impropriety arose after a time when the material was lawfully seized under the s 198 warrant.

5. [197]

   Given that I accept the submissions of the first and second respondents on this point, I will summarise them shortly. Mr Game on behalf of the first and second respondents submitted that the evidence went from being lawfully obtained to being obtained as a consequence of an impropriety at the point when the intention of Customs diverged from the intention stated on the s 198 warrant. However, Sweeney DCJ did not rely upon the retention of the evidence as the sole impropriety; her Honour also relied upon the fact, purpose and timing of the s 3E warrant. The first and second respondents submitted that the mechanism of the s 3E warrant was used to frustrate the means by which the admissibility of the evidence would be determined.

6. [198]

   Mr McGuire SC on behalf of the third respondent submitted that consideration of the coercive power of search warrants must be the starting point in determining whether it was “not open” and “unreasonable or plainly unjust” for her Honour to find that the improprieties were “serious”. It was also submitted that it is necessary to consider the combined effect of the actions of Customs and the AFP when assessing the gravity of the impropriety. In relation to gravity, the third respondent submitted that the application for and execution of the s 3E warrant were in direct response to the respondents’ putting in issue the admissibility of the evidence obtained pursuant to the s 198 warrant. In these circumstances, it could not be said that her Honour fell in to error in the House v The King sense in finding that the relevant impropriety was serious.

7. [199]

   Ground 2 was relied upon by the Crown in the alternative to Ground 1.

8. [200]

   The resolution of Ground 2 turns on whether certain findings were open to her Honour to make on the evidence. Each party proceeded on the basis that the decision by Sweeney DCJ was akin to a discretionary decision. Hence, in order to succeed on this ground the Crown has to establish House error: House v The King (1936) 55 CLR 499.

9. [201]

   I am satisfied that this ground is to be considered consistent with the principles in House v the King. As this Court observed in Fleming v The Queen [2009] NSWCCA 233 at [22] when considering a decision made pursuant to s 138, “The decision which the trial judge was required to make was discretionary and must be viewed in accordance with the principles in House v The King (1936) 55 CLR 499”. The decision being made is an evaluative one. As Branson J observed in Employment Advocate v Williamson (2001) 111 FCR 20; 185 ALR 590; [2001] FCA 1164 at [78],

10. [202]

    The steps to be taken in considering whether evidence should be excluded under s 138 were explained by Basten JA in Parker v Comptroller-General of Customs [2007] NSWCA 348; 243 ALR 574 at [57]:

11. [203]

    The House v The King errors upon which the Crown relied were that the following two findings by her Honour, leading to her conclusion, were “not open” or were “unreasonable or plainly unjust”. The first impugned finding was that the use of the s 3E warrant was an “abuse of power” and a “serious misuse of power”. Her Honour identified two improprieties: the failure to return the seized material and the manner in which the s 3E search warrant was subsequently obtained and executed. The second impugned finding related to both improprieties, which her Honour found were “serious, deliberate on the part of the Crown authorities and could easily have been avoided.”

12. [204]

    I have already addressed the first of these two improprieties in relation to Ground 1, where I found that there was no power to retain the seized material. The error advanced under this Ground requires consideration of the second impropriety; namely, the obtaining and execution of the s 3E warrant.

13. [205]

    Her Honour did not make separate findings as to whether either the first act of retention or the second act of seeking the s 3E warrant was individually such a grave impropriety as to warrant the exclusion of the evidence under s 138. Rather, it was the combined effect of these two acts that led to her Honour’s determination. Her Honour found that the retention of the seized material was a deliberate impropriety, then posed the question whether the execution of the s 3E warrant “cure[d]” it. Her conclusion was that it did not. Rather, her Honour concluded:

14. [206]

    The question of whether the impugned findings were “open” to her Honour is to be assessed in the context that it was the cumulative effect of these two discrete matters that led to her Honour’s ultimate conclusion.

15. [207]

    Turning to the s 3E warrant, I accept that it was a validly issued document. There was no finding by her Honour that it was obtained as a result of any misleading information provided to the issuing officer. There was evidence that Detective Sergeant Robertson had acted in a conscientious manner. I also accept that, consistent with her Honour’s findings, the AFP warrant was taken out as a form of “insurance” on the basis of the advice from the CDPP that it would be “prudent” to do so.

