El-Zarw v Nikola; ex parte El-Zarw [1990] QSCFC 94 [1992] 1 Qd R 145

IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE: Mr. Justice McPherson S.P.J.- Mr. Justice Ryan. Mr. Justice Byrne BRISBANE, 12 DECEMBER 1990 Dat8 -- 3/ / / % O.S.C. No. 20 of 1990 o (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter ,Court Reporting Bureau.) ATEF FATHALLA NOUH YOUSSEF EL-ZARW v . RICHARD FRANCIS NIKOLA -and- FRANCIS WILLIAM WINDRIDGE, S.M. Ex parte: ATEF FATHALLA NOUH YOUSSEF EL-ZARW JUDGMENT MR. JUSTICE McPHERSON : Here the Court also consisted of Mr. Justice Ryan, Mr. Justice Byrne and me. For reasons given by Mr. Justice Byrne, which I now publish, the order nisi should, in my opinion, be made absolute with costs and thesearch warrant should be quashed. MR. JUSTICE RYAN: I agree with that order and also with the reasons to be published by Mr. Justice Byrne. MR. JUSTICE McPHERSON: The order is that the order nisi is made absolute with costs. The warrant is quashed. —Govt. Printer, Qld. [1990] QSCFC 94 -- 1 of 11 -- IN THE SUPREME COURT ^C- tfe/c/fc OF QUEENSLAND FULL COURT OSC NO. 20 OF 1990 ATEF FATHALLA NOUH YOUSSEF EL-ZARW v . RICHARD FRANCIS NIKOLA and FRANCIS WILLIAM WINDRIDGE, S.M. Ex parte: ATEF FATHALLA NOUH YOUSSEF EL-ZARW McPHERSON SPJ RYAN J BYRNE J Reasons for judgment delivered by Byrne J on the 12th December, 1990. McPherson SPJ and Ryan J concurring with the reasons and orders made. "ORDER NISI BE MADE ABSOLUTE WITH COSTS. ORDER WARRANT BE QUASHED." -- 2 of 11 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1990 Before the Full Court Mr Justice McPherson S.P.J. Mr Justice Ryan Mr Justice Byrne ATEF FATHALLA NOUH YOUSSEF EL-ZARW v . RICHARD FRANCIS NIKOLA and FRANCIS WILLIAM WINDRIDGE, S.M. Ex Parte: ATEF FATHALLA NOUH YOUSSEfr EL-ZARW JUDGMENT - BYRNE J. Delivered the 12th day of December 1990 CATCHWORDS : Criminal Law - Search Warrants - requirements of s. 679 Criminal Code - whether "it is alleged" formula capable of satisfying the statutory conditions Counsel: A.J. Rafter for applicant P.G. Nase for respondent Solicitors: Public Defender for applicant Director of Prosecutions for respondent Hearing date: 26 September 1990 -- 3 of 11 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1990 ATEF FATHALLA NOUH YOUSSEF EL-ZARW v . RICHARD FRANCIS NIKOLA and FRANCIS WILLIAM WINDRIDGE, S.M. Ex Parte: ATEF FATHALLA NOUH YOUSSEF EL-ZARW JUDGMENT - BYRNE J. Delivered the 12th day of December 1990 This is the return of an order nisi to review pursuant to s. 209 of the Justices Act 1886-1989. The applicant seeks to quash a search warrant issued on 13 March 1990 authorising a search in the Brisbane office of the Public Defender for two statements signed by W.C. Jamieson and a statement signed by M.D. Cougan "contained in a file under the name of A.F.N.Y. El-Zarw", the applicant. The warrant recited that it had appeared to be issuing justice that there were reasonable grounds for suspecting that those three statements would "afford evidence as to the commission of the offence of perjury" and bore this endorsement : "The powers conferred by this warrant do not extend to documents in respect of which legal professional privilege attaches and is maintained in accordance with the doctrine of legal professional privilege." The applicant had earlier been charged with the murder of Tracey Anne Smith. The Public Defender provided legal aid to -- 4 of 11 -- 2 him in respect of the charge. The applicant's trial began in the Supreme ,Court at Brisbane on 9 October 1989. It concluded with his acquittal 11 days later. P.A. Shaw was a witness for the prosecution. He testified that while they were in prison together the applicant admitted to him that he had murdered Smith. Jamieson and Cougan were called for the defence. These prisoners gave evidence that Shaw had told them that he intended to give evidence falsely incriminating the applicant in Smith's murder. On 7 March 1 990 the applicant was charged with perjury. The particulars allege that he gave false evidence at his trial when he denied confessing to Shaw that he had murdered Smith. Jamieson and Cougan have also been charged with perjury. The case against them is that their evidence about the conversation with Shaw was false and part of a conspiracy to perjure in which the applicant participated. On 14 March, Detective Sergeant Nikola gave the Public Defender papers signed by Jamieson and Cougan authorising the release to Nikola of the statements they gave to assist in the applicant's defence of the murder charge. However, the statements were not surrendered because the applicant insisted that the statements were properly the subject of legal professional privilege. Nikola was told that the statements would not be delivered up. Two days later the search warrant was executed at the Public Defender's office. At that time Nikola was informed of the applicant's claim to privilege. The statements were placed in a sealed envelope and delivered to the Magistrate who had issued the warrant: see s. 682 Criminal Code . -- 5 of 11 -- 3 One contention