Kaldon Karout v Constable Mathew Stratton & Ors

Ballis v Randall [2007] NSWSC 422 Black v Breen & Anor [2000] NSWSC 987 Carroll & Ors v Mijovich & Ors (1991) 25 NSWLR 441 CASES CITED : DPP v Leonard (2001) 127 A Crim R 381 Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382 MWJ v R (2005) 222 ALR 436 Pearce v Button (1985) 60 ALR 537 State of New South Wales v Corbett [2007] HCA 32

Kaldon Karout (Plaintiff) PARTIES : Constable Mathew Stratton (First Defendant) James Wiseman (Second Defendant) Rory Evans (Third Defendant)

COUNSEL : G Thomas (Plaintiff) P Skinner/K Guilfoyle (Defendant)

SOLICITORS : M Ayache (Plaintiff) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

2006/13347 KALDON KAROUT v CONSTABLE MATHEW STRATTON & ORS

HER HONOUR: 1 By a summons filed on 12 July 2006 the plaintiff seeks declaratory relief with respect to both the issue and execution of two search warrants over premises located at 54 Payten Street, Kogarah NSW at which he was then residing. While the summons challenges the validly of both warrants, and seeks orders in the nature of certiorari that they be set aside as invalid, the challenge to the validity of the first warrant was not ultimately pressed. Declarations that both warrants were executed contrary to law were pressed while declarations that the evidence obtained as a consequence of their execution is inadmissible in the prosecution of the plaintiff were abandoned as being beyond the jurisdiction of this Court. Proceedings in the Local Court

2 The plaintiff's summons was filed after proceedings in the Sutherland Local Court in June 2006, in which the plaintiff was charged with dealing with property suspected to be proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 and a goods in custody charge contrary to s 527C(1)(a) of the Crimes Act, were adjourned to permit a challenge to the legality of the search of his premises and the seizure of various items pursuant to warrant to be made. It is common ground that the items seized under warrant, in particular $263,480 in Australian currency, constituted the primary evidence in the prosecution case against the plaintiff. 3 Neither Mr Thomas who appears for the plaintiff nor Mr Skinner who appears for the first defendant have addressed any submission to the question whether, with criminal proceedings part heard, I should, as matter of discretion, grant declaratory relief and the other relief that is sought. The second and third defendants, respectively the authorised officers who issued the first and second warrants, filed submitting appearances. The attitude taken by counsel is not entirely satisfactory. Both this Court and the Federal Court have repeatedly cautioned against the fragmentation of criminal proceedings that will necessarily result if collateral challenges to warrants are commonplace, the more so if the application ultimately mounted is revealed to be unmeritorious leading to the inference that the challenge was designed to achieve little more than delay. In Ballis v Randall [2007] NSWSC 422 at par [73] Hall J observed: "…in each case there remains a need to examine and determine the particular circumstances in which the jurisdiction ought to be exercised. Reference to relevant case law establishes a number of general propositions including the following: (a) There ought to be sound justification in point of practical utility in a Court intervening by way of granting declaratory relief in criminal proceedings. Otherwise, discretionary considerations will point against the grant of such relief (see Conwell (above) at 601 per Street CJ). (b) Where an application for declaratory and ancillary relief raises important questions both of statute law and of evidentiary principle, the resolution of which may have a substantial bearing upon criminal litigation, then this Court may exercise its jurisdiction where such relief is sought (see Conwell (above) at 601). (c) There is a distinction between proceedings in which a declaration is sought as to the construction of a statute which provides for the issue of search and seizure warrants from those in which in criminal proceedings a declaration is sought on a question of evidence or procedure. In the case of the latter, the circumstances must be exceptional to warrant the grant of relief: Sankey v Whitlam (1978) 142 CLR 1 at 25 per Gibbs ACJ. See also ACS v Anderson (above) at 216 per Hutley JA; Cain (above) at 253 per McHugh JA; Anderson (above) at 200-201 per Kirby P and Carroll (above) at 168. (d) An application for declaratory and other relief which involves evident unmeritorious delaying tactics ought not be permitted to fragment the criminal justice process." 4 In the result, I have resolved to consider granting the relief sought if for no other reason than that the first defendant has not sought to persuade me otherwise and that the matter was adjourned by the presiding Magistrate to facilitate the application being made with the consent of the prosecution. While a lengthy delay in the disposition of the criminal charges has resulted I am unable to find that the plaintiff was motivated by delay neither am I satisfied that the application was entirely unmeritorious even though I have ultimately decided that the relief sought should be refused.

