Case: Ousley v The Queen [1997] HCA 49 ; (1997) 192 CLR 69
Outcome: referred to
I am not persuaded, in the circumstances, that the privilege notice was not "made available" to Mr Oke as part of the copy of the warrant. Section 5H(1) does not prescribe how or when the copy of a search warrant is to be made available. Whether it has been made available is a question of fact. Ideally, the copy should be made available at one time, and as early as possible. But having regard to the purpose of s 5H(1), if there were some delay in the commencement or progress of the search authorised by a search warrant, the copy might be made available at a later point in time if the purpose were not thereby frustrated. And, one can readily imagine, a page or pages of a copy might accidentally become removed from the copy prepared for presentation. In such a case, assuming the page or pages were otherwise significant (in the way identified above), the delay in providing them might not mean that they were not provided as part of the copy made available. If, upon inspecting the copy made available, the occupier noticed and drew attention to the fact that pages were missing, and they were then provided, I think s 5H(1) would have been satisfied. There are obviously many other possible circumstances. Having regard to the observations of Kirby J in Ousley v The Queen [1997] HCA 49 ; (1997) 192 CLR 69 ( Ousley ) at 144, whether there has been compliance is a matter of fact and degree. On the evidence in this matter, I find that the privilege notice was provided to Mr Rydon at a sufficiently early point in the process of the execution of the Birchgrove warrant that its earlier absence had not affected adversely any claim for legal professional privilege Mr Oke made or the way in which his claim for legal professional privilege was treated. I therefore find that the provision of the privilege notice in the circumstances completed (in that respect) the making available of the Birchgrove warrant. 72 Moreover, subs 3E(5), (6) and (7) specify what the legislature considers must appear in a warrant. Those provisions appear to exhaustively state the matters the warrant must disclose to make it valid (see e.g. Ousley 192 CLR at 111). In general terms, they also define the extent of the authority conferred (see e.g. per Gaudron J in Ousley 192 CLR at 94), although s 3F then enlarges upon the extent of that authority. 73 Section 3E does not expressly require the name of the issuing officer to be included in the warrant. However, s 3H(5) indicates that the issuing officer will have signed the search warrant and by implication that the name of the issuing officer will appear on it. 80 In reaching that view, I am mindful that if the Birchgrove premises were unattended, the execution of the Birchgrove warrant may have proceeded lawfully even though the copy intended to be provided was incomplete. I do not think that consideration affects my conclusion. Kirby J in Ousley 192 CLR at 144 observed that "Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them". The fact that, in different circumstances, the Birchgrove warrant might have been lawfully executed, or indeed the fact that the Birchgrove warrant itself was available to be provided to Mr Oke (but was not made available to him), does not diminish the significance of the non-compliance with s 5H(1) in the particular circumstances. 81 I am mindful that Federal Agent Capaldo had in her possession the Birchgrove warrant and could have made it available to Mr Oke. She did not however do so, but only provided a copy of the Birchgrove warrant in the form referred to above. 82 The omission of the privilege notice (assuming contrary to my view that, in this respect also, s 5H(1) was not complied with), does not have the same consequence. Its absence does not affect the capacity of Mr Oke to be satisfied of the nature of the authority being exercised or its extent. The copy of the Birchgrove warrant initially made available included the note quoted in [20] above. The fact that Mr Oke may have claimed legal professional privilege was therefore identified.