NSWSC 422
Bropho v Western Australia (1990) 171 CLR 1
HCA 24
Carroll v Mijovich (1991) 25 NSWLR 441
Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441
FCAFC 94
Coco v The Queen (1994) 179 CLR 427
HCA 15
Eccles v Bourque (1974) 50 DLR (3d) 753
George v Rockett (1990) 170 CLR 104
Source
Original judgment source is linked above.
Catchwords
NSWSC 422
Bropho v Western Australia (1990) 171 CLR 1HCA 24
Carroll v Mijovich (1991) 25 NSWLR 441
Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441FCAFC 94
Coco v The Queen (1994) 179 CLR 427HCA 15
Eccles v Bourque (1974) 50 DLR (3d) 753
George v Rockett (1990) 170 CLR 104HCA 26
Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384FCAFC 392
Halliday v Nevill (1984) 155 CLR 1HCA 80
Karout v Stratton (2007) 180 A Crim R 154NSWSC 1034
Landry (1986) 26 DLR (4th) 368
Lippl v Haines (1989) 18 NSWLR 620
MacDonald v Beare (1904) 1 CLR 513HCA 22
New South Wales v Corbett (2007) 230 CLR 606HCA 32
Ousley v R (1997) 192 CLR 69HCA 49
Plenty v Dillon (1991) 171 CLR 635HCA 5
Potter v Minahan (1908) 7 CLR 277HCA 63
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355HCA 28
R v Austin (No 2) (2010) 5 ACTLR 70NSWCCA 193
Semayne's case (1604) 5 Co. Rep. 91a at p 91B
Judgment (15 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Plaintiff)
Aboriginal Legal Service (Defendant)
File Number(s): 2015/287349
[2]
Judgment
On 1 October 2015 the plaintiff filed a Summons and appeals pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 from a decision of his Honour, Magistrate Heilpern in the Lismore Local Court dated 10 July 2015, dismissing two charges brought against the defendant for the offences of hindering a police officer in the execution of duty (contrary to s 546C of the Crimes Act 1900) and assaulting a police officer in the execution of duty (contrary to s 58 of the Crimes Act 1900).
The Summons was supported by the affidavit of Ryan James Thomas, solicitor, affirmed 30 September 2015. The affidavit annexed copies of the Court Attendance Notices and Coversheet in relation to the alleged offences (Annexure A).
Exhibited to Mr Thomas' affidavit and marked "RT-1" is a copy of the transcript of 10 July 2015 in the proceedings in the Lismore Local Court.
A copy of the search warrant dated 11 November 2014, admitted into evidence in the proceedings as Exhibit 1 was annexed to Mr Thomas' affidavit (Annexure B).
Magistrate Heilpern dismissed the charges on the basis that he was not satisfied beyond reasonable doubt that the officer in question, Senior Constable Gulliver, had been acting in the execution of his duty. His Honour held that the officer had failed to comply with s 69 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) by failing to produce a search warrant for inspection immediately upon request by the defendant, who resided at the premises that were to be searched.
The officer gave evidence that, before approaching the premises, he intentionally left the warrant in his police vehicle that was parked in front of the premises as he said he wanted to have his hands free in the event of a confrontation which he thought could occur. His evidence is detailed below. Despite the defendant repeatedly requesting the warrant, the officer informed her that he would produce the warrant once the premises were secure. A physical altercation then ensued, during which it was alleged that the defendant committed the charged offences upon the officer.
The Summons relies upon the following grounds of appeal:
On the hearing of the summons it will be contended that Magistrate Heilpern erred in law by:
(1) Erroneously finding that s 69 of the Law Enforcement (Powers and Responsibilities) Act 2002 requires a person executing a search warrant to produce the warrant for inspection immediately upon request.
(2) Dismissing the matter.
The plaintiff in its Written Submissions filed 29 January 2016 submitted that the duty to produce a search warrant upon request in s 69 of LEPRA does not require immediate production but rather it must be complied with as soon as is reasonably practicable. The plaintiff submits that this is consistent with the Full Federal Court's approach in Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441; FCAFC 94 regarding a similar section of the Crimes Act 1914 (Cth) and the subsequent adoption of such an approach by his Honour Judge Lakatos in respect of s 69 in R v Hadife (District Court of NSW, 2009/202062, 26 July 2011, unreported).
The defendant in its Written Submissions filed 8 March 2016 accepted that the Magistrate erred in approaching the construction of s 69 of LEPRA as requiring the immediate production of a search warrant, upon a request for the production of the same, in all cases irrespective of the circumstances. However, the defendant's submission was that s 69 should be construed as requiring immediate production upon request, except in exigent circumstances. The defendant contended that this accords with the approach taken by the Supreme Court of Canada in Eccles v Bourque (1974) 50 DLR (3d) 753 regarding the obligations of police to announce themselves prior to entry and the subsequent adoption of that approach by the NSW Court of Appeal in Lippl v Haines (1989) 18 NSWLR 620 and the ACT Supreme Court in R v Austin (No 2) (2010) 5 ACTLR 70; ACTSC 136.
In the event that the appeal is allowed, the plaintiff submits that the matter should be remitted to the Local Court. Though not expressly stated in the defendant's written submissions, the defendant did not expressly oppose that proposition (T 3:11-14).
[3]
Background Facts
The relevant search warrant was executed on 11 November 2014.
That day, Senior Constable Graham Gulliver, attached to the Richmond Target Action Group in Lismore, along with five or six other police officers, attended the premises, a house in Goonellabah, to execute the warrant. The defendant was a resident of the house.
The warrant authorised police to search the premises for specified clothing and bottles of alcohol connected to a robbery during which the victim of the offence, an employee of a liquor store, was alleged to have been hit in the forehead with a bottle, producing a large wound.
There had been many previous unrelated occasions on which the defendant had resisted and refused entry to police who were attending the premises for the purpose of general enquiries and bail compliance checks.
[4]
The Evidence in Chief
Senior Constable Gulliver stated that police were investigating an aggravated robbery offence and police attended the premises in Goonellabah, on 11 November 2014 in order to execute the search warrant. He stated that police were looking mainly for clothing and "associated items".
He said that he arrived at the premises about 11:30am. He was in the company of a number of police officers. He and a fellow police officer walked towards the premises. They were dressed in plain clothing.