16. [208]

    Despite these findings, the hurdle that the Crown faces in establishing House v The King error is that they do not inevitably lead to a conclusion that it was not open to her Honour to find that the obtaining and execution of the s 3E warrant was improper. The question is not whether Sweeney DCJ should have arrived at a different conclusion; it is whether, having regard to all of the material before her Honour, it was open to her to find that the execution of the AFP warrant was a serious misuse of power and that both improprieties were serious, deliberate and easily avoidable. As Smart AJ observed in DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 at [82]:

17. [209]

    The evidence before her Honour concerning the s 3E warrant disclosed the following.

18. [210]

    First, Officer Curtis gave evidence that the purpose of seeking the s 3E warrant was so that she could retain possession of the seized material in the face of views expressed by the CDPP that it would be “prudent” to obtain a further warrant.

19. [211]

    Second, the evidence of Detective Sergeant Robertson was that he had doubts about whether he was permitted to do what was being asked of him. He sought an internal advising because of his concern that the request was outside the usual powers of the AFP.

20. [212]

    Third, the terms of the search warrant were to seize the documents from the CDPP. The documents were not in fact in the possession of the Sydney office of the CDPP at the time the search warrant was obtained; they were in Melbourne with Officer Curtis.

21. [213]

    Fourth, the terms of the search warrant did not reflect what was being sought. It sought fingerprints and other evidence (summarised above at [67]) that clearly would not have been expected to be obtained at the premises of the CDPP, where the warrant was to be executed.

22. [214]

    Fifth, the circumstances of the execution of the warrant were unusual. Officer Curtis was in Melbourne with the documents. She flew to Sydney and met Detective Sergeant Robertson at the Sydney offices of the CDPP, where she simply handed the documents over to him. He then handed them back to her around half an hour to an hour later. Detective Sergeant Robertson did not examine or analyse the material before he gave it back. This is reflected in the property seizure record that Detective Sergeant Robertson completed.

23. [215]

    Sixth, the timing of the execution of the search warrant coincided with the application to have the seized material excluded. It was executed at the office of the CDPP at 175 Liverpool Street in Sydney while all of the relevant parties were in the District Court at the Downing Centre before Sweeney DCJ, less than 200 metres away. Moreover, there seems no doubt that it was obtained in direct response to the respondents giving notice that they sought to challenge the admissibility of the seized material. A decision was made at that time, on the advice of the CDPP, to try to circumvent the respondents’ objection.

24. [216]

    Seventh, the only involvement of the AFP was to execute the s 3E warrant. The AFP was not otherwise investigating any charges against the respondents. Despite this, they initiated and participated in the “round robin” involved. There was no intention that the AFP would analyse the documents or use them in any prosecution in which the AFP was involved. Nobody in the AFP made any independent inquiries about any of the respondents; the application for and execution of the warrant were in complete reliance upon the information provided by Customs.

25. [217]

    Finally, no notice was given to the respondents that the warrant regarding their property was to be executed on the Sydney office of the CDPP.

26. [218]

    The authorities make clear that the power to issue and execute a search warrant is one to be exercised with great care: George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at [4]-[5].

27. [219]

    In light of all of this material, it could not be said that it was not open to her Honour to find that the use of the s 3E warrant was an “abuse of power” and a “serious misuse of power”. Her Honour did not find that it would never be open to investigators in a similar situation to return the relevant material and execute an appropriate search warrant in order to have the power to seize the material for use in criminal proceedings. The impropriety found by her Honour in this matter arose from the particular circumstances of this case as set out above at [210] – [217], in particular the timing, method and place of the execution of the s 3E warrant, rather than the fact that it was obtained per se.

28. [220]

    The second impugned finding by her Honour was that the improprieties were “serious, deliberate on the part of the Crown authorities and could easily have been avoided.” This finding concerned two of the mandatory requirements in s 138(3), being sub-s (e) (whether the impropriety or contravention was deliberate or reckless) and sub-s (h) (the difficulty of obtaining the evidence without impropriety).

29. [221]

    The Crown placed particular reliance upon s 138(3)(e), submitting that the improprieties were relatively innocent. The Crown relied upon the decision of this Court in R v Camilleri (2007) 169 A Crim R 197; [2007] NSWCCA 36 where McClellan CJ at CL observed at [35] :

30. [222]

    This was a deliberate decision to involve the AFP in the obtaining and execution of the s 3E warrant in a “round robin” exercise at the offices of the CDPP at a time when a voir dire was being conducted on the very issue of the admissibility of the seized material and in circumstances where the respondents were ignorant of what was occurring. Although her Honour did not expressly make this finding, it is to be inferred from her reasons that the latter of these two acts exacerbated the conduct such that there may have been a different ultimate result had Customs not taken that second step.