5 The hearing before me took place over two days on 28 June 2007 and 20 August 2007. During the course of the first day the evidence bearing directly upon the legality of the search was led and tested in cross-examination. It comprised oral evidence from the first defendant, Senior Constable Mathew Stratton, the officer who applied for each of the warrants under challenge, and from Detective Waugh the officer in charge of the investigation into what was described as a mid-level drug syndicate operating within southern Sydney, known as Strike Force Stillman. Detective Waugh was also the officer who executed each of the two warrants. The applications for each of the warrants, the warrants themselves and the Occupier's Notices that were served (or said to have been served) as provided for in s 67 of Law Enforcement (Powers and Responsibilities) Act 2002 ("the Act") were tendered. The sufficiency of the second Occupier's Notice emerged as one of the central questions connected with the valid execution of the second warrant. A video tape of the search was also tendered and viewed in its entirety 6 At the conclusion of the first day of the hearing, and in the context of the matters that remained in contest after the evidence had been led and tested, I invited the parties to settle a "statement of issues" with a view to narrowing the questions for determination. After final submissions, those issues can be conveniently listed as follows: (1) Was the First Warrant validly executed? (2) Was the Second Warrant validly issued? (3) Was the Second Warrant validly executed? 7 In respect of each issue a number of subsidiary questions arise. In turn each issue is referable to one or more of the provisions of Part 5 of the Act. In summary, it is the plaintiff's case that mandatory provisions of the Act were breached and that there has generally been either a failure on the part of the police to comply with the spirit and intendment of the Act, or a deliberate flouting of the statutory scheme by which the issue and execution of search warrants are regulated, such that the relief the plaintiff seeks should be granted. The facts concerning the issue of the first warrant 8 On 21 December 2005, Senior Constable Mathew Stratton made an application in person to the second defendant (James Wiseman, Registrar, Kogarah Local Court) for the issue of a search warrant authorizing police to enter and search premises located at 54 Payten Street, Kogarah NSW (the "premises"). The application was in writing and in accordance with the form prescribed by the Regulations. Relevantly, so far as these proceedings are concerned, Senior Constable Stratton deposed in the application to having a reasonable belief that a list of specified items, inclusive of Australian currency, documentation relating to the supply of prohibited drugs, other items associated to the supply of prohibited drugs, and financial records being held upon the premises that may be linked to the supply of prohibited drugs, would be in the premises. 9 The facts and circumstances grounding that belief were set out in the application in considerable detail. In summary, they concern an under cover operation which commenced in August 2005 in which both the plaintiff and his brother Walid Karout were named as persons of interest. In particular, the application states that in the course of electronic and visual surveillance over the course of some months the plaintiff was revealed to be the supplier of heroin to his brother from the premises at 54 Payten Street, heroin that his brother would in turn supply to street suppliers for on-sale to drug users. It is further alleged that the plaintiff's then partner Bernadette Taylor was also involved in the drug supply from the premises, at the plaintiff's direction. It was said that a registered police informant had supplied information that was corroborative of the surveillance evidence. The application also details the results of a New South Wales Crime Commission investigation into the plaintiff's financial affairs which is strongly suggestive, if not confirmative, of the fact that he had unexplained sources of income. 10 The application goes on to detail that fact that in early December 2005 an undercover operative purchased heroin from the plaintiff's brother on two occasions and, in the three days prior to 21 December 2005, drugs were supplied from the plaintiff's premises, or in close proximity to them, on eleven further occasions. 11 The second defendant was informed in the application for the first warrant that a further supply to the undercover operative was arranged for 22 December 2005 sometime after 5:00 pm. This was described in the evidence as a 'buy/bust scenario' and it was with this objective in mind that the warrant was sought. However, since it was not expected that the warrant would be executed before 7:00 pm on 22 December, a night warrant was sought pursuant to s 72 of the Act, authorising the execution of the warrant between 9:00 pm and 6:00 am. 12 The second defendant issued search warrant 118/2005 (the "first warrant") at 3:20 am on 21 December but refused that part of the application that concerned its execution as a night warrant. In the result it was endorsed as valid for execution only by day i.e. between 6:00 am and 9:00 pm. There is no evidence as to why this restriction was imposed. The warrant was expressed to expire at 3:20 pm on 24 December 2005. 13 It was otherwise established by the evidence before me that the undercover operative contacted Walid Karout at about 3:30 pm on 22 December and advised him that he would not be able to supply the heroin until 5:30 pm. The undercover operative drove to the pre-arranged meeting place and waited for Walid. At approximately 6:15 pm surveillance police observed Walid to walk out of his unit block and cross President Avenue, Monterey, where he met the operative and supplied him with seven grams of heroin. At 6:20 pm Walid was arrested and was conveyed to St George Police Station. The facts concerning the execution of the first warrant

14 At approximately 7:25 pm on 22 December, a number of police attended at the plaintiff's premises and executed the first warrant. An independent officer, Inspector Dixon, was in attendance as was Detective Waugh, the officer in charge of the investigation. The evidence makes it clear beyond question that the premises were entered in the following manner. Detective Waugh knocked on the front door of the premises. He was wearing a police issue ballistic vest with the word "POLICE" written on the front and back of the vest. A short time later Ms Taylor opened the front door whereupon Detective Waugh, Inspector Dixon and other police officers entered the premises. It was at that time, that is, whilst in the process of entering through the opened door, that Detective Waugh announced that he had a search warrant. It should be noted that the plaintiff was not at the premises at the time of entry. His two sons (Hassan and Ali Karout) were watching TV in the lounge room. 15 Before Detective Waugh handed the Occupier's Notice to Ms Taylor he explained that it stated that police were searching for items identical to those listed on the warrant. He also pointed to the place on the Occupier's Notice where those items were listed. The Occupier's Notice was then left in the hands of Ms Taylor. 16 In order to effectively and thoroughly search for prohibited drugs, and any items associated with the supply of prohibited drugs, police had to await the arrival of a drug sniffer dog and its handler. This occasioned a delay of approximately one hour. I am satisfied that it was only when time was passing without the appearance of the dog and its handler, with the accompanying risk that the first warrant would expire while the search was underway, that Detective Waugh telephoned Senior Constable Stratton and instructed that a fresh application for a night warrant should be made. Facts concerning the application for the second warrant

17 In his statement served as part of the prosecution brief of evidence, the first defendant refers to making only one application for the second warrant. He accepted, however, when shown the documents that were recovered from Parramatta Local Court in cross-examination, that two applications were in fact prepared by him and forwarded by facsimile. I am satisfied that this occurred at 19:41. While the time stamp on the faxed application records that it was received at Parramatta at 18:41, I am satisfied that the probable explanation for the discrepancy between the time stamp and the evidence of Detective Waugh (who said that he only made contact with Senior Constable Stratton to obtain a fresh warrant after it was apparent that there would be a delay in executing the first warrant, and only after he assessed the risk that it would or might expire) was that the fax machine at the police station had not been adjusted for daylight savings. Were it otherwise and the time stamp is accurate, the inescapable conclusion is that the second warrant was applied for before the first warrant was executed upon entry to the premises. Even taking the most cynical view of the police evidence, a view which the plaintiff contends for but which I am unpersuaded is open on the evidence, there is no reason obvious to me as to why the police would seek the issue of a further warrant before they entered the premises in purported execution of the first warrant. After all, given the state of the collected intelligence at that time as to the drug dealing by the plaintiff and others, it may have been that the plaintiff was in the premises with drugs and money in plain view. In addition, there is no evidence that police knew of the fact that there would be a delay of an hour before the sniffer dog and its handler arrived.

