Director of Public Prosecutions (NSW) v Shaba

Supreme Court of NSW|2018-05-31|Before: Fagan J

Solicitors: Solicitor for Public Prosecutions (plaintiff) Tashman Lawyers (defendant) File Number(s): 2017/368957

Judgment

The Director of Public Prosecutions appeals as of right pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW) against the decision of Ms Holdsworth LCM to dismiss charges against the defendant of possession and supply of a prohibited drug. The defendant was charged that on 1 September 2016 he had in his possession 447.2 g of cannabis, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Deemed supply was charged under s 25(1) on the same facts.
The charges were heard and dismissed on 8 November 2017. The ground of dismissal was that there was no evidence to support either charge after her Honour had excluded evidence of Senior Constable Rhys Smith that he had found the cannabis in a vehicle being driven by the defendant at Warwick Farm. Her Honour held that the search of the vehicle by which the constable had located the drug had been conducted without lawful authority. The evidence of the drug being found in the search was excluded in exercise of the discretion under s 138 of the Evidence Act 1995 (NSW).
The defendant was subject to a firearms prohibition order made pursuant to s 73 of the Firearms Act 1996 (NSW). Constable Smith had performed his search in exercise of the power conferred by s 74A of the Firearms Act. The learned magistrate held that s 74A did not justify the search in circumstances where the officer did not at the time hold a suspicion that the defendant had committed an offence against s 74(1), (2) or (3) by having in his possession a firearm, a firearm part or ammunition. Whether or not her Honour erred in dismissing the charges therefore turns upon the correct interpretation of s 74A.

