Douglas v Blackler

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

VANESSA RUTH DOUGLAS v ANNE MAREE BLACKLER & B. COADY JUDGMENT 1 HIS HONOUR: On 14 June 1997 the second defendant, an authorised justice, on the application of the first defendant, granted a search warrant. By a Summons, filed 23 April 2001, the plaintiff seeks a declaration that the warrant is invalid and an order that it be quashed. The plaintiff also seeks a declaration that the execution of the search warrant was unlawful. The authorised justice has filed a submitting appearance.

2 The grounds for the plaintiff's claim are stated in the Summons. I granted leave to add the following further ground at the outset of the hearing, "The warrant failed to specify an offence in relation to which the search was to be limited". It is this additional ground that is of particular importance in the proceedings. The failure in the warrant to specify the offence is a fatal flaw in the document rendering it invalid and creating an entitlement in the plaintiff to have it quashed.

3 A copy of the search warrant is annexure C to the affidavit of Rebecca Lee Neil sworn 23 April 2001.

4 Discussion of this issue in the proceedings involves consideration of ss 11,12 12A and 13 of the Search Warrants Act 1985 and Regulation 3 of the Search Warrants Regulation 1999 5 It is convenient to set out those sections and regulation here for reference in the discussion.

S 11 Application for warrant 11 (1) An application for a search warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person. (2) An authorised justice must not issue a search warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice on oath or affirmation or by affidavit. (3) An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application for a search warrant. (4) This section does not apply to a telephone search warrant.

S 12 Telephone search warrant 12 (1) In this section, "telephone" includes radio, facsimile and any other communication device. (2) A person may make an application by telephone for a search warrant. (3) An authorised justice must not issue a search warrant on an application made by telephone unless the authorised justice is satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person. (4) An application under this section must be made by facsimile if the facilities to do so are readily available for that purpose. (5) If it is not practicable for an application for a search warrant to be made by telephone directly to an authorised justice, the application may be transmitted to the authorised justice by another person on behalf of the applicant. (6) An authorised justice who issues a search warrant upon an application made by telephone is to: (a) complete and sign the warrant; (b) furnish the warrant to the person who made the application or inform that person of the terms of the warrant and of the date and time when it was signed; and (c) prepare and furnish an occupier's notice to the person who made the application or inform that person of the terms of an occupier's notice. (7) If a search warrant is issued on an application made by telephone, the applicant: (a) in a case where the applicant was not furnished with the search warrant - is to complete a form of search warrant in the terms indicated by the authorised justice under subsection (6) and write on it the name of that authorised justice and the date and time when the warrant was signed; and (b) in a case where the applicant was not furnished with an occupier's notice - is to complete a form of occupier's notice in the terms indicated by the authorised justice under subsection (6). (8) A form of search warrant and a form of occupier's notice so completed is taken to be a search warrant issued, and an occupier's notice prepared and furnished, in accordance with this Act. (9) A search warrant or occupier's notice is to be furnished by an authorised justice by transmitting it by facsimile, if the facilities to do so are readily available, and the copy produced by that transmission is taken to be the original document. (10) In this section, a reference to facsimile includes a reference to any electronic communication device which transmits information in a form from which written material is capable of being reproduced with or without the aid of any other device or article.

12A (1) An authorised justice must not issue a search warrant unless the application for the warrant includes the following information: (a) details of the authority of the applicant to make the application for the search warrant; (b) the grounds on which the warrant is being sought; (c) the address or other description of the premises the subject of the application; (d) if the warrant is required to search for a particular thing, a full description of that thing and, if known, its location; (e) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 12C; (f) any other information required by the regulations. (2) An authorised justice when determining whether there are reasonable grounds to issue a search warrant is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information; (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence. (3) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the warrant is being sought. (4) Nothing in this section requires an applicant for a search warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.

S 13 Record of proceedings before authorised justice 13 (1) An authorised justice who issues a search warrant shall cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant. (2) The regulations may make provision for or with respect to - (a) the keeping of records in connection with the issue and execution of search warrants; (b) the inspection of any such records; and (c) any other matter in connection with any such records. (3) Any matter that might disclose the identity of a person shall not be recorded pursuant to this section if the authorised justice is satisfied that the safety of any person might thereby be jeopardised.

Search Warrants Regulation 1999 Definitions 3 (1) In this Regulation: Part 2 search warrant means a search warrant issued under Part 2 of the Act in respect of an indictable offence, a firearms offence, a prohibited weapons offence, a narcotics offence or a thing stolen or otherwise unlawfully obtained. the Act means the Search Warrants Act 1985. (2) In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1. (3) The explanatory note and table of contents do not form part of this Regulation.

