PKF Chartered Accountants v Supreme Court [2008] VUCA 32; [2009] 3 LRC 254 (25 July 2008)

[2009] 3 LRC

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

PKF CHARTERED ACCOUNTANTS AND OTHERS v SUPREME COURT
BATTY AND OTHERS v SUPREME COURT
MOORES ROWLAND (A FIRM) AND OTHERS v ATTORNEY GENERAL AND OTHERS

[2008] VUCA 15

Court of Appeal
von Doussa, Saksak, Tuohy and O'Regan JJ
17-18, 25 July 2008

(1) Criminal procedure - Search warrant - Validity - Foreign investigation - Mutual assistance - Act providing for inter-country co-operation in issuance of search warrants - Court entitled to grant search warrant where involving investigation of 'serious offence' - Search warrant granted relating to investigation in Australia of income tax fraud - Vanuatu having no income tax system equivalent to Australian system - Double criminality principle - Whether 'serious offence' - Whether search warrant validly granted - Mutual Assistance in Criminal Matters Act 2002, ss 1, 20(2)(a).

(2) Criminal procedure - Search warrant - Validity - Foreign investigation - Mutual assistance - Act providing for inter-country co-operation in issuance of search warrants - Statutory requirement that item searched for was 'relevant to the investigation' - Statutory requirement that search warrant include statement of purpose and description of item to be seized - Search warrant granted relating to investigation in Australia of income tax fraud - Whether statutory requirements filled - Whether search warrant validly granted - Mutual Assistance in Criminal Matters Act 2002, s 20(2) - (3).

Pursuant to s 20 of the Mutual Assistance in Criminal Matters Act, the Attorney General could apply for 'a warrant for a thing relevant to an investigation... in a foreign country'. The court could issue the warrant only if it was satisfied, inter alia, that the investigation was for a criminal matter and involved 'a serious offence' (s 20(2)(a)) and that the thing for which the warrant was applied was 'relevant to the investigation' (s 20(2)(b)). Section 1 of the Act defined 'serious offence' as an offence `against the law of another country constituted by an act or omission that, had it occurred in Vanuatu, would have constituted an offence'. The Commonwealth of Australia requested that the Attorney General apply to the Supreme Court for a search warrant in relation to three investigations in Australia arising out of the dishonest claiming of tax deductions from the Australian authorities. The Supreme Court granted the warrants, authorising the search for evidential material 'which relates to the criminal matters specified in the warrants'. The applicants sought judicial review by the Court of Appeal, by way of case stated under s 31(5) of the Act, of the decision to issue the warrants arguing, inter alia, that the investigations did not involve a 'serious offence' pursuant to s 1 of the Act because Vanuatu did not have a similar income tax system to Australia. Therefore the double criminality rule was not satisfied. The applicants also argued that the warrants were invalid because they did not satisfy the requirements in s 20(3)-(b) that the warrant contain a statement of purpose and a description of the kind of thing authorised to be seized. The applicants relied on New Zealand and Australian case law, which required warrants to be specific.

HELD: Application dismissed.

(1) A search warrant would be invalid if a statutory precondition to its issue was not satisfied and s 20 of the Act had to be read strictly. A 'serious offence', for the investigation of which in a foreign country a warrant might be issued, was defined in s 1 as an offence in another country constituted by an act or omission that would have constituted an offence in Vanuatu; therefore the double criminality rule had to be satisfied. The conduct which was the subject of investigation in Australia consisted of the making of false statements to the Government of Australia leading to the obtaining of dishonestly obtained pecuniary advantages or conduct amounting to conspiracy to bring about such frauds on the Australian Government. If a citizen or resident of Vanuatu engaged in such behaviour leading to the obtaining of a pecuniary advantage from the Government of Vanuatu, that would constitute an offence under the Penal Code Act. Similarly, dealing with the proceeds of such offending in Vanuatu would constitute the offence of money laundering in Vanuatu. Therefore, it was not relevant that there was no income tax law in Vanuatu. The offences under investigation in Australia were offences involving false documents and not technical offences involving failure to comply with income tax legislation. Therefore, the offences in question were 'serious offences' as defined by s 1 and required by s 20(2)(a) (see paras [17], [19], [23]-[24], [27]-[28],below).

(2) The threshold in New Zealand and Australia, requiring 'reasonable grounds to believe [that the thing] will be evidence of the commission of an offence', was higher than the threshold in s 20(2)(b), which required that the thing to be searched was 'relevant' to the Australian investigation. In the instant matter, the search warrant referred to things relating to the specified Australian offences for which investigations relating to the named alleged offenders were being undertaken. Although the provision of a factual narrative as to what allegedly occurred and when it allegedly occurred would have improved the warrant, the information in the warrant provided the occupiers of the premises subject to searches with adequate information as to the scope of the search. The purpose for search was stated in clear terms and there was a reference to the offences said to be committed, with the full text of those offences set out, which made it clear that they involved fraud against the Commonwealth of Australia or a Commonwealth entity, conspiracy to commit such fraud and money laundering. Section 20(3)(a) required a statement of purpose for which the warrant was issued and the last paragraph of the warrant fulfilled that requirement. The provision also required that that statement included a reference to the nature of the relevant offence. The use of the term `reference' did not indicate that Parliament intended that details were required. Arguably all it required was a reference to the types of offences which were under investigation, such as offences involving fraud or money laundering, rather than the full specification of a text to the offences as occurred in this case. When considered in the overall statutory context and the complexity of the offences, setting out the text of the offences under investigation in Australia and the names of those under investigation was sufficient to comply with s 20(3)(a). The warrants issued by the Supreme Court were, accordingly, valid (see paras [52], [54]-[59], [65], [63], [68]-[69], [74], below). Dicta of Lockhart, Beaumont and Hill JJ in Dunesky v Elder [1994] FCA 1006; (1994) 126 ALR 522 at 534-535 applied. IRC v Rossminster Ltd [1979] UKHL 5; [1980] 1 All ER 80 considered. Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728, Arno v Forsyth (1986) 9 FCR 576 and Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 distinguished.

