Black v Breen & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FRIDAY, 27 OCTOBER, 2000 030028/00 - David John BLACK - v - Frances BREEN & Anor JUDGMENT 1 HIS HONOUR: By Summons filed 11 April, 2000 the plaintiff seeks the following relief:- "1. A declaration that the search warrant, issued on 13 October 1998 by the First Defendant at the Local Court at Parramatta in respect of premises at 45 Gideon Street, Winston Hills ("the warrant") upon application by the Second Defendant, is invalid. 2. An order that the warrant be quashed. 3. A declaration that the execution of the warrant on 13 October 1998 was contrary to law. 4. Such further or other order as the Court sees fit. 5. Costs." 2 The first defendant who was, at the material time, an authorised Justice within the meaning of the Search Warrants Act 1985, has filed a submitting appearance except as to costs. 3 The second defendant, Matthew Thomas Nicholls, a Senior Constable of Police in his affidavit sworn 7 June, 2000 and in viva voce evidence at the hearing, testified that on 13 October, 1998, in the course of his duties as a member of Macquarie Theft East Squad he attended upon the first defendant who was an authorised Justice pursuant to the Search Warrants Act 1985 (the Act) and presented an Application for a Search Warrant to enter and search the premises known as 45 Gideon Street, Winston Hills. 4 These premises are described as a single storey dwelling house with garage attached. They were, at the relevant time, occupied by the plaintiff. 5 The Application for a search warrant was sworn by Senior Constable Nicholls in the presence of the first defendant. The original Application is Exhibit 1 in these proceedings. 6 Paragraph 4 of the Application is expressed in the following terms:- "(4) The grounds which I rely on are: Over the past six months the Discount Freight Express premises which are located at 53 Britton Street, Smithfield has experienced numerous unexplained thefts of goods. As a result this premises have employed Private Investigators in an attempt to locate the offenders and kerb(sic) the theft from the company. The suspect, David BLACK, 26/3/67 is an employee of the company and has previously been targeted by the company for these thefts approximately 6 months ago. Surveillance was conducted for a period of time, without any success. This surveillance was discontinued and as a result the thefts started again. On this occasion the company has again hired the services of Private Investigators and on the 13 October, 1998, the suspect was observed to pick up goods from the depot in Britton Street and deliver one set of goods to an address. The suspect has then drove (sic) his work truck to his residential address at 45 Gideon Street, Winston Hills and was observed to back his work truck into his driveway. The suspect was observed to open the rear cage of the vehicle and go into the premise (sic). A short time later he was observed to open the garage door to the premises from the inside and unloaded two large boxes from the work truck. These boxes were placed into his garage and he has left the premises. All of these incidents were video recorded. The suspect has returned to work. During the time between the suspect leaving his address and the present time the premises at 45 Gideon Street, Winston Hills has been under surveillance and the property has not bee (sic) removed. The suspect has no reason to return to his place of abode during business hours and it is not included in his job description." 7 The attendance of the second defendant upon the first defendant was arranged by telephone and upon arrival Senior Constable Nicholls handed to the first defendant a copy of the Application for a Search Warrant, an Occupiers Notice, an Authorised Justice's Record of Application for a Search Warrant and a Report from a private investigator. 8 The Authorised Justice's Record of Application for a Search Warrant is Exhibit 2. 9 The Report from the private investigator was in the form of a police statement made by a Mr Patrick Hamill, private investigator dated 13 October 1998. It was witnessed by Constable N. Rich who apparently took the statement from Mr Patrick Hamill. 10 The four documents, namely, the Application for a Search Warrant; the Occupier's Notice; the Authorised Justice's Record of Application and the police statement of the private investigator, Mr Hamill, were handed by Senior Constable Nicholls to the first defendant. 