Plaintiff v First defendant

The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.

In the proceeding before the magistrate, there was no issue that the paintings were articles or things nor that they were owned by Mr Siddique. The issue was whether the paintings were 'seized under a search warrant' within the meaning of s 78(6).

3 The warrants were issued by a magistrate pursuant to s 465(1) of the Crimes Act 1958 (Vic) in respect of the following specified property:

Any paint, frames, solvents, sketches, notebooks or any other item used in the manufacturing of the fraudulent WHITELEY paintings. Evidence of financial transactions, photographs and/or digital images relating to fraudulent WHITELEY paintings.

In respect of that property only, the warrants authorised the police as follows:

• To break, enter and search any place/specified vehicle located in a public place named or described in this warrant for any article, thing or material of any kind described in this warrant;

• To bring the article, thing or material before the Court so that the matter may be dealt with according to law;

• To arrest any person apparently having possession, custody or control of the article, thing or material.

The 'place' specified in the warrants was the residential address, and the business address, of Mr Siddique respectively.

4 Police accessed those premises pursuant to the warrants. During the execution of the warrants, they seized a number of works by artists other than Brett Whiteley, including Howard Arkley and Charles Blackman. By consent, the magistrate later ordered the return of some of those works to Mr Siddique. But, in the subject decision, his Honour refused to order the release of paintings by Howard Arkley and Charles Blackman, which police opposed.

5 In the magistrate's carefully considered reasons for decision, his Honour correctly stated that the issue to be determined was whether the court had jurisdiction under s 78(6) to order the return of property seized outside the authority of a warrant. He considered that, on the proper interpretation of the provision, discretion to order return was 'confined to property that was lawfully seized under the warrant'.

6 Although, for the following reasons, I agree with his Honour's ultimate conclusion, with respect I think it is a distraction to focus on whether the items were seized 'lawfully' under the warrant. The question is whether the items were seized 'under' the warrant. Depending on the circumstances, seized items might fall within that description even though, for example, the warrant was invalid or some defect of procedure made its execution unlawful. A magistrate has jurisdiction under s 78(6) to rule upon such matters. Moreover, as counsel for the first defendant, a detective senior sergeant of police, properly conceded, if police were to seize property wrongly believing it to be covered by a warrant, a magistrate would have jurisdiction to rule upon that matter also. The word 'under' in the provision would be interpreted so as to include those and like situations such that, where appropriate, the discretion in s 78(6) would be enlivened and could be exercised to order the return of the subject property. But, there was no such grey area in the present case. The paintings concerned did not come within, and were not by police said to come within, the property specified in the warrants.

7 In my view, the words 'under a search warrant' direct attention to the authority to seize the 'article, thing or material' in question. Section 78(6) does not confer discretion to order release of items seized 'in connection with' execution of a warrant. Therefore, when determining whether property has been seized 'under a search warrant', it is necessary to examine whether it was seized under the authority of the warrant.

8 This conclusion is supported by the interpretation of legislation conferring jurisdiction upon courts to order judicial review in respect of decisions of an administrative character made 'under an enactment'. The authorities were reviewed in Griffith University v Tang[1] in relation to the meaning of those words in s 4(a) of the Judicial Review Act 1991 (Qld), of which Gummow, Callinan and Heydon JJ said:

The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met.[2]

Applying this reasoning to the present case, it cannot be said, and was not by police said, that seizure of the paintings not specified in the warrants was 'expressly or impliedly required or authorised' by them.

9 As was held by von Doussa, Drummond and Mansfield JJ in Salerno v National Crime Authority,[3] '[i]t is now accepted that a decision to issue a search warrant pursuant to the provisions of Commonwealth statutes such as the Crimes Act 1914 (Cth) is reviewable under' the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under that Act, judicial review is permitted in respect of decisions of an administrative character 'under an enactment' as defined in s 3(1). Applying this reasoning to the present case, the decision of a magistrate to issue the warrants under s 465(1) of the Crimes Act was a decision made 'under' that Act. That is because s 465(1) was the source of the authority for the issuing of the warrants. By contrast, the source of the authority (if there was authority) for the seizure of the relevant paintings was not the warrants because they did not come within the specified property.

10 Section 78(6) is to be found within sub-div 5 of div 3 of pt 4 of the Magistrates' Court Act, which is entitled 'Search Warrants'. By s 75(1), a search warrant 'may be issued as authorised by any Act other than this Act'. The authority to issue the warrants in the present case is to be found in s 465(1) of the Crimes Act.

11 Section 465(1) confers on a magistrate a power to issue a search warrant when satisfied on affidavit that there are reasonable grounds for doing so. The items in respect of which a search warrant may be so issued are relevantly specified thus:

(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or

(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or

(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant -

12 You have seen that the warrants specified items in relation to the production of fraudulent paintings by Brett Whiteley. On no view did they specify the paintings by Howard Arkley and Charles Blackman. Therefore the warrants conferred no authority on police to search for and seize those paintings. As the warrants conferred no such authority, the paintings were not seized 'under' the warrants. If the police had authority to search for and seize, and indeed detain, those paintings, which is the issue in the separate civil proceeding in this court, it was not under the warrants.

13 An interpretation of the word 'under' in s 78(6) that requires the relevantly seized item to be joined up with the authority to seize in the subject warrant is supported by the context of s 78 as a whole. Take s 78(1)(b), for instance. It states that a search warrant 'authorises' the person to whom it is directed to act as follows:

(b) if the warrant is to search for any thing -

(i) to break, enter and search any place or vehicle named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and

(ii) to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and

(iii) to arrest any person apparently having possession, custody or control of the article, thing or material.

In respect of the items 'named or described in the warrant', sub-paras (i), (ii) and (iii) authorise the search of any place for the named item, bringing it to court and the arrest of persons having possession thereof. In reference to that authority, note the consistent reference to 'the' named items.

14 It was submitted for Mr Siddique that a wide interpretation should be given to the word 'under' in s 78(6) and therefore the court's jurisdiction to order return of seized property. On that wide interpretation, it was enough for the police to have gained entry to Mr Siddique's home and business premises pursuant to the warrants. Since they were physically present in those premises only because of the warrants, the seizure of the paintings not specified in the warrants nonetheless occurred under the warrants. Such an interpretation was consistent with the purposes of s 78(6), which was to facilitate court-ordered release of property seized under warrants.

15 This is an attractive submission but I am afraid it must be rejected. Subject to what I have already said about the undoubted jurisdiction of the court in grey-area cases, s 78(6) is a provision that, properly interpreted, confers discretion upon the court to order the return of seized property as specified in the warrant concerned. It is not a provision that confers discretion to order the return of other items seized, whether lawfully or unlawfully, during the execution of the warrant. That may be a pity because it forces individuals to seek separate recovery of property seized during the execution of, but not under, a warrant when, in most cases, the discretionary procedure in s 78(6) might conveniently cover both situations. That is a matter for the legislature, not this court.

16 There was considerable discussion during argument about whether the paintings by Howard Arkley and Charles Blackman were lawfully seized by the police at common law. This is a matter for the trial judge in the separate civil proceeding. The issue that arises in the present application is whether, as required by s 78(6) of the Magistrates' Court Act, the paintings were seized 'under' the warrants. In my view, the magistrate correctly determined that, upon the proper interpretation of that provision, they were not.

17 For these reasons the application for judicial review will be dismissed.

[1] [2005] HCA 7; (2005) 221 CLR 99 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ).

[2] Ibid 130 [89] (Gleeson CJ reached the same conclusion; Kirby J dissented).

[3] [1997] FCA 475; (1997) 75 FCR 133, 139.