Director of Public Prosecutions (NSW) v Roberts

Solicitors: Office of the Director of Public Prosecutions (NSW) (Plaintiff) Aboriginal Legal Service (Defendant) File Number(s): 2015/287349

Judgment

1. 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).
2. 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).
3. 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.
4. 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).
5. 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.
6. 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.
7. 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.
8. 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).
9. 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.
10. 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).

Background Facts

1. The relevant search warrant was executed on 11 November 2014.
2. 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.
3. 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.
4. 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.

The Evidence in Chief

1. 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".
2. 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.
3. He said he had his badge out as he approached. He was also carrying a "jimmy" bar in his left hand.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Cross-Examination

1. 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.
2. 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.
3. 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.
4. He said two uniformed officers went to the rear of the premises and the other officers were behind in the front yard somewhere.
5. 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."
6. 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."
7. 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.
8. 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.
9. 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".
10. 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.

Legislation

1. 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)

The Local Court Decision

1. 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)
2. 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.

Plaintiff's Submissions

1. 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].
2. It was observed that his Honour contrasted the requirement of s 69 with s 67(4) in relation to occupier's notices.
3. 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.
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.'"
5. 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."
6. 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].

Defendant's Submissions

1. 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.
2. 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].
3. 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].
4. 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).
5. 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].
6. 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].
7. 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].

CONSIDERATION

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Principles

1. 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.
2. The rule of strictness accordingly informs the requirement for precision and accuracy required in applications for, and the issue and execution of, search warrants.
3. 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)

LEPRA Provisions

1. 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:
2. 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].
3. 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].
4. 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].
5. 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".
6. The obligation under s 68 to make the announcement therein referred to, arises "before any of the persons executing the warrant enters the premises".
7. 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.
8. 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.

The Obligation Under Section 69 to Show Warrant

1. 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.
2. 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."
3. 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).
4. 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.
5. 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."

Conclusion

1. 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.
2. 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.
3. This aspect of the proceedings is one of the three issues referred to at [145] above.
4. 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.
5. 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.
6. Accordingly, I propose to list the proceedings at 9:30am on 4 October 2016.

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