11 Senior Constable Nicholls gave evidence that "Mrs Breen looked over each document, asked me a number of questions and at the conclusion of those questions I signed the Search Warrant and received the appropriate documentation." Q. What did you actually swear to? A. That the documents I handed Mrs Breen and any verbal comments I had told her that they were true and correct. 12 It is clear from the contents of Mr Hamill's statement that it was made whilst the premises at 45 Gideon Street, Winston Hills, which were the subject of the proposed Search Warrant were being kept under surveillance by Mr Hamill's partner, a Mr Ian Robinson. It is also clear that the grounds upon which Senior Constable Nicolls relied in making the Application for the warrant, as set out in paragraph (4) of the Application were derived from the statement of the private investigator, Mr Hamill. 13 The plaintiff's claims are founded upon two contentions, the first being that the grant of the Search Warrant was invalid and the second being that the execution of the warrant was contrary to law. 14 The issue of the Warrant Section 13 of the Act provides as follows:- "13(1) An authorised Justice who issues a warrant shall cause a record to be made of all relevant particulars of the grounds the Authorised Justice has relied on to justify the issue of the warrant. (2)… (3)… 15 The plaintiff contends that the manner in which the Authorised Justice's Record of Application form has been completed is deficient so as to render the issue of the warrant invalid in that the relevant particulars of the grounds relied upon to justify the issue of the warrant have not been recorded. 16 It is necessary to consider the Record of Application in some detail. 17 The form is comprised of five numbered paragraphs and three numbered foot notes. Paragraph 1 requires the Authorised Justice to identify by way of deletion of the inapplicable answer, whether the application was made in person or alternatively by facsimile transmission or telephone, and whether the Authorised Justice was satisfied that the warrant was required urgently and whether it was or was not practicable for the application to be made in person. This paragraph is qualified by foot note 1 which is expressed in terms "delete whichever is inapplicable." Paragraph 2 requires the Authorised Justice to indicate, by way of deletion of the inapplicable answer whether there were reasonable grounds for the issuing of the warrant. Once again answering this paragraph was qualified by foot note 1 which required the inapplicable answer to be deleted. 18 Paragraph 3 is expressed in the following terms:- "The relevant particulars of the grounds on which I relied to justify the issue of the warrant are as follows: (2) Statement of P.I. tendered - supports application. No sign of break-ins on previous occasions of theft. Licence check through rego no. of work truck DB 1111 reveals address is that same as that on search wt." 19 Paragraph 3 is qualified by foot note (2) which states: "Either identify in the application the relevant particulars of the grounds or specify them. If space insufficient continue overleaf or attach separate sheet." 20 Paragraph 4 is to be completed if the warrant may be executed by night and has no application to the present case. It contains four alternative reasons (a), (b), (c) and (d) the latter being left blank no doubt to provide for circumstances which are not encompassed within alternatives (a), (b) and (c). Each of these alternatives is qualified by foot note 1 and in fact they have been struck through. Paragraph 5 provides for inclusion of the time and date of issue of the warrant which in the present case is noted as 12 midday the 13th day of October, 1998. 21 The importance of the proper compliance with s. 13(1) was the subject of consideration in Carroll & Ors v Mijovich & Ors (1991) 25 NSWLR 441. 22 The Court of Appeal in that case was dealing with an Authorised Justice's Record of Application in which paragraph 3 did not record any particulars of the grounds relied upon. The majority, Kirby P with whom Handley JA agreed held that:- (1) Failure of the Authorised Justice to record the " grounds " which he or she relied upon to " justify the issue of the warrant " as required by the Search Warrant Act 1985, s 13(1), renders the Search Warrant invalid. George v Rockett (1990) 170 CLR 104, Karina Fisheries Pty Limited v Mitson (1990) 26 FCR 473 and Parker v Churchill (1985) 9 FCR 316, applied.