is that the warrant could not overreach the applicant ' s claim to protect the documents from production as having been obtained from third parties by the Public Defender as his lawyer solely for use at his imminent murder trial. The respondent argues that the facts deny the availability of the privilege. No such privilege, it is said, can attach to the statements of the two witnesses because, on the Crown case, they were communications made to further an illegal purpose: a conspiracy to commit perjury. It is unnecessary to resolve these questions, interesting though they are: see A.L.E. Newbold, "The Crime/Fraud Exception to Legal Professional Privilege", The Modern Law Review Vol. 59 (1990) p. 472; J. Lichtenberger, "The Issue and Execution of Search Warrants", Criminal Law Journal Vol. 11(1987) p. 268, 284 ff; cf. Baker v. Campbell (1983) 153 C.L.R. 52, 107; Dingle v. Commonwealth Development Bank of Australia (1989) 91 A.L.R. 239. Nor is it appropriate to decide whether the Magistrates Court is, in the first instance, the appropriate forum for the determination of such a dispute: see s. 39 Justices Act : cf. Allitt v. Sullivan [1988] V.R. 621, 642-643. (The documents are now with the issuing Magistrate pursuant to a warrant which expressly reserved privileged documents from its operation) . In my opinion, the challenge should succeed on the basis that the sworn material placed before the Magistrate was insufficient to sustain the warrant. Section 679 of the Criminal Code provides: "If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft, or place - -- 6 of 11 -- 4 (a) Anything with respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or (b) Anything whether animate or inanimate and whether living or dead as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence; or (c) Anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence; he may issue his warrant directing a police officer or police officers named therein or all police officers to enter, by force if necessary, and to search such house, vessel, vehicle, aircraft, or place, and to seize any such thing if found, and to take it before a justice to be dealt with according to law ..." In speaking of the issuing justice's function under s. 679, in George v. Rockett (1990) 64 A.L.J.R. 384 the High Court said (at 387) : "The opening words of s. 679 - 'If it appears to a justice1 - impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled ... It must 'appear' to the issuing justice that there are reasonable grounds for entertaining the relevant suspicion and belief: see the phrase 'that there are reasonable grounds for suspecting' and, in Paras (b) and (c), the phrase 'there are reasonable grounds for believing'." The first question therefore is whether the complaint sets out facts sufficient to support the warrant. Evidence extrinsic to the sworn material cannot be used in answering this question. Because the power to issue the warrant and hence its validity depend upon satisfaction of the statutory requisites, in deciding whether the material on which this warrant was procured met those criteria, this Court is necessarily restricted to a consideration of the sworn material placed before the -- 7 of 11 -- 5 Magistrate: Bridgeman v. MacAlister (1898) 8 Q.L.J. 151; George v. Rockett at 386, 391-392; cf. Giordenello v. United States 357 U.S. 480, 486 (1958). The complaint to ground the warrant was sworn by Nikola. In it he "says that there are reasonable grounds for suspecting" that in the Brisbane office of the Public Defender statements are kept "as to which there are reasonable grounds for believing" that they will afford evidence as to the commission of the offence of perjury. Nikola also "says . . . that the grounds of his suspicion are as follows ..." The complaint then sets out a series of allegations. All begin with "It is alleged that ...", "It will be further alleged that ..." or some slight variant of these expressions. Of these, the more significant are : "It is alleged that a prisoner named Paul Anthony SHAW gave evidence for the prosecution and his evidence implicated EL-ZARW in the offence. ... It will be further alleged that prisoners Warren Charles JAMIESON and Mark Donald COUGAN gave evidence for the defence at the trial of EL-ZARW. . . . It is alleged that investigations were commenced by Detective Sergeant 1/c NIKOLA of the Homicide Squad and Detective Sergeant 2/c SLATER of the Criminal Investigation Branch, Wynnum into allegations that 'perjury' was committed by EL-ZARW, JAMIESON and COUGAN at the trial of EL-ZARW. It is alleged that JAMIESON and COUGAN have made full admissions in relation to this offence to the investigating detectives. All conversations have been tape recorded. It is further alleged that JAMIESON and COUGAN have co-operated fully with investigating detectives in respect to this investigation. It is also alleged that JAMIESON and COUGAN have supplied statements to representatives of the Public Defender's Office which they now have alleged have been 'fabricated'. It is alleged that JAMIESON has supplied