[Editors' note: Sections 1 and 20 of the Mutual Assistance in Criminal Matters Act 2002, so far as material, are set out at para [15], below.

Section 20 of the Mutual Assistance in Criminal Matters Act 2002, so far as material, provides: '(1) If an application is made under section 19 for a warrant for a thing relevant to an investigation or proceeding in a foreign country, the Court may issue the warrant authorising the authorised officer, with such assistance, and by such force, as is necessary and reasonable ... (2) The Court may issue the warrant only if it is satisfied that: (a) a proceeding or investigation for a criminal matter involving a serious offence or in relation to terrorist property has commenced in the foreign country; and (b) the thing for which the warrant is applied is relevant to the investigation or proceeding; and (c) there are reasonable grounds for issuing the warrant. (3) A warrant issued under this section must include: (a) a statement of the purpose for which the warrant is issued, including a reference to the nature of the relevant offence; and (b) a description of the kind of thing authorised to be seized ..’]

Cases referred to in judgment
Arno v Forsyth (1986) 9 FCR 576, (1986) 65 ALR 125, Aus Fed Ct
Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728, NZ CA
Australian Broadcasting Corpn v Cloran (1984) 4 FCR 151, (1984) 57 ALR 742,
Aus Fed Ct
Dunesky v Elder [1994] FCA 1006; (1994) 126 ALR 522, Aus Fed Ct
Esso Australia Ltd v Curran (1989) 39 A Crim R 157, Aus Fed Ct
IRC v Rossminster Ltd [1979] UKHL 5; [1980] 1 All ER 80, [1980] AC 952, [1980] 2 WLR 1,
UK HL; rvsg [1979] UKHL 5; [1980] AC 952, [1979] 3 All ER 385, [1980] 2 WLR 1, UK CA
Linhard v Elms [1988] FCA 416; (1988) 81 ALR 557, Aus Fed Ct
Microwave Safety Systems Pty Ltd v Comr for Fair Trading, Dept of Commerce
[2008] NSWSC 37, NSW SC
New South Wales v Corbett [2007] HCA 32, (2007) 230 CLR 606, (2007) 237 ALR 39, Aus HC
OPSM v Withers [1987] 13 FCR 594, (1987) 71 ALR 269, Aus Fed Ct
R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, NZ CA
Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1, (1985) 62 ALR 497, Aus HC
Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780, NZ CA

Legislation referred to in judgment

Australia
Crimes Act 1914, ss 29D, 86
Criminal Code 1995, ss 11.5, 134.2, 135.4, 400.3
Proceeds of Crime Act 1987, s 81

New Zealand
Summary Proceedings Act 1957, s 198

Vanuatu
Companies Act 1986, s 381
International Companies Act 1992, ss 125, 128
Interpretation Act 1981, s 9
Judicial Services and Courts Act 2000, s 31(5)
Mutual Assistance in Criminal Matters Act 2002, ss 1, 19-20(1)-(2), (3)(a)-(b), 21
Penal Code 1981
Trust Companies Act 1971, s 9

Application
PKF Chartered Accountants v Supreme Court
The applicants, the partners of PKF Chartered Accountants, Andrew Neill, Robert Agius, Kelly Fawcett-Mourges and the International Finance Trust Co Ltd, applied to the Court of Appeal for judicial review of the decision of the respondent, the Supreme Court, of 25 April 2008, granting search warrant pursuant to the Mutual Assistance in Criminal Matters Act 2002. The facts set out in the judgment of the court.

Batty v Supreme Court
The applicants, James Albert Batty and Lesley Batty, Equity Investment Group, PKF Chartered Accountants and the International Finance Trust Co Ltd, applied to the Court of Appeal for judicial review of the decision of the respondent, the Supreme Court, of 25 April 2008, granting search warrants pursuant to the Mutual Assistance in Criminal Matters Act 2002. The facts set out in the judgment of the court.

Moores Rowland (a firm) v A-G
The applicants, Moores Rowland (a firm), Transpacific Trust Ltd, Andrew Ross Munro and Laurence John Harrison, applied to the Court of Appeal for judicial review of the decision of the second respondent, the Supreme Court, of 25 April 2008, granting search warrants pursuant to the Mutual Assistance in Criminal Matters Act 2002. The first respondent, the Attorney General, and the third respondent, the Vanuatu Police Force, opposed the application. The facts set out in the judgment of the court.

A Sullivan and N Morrison for the applicants in Civil Appeal cases nos 15/2008, 16/2008.
P Coombe and B Bani for the applicants in Civil Appeal case no 17/2008.
I Kalsakau and V Trief for the respondents.

25 July 2008. The following judgment of the court was delivered.

VON DOUSSA, SAKSAK, TUOHY and O'REGAN JJ.

