AFP accused of misleading magistrate
UPDATED: The Australian Federal Police was guilty of either "sharp practice or gross incompetence" when it sought to raid the headquarters of Seven West Media over its rumoured deal with Schapelle Corby, the Federal Court was told today.
Dramatic fallout from the botched armed raids played out in a Sydney court with lawyers for both Seven West Media and Corby’s sister, Mercedes, accusing the AFP of seriously misleading a magistrate, making false allegations of criminal conduct and relying on little more than "Google searches" in its effort to secure warrants that saw more than 30 armed officers descend on the company two-and-a-half weeks ago.
As lawyers for an embattled AFP sought to defend the paperwork it used to secure the operation’s approval, Justice Jayne Jagot said: "You don’t have to be overly scrupulous when reading this document to find an error."
The epic court battle between the country’s national police force and its biggest TV network revolves around documents used by the AFP to convince a Sydney magistrate to approve the unprecedented raids.
Seven West Media lawyer Andrew Bell told the court that there were "serious allegations" to be made against the AFP, which had "jumped the gun" on rumours surrounding Corby's release and misled a magistrate so it could raid the company.
He said the February 18 raids on the headquarters of Seven West Media and the offices of Sunday Night and New Idea had blindsided Seven West Media, which at the time had been co-operating with the AFP over a production order seeking evidence of a deal Corby was rumoured to have signed with the company.
At 11.50am the day before the raids, the AFP wrote to Seven West Media's lawyer Justine Munsie, raising questions over two documents the company had already provided.
It gave Seven West Media until close of business to produce more documents.
But at 3.55pm, it fronted a magistrate with a single affidavit from one of its officers that "defied credibility" and obtained warrants to search the company and the home of a senior lawyer from Addisons, the law firm retained by Seven West Media.
Dr Bell said the magistrate who approved the raids was wrongly told Seven West Media had failed to comply with the production order. He was also kept in the dark about further discussions with Seven West Media, of the documents that had already been given and, "critically", was not told that the AFP had granted Seven West Media an extension of time.
Seven West Media staff, Addisons lawyers and residents of a private home were also listed on the AFP's documents as being suspected of a criminal offence, a claim the AFP subsequently agreed was wrong.
The claims could not be "blithely passed off as a clerical error", Dr Bell said, as the AFP had since sought to do.
He said the search warrants appeared to have been pushed through as a "job lot" and the magistrate who signed them had been "misinformed" by the AFP into granting "invasive orders carrying serious penal consequences".
"One has to wonder whether he (the magistrate) was presented with a draft order with post-it 'sign here' notes," Dr Bell said.
He said no magistrate who had given proper consideration to what was in the orders would have signed them.
"Who knows whether the conduct revealed in this case is typical (of the AFP)," he said.
Dr Bell said the AFP had great powers and "with these great powers comes great responsibility".
He stressed that neither Seven West Media nor Schapelle Corby would have been committing a crime if a paid deal for an exclusive interview had been done. The seizure of literary proceeds under Proceeds of Crime legislation was a civil, not criminal, matter.
"(But) these orders didn't just permit searching of a premises (but) frisking of an individual, use of force, seizure of documents not described in the warrant and they permit the taking of fingerprints ... what would otherwise be assault and battery of individuals, all of it backed by the sanction of imprisonment for non-compliance," he said.
Ms Corby's lawyer, Sue Chrysanthou, said that the office of Mercedes Corby's lawyer, Bill Kalantzis, was raided on the same day as Seven West Media.
He was forced to divulge his passwords and his computer was "literally broken into".
Ms Chrysanthou told the court that the AFP had a "modus operandi" where it would copy the entire contents of a person's computer and hard drives, without reference to what was covered by a search warrant.
In a "draconian" process, the onus then fell on the person raided to go to the AFP office, get a copy of the seized drive, go through the thousands of files it contained and make individual applications on why certain files fell outside of the scope of the warrant.
She said Mr Kalantzis' office was raided and his computer hard drive seized even though he was not acting, and had never acted, for Schapelle Corby and wouldn’t be the subject of any civil action to recover literary proceeds of crime.
She said the AFP had presented no evidence to the magistrate to secure its warrant beyond basic "Google searches" of inaccurate media coverage.
She said it had summarised five news articles about Corby's release with the line: "It is reported that Channel Seven has secured an exclusive interview with Schapelle Corby suspected to be worth as much as $3 million."
"That's a fact that didn't exist," Ms Chrysanthou told the court.
"There was no agreement with Schapelle Corby and there was no agreement with Schapelle Corby worth millions of dollars."
She said the AFP affidavit presented to the magistrate to secure the warrants was full of falsehoods.
"(It says) 'We sought documents, some have been produced, the process is over (and) the production was indequate'," she said.
"That is false."
Ms Chrysanthou said that an AFP officer had assured the magistrate that only documents covered by the warrant would be seized but he was making a "false promise".
"He knew that's not what the AFP does," she said.
She said that when Mr Kalantzis' office was raided, an AFP officer was challenged on the fact that the documents used had listed him, Mercedes Corby and others as having committed a criminal offence but the officer told him: "There is nothing to worry about ... you are not suspected of an offence."
Ms Chrysanthou said that with so many people wrongly listed as "suspects" in the AFP's paperwork, the magistrate who granted the orders could well have assumed that the AFP had carried out a "substantial investigation", when it had not.
She said on top of that, the AFP had also falsely given the impression that Seven West Media and Mercedes Corby had tried to hide money by saying that a signed agreement between them made no mention of payment.
But the agreement, which had been given to them by Seven West Media, had listed various forms of payment including accommodation and security and hair and make-up, at Seven's cost. There was also an agreement relating to the promotion of a book.
"I think the description by my learned friend to incompetence (by the AFP) is generous," she said.
"When you take out the false facts in the affidavit, there is nothing left in the affidavit."
Lawyer for the AFP, Geoffrey Watson, said that for Seven West Media and Ms Corby's argument to be right, any misrepresentation by the AFP would have to be material, "even if we were wrong".
He said the consequences of their court action succeeding were great.
"Who can determine what is and isn't material," he said, arguing if it would be something that would have to be left to the courts.
"What appears to the law enforcement officer as material might be different to another person."
Mr Watson said there "may have been an error ... no more than a casual error" in the AFP’s application to secure the warrants but said the magistrate had other evidence on which he could base his decision.
He also rejected Seven West Media's argument that the raids were carried out against an agreement with the AFP for an extension of time to comply with the earlier, separate production order.
"Whatever happened under that production order was one thing, but a separate decision was made to obtain a search warrant," he said.
Justice Jagot reserved her decision.
