In two of our previous Quarterly Updates (March 2014 and September 2014, we looked at issues arising for regulators when exercising compulsory information-gathering powers. In particular, we considered how regulators should handle the issue of legal professional privilege which may attach to the documents gathered and the need to exercise information-gathering powers reasonably in order to ensure the validity of the search and seizure.
The focus of this article is on limits on the use of information obtained under information-gathering powers. The Supreme Court of Queensland considered this issue in the recent case of Flori v Commissioner of Police. The scope of the Flori case was neatly confined to the issue of whether evidence seized pursuant to a search warrant in a criminal investigation could be used in a disciplinary proceeding rather than, or in addition to, a criminal proceeding. That is, for a purpose other than that for which the information was obtained.
The Flori case applies established legal principles, in the context of the statutory scheme authorising the search warrant, and provides a neat summary of the law in this area. The case highlights constraints on the use of documents which have been obtained by a regulator in the exercise of its compulsory information-gathering powers.
The Commissioner of Police commenced disciplinary proceedings against Mr Flori, a Sergeant in the Queensland Police Service, suspected of committing offences under the Criminal Code 1899 (QLD) by leaking a CCTV recording to two media outlets, which is said to show police physically assaulting a young man in custody in early 2012. The recording was not authorised for release by Queensland Police. The media outlets went on to publish the CCTV footage in February 2012.
Shortly after, an investigation into how the CCTV footage came to be in the public domain was commenced by the Commissioner of Police. A search warrant was issued in relation to the residence of Mr Flori for investigation of the suspected offences. Investigators located and seized a copy of the CCTV recording and eight computers from the residence.
Despite finding the actual email used to leak the footage on one of Mr Flori’s computers, a recommendation was made not to prosecute Mr Flori for any criminal charges, but instead to commence disciplinary proceedings against him for misconduct under the Police Service Administration Act 1990 (QLD). As a side issue, the Court noted that Mr Flori’s release of information, for which criminal charges were contemplated and disciplinary proceedings were commenced, was not protected under the Public Interest Disclosure Act 2010 (QLD).
Mr Flori sought a declaration that the Commissioner of Police was not entitled to use, rely on or otherwise take into account information property seized pursuant to the search warrant in the disciplinary proceedings.
The question for consideration by Atkinson J, was whether the evidence seized pursuant to the search warrant for an investigation of the commission of criminal offences, could be used in disciplinary proceedings for misconduct against the police sergeant.
Atkinson J considered the application of established legal principles, in the context of the statutory scheme authorising the search warrant, and provided a neat summary of the law in this area.
PURPOSE FOR WHICH POWER CONFERRED
With reference to the principles in the High Court authority Johns v Australian Securities Commission , his honour considered the use that can be made of information obtained under compulsion authorised by statute. That is, ‘when the power to require disclosure of information is conferred for a particular purpose, the extent of the dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred’.
Additionally, a statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed, and the statute also imposes on the person who obtains information, in exercise of the power, a duty not to disclose the information obtained except for that purpose.
On the facts of the case in Flori, the warrant was executed and the materials seized were ‘to obtain evidence of the commission of an offence’ under section 150(1)(a) of the Police Powers and Responsibilities Act 2000. There was no suggestion that there was any abuse of process in obtaining or executing the search warrant or seizing material covered by the search warrant.
The Federal Court in Williams v Keelty, made a distinction between the validity of a warrant and the use of material or information obtained as a result of the execution of the warrant. Use of the information obtained by search warrant in relation to criminal proceedings, in civil proceedings would be considered improper. There is discussion of ‘improper purpose’, whereby his honour referred to Federal Court authority in the matter of Williams v Keelty, citing Hely J in Grollo v Macauley:
If an application for a warrant is not a bona fide application for a warrant on the grounds stated, but is made for the ulterior purpose of obtaining information to be used in legal proceedings other than the criminal proceedings contemplated by the application, the warrant will be invalid, not because it authorises interference with the administration of justice in pending legal proceedings, but because the warrant was issued for an improper purpose.