Facts and decision below

Firearms prohibition orders under the Act are not expressed in terms which purport to contain within themselves the restrictions imposed upon the person affected. Rather, such orders have attached to them a schedule identifying sections of the Act which take effect upon the order being issued. Consistently with that scheme, the order which was served on the defendant on 9 May 2016 informed him, amongst other things, that he would commit an offence against s 74(1), (2) or (3) if he should acquire or possess a firearm, a firearm part or ammunition.
Senior Constable Smith gave evidence that on 1 September 2016 he stopped the vehicle being driven by the defendant for a random breath test. At the request of the constable the defendant produced a license, which was in the name Tony Tomika. Senior Constable Smith returned to his police vehicle and conducted checks which revealed that the defendant had previously gone by the name Dilan Shaba and that the vehicle he was driving had been registered in the name of Nahdum Shaba until the date of service of the firearms prohibition order. At that time it had been transferred to a person named Phommachanh. The constable also saw that the defendant had in the past been convicted of serious offences involving violence and that there were intelligence holdings which associated him with "Assyrian organised crime drugs".
The constable said that from the circumstance of the vehicle's registration having been transferred contemporaneously with service of the firearms prohibition order, together with the fact the defendant was still driving it several months later, he inferred the defendant "may be attempting to avoid police notice". He said he did not form a suspicion that the defendant was in possession of a firearm or a firearm part or ammunition. If he had felt such a suspicion, he said, he would have remained at a distance from the vehicle, drawn his service weapon, used a megaphone to require the defendant to alight from the vehicle and handcuffed him before executing a search. None of that was done.
On the basis of his concern that the defendant might be avoiding police notice Senior Constable Smith "decided to search him to ensure he was not committing an offence under the [Firearms] Act". The senior constable said he thought it was reasonably required that he search the vehicle, invoking the power under s 74A(2) of the Firearms Act, "in the sense that I can't determine that he's in possession on his person without searching him and I think it was reasonable". He further said that he thought, in view of the inference the defendant was avoiding police notice, "that it's reasonable to search him to see if he's compliant with his firearms prohibition order. That he's not in possession of firearms, ammunition or anything."
Immediately upon the senior constable opening the door of the vehicle to commence the search he smelt a strong odour of cannabis. He located under some items of clothing a bulky black garbage bag. He ripped a small hole in this and saw that there was a clear plastic bag within which contained green vegetable matter. From the smell and appearance he was of the opinion it was cannabis. The defendant was arrested and charged.
The learned magistrate's reasons for finding that the search was unlawful appear sufficiently from the following extracts from her judgment, which was given orally: The officer has confirmed in evidence that at the time he searched the car he had no suspicion that the accused was in possession of either firearms, parts thereof or ammunition. The officer has confirmed that if he did think that he would have taken action differently when he approached the vehicle to ensure both his safety and those around him. The officer said effectively that he could not ensure compliance with the firearms prohibition order in the absence of conducting a search of the accused and the motor vehicle. In other words, the officer's evidence is to ensure compliance there had to be a search and that is what the officer did. … There is no escaping the officer's evidence that he did not suspect that the accused had potentially committed any of the offences outlined in s 74(1), (2) or (3) of the Firearms Act. The officer wanted to ensure compliance with the firearm prohibition order, but certainly unequivocally says in the witness box today that he had no suspicion that at the time of the search of the car that he believed that any of the offences in 74 had been committed by the accused. … It is not the prosecution case that the officer had reasonable grounds to believe that the accused may have committed one of the [offences] in s 74(1), (2) or (3) of the Firearms Act. If the officer or any officer did seek to determine if the accused was in contravention of any of the provisions of s 74(1), (2) or (3) in my view that officer would be required to show reasonable grounds for the holding of such belief. … This case I believe stands or falls on the officer's honest assertion that he had no belief or suspicion that at the time that he stopped the vehicle and conducted the search that the accused was potentially infringing any of the provisions s 74(1), (2) or (3). On that basis the search of the vehicle is in my view outside the power under s 74A of the Firearms Act and therefore unlawful.
Having come to the above conclusion her Honour weighed the considerations which she thought relevant to the exercise of the discretion under s 138 of the Evidence Act and, as previously mentioned, determined to exclude the evidence of the search and seizure. With due respect to her Honour, I interpret s 74A(1) of the Firearms Act as not requiring that a police officer form a suspicion upon reasonable grounds that there has been an offence against subs (1), (2) or (3) of s 74 as a prerequisite to exercising the power of search under s 74A(2). It is therefore not necessary for me to consider in any detail the manner in which her Honour evaluated relevant discretionary considerations to arrive at her decision to exclude the critical evidence.