CASE STATED

[1] These three appeals require us to answer the following question posed by the case stated for the decision of this court under s 31(5) of the Judicial Services and Courts Act 2000 (Cap 270) by the Supreme Court:

'Is any or are all of the search warrants issued by the Supreme Court on 25 April 2008 under section 20 of the Mutual Assistance in Criminal Matters Act 2002 (the Act) invalid, having regard in particular to the following issues:

(a) Whether the investigation commenced in Australia involved a "serious offence" as defined in section 1 of the Act;

(b) Whether there were reasonable grounds for the issue of the warrant;

(c) Whether the warrant was deficient in failing to include a proper statement of the purpose for which the warrant was issued as required by section 20(3)(a) of the Act or a proper description of the thing to be seized as required by section 20(3)(b) of the Act;

(d) Whether the Supreme Court failed to have regard to relevant considerations, namely sections 125 and 128 of the International Companies Act, section 9 of the Trust Companies Act and section 381 of the Companies Act.

(e) Whether the warrant was too widely drawn, particularly in relation to the persons authorised to assist in its execution and the powers granted to such persons?'

ISSUES FOR DETERMINATION

[2] The issues for determination are identified in paras (a)-(e) of the case stated. However, they were further refined in the course of the argument. The suggestion that there were no reasonable grounds for the issue of the warrant was not pursued and we say no more about it. The remaining issues can be summarised as:

(a) Did the investigation involve a 'serious offence'?

(b) Was the warrant deficient in failing to meet the requirements of s 20(3)(a) and (b) of the Mutual Assistance in Criminal Matters Act 2002 (Cap 285) (`the Mutual Assistance Act')?

(c) Was the warrant deficient in that it authorised execution by too broad a category of persons?

(d) Did the Supreme Court fail to have regard to secrecy provisions in other legislation?

BACKGROUND

[3] Before we address those issues, we set out a brief outline of the background.

[4] Section 19 of the Mutual Assistance Act provides that the Attorney General may direct an authorised officer to apply to the Supreme Court for a search warrant in certain circumstances, including where a proceeding or investigation for a criminal matter involving a serious offence has commenced in a foreign country. At the request of the Commonwealth of Australia, the Attorney General made directions to that effect.

[5] The request from Australia related to three investigations. In two of these, the investigations involved offences under the following provisions of Australian Commonwealth statutes: s. 29D (defrauding the Commonwealth) and s 86 (conspiracy) of the Crimes Act of 1914, ss 11.5(conspiracy), 134.2(obtaining a financial advantage from a Commonwealth entity by deception), 135.4 (conspiracy to defraud a Commonwealth entity) and 400.3 (dealing in proceeds of crime) of the Criminal Code 1995 and s 81 (money laundering) of the Proceeds of Crime Act of 1987. In the third case, the offences were only those under the Crimes Act and the Proceeds of Crime Act.

[6] The conduct to which the Australian investigations relate was described in the sworn statements of Inspector Bani which were filed in support of the applications for a search warrants. The alleged conduct is not the same in all cases but in general terms it can be described as the dishonest claiming of tax deductions in tax returns filed with the Australian tax authorities.

[7] In general terms, this was said to be effected by the relevant taxpayer making payments pursuant to invoices ostensibly for services provided to the taxpayer, for which tax deductions were claimed. In fact no services were provided and the money which was paid was transferred through bank accounts and ultimately returned to the taxpayer, ostensibly as a loan. This meant the taxpayer had the use of the money without having declared it as income. In some cases, sham interest payments were made on the fictitious loan, generating further dishonestly claimed tax deductions.

[8] The connection with Vanuatu was said to be the involvement of certain present or past residents of Vanuatu in promoting the schemes and the use of nominee companies and bank accounts in Vanuatu for some aspects of the operation of the schemes.

[9] Applications were made to the Supreme Court for the issue of warrants in all three cases, involving a number of commercial and residential properties in Port Vila. (We should make it clear that the occupiers of many of these properties were not alleged to be themselves involved in the schemes.) The applications came before the Chief Justice and the Supreme Court issued the warrants on 25 April 2008.

[10] The search warrants were executed and materials were seized from some or all of the addresses to which the search warrants related. The applicants then filed claims for judicial review of the decision to issue the warrants and applications seeking to have the warrants set aside and the materials seized pursuant to them returned to the parties from whom they were seized. The Supreme Court made interim orders restraining the Commissioner of Police from delivering any of the materials seized pursuant to the search warrants to the Australian Government or removing or transmitting any of the information obtained as a result of the execution of the search warrants from Vanuatu.

[11] The Chief justice then issued a case stated for the decision of this court to determine whether there was jurisdiction for the Supreme Court or this court to hear the applications for review.

[12] On 15 July 2008, this court ruled in Civil Appeal Cases 10, 11 and 12 that the Supreme Court had jurisdiction to review the validity of search warrants issued by the Supreme Court under s 20 of the Mutual Assistance Act.

[13] Immediately after this court made that ruling, the Supreme Court convened and, with the concurrence of the parties, stated a further case for this court, in the form reproduced above. We will approach the task of answering the question posed by the case stated by addressing each of the issues we have identified above.

(A) DID THE INVESTIGATION INVOLVE A SERIOUS OFFENCE'?

[14] Section 20(2)(a) provides that the Supreme Court may issue a warrant only if it is satisfied-'that a proceeding or investigation for a criminal matter involving a serious offence... has commenced in the foreign country'.