18 The first defendant could not readily offer an explanation as to why two applications were sent in support of the issue of the second warrant. In the course of his cross-examination, I asked the following (T28/50-56): Q. Can you explain why there are apparently two applications bearing your signature, being in relation to the same premises and lodged on the same day? Do you have any explanation for that? A. Not that I specifically recall, but I can only imagine that perhaps I have sent the incorrect search warrant at that time and then sent a second. Q. When you say "search warrant", you mean application? A. Application, that's right. 19 Upon a review of the two applications that were in evidence before me I note that one of the two applications is identical to the application that accompanied the issue of the first warrant, save for the date which had been amended to refer to 22 December 2005. By contrast, the second application included additional information, in effect updating the course of the undercover operation so as to include that fact that Walid Karout had been arrested that day, albeit later than had been originally planned due to the fact that Walid was awaiting access to the drugs which he supplied to the operative at 6.15pm. In the written application for the second warrant no mention is made of the fact that there was a search warrant issued the previous day and that it was in fact in the process of being executed at that time. The application for the second warrant was, however, for a night warrant on that stated basis that "it is not expected that the search warrants (sic) will be executed until 8pm" and that there would be insufficient time available in the hour remaining to 9 pm. 20 I do not consider that anything turns on the fact that two applications were made since, in the result, only one search warrant issued (the "second warrant"). If it be the fact that the Senior Constable Stratton sent an "incorrect" application, by which I take him to mean that it was without the additional and updated information, in my view this serves to support his further evidence that he was in fact in telephone contact with the third defendant at Parramatta and that he supplemented the written application with information concerning the first warrant including the fact that it was in the process of being executed. I will return to address his dealings with the third defendant later in the judgment since it is submitted by the plaintiff that the issue of second warrant was defective because, amongst other reasons, Senior Constable Stratton, did not provide him with accurate and reliable information and that in those circumstances, the issue of the second warrant was tainted. 21 At 8:22 pm, during the currency of the first warrant and during the process of it being executed but before the drug dog arrived, the plaintiff arrived at the premises. Upon his arrival, Detective Waugh approached him and the following conversation took place: WAUGH: "Are you Kaldon Karout?" KAROUT: "Yes". WAUGH: "We're carrying out a search of your house. I have a copy of a search warrant on me and the things we're looking for are shown in the warrant". 22 This is not verified by the videotape but is set out in the affidavit of Detective Waugh. I am satisfied that the plaintiff was informed that a search of the premises was taking place and his attention was drawn to the various items that police were empowered to search under warrant. 23 At approximately 8:26 pm the sniffer dog and its handler arrived at which time a thorough search of the entire premises was conducted. The dog indicated 'areas of interest' including one of the drawers in the study, a single mattress in a bedroom, a handbag located on the bed in what seems to be the master bedroom, and finally, and significantly, a locked safe located in the garage. Facts concerning the execution of the second warrant 24 At approximately 8:30 pm the third defendant sent the second warrant (no. 766/05) by facsimile to Senior Constable Stratton together with an Occupier's Notice. At 8:58 pm Detective Waugh is recorded advising the plaintiff that the second warrant had been applied for and granted, that it bore the designated number and that it was being brought to the premises. Being conscious that the first warrant was due to expire, and aware that the dog had located discrete areas of interest, in particular the safe in the garage, Detective Waugh decided to stop the search without opening the safe, and to await the arrival of the second warrant. He informed the plaintiff of his intention. He also sought his consent to the search continuing elsewhere in the premises in the meantime to which the plaintiff replied, "as long as that second warrant is coming". 25 Whilst awaiting the delivery of the second warrant, the police physically involved in the search (including the dog and its handler) left the premises and conducted a search of cars parked outside the residence but still within the curtilage of the premises.

26 At approximately 9:00 pm the second warrant and the Occupier's Notice was delivered to the premises by first defendant, Senior Constable Stratton, and handed to Inspector Dixon who handed it to Detective Waugh. It would appear from the video that Detective Waugh did not leave the residence during the interval between the expiration of the first warrant and the arrival of Senior Constable Stratton with the second warrant, despite the fact he gave evidence that he did in fact leave. It is not clear whether other police also remained inside the residence during that interval of time. This is also a matter about which the plaintiff complains it being submitted that in order to lawfully execute the second warrant all police were obliged to leave the premises and make a fresh entry in strict compliance with s 68 of the Act. 27 The second warrant was executed at 9:03 pm with the video recording the following: At 9:03 pm Detective Waugh is in the lounge room with other police and the plaintiff and Ms Taylor. He explained that he had been handed a search warrant (from Independent Officer Dixon) to search the premises and that it was able to be executed at any time and therefore the search could continue after 9:00 pm. Detective Waugh turned to the second page and referred to the warrant number as "766/05" and pointed to the top right-hand corner of that page. 28 Detective Waugh handed the Occupier's Notice to the plaintiff. Before doing so, he turned to the second of the two pages he was holding, pointed to the top right-hand corner and said: "It shows that it has been signed by Rory Evans at Parramatta Local Court". He then referred to the date and pointed further down the same page somewhere to the left. Detective Waugh then turned to the first of the two pages and pointed halfway down the page whereupon he said: "to search for things". Detective Waugh then gave the plaintiff the Occupier's Notice and further explained what police were entitled to search for, namely the same items listed in the first warrant. The plaintiff continued to read the Occupier's Notice. 29 The number of pages that comprise the notice that the third defendant sent by facsimile and which was ultimately handed to the plaintiff in the living room of his home, emerged as one of the central issues in the proceedings. It is the plaintiff's case that the notice was defective and that in reliance on Black v Breen & Anor [2000] NSWSC 987 the search undertaken pursuant to the second warrant was invalid for that reason. The plaintiff seeks to make much of the evidence of Senior Constable Stratton that the pages of the Occupier's Notice were stapled together when he handed them to Inspector Dixon, and that it consisted of only two of the requisite three pages as supportive of the proposition that it comprised only two pages when sent or that the police officer left one in the fax machine in error. I will review all the evidence bearing upon that issue later in the judgment.