(2) Where the defect is a material defect affecting validity it falls outside the terms of s. 23 of the Act. 23 Section 23 provides as follows:- 23 Defects in Warrants A Search Warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular. 24 Paragraph 3 of the Authorised Justice's Record of Application when read in conjunction with foot note (2) contemplates the alternative of either identification or specification of the relevant particulars of the grounds relied upon. 25 In my view "identification," in the context in which it is used, must be taken to include the description of a document or documents in which the particulars of the grounds relied upon are to be found. 26 The handwritten part of paragraph numbered 3 in the Authorised Justice's Record of Application identifies the Private Investigator's Report which was tendered and the Application for a Search Warrant, being relied upon as providing the relevant particulars of grounds. In my view the facts and matters disclosed in those two source documents, one being a duly witnessed police statement and the other attested to on oath by Senior Constable Nicholls, clearly constitute grounds for the granting of a Search Warrant. 27 The manner in which the Authorised Justice's Record of Application has been completed is unhelpful and perfunctory. This is obvious from the following: (a) In paragraph 1 no effort has been made to delete the

(b) In paragraph 2 once again foot note (1) has been ignored;

(c) No statement of the private investigator Mr Hamill has been annexed to the Authorised Justice's Report nor is a copy to be found in the papers subpoenaed from the Local Court. There is however no issue that the statement of the private investigator is that of Mr Hamill which is annexed to the affidavit of Senior Constable Nicholls; d) In paragraph 3 where in accordance with authority, particulars of the grounds relied upon should make plain that serious consideration has been given to the important matter at hand, which authorises incursion into private property and intrusion upon individual privacy, the briefest possible reference (including use of initials and abbreviations) has been employed to identify the grounds relied upon. 28 In Carroll v Mijovich (supra) at 457A-D Handley JA said this: "It would be reasonable to conclude that Parliament considered that performance of the duty to make a contemporary record would assist the justice to properly exercise the power and ensure that he or she did not act as a rubber stamp. In Parker v Churchill (1985) 9 FCR 316 at 322, Burchett J, in a passage approved by the High Court in George v Rockett (at 111), said: "The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs." The duty imposed by s 13(1) is similar to the duty imposed by statute on some administrative decision-makers and by law on judicial officers to give reasons for their decisions. The discipline thus imposed focuses attention on the issues for consideration and promotes rational decision-making according to law." 29 Nevertheless, I am persuaded that there has been the barest compliance with the section and that the patent deficiencies are matters of expression and form rather than of substance in a material sense and that accordingly, s 23 has application. I decline to make orders 1 and 2 as sought in the Summons. 30 The second contention in support of the Summons i.e. that execution of the warrant was contrary to law, may be dealt with shortly. 31 The Occupier's Notice associated with the issue of the Search Warrant in these proceedings is annexure D to the affidavit of Senior Constable Nicholls. The notice is a two page document which is headed "Occupier's Notice for a Part 2 Warrant, important information for occupiers, concerning the Search Warrant." At the foot of the first page under the heading "issue details" is recorded the fact that the Search Warrant was granted by the first defendant, an Authorised Justice under the Search Warrants Act 1985 on 13th day of October 1998 at, followed by a blank space. 32 Form 5, in Schedule 1 of the Search Warrant Regulations 1994 makes plain that the blank space provided after the date of grant of the warrant is for insertion of the time of the grant. 33 In some circumstances the time of the granting of the warrant may be of a critical significance. Such a situation may arise where the issue of a warrant is sought at a time subsequent to the discovery of goods or other items which may be suspected of being associated with criminal activity. 34 In the present case the time of issue of the Search Warrant is recorded in the Authorised Justice's Record of Application which is a document available for inspection by the persons affected by the issue of the warrant. In the circumstances of this case I would regard the failure to complete the time of grant of the Search Warrant to be an irregularity to which s 23 of the Act has application. However, of more significance is the fact that at the time of execution of the warrant Acting Inspector Whatson of Parramatta Police Station who attended with other police officers at 45 Gideon Street, Winston Hills to act as an independent officer for the purposes of execution of the Search Warrant handed to the plaintiff the first page of the Occupier's Notice, but inadvertently left with Constable Rich the second page of the notice. I accept that this was done purely by way of oversight on the part of the police officers. Page 2 of the Occupier's Notice sets out under appropriate headings the basis for the issue of the warrant; the entitlement of the occupier to challenge the issue of the warrant or the conduct of the search; the limitations on the powers conferred under the Search Warrant and the occupier's entitlement to inspection of the Application for the Search Warrant, the written reasons for the issue of the warrant and other associated documents held at the Local Court of issue. 35 In Carroll v Mijovich (supra) Kirby P, in his comprehensive review of the history of the introduction of the 1985 Search Warrants Act had reference to the Second Reading Speech of the then Attorney-General (Mr T. Sheahan) and at 448D said this:- "Another of the major reforms introduced was the obligation to provide the occupier with a Notice of Rights.".

The Minister went on (at 3860):- "…This notice will be given to every occupier of premises subject to search under a valid warrant. The notice will contain details concerning the reason for the search and the nature of the powers conferred by the warrant. The language of the notice will be plain so as to enable the occupier to check that the warrant has been properly issued. The notice will contain advice in relation to seeking legal assistance should the occupier be dissatisfied with any aspect of the search. The occupier will keep this notice. While introducing the idea of an occupier's notice, the bill preserves the requirement to show the original warrant." 36 It is not to the point that the plaintiff may have said that he did not wish to read the warrant or even the Occupier's Notice. The integrity of the execution of the warrant depends upon the performance of the various duties including that of furnishing the occupier with the Occupier's Notice which on the face of it recognises that it contains "important information for occupiers concerning a search warrant". 37 The failure of the police officers to hand to the plaintiff the complete Occupier's Notice means that the execution of the warrant on 13 October 1998 was contrary to law. Accordingly, as requested in paragraph 3 of the Summons, I make a declaration that the execution of the warrant on 13 October 1998 was contrary to law. I shall hear submissions as to costs. **********

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