two statements under his own hand and that COUGAN has supplied one statement. All statements -- 8 of 11 -- 6 refer to evidence that they now allege was given by them in the Supreme Court Brisbane at the trial of EL-ZARW. It is alleged that these statements are held in a file on EL-ZARW at the offices of the Public Defender's Office in the M.L.C. Centre, George Street, Brisbane. It is alleged that JAMIESON and COUGAN have implicated EL-ZARW in a conspiracy to pervert the course of justice in respect of his trial. ... It is further alleged that the statements held by the Public Defender's Office for JAMIESON and COUGAN will form part of the prosecution evidence against EL-ZARW, JAMIESON and COUGAN on charges of 'perjury' and 'conspiracy to pervert the course of justice'. It is also alleged that those statements will corroborate the admissions made by JAMIESON and COUGAN to the investigating detectives." The section, as I have said, requires that the "reasonable grounds ..." essential to the existence of the statutory power to issue the warrant must be made to appear "on complaint". The complaint "should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s. 679": George v. Rockett at 388. Were it otherwise the issuing justice - an impartial judicial officer interposed between the investigator and the citizen - could not discharge his duty to make an evaluation of the sufficiency of the facts to ground the reasonable suspicion and belief the section insists upon. The factual foundation relied on must not only be placed before the justice by complaint. The complaint must also be "made on oath." This condition implies that the complaint should state the facts in such a way that the issuing justice can assess their reliability as a basis to conclude that there are reasonable grounds for entertaining the relevant suspicion and belief: cf . Crowley v. Murphy (1981 ) 52 F.L.R. -- 9 of 11 -- 7 123, 143. Mere rumour will not be enough: see P.G. Polyviou, Search and Seizure (1982), pp. 98, 104-107. Nor usually can it suffice that the complainant swears to his conclusions or beliefs. It is not the investigator's opinion that matters. What is crucial is the issuing justice's satisfaction, based on facts verified by a sworn complaint, that there are "reasonable grounds" for the suspicion and belief the section requires. A complaint to procure a search warrant will often be prepared at an early stage of a criminal investigation, "though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to": George v. Rockett at 390. Sometimes the supporting material will be composed in haste; and ordinarily it will be drafted by someone not legally trained. These considerations may be presumed to have been apparent to the legislature when s. 679 was enacted. They, and a concern that a pedantic analysis of the words of a complaint may discourage investigators from obtaining warrants before conducting their searches, suggest that an assessment of the material placed before the issuing justice should be approached in a commonsense, not hypertechnical , manner: cf. Illinois v. Gates 462 U.S. 213, 236 (1983). However, to regard the present complaint with its "it is alleged ..." introductory averments as not complying with s. 679 is not to view it too critically. By and large Nikola's complaint does not depose to primary facts. Instead it makes or repeats allegations; and the "it is alleged" formula at least inhibits an evaluation of the extent -- 10 of 11 -- 8 to which underlying facts, had they been fairly stated, might have established the necessary "reasonable grounds It is not, in my opinion, appropriate to treat these introductory words as surplusage. Even assuming that Nikola, the senior investigator, personally makes the allegations, he does not actually swear to a belief in them let alone to facts tending to support them. Moreover, some of the central contentions are, as might be expected of allegations, expressed as conclusions: for example, "it is alleged that Jamieson and Cougan have implicated El-Zarw in a conspiracy ...;" and "it is alleged that Jamieson and Cougan have made full admissions Nikola's complaint did not present enough information to enable the Magistrate to conclude that the allegations it advanced were sufficiently supported by facts justifying the inferences called for by s. 679. A complaint to ground a search warrant need not usually mention every little detail. And nothing I have said decides that a complainant must always have personal knowledge of the facts deposed to. Sometimes, for example when an informer is relied on, hearsay must do. (This case does not require a consideration of the problems associated with hearsay: cf. Coghill v. McDermott [1983] V.R. 751, 756; Illinois v. Gates .) It will, however, assist if the investigator's conclusions and prefatory introductions like "it is alleged" are avoided and instead the complaint sets out the relevant circumstances so that the justice can make the judgment s. 679 requires. I would make the order nisi absolute and quash the warrant. -- 11 of 11 --