[15] The part of the definition of `serious offence' in s 1 which applies in this case defines 'serious offence' as 'an offence ... against the law of another country constituted by an act or omission that, had it occurred in Vanuatu, would have constituted an offence for which the maximum penalty is imprisonment for at least 12 months'.

[16] Counsel for the applicants in cases 15 and 16, Mr Sullivan, argued that this requirement was not satisfied in the present case and, accordingly, an essential precondition to the issuing of a warrant was not met. His argument was adopted by counsel for the remaining applicants, Mr Coombe. The argument was, in essence as follows:

(a) The definition of 'serious offence' invokes the 'double criminality rule' which is often found in legislation relating to extradition.

(b) In the present case, the act or omission alleged in relation to those subject to the Australian investigation involved conduct leading to the obtaining of income tax advantages in Australia.

(c) If the acts which are said to constitute offences in Australia occurred in Vanuatu, no financial benefit would be obtained because there is no income tax payable in Vanuatu.

[17] We accept that a search warrant would be invalid if a statutory precondition to its issue was not satisfied. In that event, the Supreme Court would not have jurisdiction to issue it.

[18] Mr Sullivan said that, in substance, the offences under investigation in Australia are offences against Australia's tax law and the double criminality rule could be satisfied only if Vanuatu had a system for the assessment and collection of income tax similar to that existing in Australia.

[19] We do not accept that submission. It may have had substance if the alleged offences to which the Australian investigation relates had been offences created by tax legislation relating to the technical requirements of the tax legislation. But that is not the case. Rather, the offences under investigation are general offences involving the obtaining of a pecuniary benefit from the Government of Australia by fraudulent conduct, conspiracy to perpetrate such fraud, or money laundering. These are offences under the general criminal statutes of the Commonwealth of Australia, which are in substance the same as the equivalent offences under the Penal Code Act 1981 (Cap 135) of Vanuatu.

[20] Mr Sullivan argued that it was necessary to identify the acts said to have constituted the offences in order to assess the application of the double criminality principle. We agree.

[21] Mr Sullivan said the acts in question were:

(a) the creation of fictitious invoices by an offshore company to Australian companies to facilitate false claims for tax deductions;

(b) the transfer of funds paid to the offshore company in payment of those invoices back to the Australian companies to allow them to use the funds without declaring them as income for tax purposes.

[22] It is true that the alleged frauds involve conduct along those lines. But those steps are not the acts that would contravene the law. The step that would make the conduct unlawful was the filing of false tax returns dishonestly claiming tax deductions or dishonestly understating taxable income.

[23] When analysed in this way, the conduct which is the subject of investigation in Australia consists of the making of false statements by Australian citizens to the Government of Australia leading to the obtaining of dishonestly obtained pecuniary advantages or conduct amounting to conspiracy to bring about such frauds on the Australian Government. If a citizen or resident of Vanuatu engaged in such behaviour in Vanuatu leading to the obtaining of a pecuniary advantage from the Government of Vanuatu (or, for that matter, the Government of Australia), that would constitute an offence in this country under the relevant provisions of the Penal Code Act.

[24] Dealing with the proceeds of such offending in Vanuatu would likewise constitute the offence of money laundering in Vanuatu.

[25] Mr Sullivan pointed out that the double criminality rule in the extradition legislation of some countries refers not only to an act or omission which would have constituted an offence in the host country but also any 'equivalent conduct'. He cited two Australian cases, Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1 and Linhard v Elms [1988] FCA 416; (1988) 81 ALR 557 where the court relied on the 'equivalent conduct' limb of the relevant definition in order to determine that the double criminality requirement was met. He argued that, as there is no equivalence provision in the 'serious offence' definition in the Mutual Assistance Act, a strict view is required.

[26] Mr Sullivan also pointed to the need to read s 20 strictly in view of the fact that it authorises the exercise of a power affecting the right of privacy guaranteed by the Constitution: s 9 of the Interpretation Act 1981 (Cap 132) requires this.

[27] We accept that the double criminality rule must be satisfied and that s 20 must be read strictly. But that does not require us to strain the wording as the applicants' interpretation would require us to do. We are satisfied that the acts under investigation in Australia would be offences in Vanuatu if committed in this country. The fact that Vanuatu has no income tax does not matter. The offences under investigation in Australia are offences involving false documents not technical offences involving failure to comply with provisions of income tax legislation.

[28] We conclude that the offences under investigation in Australia were 'serious offences' as defined. The jurisdictional precondition to the issuing of the warrants in this case was satisfied.

(B) DID THE WARRANTS COMPLY WITH S 20(3)(A) AND (B)?

[29] The second ground of challenge to the validity of the warrants is that the warrants did not comply with s 20(3)(a) and (b) of the Mutual Assistance Act. Section 20(3)(a) requires that a warrant must include 'a statement of the purpose for which the warrant is issued, including reference to the nature of the relevant offence'. Section 20(3)(b) requires that the warrant include 'a description of the kind of thing authorised to be seized'. We will deal with s 20(3)(a) first. For ease of reference we will refer to `the warrant' because the arguments apply in the same way to all of the warrants that are under challenge.