He said he had his badge out as he approached. He was also carrying a "jimmy" bar in his left hand.
The police officer who accompanied him as he walked towards the premises carried a ram which was to be used to gain entry, if necessary.
Senior Constable Gulliver said that he had prior experience with the defendant. He said he believed that entry might be refused to police and as a contingency police were prepared for entry by force.
He said that on previous occasions she had acted in a hostile manner and refused entry into the front yard of her premises. He said that she had talked through a closed door or window. He said police were usually met with abuse from her.
In respect of prior incidents involving the defendant, he said that such incidents were "resisting type of incidents" - not allowing entry to the house, not producing the person referred to as CR for bail compliance checks and he said she had called out abuse to police. He said on a prior occasion he had seen her assault police.
In relation to the search warrant he said he intentionally did not take it with him as he walked towards the house. He said that he decided not to do so because:
1. He wanted to have both hands free if some sort of confrontation occurred, which he expected might occur; and
2. That if there was a confrontation, based on past experience, he said the search warrant would probably be ripped up by the defendant. However, he qualified that statement. He said that prior occasions at the premises in question did not involve the execution of search warrants. He said that whilst she had resisted in the past she had not previously ripped up documents that he had issued to her.
As he and his fellow police officer approached the house he said he placed his wallet and ID back into his pocket so that he would have one hand free.
[5]
Cross-Examination
In cross-examination, Senior Constable Gulliver said that he was concerned that the items that they were seeking, in particular, the clothing, may have been destroyed or contaminated if police were unable to secure them in a timely manner: T 16.
Before he approached the house he said that there were a number of police officers present. He said that normally police take six or seven officers for a search warrant execution and that that number were present on the day in question.
He agreed that on the day of the execution of the warrant he made a conscious decision to leave the search warrant in the car.
He said two uniformed officers went to the rear of the premises and the other officers were behind in the front yard somewhere.
When asked about the possibility of folding the search warrant and placing it in his pocket, he replied:
"A. Folded you could your Honour. I don't normally like to fold up search warrants."
When asked by the Magistrate whether there was any particular reason that he did not like to fold search warrant documents, he replied:
"A. Personal preference. I have the search warrant in a folder, in a folder that I take with me with other documents including the occupier's notice because it's not just a search warrant, you've got other documents too."
He said he decided to leave the documents in the car despite knowing that the defendant was someone who had, on previous occasions, not been willing to allow entry to the property. He said that he believed there would be some resistance to the police entering. He said the search warrant was in a hard folder which was not able to be folded up: T 19.
In evidence he said that "we" (meaning police) were not under an obligation to produce the warrant at that time, or the occupier's notice.
He said that police were under an obligation under "the legislation" upon request and the occupier's notice "at the time or as soon as practicable".
He subsequently said that producing the warrant:
"…at the time which is always the best way. That's the way we would rather do it but if there is officer safety issues, I'm certainly not going to have both hands full and place myself at risk so in that respect you would be producing the search warrant and the occupier's notice at the first practicable stage when the premises is secure and there is no further safety issues with the officers or any other persons present": T 20.
[6]
Legislation
LEPRA has been amended since the day in question (11 November 2014). Subsections (5) to (8) have since been omitted from s 67. At the time the warrant was executed, the relevant provisions were in the following terms:
67 Notice to occupier of premises entered pursuant to warrant
(cf Search Warrants Act 1985, s 15)
(1) An eligible issuing officer is to prepare and give an occupier's notice to the person to whom the eligible issuing officer issues a warrant.
(2) An occupier's notice:
(a) is to be in the form prescribed by the regulations, and
(b) must specify the following:
(i) the name of the person who applied for the warrant,
(iii) the date and the time when the warrant was issued,
(iv) the address or other description of the premises the subject of the warrant, and
(c) must contain a summary of the nature of the warrant and the powers conferred by the warrant.
(3) An occupier's notice under this section may be served personally or in such other manner as the eligible issuing officer who issued the warrant may direct.
(4) Time for service of notice-warrant other than a covert search warrant A person executing a warrant other than a covert search warrant must:
(a) on entry into or onto the premises or as soon as practicable after entry, serve the occupier's notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or
(b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of the premises within 48 hours after executing the warrant.
(5) If an occupier's notice cannot practicably be served on a person in accordance with subsection (4) (b), the eligible issuing officer who issued the warrant may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the occupier's notice to the attention of the occupier.
(6) An order under subsection (5) may direct that the occupier's notice be taken to have been served on the occupier on the happening of a specified event or on the expiry of a specified time.
(7) Service in accordance with an order under subsection (5) is taken to constitute personal service for the purposes of subsection (4).
(8) Time for service of notice - covert search warrant
A person executing a covert search warrant must serve the occupier's notice on the person who was the occupier of the subject premises at the time the covert search warrant was executed as soon as practicable after the warrant is executed, unless the service of the notice is postponed under section 67A. (emphasis added)
[7]
The Local Court Decision
Magistrate Heilpern gave an ex tempore judgment dismissing the charges. He acknowledged the difference in the legislation between the treatment of an occupier's notice (s 67) and a search warrant (s 69) but stated that the logical basis for such difference was not apparent to him. In the course of delivering reasons, the learned magistrate observed:
"But despite that lack of logic, there is a clear legislative distinction that is with the greatest respect to the officer different than the evidence that he gave and that is the service of the occupiers notice must be done as soon as practicable, if not immediately. I am not going to delve into that issue except to say this, if that were the only issue in this case, given the safety issues, I would be minded to find in favour of the prosecution. I say that only on the execution of duty issue but of course there is another issue as well which is s 138. And as I say I do not need to into [sic] because that in my view is a subsidiary issue but I would be minded on the basis of the evidence so far heard before me to find that it was best practice and it was the most practical solution to secure the premises prior to the service of the occupiers notice in those circumstances.
I say that because of the obvious contention that was made by the police officer and I think genuinely there was concern for the destruction of evidence by way of fire or otherwise. That he was concerned and he had an overriding concerned [sic] for police safety which is fear enough [sic]. Not just fear enough [sic] but it is his duty and obligation is to the officers [sic] that are with him as well as his own safety and quite clearly parliament has given police an out, if you like, from immediate service to deal with issues of practicality in terms of occupiers notices.