30 At approximately 9:05 pm, police requested or directed the plaintiff to open the safe located in the garage. From within the safe police located and seized $263,480 in Australian currency. Police also seized financial documents, a computer, a razor blade and numerous SIM card packs which were found elsewhere in the premises in executing the second warrant. 31 The search concluded at 12:10 am, 23 December 2005, after which the plaintiff was arrested and removed from the premises. The first issue for determination: Was the first warrant validly executed? How was entry to the premises obtained?

32 It should be observed at the outset that nothing was seized pursuant to the first warrant. That said, it was under the authority of the first warrant that the premises were first entered and it was during the course of its execution that the safe containing the money was located although not at that time opened.

33 Section 68 of the Act provides: (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 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.

34 The plaintiff submitted that police fulfilled their statutory obligations under s 68(1)(a) only after entering the premises while the section makes the obligation to announce the authority to enter before entering mandatory. The plaintiff further submitted that the defendant did not lead evidence of any belief held by the police officers under s 68(2) that immediate entry was required. 35 I am satisfied that the video records that Detective Waugh identified himself and other police and signalled his reason for attendance (namely to execute the search warrant), whilst walking through the door that had been opened by Ms Taylor in response to the police knocking on it. While it is true that Detective Waugh did not hesitate on the threshold as he identified himself and announced his purpose, but proceeded through the door as he spoke, this was done in an orderly, efficient and courteous manner. Voices were not raised and there was no presentation of weapons. To the extent that there was a measurable interval of time between the discharge of the police officers' obligations under s 68(1)(a) and entry through the opened door, it would be an interval measured in a second or two only. 36 While this Court is obliged to insist that police comply with their obligations to announce their presence and their authority under warrant to enter premises as part of the raft of safeguards the Parliament has declared should protect the citizen against unlawful or inappropriate intrusion from police even if acting under warrant, it is also for this Court to approach the adequacy of compliance from a rational perspective. In so doing I am not seeking to moderate what has been described as the strict rule of strictness in the interpretation of laws governing search warrants (as to which see for example Carroll v Mijovich (1991) 25 NSWLR 441 at 454 per Meagher JA (diss) and Cassaniti v Croucher (2000) 48 NSWLR 623 at 636 [52] per Heydon JA (diss)). I am however firmly of the view that any breach of s 68 of the Act by the announcement and entry in this case being continuous and not discontinuous is a breach of the most technical kind. The effective discharge of the statutory powers given to the police to enter and search premises would be undermined were I to declare the execution of the first warrant invalid for this reason. I am fortified in this view by the manner in which the police entered and generally by the fair and balanced discharge of the power to search and seize once entry was effected. 37 The defendant submitted that on its proper construction s 68 of the Act operates as a preamble to the operation of s 70 pursuant to which police are entitled to use force to effect an entry. It was submitted that where the police are permitted to enter premises in this way there is no obligation to comply with s 68. On this construction, because the door was opened by Ms Taylor, it is submitted the police had no obligation to announce themselves. I do not regard this construction as open. Section 68 is concerned with the distinction between entry being permitted by the person in the premises after police announce their presence and their authority to search, and entry where announcement is not required because there is a proper basis for entry to be effected immediately. Section 70 deals with a different situation namely, where force is reasonably required to effect entry. While immediate entry may be accompanied by force it need not always be the case.

Delay and impropriety 38 The plaintiff also submitted that the execution of the first warrant was tainted by delay and impropriety, and that I should be satisfied on the evidence that police acted improperly by deliberately delaying the execution of the first warrant with its time restriction in order to ground an application for a further warrant for execution by night. I am satisfied that the evidence does not support such a finding. Furthermore, I am satisfied that the reason for the delay of an hour or thereabouts before a thorough search of the premises could be undertaken, and the only reason for the delay, was the late arrival of the sniffer dog and its handler. 39 In order to make good its submission the plaintiff is compelled to argue that the police entered the plaintiff's residence at approximately 7:35 pm with no intention at that time of executing the warrant, having made the decision beforehand that they would simply enter and allow time to pass so as to have a proper basis to obtain the night warrant that had been refused the previous day. Not only is the plaintiff compelled to argue that Senior Constable Stratton and Detective Waugh were parties to this ruse, he is also compelled to argue that all police were party to it, including it would seem the dog handler and the independent officer, and that they were all prepared to participate in the ruse in the full glare of a video recording. As I observed earlier I find this argument flawed, amongst other reasons because the police could not have known what they would or might discover upon entering the premises. I also note that Mr Thomas did not put this case scenario to either of police officers Stratton or Waugh in cross-examination. Whatever might be said about his ethical obligations in this regard (about which I pass no comment), in my view the challenge should have been made directly since impropriety of a serious kind is being alleged (see MWJ v R (2005) 222 ALR 436, see also Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382).

40 In the absence of any challenge to the evidence of Detective Waugh, and having had the opportunity to assess his credibility in the witness box, I accept his version as to the largely unforseen and unforeseeable unfolding of events on 22 December 2005. In terms, I accept that in the circumstances as he must be taken to have perceived them, he made an operational decision to enter and secure the premises, to then await the arrival of the police dog and handler and, because their arrival was delayed, to direct that a further warrant be applied for to avoid the risk that the authority under the first warrant would be rendered nugatory.