Section 20(3)(a): Purpose

[30] The terms of the warrants issued by the Supreme Court had minor variations, but the following example gives an indication of their terms:

'TO: Inspector Allanrow Bani, a police officer and an authorised officer within the meaning of section 19 of the Mutual Assistance in Criminal Matters Act (Cap 285) who is the executing officer in relation to this warrant:

WHEREAS the Attorney General for the Republic of Vanuatu has been requested by Australia to arrange for the issue of a warrant to search for the evidential material specified in the Schedule to this warrant:

AND WHEREAS the said request relates to an investigation which has commenced in Australia, a foreign country, into:

[Six named individuals]

for a criminal matter involving the following offences under Australian law:

Crimes Act 1914 prior to May 2001 (Commonwealth of Australia)

Section 29D Fraud

Section 86 Conspiracy

Criminal Code 1995 (Commonwealth of Australia)

Section 134.2 Obtaining a financial advantage by deception

Section 11.5 Conspiracy

Section 135.4 Conspiracy to defraud

Section 400.3 Dealing in proceeds of crime etc. – or money or property worth $1,000,000 or more

Proceeds of Crime Act 1987 (Commonwealth of Australia)

Section 81 Money laundering [The full text of these sections were set out in the warrant] being a matter which involves a serious offence within the meaning of the Mutual Assistance in Criminal Matters Act.

AND WHEREAS the Attorney General has directed Inspector Bani in writing to apply for a warrant under section 19 of the Mutual Assistance in Criminal Matters Act to search for the said evidential material:

AND WHEREAS I am satisfied by information on oath that the said evidential material is relevant to the investigation in Australia:

AND WHEREAS I am satisfied by information on oath that there are reasonable grounds for suspecting that the said evidential material is at the following premises:

[Specified premises]

I, Vincent LUNABEK, Chief Justice, of the Supreme Court of the Republic of Vanuatu HEREBY issue this warrant which authorises you to search the premises specified above.

AND pursuant to section 20 of the Mutual Assistance in Criminal Matters Act, the executing officer, any person assisting who is a police officer, and any other person who has been authorised by the executing officer to assist in executing this warrant may do all of the following:

o enter the premises specified above from 6.00 am on Sunday 27 April to 6.00 pm on Sunday 3 May 2008;

o search the premises for evidential material, of the kind specified in the Schedule to this warrant and seize any such material that may be found including any of them which are stored on a computer,.or on a computer storage device, or on any other type of magnetic or electronic storage medium or storage device;

o seize other things found in the course of the search that the executing officer or person assisting believes on reasonable grounds to:

(i) be evidential material relevant to the investigation in Australia; or

(ii) provide evidence about the commission of a criminal offence in Vanuatu;

if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction.

SCHEDULE

[Specified documents. media and data relating to named individuals and entities]

AND, by virtue of section 20 of the Mutual Assistance in Criminal Matters Act, in executing this warrant:

● the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and

● the executing officer, and any person assisting who is a police officer, may use such force against persons or things as is necessary and reasonable in the circumstances;

THIS WARRANT MAY BE EXECUTED BETWEEN THE HOURS OF 6.00 AM ON SUNDAY 27 APRIL 2008 AND 6.00 PM ON SUNDAY 3 MAY 2008.

THIS WARRANT REMAINS IN FORCE FOR A PERIOD OF 6 MONTHS FROM AND INCLUDING THE DAY OF ISSUE.

THIS WARRANT is issued for the purpose of authorising the executing officer, with such assistance and by such force as is necessary and reasonable in the circumstances, to enter the premises specified in the warrant, to search for evidential material of the kind described in the warrant, being evidential material relation to the investigation specified in the warrant which relates to the criminal matter specified in the warrant, to seize any such evidential material that may be found, and to exercise such other powers specified in the warrant as it is appropriate to exercise in the circumstances of the case.'

[31] The statement of purpose in the warrant is set out in the last paragraph of the warrant reproduced above. It is to be noted that the stated purpose is the authorising of the executing officer to search for evidential material `which relates to the criminal matters specified in the warrant'. The criminal matters specified in the warrant are criminal matters involving offences under the particular provisions of the Crimes Act, Criminal Code and Proceeds of Crime Act of the Commonwealth of Australia which are set out in full at the beginning of the warrant.

[32] Mr Sullivan argued that the failure to identify in the warrant the factual circumstances surrounding the allegations against the named individuals who were the subject of the criminal investigation in Australia and the times at which the offending was said to have occurred meant that the warrant was too broad in its terms. In addition, the mere setting out in full of the sections creating the offences which were the subject of the investigation in Australia did not comply with the specific requirement of s 20(3)(a), that the statement of purpose must include `a reference to the nature of the relevant offence'.

[33] Mr Sullivan argued that the term `nature of the relevant offence' required that something be said about the particular qualities or character of the offence under investigation. He pointed out that the sworn statement of the inspector who applied for the warrant contained such a description, which was obviously included for the purpose of informing the Supreme Court as to the nature of the criminal investigations so as to enable the Supreme Court to exercise its function of determining whether reasonable grounds existed for the issuing of the warrant. He said that this should have been produced in the warrant itself, at least in summarised form.

[34] In support of his argument, Mr Sullivan referred us to a number of Australian and New Zealand cases in which warrants have been held to be invalid because that they were not expressed in appropriately specific terms.

[35] Many of these cases involve warrants issued either under s 10 of the Crimes Act 1914 of the Commonwealth of Australia or s 198 of the Summary Proceedings Act 1957 of New Zealand. Those provisions authorise the issuing of warrants where they are reasonable grounds for suspecting/ believing that there is in any specified place or repository any thing which there are reasonable grounds to believe will be evidence of the commission of an offence. Neither provision has a requirement like s 20(3)(a) of the Mutual Assistance Act.