But what they have done and this is reflected in the original legislation, the 1985 legislation and at common law is that the warrant must be served immediately. But not just in any event, but it must be served when requested or if requested. So section 69 has no as soon as practicable requirements or let out clauses for police actions. What they must do is comply. A person executing a search warrant other than a covert search warrant must produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier." (T 33:14-43)
His Honour considered himself as bound by a series of cases including Plenty v Dillon (1991) 171 CLR 635; HCA 5 and Ballis v Randall (2007) 71 NSWLR 282; NSWSC 422, regarding the requirements of search warrants. His Honour concluded that leaving the warrant in a police vehicle risks a significant breach of s 69 of LEPRA if a resident of the premises is savvy enough to ask for a copy. Accordingly, he was not satisfied beyond a reasonable doubt that Senior Constable Gulliver was acting in execution of his duty.
[8]
Plaintiff's Submissions
Grounds 1 and 2 to the Summons were the subject of the plaintiff's written submissions prepared by Ms Davidson of counsel dated 29 January 2015 at [11]-[36].
It was observed that his Honour contrasted the requirement of s 69 with s 67(4) in relation to occupier's notices.
It was observed that s 69 is found within Division 4 of Part 5 of LEPRA. Sections 60-66 address procedural requirements leading to the issue of a search warrant while s 67 concerns occupier's notices. Section 68 imposes obligations on persons executing a search warrant before entry. The purpose of the duties in ss 67 and 68, it was noted, is to inform an occupier of his or her rights and enable him or her to act in a manner which minimises the prospect of any damage or distress: R v Hadife, supra, at p 4.
Reference was made in the submissions to the requirement for strict compliance with procedural safeguards in legislation governing search warrants with reference made to the High Court's judgment in George v Rockett (1990) 170 CLR 104 at 110-111; HCA 26 and to the observations of McHugh J in Ousley v R (1997) 192 CLR 69; HCA 49 (in which his Honour contrasted the position at common law and that under s 16 of the former Search Warrants Act 1985 (the predecessor to s 69 of LEPRA) with the position under s 3H(1) of the Crimes Act 1914 (Cth)). The latter requires, if a warrant is being executed in relation to premises in which the occupier or someone else representing the occupier is present that "the executing officer or a constable assisting must make available to that person a copy of the warrant". McHugh J in Ousley, it was noted in the plaintiff's submissions, observed at 112:
"Recognition is given to the importance of enabling persons whose rights of privacy stand to be affected to satisfy themselves of the authority for such action, as emphasised by Lord Wilberforce in Rossminster [1980] AC 952 at 1000:
'The person affected, of course, has the right to be satisfied that the power to issue [the warrant] exists: therefore the warrant should…contain a reference to that power.'"
It was noted in the submissions that his Honour added that:
"A requirement for disclosure of jurisdiction is easily understood in relation to search warrants."
Reference was also made to the observations of Kirby J as to the reasons underlying the "rule of strictness" in relation to search warrants, in New South Wales v Corbett (2007) 230 CLR 606 at 612; HCA 32: at [22].
[9]
Defendant's Submissions
The defendant's written submissions stated the defendant's position in relation to the issues raised as follows:
The Defendant's position
It is accepted that the Magistrate approached the construction of s 69 as requiring the immediate production of a search warrant, upon a request for the production of the same, in all cases irrespective of the circumstances.
It is accepted his Honour erred in construing s 69 in that manner.
The defendant contends that s 69 should be construed as requiring an executing officer to immediately produce the search warrant for inspection, upon request to do so by the occupier, except in exigent circumstances.
The defendant's submissions adverted to evidence given at the hearing before the Magistrate. The evidence, it was contended, established that the executing officer of the search warrant intended to initially enter without serving the occupier's notice or being able to immediately produce a copy of the warrant for inspection if requested to do so. In this respect it was stated "he consciously left both documents in a folder in his car": at [7].
When the executing officer approached the front entrance in the company of another plain-clothed officer, two uniformed officers were at the rear of the house and another two officers were at the front. All exit points were blocked: at [8].
It was submitted that accepting that each matter turns on its facts, this was not a case of police searching for drugs or substances that could be easily disposed of (as was the case in R v Austin (No 2), supra) or weapons or firearms (as was the case in R v Hadife).
The submission was that there was nothing preventing the officer from carrying a copy of the warrant and/or the occupier's notice, folded, in one of his pockets as he approached other than his practice of not wanting to fold warrants and his "personal preference" of keeping those documents in his folder (T 18): at [10].
It was further noted that the defendant opened the main door in response to police calling out "police search warrant". She did not abuse any officer at that point. Her request to see the warrant before the officers, who were at her front door holding a jimmy bar and battering ram, entered her house is neither surprising nor remarkable: at [11].
The submissions conveniently then set out the relevant provisions, in particular, ss 67, 68 and 69 of LEPRA and extracts from the reasons of the learned Magistrate: at [16]-[18].
[10]
CONSIDERATION
It is common ground between the parties that Senior Constable Gulliver did not, before entering the premises, produce the warrant for inspection by the defendant (or any other occupier of the premises). After the scuffle occurred between the defendant and Senior Constable Gulliver, he entered the premises in order to secure it. Having done that, he subsequently returned to his vehicle to obtain the search warrant. Following his return to the house he produced it to the defendant.
The question as to whether at the time police entered the premises, but before the warrant was produced, the police officers executing the warrant were lawfully upon the premises, turns upon the construction and application of the provisions of s 69.
Shortly put, as earlier noted, it was argued on behalf of the plaintiff that the duty in s 69 must be read as one which is to be complied with "as soon as reasonably practicable" as against the approach taken by the Magistrate which meant that an officer would no longer be acting in the execution of his duty in executing a search warrant if he or she did not immediately produce the search warrant in response to a request from an occupier.
The defendant's position was, as also earlier stated, that the Magistrate's construction of s 69 as requiring immediate production of a search warrant in all cases, irrespective of the circumstances, was erroneous. Rather, the contention was that the duty under s 69 binds an executing officer to immediately produce the search warrant for inspection upon request by an occupier "except in exigent circumstances". What amounts to exigent circumstances is discussed below. As is stated below, I am of the opinion that the exigent circumstances construction is the correct formulation.
