Hart v Commissioner, Australian Federal Police [2002] FCAFC 392

Hart v Commissioner, Australian Federal Police [2002] FCAFC 392

Section 3K(2) of the Crimes Act 1914 (Cth) did not authorise the removal from premises of material in electronic form by copying it onto storage devices brought by police. The removal of such devices does not constitute 'moving' or seizure of things found at the premises. Furthermore, the power to examine and seize items under s 3K cannot survive the expiry of the warrant. Any purported seizure of tapes, cartridges, or floppy disks was not converted into a lawful removal for pre-seizure examination. The copying and removal of material under s 3L(2) was not authorised in the circumstances because the officers had not actually found that evidential material was accessible.

Parties
Appellant: Steven Irvine Hart; First Respondent: Commissioner, Australian Federal Police; Second Respondent: Michael John Morris; Third Respondent: William Joseph McKay; Fourth Respondents: Henry Albiez, I. Bartley, Denice Bird, John Brown, Michael Butcher, Ivor Chalmers, Ron C. Cramp, Paul Delany, Geoff P. Eyles, Arthur Fadden, Alan Farnell, Anthony Fitzsimon, Robert G. Glover, John Hopkins, Ian Houghton, Mark Jager, Steven Jay, Cameron Jeffs, Geoff Jensen, Marie McCarthy, Malcolm McKay, Joe Manricks, Mark Metcalfe, Robert Pennicott, Allan Perry, Craig Philp, Peter Roberts, Paul Shanley, G. Swanson, Alex Tea, Neil Thompson, William Vickers, G. Walsh, Trevor Wenzel, Beth Williams, Iain Young
Jurisdiction
Australia
Judgment Date
05 December 2002
Procedural Posture
Appeal / On Appeal From a Judge of the Federal Court of Australia
Outcome
The appeal is allowed; cross-appeal dismissed.
Legal Topics
Search Warrants, Electronic Evidence, Seizure of Documents, Construction of Crimes Act 1914 (cth), Administrative Law
Criminal Law Statutory Construction Search Warrants Electronic Evidence Seizure of Documents Construction of Crimes Act 1914 (cth) Administrative Law

Case Brief

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Parties

Steven Irvine Hart

Appellant

Commissioner, Australian Federal Police

First Respondent

Michael John Morris

Second Respondent

William Joseph McKay

Third Respondent

Henry Albiez, I. Bartley, Denice Bird, John Brown, Michael Butcher, Ivor Chalmers, Ron C. Cramp, Paul Delany, Geoff P. Eyles, Arthur Fadden, Alan Farnell, Anthony Fitzsimon, Robert G. Glover, John Hopkins, Ian Houghton, Mark Jager, Steven Jay, Cameron Jeffs, Geoff Jensen, Marie McCarthy, Malcolm McKay, Joe Manricks, Mark Metcalfe, Robert Pennicott, Allan Perry, Craig Philp, Peter Roberts, Paul Shanley, G. Swanson, Alex Tea, Neil Thompson, William Vickers, G. Walsh, Trevor Wenzel, Beth Williams, Iain Young

Fourth Respondents

Procedural Posture

Appeal / On Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 3K(2) of the Crimes Act 1914 (Cth) authorised the downloading and removal of electronic material from premises;
  2. 2 Whether tapes, cartridges, and floppy disks could be removed for pre-seizure examination under s 3K;
  3. 3 Whether primary judge erred in allowing retention and examination of such material beyond the expiry of the warrant;

Ratio Decidendi

Section 3K(2) of the Crimes Act 1914 (Cth) did not authorise the removal from premises of material in electronic form by copying it onto storage devices brought by police. The removal of such devices does not constitute 'moving' or seizure of things found at the premises. Furthermore, the power to examine and seize items under s 3K cannot survive the expiry of the warrant. Any purported seizure of tapes, cartridges, or floppy disks was not converted into a lawful removal for pre-seizure examination. The copying and removal of material under s 3L(2) was not authorised in the circumstances because the officers had not actually found that evidential material was accessible.

Court Disposition

The appeal is allowed; cross-appeal dismissed.

Orders

  • The appeal be allowed.
  • Declarations 5 and 6 made by the primary Judge on 21 March 2002 be set aside.