Approach To Considering The Warrant 6 The applicable law governing the warrant is found both in the Act and the common law. A number of cases decided since the Act came into force have "proceeded on the basis that, except as expressly modified by the Act, the common law rules have not been abrogated". Dover v Ridge SC (NSW), Dunford J, 3 July 1998, unreported. The judicial approach to applying those principles is consistent as to both legislative and common law requirements. Search warrant legislation is construed in the context of an underlying legislative purpose of protecting an individual's privacy and providing the basis that justifies an intrusion into the privacy of the citizen. This is achieved by courts requiring strict compliance with the statutory conditions governing the issue of search warrants. See George v Rockett (1990) 170 CLR 104 at 110 - 111.

7 The similar approach of the common law was considered by Justice Kirby in Carrol and Ors v Mijoivch and ors (1991) 25 NSWLR 441 where at p.446 his Honour stated: Australia has no equivalent to the over - riding obligations laid down in the constitutional statutes of the united States and Canada. Nevertheless, the common law, both in England and in this country has vigilantly defended the privacy of the individual and his or her dwelling from official intrusion, unless clearly authorised by law.

8 The approach explained in these authorities governs the Court's consideration of the present warrant.

The Common Law Requirement to Specify the Offence 9 The search warrant does not specify the offence. The warrant follows Form 3 in the Schedule to the Search Warrants Regulation. That form does not provide specifically for identification of the offence. The Act does not state a specific requirement to do so. The obligation to do so arises from application of accepted and tested common law principles. The validity of a similar search warrant with a similar defect was considered by Justice Dunford in Dover v Ridge. The search warrant was issued under the Search Warrants Act 1985. Although it specified the premises to be searched and the items to be searched for, it did not specify on its face the offence or offences to which the investigation related. There was no other irregularity in the application for the warrant or in its issue or execution. An application was made for return of the items seized under the warrant.

10 His Honour held, quashing the warrant that it was invalid notwithstanding that it complied precisely and completely with the form specified for a search warrant under the Search Warrants Regulation 1986.

11 Dover v Ridge followed earlier cases. It was held in Warner v Elder (SC(NSW), 23 April 1997, unreported, BC9702433); that a warrant issued under the Act had to specify the offence to which the investigation related and a failure to do so rendered the warrant invalid regardless of the form of the warrant specified under the Regulations. That decision was confirmed on appeal. A similar view was adopted by Black AJ in Carver v Clerk of Blacktown Local Court (SC(NSW), 13 March 1998, unreported, BC9805275).

12 These authorities require a finding that the warrant is invalid notwithstanding the difficulty with the proposition that a warrant which complies precisely and completely with the prescribed form authorised by the statute is invalid.

13 The comment by Justice Dunford in Dover v Ridge it would be prudent to add the words "connected with the following offence of …" after the words in (2) "There to search for the following things" is still apposite.

14 In the present case there were a number of other challenges to the warrant which it is not necessary to consider. However, the Court having heard the evidence of Senior Constable Blackler and the challenges makes some comment. She gave the impression of being a reliable witness and conscientious police officer, with a clear recollection of events and the basis upon which she acted. In particular her judgment as to the urgency of the warrant was correct . I have no criticism of the execution of the warrant. The additional words to paragraph (1) of the warrant "and authority to execute 9.0 pm - 6am" are clear. The fact that the Occupiers Notice did not specify the year could not, in the context of the document, mislead anyone.

The Circumstance That The Warrant Was a Telephone Warrant 15 Counsel for the defendant emphasised it "is critical to recognise that this is not a search warrant case. It is an application for a telephone warrant". Separate rules apply to telephone warrants (s 12 of the Act). Importantly s11 (application for warrant) states that it does not apply to telephone warrants. The effect of this is that it is not necessary to set out the grounds of the application. What is required is the particulars of the grounds are to be provided. This is a mechanism to ensure that the decision maker's mind is applied to the relevant issues. Those requirements are set out in s13. The differing rules reflect the circumstance that the warrant is applied for by telephone (in its extended meaning under the Act). The mischief that a simplified application procedure could be misused was considered in Commissioner of Police v Atkinson (1991) 23 NSWLR 495 where it was held that a telephone warrant is not merely an alternative method of obtaining a warrant which may be employed to suit the convenience of the applicant. It is an exceptional method of obtaining a warrant and it may be employed only in cases where the justice is satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person.

16 The legislation does not suggest that common law rules might be applied in a manner that differs from a non telephone warrant.

17 So far as the common law requirement to identify the alleged offence is concerned, I am of opinion that there is no difference in principle between a telephone or other warrant.

18 The plaintiff is entitled to have the search warrant quashed. I will hear the parties on costs.

Orders 19 I make the following orders:

1. A declaration that the Search Warrant No. 258/97 granted by the Second Defendant on 14 June 1997 is invalid and of no effect.

2. An order that the Search Warrant No. 258 /97 granted by the Second Defendant on 14 June 1997, be quashed.

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