The issues in these proceedings are centred upon a determination as to the following:
1. Whether the duty arising under s 69 is subject to an exception that is properly formulated either in terms stated "as soon as reasonably practicable", or whether the exception only arises in "exceptional circumstances";
2. What type of circumstances constitute such an explanation, however expressed; and
3. Whether, at the time the defendant requested production of the search warrant, there were circumstances capable of falling within the exception to s 69, as defined in one or other of the two alternative formulations expressed in (1) above.
[11]
Principles
The principles that apply to search warrants, including in particular the rule of strictness, provide a starting point for the construction issue raised in the present proceedings. The High Court has long insisted on a rule of strictness in expressing the law governing search warrants: MacDonald v Beare (1904) 1 CLR 513 at 522 per Griffith CJ; HCA 22. The rule of strictness, it has been observed, is reflected both in legislative provisions governing search warrants and in judicial expositions of their requirements: New South Wales v Corbett, supra, at [21] per Kirby J. In that case, his Honour identified the following five reasons that lie behind the rule:
(1) The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people;
(2) The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures;
(3) The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures;
(4) The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and
(5) The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.
The rule of strictness accordingly informs the requirement for precision and accuracy required in applications for, and the issue and execution of, search warrants.
In the joint judgment of the Justices in George v Rockett, supra, it was stated that State and Commonwealth statutes have made exceptions to the common law position which place limitations on the power of entry and search based on the rights of private property. Nevertheless the Court observed that in construing such statutes it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which it went to great lengths to protect. The Court stated at p 111:
"…Against that background, the enactments 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 those interests." (emphasis added)
[12]
LEPRA Provisions
Whilst the issue of statutory construction in the present case concerns the provisions of s 69 it is necessary to consider that section not in isolation, but in the context of companion provisions contained within Division 4 of Part 5 of LEPRA. In that respect I note the following:
First, s 67 imposes, inter alia, an obligation of a person executing a warrant, other than a covert search warrant, on entry into or onto premises, or as soon as practicable after entry, to serve an occupier's notice. The provisions of s 67 are set out above at [48].
Second, s 68 imposes a duty on the person executing a warrant, before any of the persons executing the warrant enters the premises to, inter alia, announce that the person is authorised by the warrant to enter the premises. The provisions of s 68 are set out above at [49].
Third, s 69 places a person executing a warrant (other than a covert search warrant) under a duty to produce the warrant for inspection by the occupier of the premises. Section 69 is also set out above at [49].
In respect of ss 67, 68 and 69, the obligation imposed by each of those sections arises at specified points in time. Thus an occupier's notice must be served in accordance with s 67(4) "on entry into or onto the premises" or "as soon as practicable after entry".
The obligation under s 68 to make the announcement therein referred to, arises "before any of the persons executing the warrant enters the premises".
Under s 69 there is no specified point in time at which the obligation arises. Instead it arises on the occurrence of the specified event, namely, "…if requested to do so by the occupier". Accordingly, that obligation may arise, depending upon when the request is made, before, at the time of, or after entry onto the premises. In the present case the evidence is clear. The request made by an occupier of the premises, the defendant, was made of Senior Constable Gulliver before police executing the warrant entered the premises. According, on the facts established in evidence before the Local Court, Senior Constable Gulliver was under a duty to show the warrant in accordance with s 69 once the request was made by the defendant.
The issues in these proceedings turn upon a consideration of the relevant legislative provisions in Part 5 of LEPRA and the implications or significance of any non‑compliance with the requirements of s 69. In particular the question arises as to whether the execution of the search warrant in this case was rendered unlawful because of non-compliance with s 69.
[13]
The Obligation Under Section 69 to Show Warrant
The obligation arising under s 69 to produce a warrant for inspection by an occupier of the premises, as noted above, arises upon the occurrence of, and at the time of, the stipulated event, namely, "if requested to do so by that occupier": s 69.
In comparison, the provisions of s 3H(1) of the Crimes Act 1914 (Cth) imposes an unqualified obligation. The section is in the following terms:
"If a warrant in relation to premises is being executed and the occupier of the premises of another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant."
In Oke, supra, the Court stated that the correctness of the proposition that an obligation arising under s 3H(1) could be fulfilled at any time during the period that the warrant "is being executed" was doubted by Branson and Lindgren JJ. Their Honours at [44] stated:
"We consider it appropriate to record, however, that we doubt the correctness of the contention of the Commissioner that the obligation arising from s 3H(1) is an obligation that may be fulfilled at any time during the period that the warrant 'is being executed'. Acceptance of this proposition would mean that the copy warrant could lawfully be made available to an occupier who is present at the premises throughout the execution of the warrant only minutes before the execution was completed. Such a construction of s 3H(1) would largely undermine the apparent purpose of the subsection (see [34] above).
Although s 3H(1) is differently worded in that it imposes an obligation of an unqualified kind in contrast to the provisions of s 69 of LEPRA, the rationale for s 69 (like that in relation to s 3H(1)) indicates that the obligation to produce of a search warrant for inspection immediately arises at the time or the event stipulated in the relevant statutory provisions.
Their Honours, Branson and Lindgren JJ further observed at [45]:
"Although we do not express a concluded view on the question, we incline to the view that the obligation to make a copy of the warrant available to an occupier who is present at the premises arises at the commencement of the execution of the warrant; that is, immediately the warrant 'is being executed'. The obligation then arising, as we are inclined to think, is one that must be satisfied as soon as reasonably practicable. If the executing officer faces violence or other serious difficulties at the commencement of the execution of the warrant, it may not be reasonably practicable for a copy of the warrant to be made available to the occupier ahead of responding to the violence or other difficulties. However, whether or not a copy of the warrant has been 'made available' to an occupier is ultimately a question of fact. At least in circumstances where there is a reasonable apprehension that the occupier may respond violently there seems to be no reason to conclude that a copy of the warrant is not 'made available' to the occupier if it is placed in a position where he or she may pick it up."
[14]
Conclusion
It was common ground between the parties, as indicated at [8] and [9] above, that the Magistrate erred in his construction of s 69 of LEPRA. It follows that his Honour erred in dismissing the charges on that basis.
There remains a question as to whether, in light of the construction of s 69 to which I have referred, which admits of an exception to a duty arising under s 69 based on exigent circumstances, whether or not it is open to this Court to determine that, on the evidence, exigent circumstances existed or not.
