Case: Ryder v Morley (1986) 12 FCR 438
Outcome: cited
At trial in Ryder v Morley (1986) 12 FCR 438, Toohey J held that the attachment of the detective sergeant to the NCA did not deprive him of his status as a constable within the meaning of the Crimes Act , and nor did it deprive him of the right to seek the issue of a search warrant pursuant to s 10 of that Act. His Honour did not see anything to preclude recourse being had to s 10 of the Crimes Act , as he explained in the following passage at 441: "It is clear that he was invoking s 10 and not relying upon any provision of the National Crime Authority Act 1984 . Had a member of the Authority required a warrant for the purpose of a special function of the Authority, it was open to that member to apply to a judge of a prescribed court under s 22(1). But the warrant was sought by a member of the Australian Federal Police who satisfied a justice of the peace, by information on oath, that a warrant was justified in terms of s 10 of the Crimes Act 1914 ." Toohey J also said that s 22(10) was conclusive against the applicant's argument: "I agree with counsel for the respondents that the subsection simply means what it says and that there is no justification for reading it down. Counsel for the applicants argued that if a police officer seconded to the Authority could rely upon s 22(10) to justify the obtaining of a warrant under s 10 of the Crimes Act 1914 , the limitations in s 22 could be set at naught. But that is not so. The limitations in s 22 apply when the Authority relies upon a special investigation which it is conducting to obtain a search warrant in the terms of that section. But if a constable can satisfy a justice of the peace, in terms of s 10 of the Crimes Act 1914 , that a search warrant is justified, the justice may issue a warrant under that section. There is nothing uncertain or ambiguous about s 22(10) ; in my view the subsection is designed for the sort of situation that arose in the present case." I consider that his Honour's reasoning is compelling. 33 On appeal from Toohey J, the Full Court said at 263-264: "It is submitted that, bearing in mind relevant parts of s 22 , and other provisions in the Act protective of individuals being investigated by the Authority (see ss 28-32) it cannot have been intended that the protection could be subverted by reliance on s 10(1) of the Crimes Act 1914 . We have in what we have already said attempted to show the different purposes and functions of s 10(1) of the Crimes Act 1914 and s 22 of the Act. In our view, it is not to be assumed that the latter negatives the operation of the former. Indeed, the contrary is expressly provided for: s 22(10). We are of the view that the provisions of the Act referred to cannot properly be construed as involving any restriction on the use of s 10(1) of the Crimes Act 1914 for purposes such as those under discussion. On the contrary, once an offence is known or suspected, s 10(1) acts as a convenient corollary to s 22 and other powers of the Authority." 34 In the present case, the applicant attempted to distinguish Ryder v Morley on the ground that Toohey J and the Full Court did not know whether the search warrant was obtained in connection with an NCA special investigation. In my view, the supposed distinction is not made out. It is founded on a statement in the Full Court judgment that 'we do not know whether it was a "special investigation", which deals with a "matter relating to" a specified "relevant criminal activity", and is not confined to things used or believed to be intended to be used for the commission of a crime.' It is not clear whether the Full Court was saying that it did not know whether it was a special investigation at all, or whether it was saying that it did not know that the special investigation had the particular features it mentions. However, it does not matter. The applicant's whole argument in Ryder v Morley invited the Court to assume that a search warrant could have been issued pursuant to s 22 of the NCA Act . In other words, the argument invited the Court to assume that the search warrant in question had been sought in connection with a special investigation by the NCA. The Court was well aware that the power conferred by s 22(1) of the NCA Act could only be exercised in connection with a special investigation. The thrust of the argument the Court was addressing was that, as s 22 was available, the legislative intention was that it should apply to the exclusion of s 10 of the Crimes Act . Both Toohey J and the Full Court addressed the merits of this argument on the assumption that s 22 was available and that its conditions could have been satisfied. It follows that the observations made both by Toohey J and the Full Court concerning the relationship between s 22 of the NCA Act and s 10 of the Crimes Act were premised upon an assumption, favourable to the applicant in that case, that the warrant had been sought in order to advance a special investigation by the NCA and so could have been obtained under s 22 of the NCA Act .