Polley v Johnson

Court of Appeal (NSW)|2015-07-24|Before: Beazley P, McColl JA, Simpson JA, Bellew J, Coll JA

Background facts

Unless otherwise stated, the following facts (arranged chronologically, so far as dates or approximate dates can be ascertained) appear to be uncontroversial and will aid an understanding of the issues presented on the application.
On or about 1 July 1996, the body of Charles Avouris was discovered in his home in Mumbil NSW. Mr Avouris had been shot in the head. At some stage (not identified in the evidence) police received information linking an organisation called the Rebels Outlaw Motorcycle Gang with the death. Also at some unspecified time, Mr Michael Gillard and Ms Tammy Howard lived in Mumbil in a domestic relationship. That relationship came to an end in about the middle of 2010.
In 2011, Strike Force Burrendong was established in the NSW Police Force to investigate the death (suspected to be murder) of Mr Avouris. By that time, Ms Polley was in a relationship with Mr Gillard, although they maintained their own separate premises. Ms Polley lived at premises in Neurea Street, Mumbil. On 22 December 2011, police approached Mr Gillard to inquire about any information he might have in relation to Mr Avouris' death and the investigation.
The following day, 23 December, police issued a media release concerning the murder investigation. It is alleged that, on or about 24 December 2011, Mr Gillard approached Ms Howard at a local hotel. He was wearing clothing and insignia associated with the Rebels Outlaw Motorcycle Gang. He asked Ms Howard whether she had been interviewed about the death of Mr Avouris, and asked her about parties arranged by the Rebels that she had previously attended. He spoke to her in a manner that she interpreted as directly threatening her in the event that she cooperated with the police investigation. Specifically, he told her that he hoped people were not talking to police about Mr Avouris' death because, if they did, "bad things could happen to them". (I do not suggest that these allegations are uncontroversial as far as Mr Gillard is concerned; that Mr Gillard is alleged to have spoken as he did is uncontroversial for present purposes.)

The Summons and the proceedings in the Supreme Court

The Summons in the Supreme Court sought an order that is not presently material, and:

a declaration that the search warrant was invalidly issued;
a declaration that the execution of the search warrant was accordingly unlawful; and
an order in the nature of certiorari quashing the warrant.

Affidavits of Ms Polley and Mr Gillard, and their solicitor (Mr Patrick Latham) were read in the applicant's case. In the respondent's case, affidavits of a solicitor (Ms Georgia Lewer), of Constable Johnson, and Scott Baker (also a police officer) were read. Detective Sergeant Baker was the officer in charge of Strike Force Burrendong, and the "case officer" for the execution of the search warrant. Constable Johnson and Detective Sergeant Baker were cross-examined. Constable Johnson was extensively questioned about the identification of the "things" she said she had reasonable grounds for believing would be in the premises - items associated with the Rebels Outlaw Motorcycle Gang, and documentation. The object of the cross-examination appears to have been to show that these items could not aid in proof of an offence against s 326(2), and that the warrant was sought for an ulterior purpose - that is, the investigation of Mr Avouris' murder.
Constable Johnson responded that the allegation was that the threat made by Mr Gillard to Ms Howard was made while he was wearing Rebels-associated clothing and insignia, and that this contributed to the intimidation of Ms Howard. In his affidavit, Detective Sergeant Baker said that, prior to the execution of the warrant, police did not have evidence of Mr Gillard wearing Rebels-linked clothing or insignia (other than the evidence that at the time of the threat he was doing so). Execution of the search warrant might therefore yield corroborative evidence.
Two grounds asserting invalidity of the search warrant were advanced to the primary judge. The first was that the factual matters - that is, the threats said to have been made by Mr Gillard to Ms Howard - put forward as the basis for the issue of the warrant were not capable of establishing the "searchable offence" nominated in the application and re-stated in the search warrant as issued. The second was that the application was made for the purpose, not of investigating an offence against s 326(2) of the Crimes Act, as stated in the application, but for the investigation of the murder of Mr Avouris.
The primary judge rejected both grounds.
In relation to the first, the argument put at first instance (and repeated on appeal) may, I think, be stated simply. For the purposes of outlining the argument, it can be accepted that, if the words and conduct attributed to him were proved against Mr Gillard, they could amount to a threat, and that Constable Johnson's belief was that the threat was in relation to a putative prosecution in relation to the murder of Mr Avouris.
The argument was that the words and conduct alleged against Mr Gillard in relation to Ms Howard were incapable of providing a foundation for the prosecution of the "searchable offence" nominated in the application (that is an offence against s 326(2) of the Crimes Act), of threatening to do or cause any injury to Ms Howard because Mr Gillard believed that Ms Howard would or may be called as a witness in any judicial proceeding. The reason that was said to be so is that there was no judicial proceeding on foot in relation to the murder of Mr Avouris, and no judicial proceeding on foot in relation to which any threat was made. Any threat made by Mr Gillard could therefore not be a threat in relation to "any judicial proceeding".
The argument depended upon the proposition that an essential element of an offence against s 326(2) is the existence of a judicial proceeding that is current at the time of the threat, and in relation to which the threat is made. It was not in issue that there was no such proceeding on foot in relation to the death of Mr Avouris. To the extent that any threat made by Mr Gillard related to a judicial proceeding, the judicial proceeding was no more than a speculative possible prosecution for the murder of Mr Avouris.
There were, so the argument ran, therefore no reasonable grounds for believing that Mr Gillard had committed an offence under s 326(2), which was the basis on which the warrant was issued. The argument, as stated in written submissions on this application, was: "47 It is submitted that upon the facts alleged in the application for search warrant there were no reasonable grounds to suspect that Mr Gillard had committed an offence under s 326(2) of the Crimes Act, or that any evidence obtained upon execution of the search warrant would sustain such a charge."
The position adopted by the respondent was that the focus of s 326(2) is on the belief of the alleged offender. It is not an essential element of an offence against s 326(2) that there be a current judicial proceeding in relation to which the threats were allegedly made.
Both parties cited authority to support their positions, although none was directly in point (in that no authority directly involved s 326(2)). The respondent relied on the decision of the Court of Criminal Appeal in R v Lansdell (NSWCCA, 22 May 1995, unreported), concerning a prosecution under s 323(a) of the Crimes Act, which creates an offence of acting to influence witnesses or jurors in judicial proceedings. The applicant relied upon another decision of that Court, R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, concerning s 326(1), which relevantly created an offence of threatening injury or detriment to a public justice official in connection with any judicial proceeding. In Orcher, Spigelman CJ (with whom Grove and Sully JJ agreed) held that threats made to a police officer who had arrested the applicant in that case did not have a sufficiently close connection to a (then anticipated but not commenced) judicial proceeding to amount to an offence against the sub-section. Important to the decision were the words "in connection with", which do not appear in s 326(2).
The issue put before the primary judge therefore was one of statutory construction - the reach of "judicial proceeding" as it appears in s 326(2). On behalf of the applicant, it was argued that, having regard to the principles applicable to the construction of statutes creating criminal liability, s 326(2) is to be construed strictly, and in favour of the appellant, and that that construction requires the existence of a current judicial proceeding. On behalf of the respondent, it was argued that the section is sufficient to extend to a judicial proceeding in contemplation, that it was sufficient if the prosecution established that Mr Gillard believed that there was or was likely to be, a judicial proceeding, and that the facts established the real possibility of a charge of murder. Mr Gillard's words and conduct, if proved, were capable of amounting to a threat in relation to that contemplated judicial proceeding.
The absence of the words "in connection with" in s 326(2) (cf Orcher) was integral to the reasoning of the primary judge, who therefore resolved the issue in favour of the respondent. He held that the existence of a current judicial proceeding was not an essential element of an offence against s 326(2). All that was necessary was that Mr Gillard believed that Ms Howard might be called as a witness in any judicial proceedings (implicitly, proceedings not commenced at the time of the conduct said to constitute the offence). His conclusion is encapsulated in [58] of his reasons: "In my view, the clear terms of s 326(2) tend positively against the conclusion that in order for the offence to be made out the relevant judicial proceedings must be on foot at the time of the offending. Viewed in the context of the present case, the conduct to which the section is directed is the alleged threat of Gillard to do or cause injury or detriment to Ms Howard. Under the section, and again viewed in the context of the present case, that conduct would become unlawful only if it could be established that Gillard believed that Ms Howard would or may be called as a witness in any judicial proceedings. It is not the fact that Ms Howard would or may be called as a witness in judicial proceedings which is pivotal to the operation of the section. Rather it is Gillard's belief in that respect. Construing the provision in this way gives effect to the plain meaning of its terms. There is nothing in those terms which supports the proposition that the Parliament intended that an offence would be committed only if the judicial proceedings were already on foot." (italics in original)
With respect to the second ground, the primary judge held that the allegation that Constable Johnson had sought the warrant for a purpose other than that stated in the application had never (in lengthy cross-examination) been squarely put to Constable Johnson, and ought to be (and was) rejected on the principles stated in Browne v Dunn (1893) 6 R 67.