Interpretation of s 74A of the Firearms Act

The power of search which subs (2) of s 74A of the Firearms Act confers is closely confined as to (a) who or what may be searched and (b) what may be searched for. Only a person who is subject to a firearms prohibition order, or premises, a vehicle, vessel or aircraft occupied, managed or controlled by such a person may be searched. The only things that may be searched for are those of which possession by the person subject to the order would constitute (or provide evidence of) an offence against s 74(1), (2) or (3), namely, firearms, firearm parts or ammunition.
Subsection (1) of s 74A prescribes a criterion which limits the occasions on which and the manner in which the power of search may be exercised. Despite the use of the word "may", subs (1) is not merely permissive. It does not merely allow the search power to be exercised "as reasonably required etc" whist not constraining other ways in which the power might be used. The subsection would be redundant if that was its effect. In an appropriate context the word "may" in a statute can mean "shall" or it can convey some other shade of prescriptive and/or imperative meaning: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) Ch 11; Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4; McRae v Coulton (1986) 7 NSWLR 644 at 661. Section 74A provides such a context. I interpret the word in the sense "may only".
Upon that interpretation, subs (1) limits both the occasions on which a search may be conducted and the extent of the search. The limit is whatever is "reasonably required" in order to determine whether the person subject to a prohibition order has possession of a firearm, firearm part or ammunition. Subsection (1) is a clearly expressed criterion of the manner of exercise of the search power, by reference to its reasonableness as a means of achieving its statutory object. It does not stipulate a pre-requisite to the exercise of power by reference to the state of mind of the police officer. The subsection does not state that an officer who is to exercise the power of search must hold a suspicion or belief that any of subs (1), (2) or (3) of s 74 has been breached, nor any other suspicion or belief.
The defendant submitted that if s 74A(1) should be interpreted as not requiring any more than that the power of search under subs (2) be exercised reasonably then it would serve no purpose because that limitation would be imputed without express words. The proposition that the legislature will be taken to intend that a power conferred should be exercised reasonably is well supported by authority: Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27 at 36; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126] (Gummow J) and Abebe v Commonwealth (1999) 197 CLR 510 at 554 [116]. The defendant's counsel referred to Uber BV v Howarth [2017] NSWSC 54 where these authorities were applied at [143].
I do not accept this argument. Section 74A(1) as I interpret it fulfils a function because it prescribes that the power of search is to be exercised in order to determine whether specified subsections of s 74 have been infringed. It reduces the scope of the search power. There is no occasion to read into s 74A(1) a requirement that the police officer should hold a suspicion, in order to give the subsection work to do.
The absence of any stipulation of a suspicion or belief does not lead to any absurdity, inefficacy or inconvenience in the operation of s 74A. There is no such consideration which would warrant implying into s 74A(1) a requirement that some suspicion or belief be held by the police officer. Nor is there any occasion to resort to extrinsic materials in order to resolve absurdity or unreasonableness resulting from giving the words of the subsection their ordinary meaning (cf s 34(1)(b)(ii) of the Interpretation Act 1987 (NSW)).
Suspicion upon reasonable grounds that an offence has been committed, as a pre-requisite to the exercise of certain police powers, is a familiar concept from the common law. It has been adopted by Parliament in other statutes, for example in s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). There is no basis in the principles of statutory interpretation for implying, imputing or otherwise importing such a requirement into s 74A(1), where Parliament has seen fit not to enact it.
The defendant sought to avoid the significance of Parliament having omitted any words such as "if the police officer suspects on reasonable grounds" (as in s 21 of the Law Enforcement (Powers and Responsibilities) Act), by submitting s 74A (1) requires that the officer must suspect a breach of s 74(1), (2) or (3) before carrying out a search, but not that he need have reasonable grounds for the suspicion. This was propounded as a criterion for exercise of the power which would lie somewhere below the stringency of s 21 of the Law Enforcement (Powers and Responsibilities) Act but would not be as liberal as omission of any requirement that a suspicion be held, even at an unsubstantiated subjective level.
That is not how the learned magistrate interpreted the subsection. It is clear from her reasons as quoted at [13] above that her Honour regarded s 74A (1) as stipulating a prerequisite of suspicion upon reasonable grounds. I find no warrant for the intermediate interpretation propounded by the defendant. It would be highly unusual, possibly unique, in the field of statutory provisions concerning police powers. I cannot conceive of any statutory purpose which would be served by stipulating that a police officer should not carry out a search except on suspicion, whilst stopping short of requiring that the suspicion be reasonably based; that is, by allowing that the suspicion might be irrational or idiosyncratic.