41 The plaintiff further submitted that the manner in which the first defendant fulfilled his obligation in accordance with s 74 of the Act to report back to the first defendant following execution of the first warrant supports his case. Suffice to say that what is said to be an incomplete/inadequate or deficient report cannot in my view invalidate the process by which the first warrant was executed. I do not understand the plaintiff to submit otherwise. As I understand it the report is relied upon by the plaintiff as evidential support for that part of his case that seeks to invalidate the issue of the second warrant. I do not consider it has this effect. 42 In the result, and for the reasons given, I am satisfied that the first warrant was validly executed.

The second issue for determination: Was the second warrant validly issued?

43 There are a number of provisions of the Act that are relevant to the question whether a warrant issued under the Act is validly issued. Since the challenge to the second warrant is on a number of bases it is necessary, in order to deal with each of the challenges the plaintiff makes, that I extract the relevant parts of these provisions in full. Before I do that however, I propose to deal first with one discrete aspect of the challenge to the issue of the second warrant since I am satisfied that in resolving this issue at the outset, the way is cleared to dispose of the substantive challenge to the issue of the second warrant, namely whether the third defendant had available to him information sufficient for the second warrant to lawfully issue, and the related question whether relevant information was deliberately kept from him. 44 It is submitted by the plaintiff that Senior Constable Stratton should have made efforts to locate the first defendant, Mr Wiseman, since he was the officer responsible for issuing the first warrant, and to have sought from him an extension of time for the execution of that warrant, or the issue of a night warrant, rather than applying for a fresh warrant from another authorised officer. The plaintiff relied upon the operation of s 73A for the source of what are said to have been his obligations in that regard: "73A Extension of warrant (1) A warrant (other than a telephone warrant) that expires 72 hours after its issue may be extended by the authorised officer who issued the warrant: (a) in the case of a warrant issued under Division 2 of Part 11 - if the authorised officer is satisfied that the purpose for which the warrant was issued cannot be satisfied within 72 hours, and (b) in any other case - if the authorised officer is satisfied that the warrant cannot be executed within 72 hours. (2) A telephone crime scene warrant may be extended, for up to 60 hours at a time, by the authorised officer who issued the warrant. (3) Any other telephone warrant may not be extended. (4) The time for expiry of a warrant that can be extended (other than a telephone crime scene warrant) may be extended only once. (5) The time for expiry of a telephone crime scene warrant may be extended twice. (6) Any extension of a warrant under this section: (a) must not extend the period for which the warrant has effect beyond 144 hours after its issue, and (b) must be made on the application of the person to whom the warrant was issued or any other person who is authorised to execute the warrant, and (c) must be made on a written application made in person, unless it is impractical for the applicant to appear before an authorised officer before the warrant expires, and (d) must be made before the expiry of the warrant, and (e) must be made by issuing a replacement warrant (specifying the new time for expiry of the warrant) and replacement occupier's notice." 45 While s 73A is headed "Extension of Warrant", I do not consider that this section has any application where the time limitation imposed on the execution of a warrant at the time of its issue is due to expire or be exceeded (as was the case here) in circumstances where the warrant has otherwise been executed or is in the process of being executed. By its express terms, s 73A(1) is only concerned with extending the issue of a warrant that has yet to be executed because the purpose for which it was issued cannot be satisfied or in any other case where it cannot be executed. 46 If s 73A has no application, the only option that was available to Senior Constable Stratton was to apply for a fresh warrant with authority to execute it by night as provided for in s 74 of the Act. 47 Even if s 73A might be construed so as to permit of an extension of, or conversion from, a day warrant to a night warrant (a construction which I do not regard as properly available), I am satisfied that in this case that there are sound reasons why an extension was not applied for. Accepting as I do that Senior Constable Stratton was not contacted by Detective Waugh until well after 7:30 pm, after entry under the first warrant had been effected, and accepting as I do that he was of the genuine belief that the Kogarah Local Court would be closed at that hour (and presumably that he had no other means of contacting the second defendant), I am satisfied that he exercised the next available statutory option, namely to make application for a fresh warrant to a Court that he knew or believed would be in a position to grant a telephone warrant.

48 Whether or not I am satisfied that Senior Constable Stratton actually considered the Act in detail, and whether or not he fully appreciated the distinction between an extension of an existing warrant and an application for a fresh warrant (about which I have some doubts) is not to the point. The question remains whether the second warrant was validly issued. Since I have already rejected the submission that Detective Waugh acted improperly in deliberately delaying the execution of the first warrant, and since I accept that Senior Constable Stratton has given truthful evidence as to why he made the application for the second warrant by telephone to Parramatta Local Court, the plaintiff's submission that he had other motives in seeking the fresh warrant and not an extension warrant must be rejected. 49 In my view, these findings also go a considerable distance to disposing of the plaintiff's primary submission challenging the issue of the second warrant, namely that the third defendant's discretion as to whether to issue a telephone warrant under s 61, and endorse it as a night warrant under s 72, miscarried because relevant information was deliberately withheld from him. 50 Section 61 provides: "(1) A person may apply by telephone for a warrant. Note: telephone includes radio, facsimile and any other communication device. (2) An authorised officer must not issue a warrant on an application made by telephone unless the authorised officer is satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person. (3) An application must be made by facsimile if the facilities to do so are readily available for that purpose. (4) If it is not practicable for an application for a warrant to be made by telephone directly to an authorised officer, the application may be transmitted to the authorised officer by another person on behalf of the applicant. (5) An authorised officer who issues a warrant on an application made by telephone must: (a) complete and sign the warrant, and (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 the person of the terms of the occupier's notice. (6) … (7) A form of warrant and a form of occupier's notice so completed is taken to be a warrant issued, and an occupier's notice prepared and furnished, in accordance with this Act. (8) A warrant or occupier's notice is to be furnished by an authorised officer 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."