In the circumstances, there was no ulterior purpose for seeking the materials, and there was no suggestion that the Commissioner of Police had an improper purpose (such as seeking the information for the disciplinary proceedings or proceedings other than the criminal offences specified in the warrants). The validity of the warrant was not in question.
INFORMATION THAT CAN POTENTIALLY BE USED IN OTHER PROCEEDINGS
The Federal Court in Grollo v Macauley also considered the circumstance where, in the course of executing search warrants, information was discovered that could be used in pending legal proceedings. The Court held that, of itself, identifying information that could be used in other proceedings does not make the search warrant invalid. The Court considered the issue is with a person who makes ‘improper use’ of that information. The Court in Grolloconsidered it would be ‘improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant’.
In the Federal Court case of Williams v Keelty, ASIC obtained a warrant to search for and seize documents relevant to criminal offences. The Court considered that it would have been improper for ASIC to have obtained search warrants to assist it in the civil rather than the criminal proceedings. The search warrants were not issued for that purpose or for any other collateral or ulterior purpose and so were valid. However, the Court held it would be improper for ASIC to use the documents or the information obtained pursuant to the warrants other than for the criminal proceeding.
RELEVANCE OF CONSENT
The Supreme Court in ASIC v Rich also considered the admissibility in civil proceedings brought by ASIC against directors of One.Tel of material obtained in the execution of search warrants in relation to suspected criminal offences. ASIC was investigating the directors of One.Tel for both criminal and civil liability. Austin J considered that ‘if a regulatory agency had used search warrant materials during the course of an investigation (here a single investigation has criminal and civil elements) and decided to initiate a civil proceeding, care will need to be taken not to use, for evidentiary purposes or otherwise in connection with the civil proceeding, any of the search warrant materials’ . This was overcome in ASIC v Rich when the liquidators consented to the documents seized being retained by ASIC and used in civil litigation. The Court concluded that ‘the freely formed consent of the owner of seized documents to their prospective use in a proposed civil proceeding for the owner’s potential benefit is effective to remove the constraint that would otherwise prevent their use in civil proceedings’.
In ASIC v Rich, the Court summarised that the constraint upon the use of the seized materials as evidence in a civil proceeding is not itself an express statutory constraint. It is an implied limitation emerging out of the structure and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred.
APPLICATION OF LEGAL PRINCIPLES IN THE FLORI CASE
Turning to the facts in Flori again, the Court held that the only ground for the validity of the search warrant was to obtain evidence of the commission of an offence. There was no consent to the use of the seized material by Mr Flori, and the implied limitation arising from the structure and purposes of search warrant legislation was considered to apply to the use of the material seized pursuant to the search warrant.
The Court in Flori held that materials seized under warrant were only to be used for the statutory purpose for which the warrant, under which the materials were seized, was granted. That is, evidence seized pursuant to a warrant may be used in investigation and prosecution of criminal offences to which the seized evidence relates. However, the evidence was not permitted to be used in disciplinary proceedings. The application for a declaration was granted.
Although the decision in Flori is consistent with the case law in this area, the case law had not previously considered the ability to use material seized under warrant in a disciplinary proceeding. One might have thought that in disciplinary proceedings, where rules of evidence usually do not apply, there may have been justification for a departure from the line of authority. This was not the case.
KEY CONSIDERATIONS FOR REGULATORS
Issues for regulators to consider when exercising compulsory information-gathering powers, and the limits on the use of information obtained, include:
- what is the purpose of obtaining the information under the relevant statutory power?
- warrant powers should not be invoked if the likely enforcement action will be civil or disciplinary action
- if the likely action is a criminal proceeding but it is later decided to take civil or disciplinary action, it should be assumed that the material sized under warrant will be inadmissible in that proceeding unless the person concerned consents to its use.