[36] Warrants issued under these provisions have been struck down on the basis that specificity (including specificity about the offence in respect of which it is believed evidence will be found at the place to be searched) is necessary. The reason this degree of specificity is required is to ensure that the occupier of the premises which will be the subject of the search will understand, and if necessary be able to take legal advice about, the permissible limits of the search.

[37] We will not refer to all of the Australian and New Zealand cases referred to us. The following examples demonstrate the applicants’ argument.

[38] In Arno v Forsyth (1986) 9 FCR 576 a search warrant issued in relation to the premises of a barrister who had given advice on tax avoidance schemes was found to be invalid for lack of specificity. In that case the warrant authorised the seizure of legal opinions, correspondences and similar materials prepared by the barrister during a specified period-

‘in relation to the implementation tax avoidance schemes associated with [37 named parties] and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of a number of the following offences, and in respect to which there are reasonable grounds for believing that the following offences have been committed: [a list of offences under the Crime Act involving conspiracy and defrauding the Commonwealth and also an offence under the Income Tax Assessment Act followed.].’

[39] The court was particularly concerned that the warrant referred to tax avoidance schemes not only in relation to the 37 named parties, but also ‘other persons and entities’ which would, as noted by Lockhart J extend the class to infinity. Mr. Sullivan relied in particular on the concern expressed by Fox J that the description in the warrant of the things to which it related referred only to the offences in respect to which it was said evidence would be found and to the generic term ‘tax avoidance scheme’. Fox J said this was ‘quite indefinite’ and that it was necessary to refer to some other characteristics to provide greater specificity.

[40] Other Australian cases to similar effect which were relied on by Mr. Sullivan were Australian Broadcasting Corpn v Cloran (1984) 4 FCR 151 and Esso Australian Ltd v Curran (1989) 39 A Crim R 157.

[41] Mr Sullivan also relied on two New Zealand cases: Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 and Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780.

[42] In the former case, a warrant which authorised the search of an abortion clinic for evidence that the offence of abortion had been committed was found to be invalid due to lack of specificity. There was no indication of when or on whom an illegal abortion had been performed, so the allegation was unspecific as to when, by whom and on whom the offence was said to have occurred. The officer executing the warrant had taken all but a few of the clinic's files on the basis that any of these could be evidence of such an offence.

[43] The concern of the court was expressed in these terms by McMullin J at 749:

′A warrant such as the present, which authorised the seizure of anything which there was “reasonable ground to believe will be evidence ... of an offence of abortion" ... is, in my view, too general and lacks specificity. While I do not think that a search warrant must state the offence in respect of which it is issued with particularity as to the place and date of commission or the person on whom it has been committed, because that may not always be possible, I am of the opinion that there should be a sufficient measure of particularisation of the offence in the warrant to enable both the officer executing the warrant and the person on whose premises it is to be executed (who may not be the suspect) to know just what are the metes and bounds of the search and seizure contemplated.'

[44] In the Tranz Rail case, the New Zealand Court of Appeal said that search warrants must be expressed in terms which are as specific as the circumstances allow.

[45] Cases decided subsequently to those cited by counsel have confirmed the importance of specificity: see New South Wales v Corbett [2007] HCA 32, (2007) 230 CLR 606, Microwave Safety Systems Pty Ltd v Comr for Fair Trading, Dept of Commerce [2008] NSWSC 37 and R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [210]- [212].

[46] Mr Sullivan asked us to apply the Australian and New Zealand cases by analogy in this case. He said they supported his contention that compliance with s 20(3)(a) required more than the setting out of the text of the criminal offences to which the investigation relates. A description of the facts alleged to constitute the offences and the dates when they were said to have been committed was required.

[47] The Australian and New Zealand cases must be seen in their statutory context. The concern of the Australian and New Zealand courts has been to ensure that the statutory authorisation for the issuing of warrants is not exceeded. That in turn requires consideration of the authorising power. The importance of the statutory context is illustrated by the English case to which the Attorney General referred us, IRC v Rossminster Ltd [1979] UKHL 5; [1980] 1 All ER 80.

[48] In Rossminster, the relevant statutory provision provided for a circuit court judge to issue a warrant if satisfied that `there is reasonable ground for suspecting that an offence involving any form of fraud in connection with or in relation to tax has been committed' and that evidence to that effect may be found on the premises. The section gave the person executing the warrant power to seize material which he had reasonable cause to believe may be required as evidence for the purpose of proceedings in respect of such an offence.

[49] The warrant which was issued simply stated that there was reasonable ground for suspecting that an offence involving fraud in connection with or in relation to tax had been committed and that evidence of it was to be found on the premises which were to be searched. The English Court of Appeal considered the warrant to be too general, for essentially the same reasons as expressed in the Australian and New Zealand cases to which we have already referred. But the House of Lords reversed the decision of the Court of Appeal.