51 Section 72 provides: "(1) A warrant may be executed by day, but must not be executed by night unless the authorised officer, by the warrant, authorises its execution by night. (2) An authorised officer is not to authorise the execution of a warrant by night unless satisfied that there are reasonable grounds for doing so. Those grounds include (but are not limited to) the following: (a) the execution of the warrant by day is unlikely to be successful because, for example, it is issued to search for a thing that is likely to be on the premises only at night or other relevant circumstances will only exist at night, (b) there is likely to be less risk to the safety of any person if it is executed by night, (c) an occupier is likely to be on the premises only at night to allow entry without the use of force. (3) In this section: "by day" means during the period between 6 am and 9 pm on any day. "by night" means during the period between 9 pm on any day and 6 am on the following day." 52 In addition, s 62(1)(e) of the Act provides that an authorised officer must not issue a warrant unless the application for the warrant includes information relating to any previous applications for that same warrant that were refused, the reasons for that refusal and any other matters required by s 64. Section 64 provides that if an application by a person for a warrant is refused by an authorised officer, that person may not make a further application for the same warrant to that or any other authorised officer unless the further application provides additional information that justifies the making of the further application. It is not submitted that s 64 has any application in the present case since the application for the first warrant was not refused per se. 53 Again I emphasise that Mr Thomas did not put to Senior Constable Stratton that he had deliberately omitted reference to the first warrant in the application for the second warrant, notwithstanding that in response to a question asked by me it became obvious, as I noted in paragraph [20] above, that the police officer had actually spoken to the third defendant about that very matter as the following extract makes clear: Q. Do you remember having any conversation with anybody at Parramatta? A. I did speak to Mr Evans over the telephone. Q. Do you remember whether in the course of communicating with him (you saw) the necessity for, in the alternative, he saw the necessity of you making a further application or amending the application in any way? A. No, I don't specifically remember. The only conversation I remember having with Mr Evans is that I was explaining the fact that the first search warrant was already executed and what had happened up until that point in time. But I don't recall any conversation in relation to sending another fax off at all. 54 Although Mr Thomas returned to this subject and asked the following questions, he did not put to the officer that he was giving untruthful evidence. In submissions Mr Thomas urged me to find that the officer's evidence was unreliable and on that basis I should reject it. Q. Do you state anywhere in either of the applications that were sent through to the Parramatta Local Court on 22 December that on 21 December you had sought a night warrant and that application had been refused by the authorised officer at the Kogarah Local Court? A. No, but I had a telephone conversation with Mr Evans in relation to that. Q. That was a conversation that you referred to before the adjournment in response to a question from her Honour? A. Correct. Q. In giving that evidence you stated, I suggest to you, that you had a conversation with Mr Evans about the warrant that was being executed at that time. A. Correct. Q. In giving that evidence you didn't say anything about a conversation with Mr Evans about you having made an application for a night warrant the day before which had been rejected? A. No, but I did have that conversation with him. Q. What, you told Mr Evans, did you, that the day before you had asked the Kogarah Local Court for a night warrant and the court officer had refused. Are you suggesting that you told that to Mr Evans? A. No. Mr Evans asked me why I hadn't applied for that warrant initially and I advised him that I had. 55 In my view, the evidence from Senior Constable Stratton about his dealings with the third defendant when applying for the second warrant, and the fact that it was volunteered in answer to a deliberately non-leading question from me, and confirmed in the questions asked by Mr Thomas, is sufficient for me to reject the challenge made to the issue of the second warrant. In particular, I am satisfied that the third defendant was made aware of all relevant matters before issuing the warrant, inclusive of the fact that there was a previous application for a night warrant which was refused, that the warrant that did issue was in the process of being executed but with insufficient time to complete the search and that it was in these circumstances that the application for a night warrant by telephone was made. The fact that this information was not included in either of the two written applications for the second warrant, and was not detailed in the report prepared by the third defendant in accordance with s 65 of the Act, does not unsettle that finding.

The third question for determination: Was the second warrant validly executed?

56 The plaintiff submitted that the execution of the second warrant was invalid on number of bases including: (1) that police did not properly announce their intention to enter prior to entry; (2) that the plaintiff was not served with a complete Occupier's Notice; (3) that, were the Court to find that the plaintiff consented to the continuation of the search and therefore to the officers remaining on the premises (and perhaps to the search under the second warrant), that such consent was vitiated by the fact that police refused the plaintiff's request to speak to a solicitor; and, (4) the fact that the first defendant did not properly report back to the second defendant in accordance with s 74 of the Act and that he failed entirely to report back to the third defendant. 57 Since the issue of consent has a bearing on the question of re-entry and, may have a bearing on the sufficiency of the Occupier's Notice, I will deal with it first.