The interpretation I place upon s 74A(1) flows from the plain words of the subsection. I find no ambiguity which would warrant recourse to extrinsic materials as an aid to construction: see s 34(1)(b)(i) of the Interpretation Act. Counsel referred me to the second reading speeches made when Pt 7 of the Firearms Act was enacted and when certain amendments were introduced. I do not find it necessary to consider these in order to interpret the subsection. In any case I find nothing in the speeches contrary to the view at which I have arrived.
Although this observation is not essential to my reasoning with respect to the interpretation of s 74A(1), I find it unsurprising that Parliament should have refrained from requiring that a police officer should have a suspicion or belief that a person subject to a firearms prohibition order is in possession of firearms, firearm parts or ammunition before searching him or his premises or vehicles etc. Two considerations are relevant.
First, the purpose of Pt 7 is very clearly the protection of the public against the risk to peace and safety posed by firearms being in the hands of persons whom the Commissioner of Police considers "not fit, in the public interest" to have them (s 73(1)). There is a rational justification for a power of investigatory and preventive search, to ascertain compliance with the prohibitions to which persons under such orders are subject, thereby to make the orders effective. The power of search and hence the efficacy of the orders would be reduced considerably if search were restricted to cases where a police officer already suspected non-compliance.
Secondly, I have referred earlier to the narrow focus of subs (2) regarding who or what may be searched and what items may be searched for. By allowing such a power to be exercised without the relevant police officer holding a suspicion as to the commission of an offence Parliament has not effected any broad or substantial erosion of civil liberties. It is an understandable policy choice that the power of search should be relatively untrammelled in the interests of public safety, at the expense of a limited and highly directed intrusion upon the privacy of the inherently small class of persons against whom firearms prohibition orders are made.
In an endeavour to characterise s 74A as having introduced a sweeping intrusion upon freedoms the defendant submitted that there is little oversight of the Commissioner's role in making firearms prohibition orders, that they continue indefinitely unless revoked and that the availability of judicial or administrative review of their continuance is at best limited. On the assumption that those propositions are broadly correct, without researching the law which underlies the submission, none of this negates the expressly very confined scope of searches under s 74A and the necessarily small proportion of the civilian population who are the subject of orders under s 73 and who may therefore be exposed to the exercise of the power.
In aid of the construction advanced by the defendant, as summarised at [22], he invoked the principle of legality applicable to the interpretation of statutes that erode fundamental rights, freedoms or immunities: Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63, Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [173]. It was submitted that the basic right in issue in the present case is a right to be "free of searches and seizures".
The defendant cited George v Rockett (1990) 170 CLR 104; [1990] HCA 26 in which the High Court stated at [4] that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions … had refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier.
Their Honours went on to say at [5]: State and Commonwealth statutes have made many exceptions to the common law position, and s.679 [of the Criminal Code (QId)] is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
George v Rockett was concerned with whether strict statutory conditions for the issue of a search warrant had been complied with. No doubt the courts will, for similar reasons, scrutinise closely whether statutory prerequisites for search without warrant have been met. The issue here, though, is what those statutory prerequisites are. George v Rockett illustrates that by clear language Parliament may abrogate a fundamental freedom or immunity. That was explained, as follows, at [10] (Mason CJ, Brennan, Gaudron and McHugh JJ) (citation omitted): The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
At [11] their Honours approved the following simpler statement of the principle by Brennan J in Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12: Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.
The intention of the New South Wales Parliament to abrogate freedom from search to the limited extent provided for in s 74A of the Firearms Act is to my mind clear from the terms of the section. Equally, I consider it clear that the legislature has directed its attention to the fact that the section would intrude upon the privacy of persons subject to firearms prohibition orders and it has "determined upon abrogation or curtailment" of that privacy. The principle of legality is of no assistance, at least in this case, in construing the limits and preconditions which Parliament intended to impose around this abrogation of freedom from search and seizure.