This aspect of the proceedings is one of the three issues referred to at [145] above.
This latter question depends upon the evidence adduced before the Magistrate. Can exigent circumstances be found on that evidence? If it can, then orders in terms sought in the Summons ought be made. If, on the other hand upon assessment of the evidence it did not establish exigent circumstances, then the decision of the Magistrate was correct in law, though for the wrong reason. If that were the case, then it would seem that the order sought remitting the proceedings to the Magistrate would not be made.
I propose to allow the parties the opportunity to make submissions in respect of the appropriate orders to be made in light of these reasons and in particular, in relation to the matters referred to in the preceding paragraph.
Accordingly, I propose to list the proceedings at 9:30am on 4 October 2016.
[15]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 October 2016
He said that before he got to the verandah a wooden door opened and the defendant was at the door. He called out "police search warrant" in a loud voice.
He opened the screen door and said "Hello Karen. We are here for a search warrant. We need to come in and secure the premises".
He said that she then demanded to see the search warrant.
He said that he told her that he would show it to her later and that the police needed to come in and secure the premises first.
The defendant, he said, again demanded to see the search warrant and then said "you're not coming in here".
He said that she immediately reached out and grabbed the front of his shirt and pulled it down and ripped the shirt.
He put his right hand up and pushed her away as he said she was going to assault him again.
He entered the house and went into the bedroom where he saw two police officers sitting on the bed. Located under the bed was the person CR.
Senior Constable Gulliver said he then went outside and retrieved the search warrant from the police vehicle. He said he brought it back in as CR was being taken away. He said then the video recording of the search warrant execution took place.
He then showed the search warrant to the defendant. He said that she did not want to see it. She refused to answer any questions and he then served the occupier's notice on her by placing it on the bed.
It was put to him:
"Q. So you're saying if you had a piece of paper in your hand at the time of approaching the house you feel you'll be putting your safety at risk?
A. It will be enough to distract me. I may not have been able to protect myself." (T 20)
He was subsequently asked:
"Q. … You left the documents in the car because you thought that if - because you didn't think they were necessary to produce immediately to Ms Roberts?
A. We are obliged to legislation says as soon as practicable. Officer safety issues come first." (T 25)
There was no re-examination by the prosecutor.
The defendant pleaded not guilty to the two charges against her. When the matter came before the Magistrate on 10 July 2015, the defendant's solicitor indicated at the outset that there were "LEPRA related issues": T 8. After Senior Constable Gulliver gave evidence the defence and prosecution agreed that the issue for determination was whether police were acting in the execution of their duty in executing the warrant. The requirements of ss 67 and 69 of LEPRA were the subject of competing submissions on behalf of the parties.
The provisions of ss 68 and 69 are, and were as at 11 November 2014, in the following terms:
68 Announcement before entry
(cf Search Warrants Act 1985, s 15A)
(1) One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises:
(a) announce that the person is authorised by the warrant to enter the premises, and
(b) give any person then in or on the premises an opportunity to allow entry into or onto the premises.
(2) A person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the warrant is not frustrated.
69 Duty to show warrant
(cf Search Warrants Act 1985, s 16)
A person executing a warrant other than a covert search warrant must produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.
The review of relevant authorities in the plaintiff's written submissions included, in particular, references to the decisions of the Federal Court in Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384; FCAFC 392 at [68] and in Oke, supra, at [37] per Branson and Lindgren JJ (Besanko J agreeing).
The plaintiff's submissions noted at [19] that this Court has not determined the question of whether the requirement in s 69 of LEPRA requires immediate production of a warrant on request. It was further observed that in R v Hadife, supra, Lakatos DCJ held that it did not. Rather, his Honour applied the approach of the Full Federal Court in Oke, supra, at [45], a case which considered the provisions of s 3H(1) of the Crimes Act 1914 (Cth).
In Oke, as the plaintiff's submissions at [20] observed, Branson and Lindgren JJ (Besanko J agreeing) observed that the provisions of s 3H(1) required a copy of the warrant to be available to the occupier at the commencement of the execution of the warrant and not at any time during the period of its execution, but that the obligation must be satisfied as soon as reasonably practicable. Reference will be made below to their Honours' observations.
The plaintiff's submissions noted that in R v Hadife Judge Lakatos recognised at p 18 that s 3H(1) is in slightly different terms to s 69 of LEPRA but found that the Full Court's statement "reflects how s 67(4) (and for that matter s 69) should be interpreted".
Reference was made to observations of his Honour at p 22 (discussed below).
In the plaintiff's submissions it was contended that the facts of R v Hadife bore some similarity to the present case: at [22]. The accused in that case was charged with resisting police officers in the execution of their duty, wounding a police officer in the execution of their duty and assaulting a police officer in the execution of their duty. A preliminary point was taken as to compliance with ss 67(4) and 69 of LEPRA, the defence contending that the police were not acting in the execution of their duty when the offence occurred.
Lakatos DCJ found that, on the facts in that case, it had not been reasonably practicable for the occupier's notice to be served immediately when the occupier had asked for it: at p 26. His Honour relied upon the circumstances which confronted the officers making it reasonable for the particular officer in question to have acted the way that he did (based on a need to ensure that his safety and that of other officers, was secured).
It was contended in the present case that the learned Magistrate proceeded erroneously in two respects:
1. That he regarded himself as bound by cases such as Plenty v Dillon, supra, and Ballis v Randall, supra, which he regarded as demonstrating that "the most minor technical breaches" of LEPRA would inevitably lead to a finding of unlawful conduct; and
2. That the absence of an equivalent provision to s 67(4) in s 69 of LEPRA as demonstrating that the duty in that section must be complied with immediately upon request.
It was argued that these two matters led to his Honour's finding that s 69 requires a person executing a search warrant to produce it immediately upon request.
In respect of the first error alleged, for reasons set out at [31], the plaintiff's submission was that cases to which the learned Magistrate referred did not support the conclusion reached. Plenty v Dillon, a trespass case, it was noted, was not concerned with the construction of legislation as to the preparation and execution of search warrants. Ballis v Randall did not involve a minor or technical breach but concerned a substantive question involving the covert execution of a search warrant. Neither case, it was submitted, was authority for the proposition that a minor or technical breach of LEPRA must always lead to a finding of unlawfulness.