The issue of consent 58 I was not taken to any authorities on the significance of consent in a case in any sense analogous to this case where the evidence clearly establishes that at 8.58 pm, before the expiry of the first warrant at 9:00 pm, and before the execution of the second warrant at 9:03 pm, the plaintiff gave his consent to the search continuing. I have however been assisted by an analysis of the significance of consent in the general law of search and seizure undertaken by James J in DPP v Leonard (2001) 127 A Crim R 381. 59 In that case, following the defendant's vehicle being stopped for the purposes of a random breath test, the police officer wanted to search the defendant's vehicle because of his belief that drugs were being transported by cars along that particular highway. The defendant's response was: "Go for it, there is nothing in here mate". Cannabis was found in the boot. It was submitted that the consent relied upon to overcome the fact that the search was unauthorised (there being no basis for the police officer to have a reasonable suspicion that drugs were being transported by the defendant) was not informed consent as the defendant was not advised of his right to refuse to consent. His Honour considered the authorities and came firmly to the view that, subject to any statutory provision to the contrary, a person may consent to an investigative procedure taking place without being aware that he has a right to withhold consent, and without the necessity on the part of the officer conducting the procedure to inform the person of that fact. I adopt his Honour's finding in that regard. 60 In coming to that conclusion James J referred with approval to Pearce v Button (1985) 60 ALR 537. In that case Pincus J held that although the searches were not authorised by the Customs Act 1901(Cth) they were valid by virtue of the occupier's consent and further, that there was no legal requirement that the occupier should have accurately understood the nature or extent of the rights of Customs officers to search for the consent to be valid. Rather, his Honour stated that: "If, lacking such an understanding, a person whom it is proposed to search takes the warrant as read and displays anxiety to assist, not being overborne or bullied in any way, then I find it difficult to see why his consent should necessarily be disregarded. Here no pressure appears to have been placed on Mr Pearce." 61 His Honour also makes it clear that consent will be disregarded where the occupier is motivated only by a desire not to look bad in the eyes of authority or where consent to a search is induced by an apprehension that withholding consent will give rise to a suspicion of guilt.

62 The plaintiff does not allege that he was motivated in this way or that he was in any way overborne or bullied to consent to the search. Rather, what is said to have vitiated his consent is the failure of police to accede to a request by the plaintiff to speak to a solicitor. 63 The Act makes no express provision for an occupier of premises the subject of a warrant to be permitted to seek legal advice. I am prepared to proceed on the basis however that a police officer acting fairly should not unreasonably refuse such a request and since the plaintiff was, according to Detective Waugh, effectively under arrest from the time he entered the premises, permission to speak to a solicitor could have been granted. That said, I am satisfied that there was a proper basis for the officer refusing the plaintiff's request to use his own mobile phone for that purpose on the stated basis that the police wanted to obtain information from its memory. I am also prepared to proceed on the basis that were he to have sought advice it is likely that he would have ascertained the precise nature of his rights and the relative rights of police in the circumstances, relevantly, that the police had a right to search in accordance with a validly issued warrant up until 9 pm and that the search could continue thereafter with the plaintiff's consent until the further warrant arrived. He might also have been advised, since he was under arrest, that police had a right to detain him at the premises until the search was completed. 64 No evidence was led from the plaintiff that he would have refused his consent assuming that he were given advice that this was a course open to him.

Police did not properly announce their intention to enter prior to entry

65 The plaintiff submitted that at 9:00 pm all police should have left the premises and to have only re-entered (announcing themselves before entry in accordance with s 68 of the Act) upon receipt of the second warrant. 66 In the course of deciding whether the execution of the first warrant was valid having regard to the manner in which entry to the premises was first effected, I was satisfied without in any way derogating from the mandatory terms of the section, that the question of compliance with s 68 had to be viewed rationally on a case by case basis. I am satisfied that the circumstances that presented at the plaintiff's premises at or about 9:00 pm did not call for the police to leave the premises, notwithstanding that the authority under the first warrant had at that time been spent, since they remained in the premises with the active consent of the plaintiff pending the arrival of the second warrant. In addition, in so far as Detective Waugh was concerned, he was charged with the added responsibility of detaining the plaintiff until such time as he could be removed from the premises and had a lawful right to remain on the premises for this reason.

The Occupier's Notice 67 An Occupier's Notice is defined in s 46 to mean a notice in accordance with s 27. Section 67 of the Act provides: 1) An authorised officer is to prepare and give an occupier's notice to the person to whom the authorised 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, (ii) the name of the authorised officer who issued 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) A person executing a 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, either personally or in such other manner as the authorised officer who issued the warrant may direct, as soon as practicable after executing the warrant. (4) Service of an occupier's notice pursuant to subsection (3)(b) may be postponed by the authorised officer who issued the warrant if that authorised officer is satisfied that there are reasonable grounds for the postponement. (5) Service of an occupier's notice pursuant to subsection (3)(b) may be postponed on more than one occasion, but must not be postponed on any one occasion for a period exceeding 6 months.

68 The plaintiff submitted that the second warrant was not accompanied by service of a complete Occupier's Notice as required by s 67 of the Act because the document that was handed to the plaintiff was a two page document and not a three page document as provided for in clause 7(a) of the Regulations. 69 In order to appreciate the significance of the challenge to the Occupier's Notice it is necessary that it be described in detail. The notice that should have been served is divided into sections each bearing a nominated subheading. On the first page the premises are identified as is the time at which the warrant expires. The occupier is then informed of their right to inspect the search warrant but warned against hindering or obstructing the search and that conduct of that kind is a criminal offence. The powers given under the warrant are then specified and the things the police are empowered to search for are identified. On the second page under the heading 'Issue Details' the authorised officer, in this case the first defendant, Senior Constable Stratton, is named as the person who applied for the warrant. The basis for the issue of the warrant is then specified, in this case, that the third defendant found that there were reasonable grounds for the issue of the warrant on the basis that the applicant believed that there were on the premises things connected with drug trafficking. The occupier is then informed that if he or she is dissatisfied with the issue of the warrant or the conduct of the search legal advice should be sought. (I note that the occupier is not informed in terms that there is a right to advice during the conduct of the search). The last section on page two is headed "Limitations on the powers conferred" and in this case importantly the warrant is endorsed for execution at any time. The third page of the Occupier's Notice provides solely for the fact that the application for the warrant and the written reasons for its issue are held at in this case Parramatta and that the occupier should produce the notice when seeking to inspect those documents. The notice is then signed by the third defendant and dated.

70 Earlier in this judgment I set out in some detail the way in which Detective Waugh executed the second warrant and in particular what transpired when the occupiers notice was served. See [27] and [28] above.