R v Ioannidis

I am not aware of any previous decision of a court in New South Wales in which the issue of interpretation which arises here has been considered. In R v Ioannidis (2015) 124 SASR 86; [2015] SASCFC 158 the Full Court of the Supreme Court of South Australia had to consider a very similar issue under the Firearms Act 1977 (SA). Pursuant to that legislation the Registrar of Firearms was empowered to issue a final firearms prohibition order on the ground that "it is in the public interest to prohibit the person from possessing and using a firearm". There was also a judicial power to make such an order under the Criminal Law Consolidation Act 1935 (SA), on criteria which included that a firearm had been used in and had facilitated the commission of an offence.
Section 10C(3) prohibited a person who was the subject of an order from acquiring possessing or using a firearm or firearm accessories and s 10C(4) required the person to surrender all firearms, firearm parts and ammunition. Section 32(3a) was in these terms: A police officer may, as reasonably required for the purpose of ensuring compliance with the firearms prohibition order issued by the Registrar or to which a person is subject by order of a court - (a) detain a person to whom this subsection applies and search the person for any firearm, license, firearm part or ammunition liable to seizure under this section; and (b) stop and detain a vehicle, vessel or aircraft to which this subsection applies and search the vehicle, vessel or aircraft for any firearm, license, firearm part or ammunition liable to seizure under this section; and (c) enter any premises to which this subsection applies and search the premises for any firearm, license, firearm part or ammunition liable to seizure under this section.
The similarities between this legislative scheme and that of the New South Wales Firearms Act are self-evident. All members of the South Australian Full Court accepted that s 32(3a) did not require, as a prerequisite to the exercise of the power of search, that the police officer hold a suspicion, on reasonable grounds or otherwise, that non-compliance with the firearms prohibition order had occurred: at [16] (Kourakis CJ), at [58]-[59] (Gray J) and at [119] (Peek J).
Kourakis CJ considered that the police officer need not hold even a rational or genuine reason, falling short of reasonable suspicion, for thinking there had been a contravention of the order. His Honour considered that the "reasonableness" limitation in s 32(3a) was "concerned not with the strength of a suspicion but with the proportionate use of the power to monitor" compliance with the firearms prohibition order: at [13]. At [22] his Honour said that the provision empowers police to search persons who are subject to FPOs whenever a search is reasonably required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.
Notwithstanding the similarities between the South Australian and the New South Wales legislation there are also differences, which means that the reasoning of the majority of the South Australian Full Court is not precisely in point. Nevertheless I find it highly persuasive and supportive of my own interpretation of s 74A(1) of the New South Wales Firearms Act.
Peek J dissented in the result of the appeal because his Honour considered that the power under s 32(3a) could be exercised if, and only if, such proposed act [of search] would be assessed by a reasonable person as being required to be done to effectuate the designated statutory purpose (ensuring compliance with a firearms prohibition order). Thus, the statutory condition precedent will only be satisfied if, as a matter of objective assessment, the circumstances as known to the police officer positively required the performance of the proposed act of detention or search.
His Honour was alone in this conclusion. With respect, I would not adopt a similar view of s 74A(1). His Honour's formulation, if applied to the section which I am required to consider, would add a gloss which I do not find clear and for which I can find no justification in the context of the New South Wales Act. His Honour's interpretation appears to import a concept of objectively identifiable circumstances to indicate that the firearms prohibition order may not be being complied with. Under the New South Wales Act, that would translate to objective circumstances indicating that s 74(1), (2) or (3) may have been infringed. I consider that there is no such requirement to be found in s 74A(1) and that the power of search under s 74A(2) may be exercised when "reasonably required" and as far as "reasonably required" to determine whether an offence against s 74 has been committed, irrespective of any objective indication that that might be so.

Conclusion and orders

The question of law formulated in the terms stated at [6] is resolved by my conclusion that, on its correct interpretation, s 74A(1) of the Firearms Act does not prescribe that a police officer may exercise the powers in subs (2) of s 74A only if he or she suspects that the person who is subject to a firearms prohibition order has committed an offence under s 74(1), (2) or (3). The subsection does not require, as a prerequisite to the exercise of the search power in subs (2), that the officer should hold any suspicion or belief, upon reasonable grounds or otherwise, or that there should exist circumstances from which a reasonable person could suspect that an offence against one of those subsections may have been committed.
It follows that the learned magistrate erred in law and the appeal should be allowed. Accordingly the orders of the Court are: 1. The plaintiff's appeal is allowed. 2. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) the order of Ms Holdsworth LCM made on 8 November 2017 at Liverpool Local Court dismissing the charges against the defendant in proceedings H64072582 (supply prohibited drug and possess prohibited drug), is set aside. 3. The charges are remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of the proceedings in this Court.

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Firearms Act 1977(SA)

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