[50] In his speech, Lord Wilberforce emphasised the need to consider the statutory context. He noted the very broad wording of the statutory power to issue a warrant, but also drew attention to the protections inherent in the statutory provision authorising the issue of a warrant in that case. First, there was a requirement for approval of the Board of Inland Revenue before a warrant could be sought. Second, a warrant could be issued only by a circuit judge, not by a magistrate as is usually the case. Third, the court retained full power of supervision. He expressed some concern about the breadth of the statutory provision, but considered that any limitation of that had to be a matter for Parliament. When dealing with the criticism that the warrants did not contain any specificity as to the nature of the tax frauds which were suspected, he said ([1980] 1 All ER 80 at 84):

'To require specification at this investigatory stage would be impracticable given the complexity of "tax frauds" and the different persons who may be involved ... Moreover, particularisation, if required, would in no doubt take the form of a listing of one offence and/or another or others and so would be of little help to those concerned. Finally, there would clearly be power, on principles well accepted in the common law, after entry had been made in connection with one particular offence, to seize material bearing upon other offences within the portmanteau. So, particularisation, even if practicable, would not help the occupier.'

[51] Mr Sullivan pointed out that the approach of the House of Lords in Rossminster had been rejected in Australia in OPSM v Withers [1987] 13 FCR 594. He submitted that it should be rejected in Vanuatu as well.

[52] There are many obvious parallels between the present case and Rossminster. But we do not see the present case as involving an acceptance or rejection of a particular approach, but rather the application of principle to the statutory provision under consideration, and the particular warrant issued pursuant to that statutory provision. The need to anchor the court's analysis in the statutory context and the facts of the case at hand was emphasised in the decision of the Federal Court of Australia in Dunesky v Elder [1994] FCA 1006; (1994) 126 ALR 522. In that case, the majority, Lockhart, Beaumont and Hill JJ said (at 534-535):

‘All the decided cases have emphasised that sufficiency in this context must depend upon the particular circumstances of the matter at hand. It follows, in our view, that no useful purpose will be served here by a comparative analysis of the kind sought to be made in the arguments advanced on behalf of the appellants, of first, the adequacy of other information and warrants in decided cases and, secondly, of the reasons why those information and warrants were, or were not, held to be insufficient.'

[53] A similar sentiment was expressed by Callinan and Crennan JJ in New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [104].

[54] As the House of Lords did in Rossminster, we place some weight on the safeguards inherent in the provisions of the Mutual Assistance Act relating to search warrants. It is notable that only the Attorney General can authorise the making of an application for a warrant (s 19) and a warrant may be issued only if the Supreme Court itself is satisfied that there are reasonable grounds for its issue (s 20(2)(c)).

[55] The New Zealand and Australian cases focus on the statutory wording authorising the issue of warrants in those jurisdictions. That wording differs from the wording under consideration in this case and the differences are, in our view, significant enough to make the Australian and New Zealand cases of limited utility in determining the issues before us in this case.

[56] The Australian and New Zealand provisions require a reasonable belief or suspicion that there is 'any thing which there is reasonable grounds to believe will be evidence of the commission of an offence'. This generates the need for specificity about what the 'thing' to which the search relates actually is. By contrast, the thing for which the search may be undertaken under s 20 of the Mutual Assistance Act is a thing which is 'relevant to the investigation or proceeding [for a criminal matter involving a serious offence in a foreign country]'.

[57] In this case the warrant referred to things (an extensive list of documents media and other data to which no objection has been raised) relating to the specified Australian offences for which investigations relating to the named alleged offenders are being undertaken in Australia. While the provision of a factual narrative as to what was alleged to have occurred and when it was said to have occurred would have improved the warrant, it seems to us that 'the information actually provided in the warrant provided the occupiers of the premises subject to searches with adequate information as to the scope of the search. The legal requirement under s 20 is that the thing to be searched is `relevant' to the Australian investigation. That is a lower threshold than the 'reasonable grounds to believe will be evidence of the commission of an offence' standard in the Australian and New Zealand provisions.

[58] The purpose for search was stated in clear terms, and there was a reference to the offences said to be committed, with the full text of those offences set out, which made it clear that they involved fraud against the Commonwealth of Australia or a Commonwealth entity, conspiracy to commit such frauds and (in the case of some warrants) money laundering. What s 20(3)(a) requires is a statement of purpose for which the warrant was issued, and the last paragraph of the warrant is clearly such a statement. The provision also requires that that statement includes a reference to the nature of the relevant offence. The use of the term 'reference' does not indicate that Parliament intended that details were required. Arguably all it required was a reference to the types of offences which were under investigation, such as offences involving fraud or money laundering, rather than the full specification of a text to the offences as occurred in this case. We do not consider that the term 'nature of the offence' required a narrative of the allegations actually made against the alleged offenders. The occupiers of the searched premises may have been better informed if information about the mariner in which and the times at which the offences were said to have been committed had been set out, but that does not mean that such specification is required by the statute.

[59] When looked at in the overall statutory context and the complexity of the offences being investigated, we are satisfied that setting out the text of the offences under investigation in Australia and the names of those under investigation in relation to those offences was sufficient to comply with s 20(3)(a).

Section 20(3)(b): Description of the thing authorised to be seized

[60] A further argument related to s 20(3)(b). That requires that the warrant set out a proper description of the kind of thing authorised to be seized. Mr Sullivan relied on the New Zealand and Australian cases referred to above, which focused on the things for which the search was authorised and required specificity as to the description of such things.

[61] As we have pointed out earlier, this aspect of the case also needs to be seen in the statutory context. Whereas the Australian and New Zealand cases concern provisions `which describe the thing as a thing which there are reasonable grounds to believe will be evidence of the commission of an offence, the equivalent provision in this case is a thing which is relevant to the investigation being carried out in Australia. In the present case the things were described by reference to the documents and the media which were to be subject to search, the offences under investigation or subject to the investigation and the named entities to which the documents and other media might relate. In our view, that adequately described the things of the kind authorised to be seized under the warrant.

