Case: Coward v Allen [1984] FCA 53 ; (1984) 52 ALR 320
Outcome: cited
Senior Counsel on behalf of the Respondents quite properly relied upon the public interest in permitting those responsible for enforcement of the criminal law to continue their investigations. This consideration was rightly advanced as of relevance to both the discretion to grant interlocutory relief and to the discretion to grant an extension of time pursuant to s 11(1)(c) of the Judicial Review Act . In Coward v Allen [1984] FCA 53 ; (1984) 52 ALR 320 Northrop J had concluded in respect to a warrant issued under the now-repealed s 10 of the Crimes Act that there was a serious question to be tried in relation " to the manner in which the warrants were executed and whether the seizure of things was valid ": (1984) 52 ALR at 336. His Honour nevertheless declined relief. In doing so His Honour concluded: In my opinion, the motions for interlocutory injunctions should be refused. The balance of convenience weighs in favour of the respondents. In the public interest, they should have a reasonable time to examine the things seized, to decide whether to prosecute or not, and to retain the things needed as evidence in support of any prosecutions. The other things should be returned to the applicants. The court hearing those criminal proceedings may have to determine, on the principles expressed in Bunning v Cross , whether evidence obtained by means of the search warrants is admissible or not. Any civil action arising from the seizure could be continued at the conclusion of those criminal proceedings. If no prosecutions are commenced, the applicants would be free to continue with their actions based on the unlawful execution of the warrants. In the meantime, the public interest requires that the respondents to the actions should be able to continue their investigations. Accordingly, the motions for interlocutory injunctions are refused. A valuable safeguard which adequately protected the interests of those whose property was wrongly seized lay, it was said, in the discretion of the Court &#8212; should there be a prosecution &#8212; to exclude such evidence. In the context of considering whether documents should be returned, in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405, Hill J likewise observed: I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice. Should the court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated. Of course, the question whether the items in the present case, if otherwise admissible, should be admitted in evidence in the pending prosecution, despite the fact that they were obtained without lawful authority, will be a matter for the judicial officer hearing the prosecution: Bunning v Cross [1978] HCA 22 ; (1978) 141 CLR 54 ; 19 ALR 641. The existence of this discretion suggests to me that I should not interfere with the pending prosecution by requiring the documents seized to be returned but leave instead to the judicial officer presiding on that prosecution the question whether the material illegally obtained should be admitted into evidence in the prosecution. The importance of the enforcement of the criminal law may readily be accepted. It is self-evidently in the public interest that those who commit criminal offences should be brought to account. Those who commit fraud, including a fraud upon the public revenue, should be brought to account. It is equally of importance that those investigating suspected criminal conduct be able to exercise all powers as are conferred upon them by the legislature to access materials and to secure the availability of all materials lawfully seized for the purposes of any subsequent proceeding. But it is not considered that either Northrop J or Hill J was attempting to do anything other than to recognise that aspect of the public interest and apply it to the facts before them.