31. [223]

    As for the complaint concerning her Honour’s consideration of s 138(3)(h), I do not accept that it would have been impractical for the material to have been returned and then the appropriate search warrant executed. There would have been no impropriety had the material been returned to the respondents once a decision was made not to proceed with any civil prosecution under the Customs Act. A s 3E warrant could have then been executed in circumstances where officers from the AFP and Customs ensured compliance with the terms of both the Customs Act and the Crimes Act. A mere concern about possible disposal of that material does not mean that those relevant statutory obligations need not be observed. I am satisfied that there are means by which the relevant officers could ensure that such a concern would not materialise and still comply with the relevant legislation.

32. [224]

    Nor do I accept that the fact that the search warrant was executed at the office of the CDPP rather than the premises of Speedy reduced the impropriety. The Crown submission was that the gravity of any impropriety in the execution of the warrant was reduced by reason of the fact that it did not invade the privacy of the respondents. On the contrary, the whole procedure took place without the respondents’ even being aware that it was occurring. The finding by Sweeney DCJ was that the stratagem employed by Customs was not a genuine exercise of the power under s 3E of the Crimes Act but rather an artificial attempt to cure the impropriety in retaining the material seized pursuant to the s 198 warrant.

33. [225]

    The Crown’s final argument concerned the necessary causal connection between the relevant impropriety and the “obtaining” of evidence. It relied upon three cases to support a submission that there must be such a connection: R v Haddad; R v Treglia (2000) 116 A Crim R 312; Dalley v R [2002] NSWCCA 284; and R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97.

34. [226]

    In R v Haddad; R v Treglia, Spigelman CJ noted obiter at 327 that:

35. [227]

    A different approach was taken in the subsequent decision in Dalley v R. That case concerned non-compliance with the statutory requirement in s 356H(9) of the Crimes Act 1900 (NSW) that, within one day of the issue of a detention warrant, police must provide the authorised justice with an affidavit setting out certain information. Simpson J, as her Honour then was, found that there had been a contravention of s 356H(9) by failure to provide the affidavit. Her Honour held at 184:

36. [228]

    Despite this, her Honour also held that non-compliance with s 356H(9) did not attract the provisions of s 138 because the contravention did not occur until 24 hours after the appellant’s admissions and incriminating statements. In those circumstances it could not be said that any evidence was obtained as a result of, or in consequence of, the contravention of s 356H(9). Spigelman CJ and Blanch AJ agreed with Simpson J.

37. [229]

    The third case to which the Crown referred was the decision of Howie J in R v Cornwell. In that case, application was made by the accused under s 138(1) to exclude evidence obtained by listening device under the authority of a s 198 warrant. The basis for the application was there was a misstatement of fact in an affidavit in support of the warrant. His Honour (at 88) was not persuaded that any impropriety occurred in relation to the making of the affidavit. Further, his Honour stated at 89:

38. [230]

    The reasons of Sweeney DCJ disclose that her Honour found that it was from the point of time when s 203R mandated the return of the material that the impropriety arose. No impropriety prior to that time was found by her Honour. It was the decision to retain it from that time onwards when there was no power to do so which constituted the impropriety. The Crown relied upon the definition of the word “obtained” in the Macquarie Dictionary as “to come into possession of; get or acquire; as by effort or request”. I am satisfied that the word “obtained” applies to this factual situation in that the material was retained as a result of an impropriety, being the decision to retain it. Even if I am wrong in this conclusion, there was no discrete finding that retention of the seized material alone resulted in its exclusion. This is because the impropriety found by Sweeney DCJ was the combined effect of both the retention of the material and the “obtaining” of it by way of the s 3E warrant. In these circumstances, even if it were to be accepted that retaining the material prior to the execution of the 3E warrant could not be described as obtaining it improperly, seizing it again under the s 3E warrant clearly could.

39. [231]

    In undertaking the balancing exercise under s 138 of the Evidence Act, her Honour made findings that involved the application of general principles concerning the exercise of coercive powers about which minds might reasonably differ. No error in the exercise of this discretion has been demonstrated. The findings made by her Honour were open to be made on the evidence. Her Honour’s findings were not “unreasonable or plainly unjust” within the meaning of House v the King.

40. [232]

    I propose that the Court dismiss the appeal.