The plaintiff further relied upon the approach taken by Fullerton J in Karout v Stratton (2007) 180 A Crim R 154; NSWSC 1034 as demonstrating that the "rule of strictness" in relation to the construction of search warrants legislation is not undermined by the adoption of what was referred to as a rational case-by-case approach to questions of compliance. Further, it was submitted that the Full Federal Court's decision in Hart, supra, endorsed the adoption of a construction of such legislation that is consistent with operational realities facing police and the rejection of an approach to construction that involved prima facie hostility to invasions of privacy provided that considerations identified in George v Rockett, supra, were taken into account.
In the plaintiff's submissions at [33] it was contended that s 3H(1) considered in Hart imposes a more emphatically-worded duty than does s 69 (s 3H(1) not being subject to the contingency of an occupier's request). The Full Federal Court in that case expressed the view that the duty arose immediately upon the warrant "being executed" and was one to be satisfied as soon as reasonably practicable. It was argued that this meant that an executing officer facing "violence" or "other serious difficulties" upon commencement of the execution of a warrant need not make a copy of the warrant available ahead of responding to "…the violence or other difficulties". It was submitted at [33] that that reasoning was applied by his Honour Lakatos DCJ to the question of timing of compliance with s 69. The judgment of Lakatos DCJ, it was noted, represents a careful consideration of the authorities in the area in question and his Honour's adoption of "seriously considered dicta" of the Full Federal Court in Oke meant that his Honour's judgment in Hadife should be regarded as "highly persuasive". It was submitted that it should be followed by this Court.
Finally, in respect of the second error alleged, it was submitted that the absence of an equivalent provision to s 67(4) of LEPRA in s 69 did not dictate the conclusion reached by the Magistrate. The context of s 69, it was submitted, suggests that the duty may be subject to "safety concerns" of the kind reflected in the surrounding provisions without derogating from the mandatory requirements of the section. Other provisions in Division 4 of Part 5, in particular ss 68(2) and 70(4), reflect the legislature's concern for the safety of officers and others in the execution of search warrants: at [34].
The plaintiff relied upon four reasons to prefer the construction that imposes an obligation that is to be complied with as soon as reasonably practicable.
The first reason is that that formulation is consistent with the view of the Full Federal Court in Oke, supra.
The second reason is that it is consistent with the recognition of operational realities of the execution of search warrants and accordingly the appropriateness of having regard to those operations when considering questions of construction in relation to search warrants.
The third reason is that it is consistent with the approach of Fullerton J in Karout v Stratton, supra, where her Honour held that the question of compliance must be viewed rationally on a case by case basis.
The fourth reason is that it is consistent with the context of s 69 within Division 4 of Part 5 of LEPRA.
It was submitted that Grounds 1 and 2 should be upheld and that the order dismissing the proceedings against the defendant be set aside and that the proceedings be remitted to the Local Court for determination according to law.
Reference was made to relevant authorities (and extracts provided) in relation to the common law right of entry and the policy of the law which was to protect the possession of property and the privacy and security of its occupier: Plenty v Dillon, supra, at 649 and reference therein to Semayne's case (1604) 5 Co. Rep. 91a at p 91B; 77 ER 194 at 195.
Reliance was placed upon the decision of the Supreme Court of Canada in respect of a person executing a statutory power to arrest in Eccles v Bourque, supra, quoted and approved in Lippl v Haines, supra, at 633-4.
The decisions were cited for the proposition that they reflect the concern of courts to ensure that an occupier is given some notice of an impending intrusion, and the legal justification for the same, so that he or she might have an opportunity to permit entry without resistance: at [23].
It was submitted that the right of an occupier to inspect the warrant is of fundamental importance. Additionally, it enables the occupier to monitor the lawfulness of the warrant execution: at [27].
The defendant's submissions also relied upon the dicta of McHugh J at 111-112 in Ousley, supra, including in particular the importance that is attached to an obligation to produce a warrant as noted at [55] above.
It was further submitted that the "exigent circumstances principle" has been applied, in relation to the execution of a search warrant in the decision in R v Austin (No 2), supra.
It was also submitted on behalf of the defendant that the correctness of strictly construing statutory provisions, concerning the execution of a warrant and entry onto private premises, has been endorsed by the plurality in Coco v The Queen (1994) 179 CLR 427 at 435-6; HCA 15; Carroll v Mijovich (1991) 25 NSWLR 441 at 456 Meagher JA (dissenting); and Ballis v Randal, supra, at [103].
In further support to the approach of a strict construction of the provisions in search warrant legislation, reliance was placed upon the observations of the High Court in George v Rockett, supra, at 110-111 in which, inter alia, the Court stated that 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 the interests of the occupier of premises. There, in the passage extracted in the written submissions at [29], the High Court added:
"…to insist on strict compliance with statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation."
Reliance was also placed upon the observations of Branson and Lindgren JJ in Oke, supra, at [37].
In relation to the construction and application of s 69, the defendant submitted at [53]-[60]:
"The requirement in s 69 that the executing officer must produce the search warrant for inspection, if requested to do so by the occupier, reflects the position at common law and serves the objective of enabling an occupier to satisfy him or herself as to the legality of the entry and search, which in turn may lessen the risk of the occupier resisting an entry and search.
The obligation in s 69 to produce a search warrant for inspection, upon request, should be viewed as a central provision in the statutory scheme prescribed by LEPRA. It operates as an important safeguard in relation to the warrant's execution (see Hall J in Ballis v Randall (2007) A Crim R 243 at [104], which concerned the importance of the occupier's notice requirement in s 67).
The obligation to 'serve' the occupier's notice in s 67(4)(a) is triggered by a specific act in time, namely it must occur 'on entry into or onto the premises'. If not at that time, that notice must be served as soon as practicable after entry.
Section 69 provides that the warrant must [be] produced for inspection if a request is made to do so by the occupier. It does not expressly require that production occur 'immediately' upon the request or expressly define the timeframe within which that request must be complied with. The outer limit would clearly be the completion of the warrant's execution.
Nor does s 69 expressly provide that the warrant can be produced 'as soon as practicable' after a request is made. Had the Legislature intended an exception on the basis of 'as soon as practicable' or 'as soon as reasonably practicable' it would have expressly constructed s 69 in that manner similar to that in s 67(4).