71 While Mr Skinner has sought to persuade me that a three page notice was served, I am satisfied on a close review of the video tape that this is not the case. It is clear that when referring the plaintiff to the notice the Detective only had in his hand at any one time a two page document and only a two page document was served on the plaintiff. I am also satisfied on the probabilities that it was the first and third pages of the notice that was served on the plaintiff. To that extent I am satisfied that the notice was defective. The plaintiff submits that the decision of Ireland AJ in Black v Breen & Anor [2000] NSWSC 987 should result in my being satisfied that the execution of the second warrant was defective for this reason and that declaratory relief should be granted.

72 In that case his Honour held that where police inadvertently gave occupants only one of two pages of an occupier's notice under similar provisions of the Search Warrants Act 1985 (since repealed) the execution of the warrant was contrary to law. His Honour also noted Kirby P's judgment in Carroll & Ors v Mijovich & Ors (1991) 25 NSWLR 441 in which his Honour made reference to the Second Reading Speech to the Search Warrants Act (at 448D): "Another of the major reforms introduced was the obligation to provide the occupier with a Notice of Rights… (at 3960) This notice will be given to every occupier of premises subject to search under a valid warrant. The notice will contain details concerning the reason for the search and the nature of the powers conferred by the warrant. The language of the notice will be plain so as to enable the occupier to check that the warrant has been properly issued. The notice will contain advice in relation to seeking legal assistance should the occupier be dissatisfied with any aspect of the search. The occupier will keep this notice. While introducing the idea of an occupier's notice, the bill preserves the requirement to show the original warrant." 73 The plaintiff also referred me to the decision of Hall J In Ballis v Randall [2007] NSWSC 422. In that case, his Honour was concerned with the effect of non-compliance with the requirement that an Occupier's Notice be served on entry to the premises in accordance with s 15 of the Search Warrants Act in circumstances where the warrant was being executed covertly. "[104] Service of an Occupier's Notice referred to in s 15 of the Act is a central provision in the statutory scheme prescribed by the Act. It is plainly an important procedural safeguard in relation to a warrant's execution. As discussed below, this is of central importance in determining the lawfulness of the execution of the particular warrants in this case….

…[117] In Carroll v Mijovich (supra), Kirby P examined the historical background and statutory context within which the Act is to be construed. His Honour referred to the obligation to provide an occupier with a notice of rights as one of "… the major reforms introduced …" (by the Act). He quoted the Minister in the Second Reading Speech to the following effect (at 3860): "… this Notice will be given to every occupier of premises subject to search under a valid warrant. The Notice will contain details concerning the reason for the search and the nature of the powers conferred by the warrant. The language of the Notice will be plain so as to enable the occupier to check that the warrant has been properly issued. The Notice will contain advice in relation to seeking legal assistance should the occupier be dissatisfied with any aspect of the search. The occupier will keep this Notice. While introducing the idea of an Occupier's Notice, the Bills preserve the requirement to show the original warrant."

[118] Parliament did not expressly provide in the Act for the consequence of a failure to comply with s.15. In those circumstances, as in Carroll (supra), it is necessary to identify, if possible, any presumed legislative "intent" from the words of the provision in question. As Kirby P there stated (at 449), the relevant words are to be construed in the context of the Act as a whole and for the purpose of achieving the objects which may be imputed to Parliament in providing as it did in that provision.

[119] The execution of a search warrant is a serious matter ( Carroll v Mijovich (supra) at 449). In the present case, the effect of the approach taken by each applicant and those executing the warrants was to give priority to operational considerations over and at the expense of the procedural safeguards in s.15 of the Act.

[120] The operational requirements of law enforcement agencies may be such, in a particular case, that a covert search warrant procedure is considered by those involved in an investigation as being desirable or even necessary. Inconvenience without such a procedure may result. However, it is the terms of the statutory scheme that determine where the balance lies between the interests of such agencies and the interests of the occupiers of premises. Accordingly, it has been observed:- "[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights" : Plenty v Dillon (1991) 171 CLR at 654 referred to by the Full Court of the High Court in Coco v The Queen [1993-94] 179 CLR 427 at 436."

74 In the result, his Honour was satisfied that the covertly executed warrant should be set aside as no Occupier's Notice was served.

75 The facts upon which the two authorities to which I have been referred were decided are, in my view, distinguishable from the facts that obtain here. It cannot be overlooked that in this case the police were already in the plaintiff's premises when the Occupier's Notice was served on him at 9:03 pm, and it cannot be doubted that he was fully aware of what had transpired from the time the police arrived at the premises at approximately 7:35 pm until when he arrived at 8:22 pm and thereafter, namely, that the police entered pursuant to a warrant authorising them to search for specified items in connection with drug trafficking. In so far as the missing second page is concerned I am satisfied the plaintiff had the information that is recited on that page of the document because, as is patent from the videotape, Detective Waugh was at pains to ensure that the plaintiff was fully informed of the intentions of police at all times. In particular, he was aware of the time at which the warrant issued because at 8:58 pm he was told the warrant had been issued and was on its way. He was also told that it was a night warrant. 76 In State of New South Wales v Corbett [2007] HCA 32 the High Court had occasion to reaffirm the correctness of the approach that should be taken to the interpretation of statutory provisions regarding search warrants and to insist on strict compliance with the statutory conditions governing their issue and execution to give effect to the purpose of the legislation. However, as Justice Kirby observed at [22] the reasons for adherence to the rule of strictness include: (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.

77 I am satisfied for the reasons outlined above that notwithstanding the defective notice there has been no resultant diminution of the plaintiff's rights as occupier and that the rule of strictness so called has not in the circumstances of this case been undermined.

(1) The plaintiff's summons is dismissed. (2) The plaintiff is to pay the defendant's costs of the summons.

03/03/2010 - Typographical error - Paragraph(s) Coversheet and para 78

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.