Warrant used in raid of alleged Chinese pilot trainer ‘invalid’, court hears

A police raid on the home of a former pilot, investigated over alleged training of Chinese military, should be thrown out, court told.

Keith Hartley – another Australian-based former RAF fighter pilot being investigated for training Chinese fighter pilots.

An Australian Federal Police raid on the home of a former fighter pilot who is being investigated for his involvement in the alleged training of the Chinese military should be declared invalid due to the “debilitating ambiguity” of the warrant used, a court has heard.

Keith Hartley has lodged a Federal Court filing to seek an order that the warrant used to search his Adelaide home last year be deemed void and an injunction preventing the AFP from “accessing, reviewing, divulging” the seized material.

On Friday, the court heard the warrant used for the search was invalid because it did not clearly stipulate a specific offence for which the former pilot was being investigated, and was unable to be understood by Mr Hartley or the officers performing the raid.

“The reader (of the warrant) cannot discern if my client has provided training or facilitated training. The reader cannot discern the meaning of key phrases, and how they relate to the statutory offence,” lawyer Craig Lenehan said.

“That is why we say, putting that all together … one reaches the conclusion of invalidity.”

Keith Hartley – another Australian-based former RAF fighter pilot being investigated for training Chinese fighter pilots.

Mr Hartley, 73, is being investigated by authorities for his role as chief operating officer of controversial South African company Test Flying Academy of South Africa (TFASA), which is at the centre of a “threat alert” warning issued by the British Ministry of Defence lOctober.

The former RAF top gun, who flew with the call sign “Hooligan”, was reportedly a target of the warning issued against retired British fighter pilots training the Chinese military.

Mr Hartley’s Adelaide Hills home, 40 minutes east of the CBD, was raided by the AFP in November after a search warrant was granted by a South Australian magistrate.

Mr Lenehan said the search held similarities to the controversial raid performed by the AFP on the home of Canberra journalist Annika Smethurst in June 2019, using the case as precedent for why the warrant should be ruled invalid.

The Smethurst raid was prompted by an April 2018 report on a “top secret” memo leaked from within the Department of Defence. All six High Court justices ruled the warrant authorising the search of Smethurst’s property failed to meet the most basic legal requirements.

“(The warrant) fails clearly to state the nature of the offence in question,” Mr Lenehan said. “The identification of a protective purpose is achieved by ensuring (the subject) understands what is the object of the search.”

But counsel acting for the police Perry Herzfeld said the Smethurst case “didn’t change the law, it applied the law”, and was an “extremely bad” warrant in a “complicated” case.

“This complaint is worlds away from the complete dog’s breakfast of Smethurst,” he said.

He said the reason for the warrant was clearly stated, claiming the warrant stipulated Mr Hartley “provided the training by organising and facilitating it.”

“There is no debilitating ambiguity here,” Mr Herzfeld said.

While Mr Lenehan argued the language used in the warrant was confusing to the layman and could only be understood by people with military expertise, Mr Herzfeld said there was nothing “vague” about it to Mr Hartley.

“In Mr Hartley’s description on (the TFASA) website, it says he had extensive experience in all aspects of aero systems, many years working in military and industry, many years in test flying and training,” Mr Herzfeld said.

“It’s just unthinkable that the applicant would have had any difficulty in understanding what was meant (in the warrant).”

As Mr Hartley’s court battle continues, the US seeks the extradition of his friend, former US marine pilot Daniel Duggan, on charges relating to training Chinese pilots.

Upsized – Pictured is Daniel Duggan, his former business was Top Gun Tasmania (Australia).

Mr Duggan, previously a US citizen, has been an Australian citizen since 2012 and a permanent resident since 2002.

The father of six, was sensationally arrested by police in October – without charge – at the request of the US government and has spent almost six months in a cell adjacent to convicted Islamic State terrorists in Silverwater prison.

Additional reporting: Liam Mendes