It is submitted that s 69 should be construed as obligating an executing officer to immediately produce a copy of the warrant for inspection, upon request to do so, except in exigent circumstances. That approach would still permit the Court to approach the adequacy of compliance with a 'rational perspective'.
Whether or not there is production is a question of fact. Such production might include placing a copy of the warrant in a position where the occupier may pick it up.
It is submitted that strictly construing s 69 in this manner would appropriately balance the tension between the common law privileges that secure and protect individuals in their own homes, as well as their property and privacy against the efficient exercise of statutory powers in aid of law enforcement."
Similarly, search and seizure provisions are to be seen as subject to the general principles that govern statutory interference with established common law rights and freedoms: Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; HCA 63; Bropho v Western Australia (1990) 171 CLR 1; HCA 24; Coco v The Queen, supra at 437-438 per Mason CJ, Brennan, Gaudron and McHugh JJ; and Hart, supra, at 400-401.
As the submissions of the parties have emphasised, the provisions of LEPRA, in particular the statutory provisions under Division 4 of Part 5, apply to both warrants and occupier's notices. However, a warrant, is a foundational instrument under the hand of a designated person. It authorises the person or persons to whom it is addressed to do an act which would otherwise be unlawful. It is the warrant that must be validly issued. It is the warrant that must be executed in accordance with the statutory conditions that apply to the particular class of warrant in question. Given the value that the law places upon the need to protect the liberty and privacy of the citizen, it has been observed that the common law:
"… developed a rigorous set of principles applicable to both statutory and common law warrants alike, for insuring that a warrant had been properly issued and that those charged with executing it were acting within their powers." (per McHugh J in Ousley v R, supra, at 105)
In answering that question attention must be given to the legislative purpose of s 69 and in that respect whether there can be discerned a legislative purpose to invalidate or render unlawful the execution of search warrants that are not executed in compliance with the statutory condition: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [91]; HCA 28.
To that end, the purpose or object of s 69 arises for consideration.
Legislative provisions governing the issue and the execution of search warrants, including in particular those provisions in Part 5 of LEPRA, have long been proceeded by well-established common law principles that constrain or regulate the issue and the execution of such warrants. In prescribing statutory conditions for the issue of search warrants legislatures have sought to balance the need for an effective criminal justice system against the need to protect the individual for arbitrary invasion of his or her privacy and property: see George v Rockett (1990), supra, at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The High Court in that case observed:
"…the common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holsworth, A History of English Law, vol 10 (1938), pp 668-672 …
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 authorise 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 …"
A provision such as s 69 needs to be read in its statutory context. For that purpose the following provisions in Division 2 of Part 5 of LEPRA are noted:
By s 47 of LEPRA a police officer is given power to apply to an eligible officer for a search warrant in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.
By section 47A the search warrant authorises any executing officer for the warrant
(a) To enter the subject premises: s 47A(1)(a); and
(b) To search the premises for things connected with a particular searchable offence in relation to the warrant.
By s 49(1) a person executing a search warrant under Division 2 of Part 5:
(a) May seize and detain a thing mentioned in the warrant:
By these provisions, a duly authorised search warrant authorises the three activities referred to in the above provisions:
1. To enter specified premises;
2. Search the premises as specified in the warrant; and
3. Seize and detain the things mentioned in the warrant.
When one comes to the word "must" contained in s 69, it plainly has some force, conveying the notion of command or something that is essential or mandatory.
In Oke, supra, Branson and Lindgren JJ (Besanko J agreeing) at [32] stated that the word "must" in s 3H(1) of the Crimes Act 1914 (Cth) is to be given weight, though not compelling weight. In that case their Honours observed at [34]:
"Other relevant considerations are that the obligation posed by s 3H(1) is readily easily complied with and that it serves an important purpose. Unless the occupier of the premises has available to him or her a copy of the warrant it will be extremely difficult for the occupier to monitor the conduct of those executing the warrant for the purpose of ensuring that nothing is seized in purported compliance with the warrant that is not authorised to be so seized."
For good and well-established reasons, as earlier discussed, a strict approach to the construction of provisions such as s 69 should be taken. Their Honours also observed at [36]:
"Additionally, as the Full Court observed in Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at [66], a strict approach to the construction of, and complying with, statutory provisions authorising the issue and execution of search warrants has repeatedly been enjoined by the courts …"
In Hart, the Full Federal Court (French, Sackville and RD Nicholson JJ) stated at [66]:
There is a significant emphasis in the case law on the need to apply a 'strict' construction to such provisions. This is because, as a general rule, the search of premises and the seizure of goods therefore has always been illegal unless authorised by law …
A strict approach to the construction of and compliance with statutory provisions authorising the issue of search warrants has repeatedly been enjoined by the courts …"
A little later their Honours observed at [67]:
"…the invocation of 'strict construction' in penal statutes was described by Gibbs J as 'perhaps one of last resort': Beckwith v R (1976) 135 CLR 569 at 576. It should not distract from the primary object of statutory construction enunciated in Project Blue Sky. The search and seizure provisions of the Crimes Act are not punitive. They are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms: Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Coco v R (1994) 179 CLR 427 at 437-438 per Mason CJ, Brennan, Gaudron and McHugh JJ…
In Hart, the Court emphasised that effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. In that context the Court referred to the "…need to recognised the operational realities in which warrants are executed…": at [68], a matter that had been referred to in earlier cases.
I will return in the discussion below to facts and circumstances relevant to "operational realities" as may be said to have arisen in the present case and the nature and extent of them in the context of the search warrant that was purportedly executed on 11 November 2014.
The rationale for the requirement for police who seek to enter private premises under a search warrant, in announcing their intention to enter (other than in the particular circumstances referred to in s 68(2) of LEPRA) is said, based on experience, to be that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public: R v Cornell [2010] 2 RCS at [19]. The obligation to "knock and announce" has, as discussed below, been construed as one that permits or excuses non-compliance where police had reasonable grounds to be concerned as to the possibility of harm to themselves or occupants, or about the destruction of evidence: Cornell at [20].
In determining the circumstances that may qualify the duty to immediately produce a warrant for inspection under s 69, it is necessary to consider the exceptions to the obligation under s 67 (occupier's notice) and s 68 (announce before entry) as to which see [48]-[49] above.
