10 The prosecutor conceded that the discovery of the shoes was "quite fortuitous" in that it did not assist in the case that the relevant police officer was originally investigating but the fact that an unknown person's blood was on the shoes prompted inquiries to be made concerning "particular types of crime", although the fact that:
"… we don't have a victim or a defendant at this stage doesn't mean that in a year...next year, a year after, a body turns up and there may be something...".
In describing this as "speculative" the prosecutor was completely correct.
11 It is obvious that the Magistrate relied on the prosecutor's submission as an accurate outline of the evidence, which he proposed to lead from the investigator. It will be seen that the prosecutor did not suggest or even hint at any particular offence let alone any offence, which it was believed the defendant, had committed. For the purpose of determining whether the evidence was relevant, seems to me that the Magistrate was entitled to rely on the prosector's submission as to the evidence it was expected would be adduced. Had the prosecutor thought that further evidence might have been required he could have sought to call the detective on the voir dire. He did not take this course.
12 Questions of the admissibility of evidence are frequently determined on the submissions of counsel. If it were not done in this way a great deal of court time would be wasted by the pointless calling of evidence on the voir dire to determine questions of admissibility. In my view, the Magistrate was entirely justified in relying upon the prosecutor to conduct the matter appropriately and to bring to her attention the way in which it was contended the objected to evidence was relevant to the subject matter of the application.
13 The Magistrate concluded, giving brief but adequate reasons, that property could not be retained by police simply because a person belongs to a particular group that might be thought conducted criminal activities including criminal activities of violence. She described the retention as "anticipatory and purely speculative" and said that it was not permitted. This finding of the Magistrate was based upon an acceptance of what had been told to her by the prosecutor, taking that at its highest. Having ruled that the evidence was irrelevant in the sense that, even if true, it did or could not justify retention, the evidence was not adduced.
14 It is submitted in this Court by Ms Richardson of counsel for the investigating police officer that the Magistrate should have permitted the evidence to be given. It was submitted that the evidence was relevant to the exercise by the Magistrate of her discretion whether to order return. In the end, I think, Ms Richardson was bound to deal with the matter on the basis that the proposed evidence was of the kind, although perhaps not in precisely the same terms, as had been outlined to the Magistrate by the prosecutor.
15 The reason for retention was directly relevant to whether the order should be made and was, of course, capable of being given in evidence. The Magistrate's finding, in effect, was that the reason did not justify retention and, accordingly, accepted at its highest, did not assist the prosecutor's case. In this sense the evidence was held to be irrelevant.
16 On the assumption I have mentioned, this was a reasonable course to adopt but, as a matter of law it was not correct to say the evidence was irrelevant. Assume the absurd case that the officer had said "I was keeping the shoes because they looked like they were an interesting exhibit", that of course could not have justified retention but it would have been undoubtedly relevant to the exercise of discretion. It follows that, as a matter of law, the Magistrate's finding that the evidence was irrelevant was mistaken. But that does not mean that her Honour's order was wrong, because it was made upon the assumption that the prosecutor's outline of the proposed evidence was accurate, a reasonable, indeed a necessary, assumption in the circumstances, and that she, as it were, gave the respondent police officer the benefit of accepting.
17 The essential question that needs to be answered for present purposes is whether items of evidence having been lawfully obtained by virtue of a search warrant, the property can be held by police, against the demand for its return by its owner, for the purpose of investigating whether it might be implicated in some crime or other which had not been identified or indeed might not even yet have been discovered.
18 Were the shoes required for the purpose of investigating a specific crime it might well be that their retention would be justified. That, however, is very far from this case. In substance the respondent's argument amounts to this: the applicant is a criminal; he is involved in a criminal organisation; that organisation has committed a number of criminal offences; we suspect that the applicant also has but we do not know what they are; we are entitled to hold the shoes in case at some time it turns out that they might be relevant to a crime committed by him or his associates.
19 I do not regard this view as being at all unreasonable. To the contrary it strikes me as sensible. But it seems to me that a general wish to hold property belonging to someone else for the reason that it might turn out at some time or other to be material to some criminal activity about which we presently have no information is not a retention for the purposes of investigation within the terms of s 218 and it is not a basis for properly refusing an application for return of goods under s 219. The protection of the right of the citizen to his or her property is an important legal principle.
20 The form in which the proceedings have taken in this Court is that it is contended that the error of the Magistrate, in failing to allow evidence from the investigator as to the reasons for retention meant that her Honour's discretion miscarried, and that therefore her order should be quashed.
21 I have already said that the Magistrate's ruling on the question of the relevance of the evidence was mistaken but I also consider that her Honour was right in determining that that evidence, if given, could not have justified retention. In the sense, therefore, that it was not evidence that could influence the outcome of the proceedings in favour of the investigating officer, its exclusion was immaterial. However, these are legal niceties. The fundamental point is, as I see it, that the Magistrate was correct in characterising the proposed evidence as not justifying retention and that, although technically her Honour should have permitted the evidence to be given, it would not have changed the correctness of her order.