Corbett & Anor v State of New South Wales

Corbett & Anor v State of New South Wales - [2006] NSWCA 138 - NSWCA 2006 case summary — Zoe

[24]

6 It was common ground that, in considering the validity of the warrant, there had to have been strict compliance with the legislation under which it was issued. Speaking of a search warrant issued under s 679 of The Criminal Code (Qld), the High Court said in George v Rockett (1990) 170 CLR 104 at 110-111 - "A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law , vol.10, (1938), pp 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money (1765) 19 State Tr.1001; Entick v. Carrington (1765) 19 State Tr.1029. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick , at p 1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure , (1986), pp 1-2. State and Commonwealth statutes have made many exceptions to the common law position, and s.679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation."

[99]

71 At times the submission included that the offence was contrived; more emotive words were also used. I do not think that adds to the fact that suspension of the licence was seen as a prerequisite to execution of the warrant and care was taken to first suspend it. There is no reason to doubt that Inspector Hines and Acting Inspector Jago were concerned that Mr Corbett had a firearm and, in his fraught mental health, might cause harm, including to himself. That plainly warranted suspension of the licence, and suspension prior to any search of the property. If there were reasonable grounds for the belief, they were not made unreasonable by the order of events; indeed, the police officers could have been criticised had they not taken account of the licence. In any event, the submission in this respect could not readily stand with the observations by Mason CJ and Deane and Dawson JJ in Ridgeway v The Queen (1995) 184 CLR 19 at 37, in relation to the discretion to exclude evidence - "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community."

[123]

91 His Honour's reasons included as to the second ground - "In relation to common search warrants, for example issued under s 5 of the Search Warrants Act enabling seizure of things with a view to proving offences, the Courts have required that the warrants demonstrate on their face that conditions precedent to their issue have been met, and also the possible offences with respect to which search and seizure have been sanctioned. This is seen as desirable both so that the occupier of the premises in question is well appraised of the circumstances, and also that the executing officers have as much proper information available to them as is practicable. That is not the case here. Neither the persons executing the warrants, nor the occupier, know from warrants what is to be searched for, in relation to what matter. Purpose is therefore unclear. The defendants say it does not matter because the warrants comply with the requirement in s 14 of the Search Warrants Act, that is to say they are in or to the effect of the prescribed form. Another reason that might be urged is that the purpose of providing information to occupiers is now met by the occupier's notice. … I am satisfied that the law as to what a warrant must contain has not been changed by the combination of s 14, s 15 and s 16 of the [RC] Act, cl 5 and cl 6 and Forms 5 and 6. I say that because the source of authority for entry search and seizure is the warrant itself, all involved will be or at least should be aware of its terms and just what it authorises, and in the nature of things any lack of information will not be supplied by the occupier's notice simply because not all need be aware of what it contains. The present cases are very much in point. A large number of officers were authorised to assist in the execution of the warrants. If a particular warrant was executed by two or more individuals, each of them must be told by it and accordingly know what he or she can do. The warrant must provide that information. One only person is needed to effect service of the occupier's notice. It is easy to visualise a briefing session before execution in which the terms of the warrants were made known but not the terms of the occupier's notices. In my opinion it is essential under the legislation being considered that the warrant on its face provide full information to those executing it as to purpose, that is to say what they are seeking in relation to what matter of inquiry. That is manifestly lacking here. In my opinion these warrants are bad for that reason also."

[128]

96 In Dover v Ridge (Dunford J, 3 July 1998, unreported) the search warrant again did not specify an offence. After referring to Warner v Elder, MacGibbon v Warner and Carver v Clerk of Bankstown Local Court, Dunford J said that he had - " … come to the conclusion that I am also bound by the decision of the Court of Appeal, and I am not entitled to decline to follow it merely on the ground, as appears to have been the case, that the Court may not have received detailed argument on the construction of s 14, cl 5 and Form 3: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; although for myself I have considerable difficulty with the proposition that a warrant which complies precisely and completely with the prescribed form authorised by the statute is invalid. Mr Barrie, who appeared for the first defendant has submitted, apart from the argument based on construction of s 14 and the Regulations, that the common law in relation to search warrants has been set aside by the provision of s 24 of the Act and that the general principles relating to general search warrants no longer apply. I do not need to consider this submission which he developed in some detail at length, beyond saying that decisions of the Court of Appeal, not only in MacGibbon v Warner , but in a number of other cases as well, since the Act came into force, have proceeded on the basis that, except where expressly modified by the Act, the common law rules have not been otherwise abrogated. It may be that it would be appropriate if and when occasion arose that this specific point be reconsidered by the Court of Appeal, although I express no further opinion thereon. Alternatively, representation should, in my view, be made to the appropriate authorities to have the prescribed Form 3 changed. In the meantime, it would be desirable for authorised Justices issuing warrants to add at the end of para 2, being a specification of the goods to be taken, the words, 'connected with the following offence of."

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