[62] Mr Sullivan was particularly critical of the fact that the warrant authorised the seizure of 'other things found in the course of the search that the executing officer... believes on reasonable grounds to ... provide evidence about the commission of a criminal offence in Vanuatu'.

[63] In our view this submission is misguided. All the warrant is doing is reciting the power given by s 21 of the Mutual Assistance Act. That section provides that, in addition to giving an authorised officer the power to seize a thing of a kind specified in the warrant, the warrant is also taken to authorise the officer to seize other things if the officer believes on reasonable grounds that the thing is relevant to the proceeding or investigation in the foreign country or provides evidence about the commission of a criminal offence in Vanuatu and that it is likely to be concealed lost or destroyed if not seized. The fact that the warrant recites this power does not mean that the warrant purports to grant a generalised and unspecific power to seize anything in the premises under the search. Rather, that power had been given by the statute, whether the warrant says so or not. This aspect of the case is very similar to the position in Rossminster, where the statute also gave a very broad power to seize.

[64] In those circumstances, the Australian and New Zealand cases cited in support of the applicants' arguments provide only limited assistance, because the statute in the present case is of a quite different character.

[65] We find that the warrant complied with s 20(3)(b).

(C) WAS THE CATEGORY OF AUTHORISED PERSONS TOO WIDE?

[66] On behalf of the applicants in Civil Appeal case no 17, Mr Coombe pursued another argument to the effect that the warrants were too broad. This argument focused on the fact that the execution of the warrants was undertaken with the involvement of officers of the Australian Federal Police. Section 20(l) of the Mutual Assistance Act says that the court may issue a warrant 'authorising the authorised officer, with such assistance ... as is necessary and reasonable' to enter and search premises. In the present case, the warrant authorised the applicant, Inspector Bani, to search the premises which were referred to in the warrant and then prescribed that, pursuant to s 20 of the Mutual Assistance Act, 'the executing officer, and any person assisting who is a police officer, and any other person who has been authorised by the executing officer to assist in executing this warrant' were permitted to enter and search the premises and seize evidence.

[67] Mr Coombe said that the fact that Australian Federal Police officers had been involved in the execution of the search, and were authorised to do so by the warrant, compromised the sovereignty of Vanuatu. He said that the warrant was invalid because it allowed this to occur.

[68] We do not accept Mr Coombe's submission. The warrant did no more than recite what Parliament had authorised in cases where a warrant had been issued under s 20 of the Mutual Assistance Act. Under s 20(1), a warrant authorises 'the authorising officer, with such assistance, and by such force, as is necessary and reasonable' to undertake the search and seizure permitted by the warrant. While the wording of the warrant which we have highlighted above does not mirror the statutory wording exactly, the concluding paragraph of the warrant did reproduce the actual statutory wording. We do not consider it surprising that the involvement of officers from the Australian Federal Police who were familiar with the investigation of the alleged offences in Australia was considered to be necessary in the circumstances of this case.

[69] We are satisfied that there was no intention to extend the class of authorised persons beyond that permitted by s 20, and that no such extension occurred.

(D) DID THE SUPREME COURT FAIL TO CONSIDER RELEVANT MATTERS?

[70] The final issue for decision is whether the warrants were invalid because the Supreme Court failed to consider relevant matters. The matters which the appellants say the Supreme Court ought to have considered are the secrecy requirements of s 125 of the International Companies Act 1992 (Cap 222) and s 9 of the Trust Companies Act 1971 (Cap 69).

[71] Those sections provide for secrecy of information relating to international companies and trust companies and make it an offence for the specified information to be divulged. However, crucially, both provisions have an exception which clearly applies in the present case. In s 125 of the International Companies Act, the exception is `except when required by a Court of competent jurisdiction'. In s 9 of the Trust Companies Act, the exception is `except when lawfully required to do so by any Court of competent jurisdiction within Vanuatu or under the provisions of any law in force in Vanuatu'.

[72] It is clear that neither of these sections is intended to prevent the divulging of information when that is required by a court order. In this case, the search warrants issued by the Supreme Court are orders of the kind contemplated by s 125 and s 9. As would be expected, the secrecy provisions of the International Companies Act and the Trust Companies Act do not provide a fetter to the obtaining of information about the commission of criminal offences. We do not know whether the Chief Justice considered these sections when determining whether to issue warrants under s 20 but we are satisfied that, if he had done so, he would have concluded that they did not constrain his discretion to issue the warrants.

[73] Mr Sullivan also referred us to two other sections, s 381 of the Companies Act 1986 (Cap 191) and s 128 of the International Companies Act. We are satisfied that neither of these sections raised any matters which could have constrained the discretion of the Supreme Court either.

ANSWER TO THE QUESTION POSED BY THE CASE STATED

[74] We answer the question in the case stated No. The warrants issued by the Supreme Court on 25 April 2008 were valid.

[75] As this resolves the issue before the Supreme Court on the validity of the warrants, we discharge the interim orders made by the Chief Justice requiring the Commissioner of Police to retain possession of the materials seized during the searches.

COSTS

[76] This case was something of a test case. It was appropriate that the scope of the power conferred by s 20 of the Mutual Assistance Act be tested. Although the applicants have been unsuccessful in their challenge to the validity of the warrants, we make no order for costs against them.