Although s 69 does not contain provisions that qualify or limit the obligation to produce a search warrant upon request, both parties in the present proceedings accepted that the statutory obligation created by s 69 is in fact to be read subject to an exception. I, with respect, agree that the statutory obligation under s 69 must be read subject to a qualification that ensures the purpose and objects of the provisions of Part 5 of LEPRA are not defeated. The question then arises as to the content or nature of the qualification or exception and how it is to be expressed or formulated.
As earlier noted, the Crown in its written submissions submitted that the duty under s 69 is one that must be complied with "as soon as reasonably practicable", whereas the defendant submitted that the exception is to be taken as "except in exigent circumstances."
A similar question of statutory construction has arisen for consideration in contexts other than those concerned with the execution of search warrants.
In Lippl v Haines, supra, Hope A-JA at 633 considered the application of the common law rules as to entry of premises by a constable holding a warrant to arrest in exercise of statutory powers to effect arrests without a warrant. In the course of that consideration reference was made to the judgment of the Supreme Court of Canada in Eccles v Bourque, supra. In that case it was concluded that a person exercising a statutory power to arrest had power to enter a house against the will of the householder but only if:
1. There were reasonable and probable grounds for the belief that the person sought was within the premises; and
2. Proper announcement is made prior to entry.
In relation to the second of these two conditions, Dixon J in Eccles v Bourque stated at 746:
"Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man's property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance."
Hope A-JA noted that the decision Eccles v Bourque was re-affirmed by the Canadian Supreme Court in Landry (1986) 26 DLR (4th) 368. His Honour further noted that the second condition had not been satisfied and in those circumstances stated at 636:
"…Consequently the second condition was not satisfied unless the circumstances were exigent. In my opinion the circumstances were not exigent …"
In R v Cornell, supra, the discussion of the "knock and announce" requirement was stated at [18], as noted above, to be subject to the exception of exigent circumstances, but whilst that phrase was not suggested as being defined in any way, the Court proceeded upon the basis that there is a requirement for police to have a reasonable ground to be concerned as to the possibility of harm or safety to themselves or occupants, or the destruction of evidence, adding at [20]:
"The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted."
In R v Austin (No 2), supra, a case involving the issue of a search warrant under s 187(2) of the Drugs of Dependence Act 1989 (ACT), it was contended by the applicant in the proceedings, Mr Austin, inter alia, that the manner of execution of the warrant had been improper. There had been no prior announcement by the police of their intention to enter and though they had a warrant, the entry was not in accordance with the common law.
Refshauge J, after an extensive review of relevant authorities including Canadian authorities, stated that although there was some United Kingdom authority which suggested that there are exceptions to the "prior announcement" rules, he was unable to find there "the use of the term 'exigent circumstances'".
However, his Honour stated that he was satisfied that exigent circumstances do permit entry to premises for the purposes of executing a search warrant without a prior announcement: at [57]. He noted that there was little jurisprudence in Australia on the meaning of "exigent circumstances" but that given the express adoption of that concept in cases such as Lippl v Haines and R v O'Neill (2001) 122 A Crim R 510; NSWCCA 193 at [25] in New South Wales; Halliday v Nevill (1984) 155 CLR 1 at 16; HCA 80 in Victoria; and amongst the Canadian jurisprudence, he could see no reason why he should not have regard to it. His Honour concluded at [62]:
"Accordingly, I am satisfied that the 'exigent circumstances' exception includes a need, based on reasonable grounds, to ensure that evidence, for which it is in the contemplation of the warrant to authorise a search and seizure, will not be destroyed."
In s 68 of LEPRA, the exception in relation to the announcement before entry provision is in fact expressed in terms that are very similar to the "exigent circumstances" referred to in the relevant case law authorities. Section 68 refers to circumstances that reasonably raise concerns in respect of the safety of police or other persons and/or to ensure that evidence is preserved or, in terms of s 68(2), "…to ensure that the effective execution of the warrant is not frustrated". In other words, the formulation contained in s 68(2) is entirely consistent with the common law notion of exigent circumstances in the authorities discussed above.
Relevant case law authorities, several which were referred to in R v Austin (No 2), supra, indicate that exigent circumstances may vary as for example, in the case of an arrest warrant as distinct from the case of attending on the execution of a search warrant. Refshauge J in R v Austin (No 2) at [61] referred to the most recent Canadian decision of R v Cornell, supra, wherein reference to circumstances as to harm to those executing a search warrant or to the occupants and or to the destruction of evidence would seem to be included in circumstances that would be exigent. His Honour concluded that the "exigent circumstances" exception includes a need, based on reasonable grounds, to ensure that evidence, for which it is in the contemplation of the warrant of a search and seizure, will not be destroyed.
Accordingly, the "exigent circumstances" exception in a case of a search warrant executed under LEPRA would, in my opinion, extend to circumstances in which, on reasonable grounds, there exists a risk or threat to the safety of police or others associated with the execution of a search warrant or an imminent risk or threat of destruction of evidence that is the subject of the warrant.
Consistently with the observations of Cromwell J in R v Cornell at [20], evidence to justify a refusal or failure to produce a warrant to an occupier upon request by him or her must exist prior to entry, it not being open to those executing the warrant to rely upon ex post facto justifications.
I conclude that the exigent circumstances exception applies to the obligation under s 69 and not the less rigorous formulation "as soon as reasonably practicable" referred to in Oke, supra, at [45]. The expression "exigent circumstances" conveys the requirement for a belief in the person executing a warrant, on reasonable grounds, that immediate entry is required to ensure the safety of any person (including police) and/or to ensure the effective execution of the warrant is not frustrated. The expression "exigent circumstances" as so understood, represents a tighter exception than the formulation "as soon as reasonably practicable". The tighter formulation is more in accord with the strict construction rule. There are three additional reasons, in my opinion, that support the adoption of the exigent circumstances exception:
1. A construction that adopts the "exigent circumstances" exception to the statutory duty under s 69 is entirely compatible with the qualifying provision that the legislature has chosen in the companion provision in s 68(2).
2. The adoption of the exigent circumstances in the analysis of Hope A-JA in Lippl, represents an endorsement of the formulation expressed in the Canadian authorities.
3. In Oke, Branson and Lindgren JJ expressly stated in respect of the condition "as soon as reasonably practicable" in the opinion expressed by their Honours at [45], that they did not express "a concluded view on the question".