The appeal to this court

Two grounds of appeal are proposed. They are: "1 His Honour the Judge below erred in his construction of the meaning and application of subs 326(2) of the Crimes Act 1900 … 2 His Honour erred in not accepting that the real purpose of the issue of the search warrant was not that stated in the Application but was to further the investigation of the suspicious death of Charles Avouris in 1996." The arguments advanced in this Court were identical to those advanced to the primary judge.
Underlying the argument put before the primary judge, rejected by his Honour, and re-stated on appeal, was an assumption that, before Ms Smith could validly issue the warrant, it was necessary that she be satisfied that the conduct attributed to Mr Gillard was capable of supporting a conviction under s 326(2). That assumption is incorrect.
The argument misconceives the nature of the task undertaken by an eligible issuing officer to whom an application for the issue of a search warrant is made. That task is prescribed by the relevant provisions of the LEPR Act.
By s 47(1) of the LEPR Act, Constable Johnson was authorised to apply to Ms Smith for the issue of a search warrant if she - Constable Johnson - believed on reasonable grounds that there was (or would within 72 hours be) in the premises at Neurea Street "a thing" connected with a searchable offence. There is no doubt that s 326(2) creates a searchable offence, and that was the offence identified in Constable Johnson's application to Ms Smith. The belief required of a police officer is a composite one - before applying for a search warrant a police officer must believe (on reasonable grounds) that the searchable offence nominated in the application has been committed, and that there is (or will, within 72 hours, be) in the premises in relation to which the warrant is sought a thing connected with that offence. (The first part of that formulation may be subject to a minor qualification. Section 47 does not actually state that the police officer must believe that a searchable offence has been committed, and it may be wide enough to encompass, and may be deliberately so framed as to encompass, a belief that the commission of a searchable offence is imminent. Whether that is so does not arise in this application and need not be considered; Constable Johnson's assertion was clearly that she believed that an offence against s 326(2) had been committed.)
Although the attack made in the proceedings was on the issue of the warrant, rather than the application for its issue, it may be taken that it applied at least equally to Constable Johnson's asserted belief that an offence against s 326(2) had been committed. That belief, it was submitted, could not have been reasonable, because there was no basis upon which Constable Johnson could have believed that an offence against s 326(2) had been committed. That was because there was no current judicial proceeding in which Mr Gillard could have believed that Ms Howard may have been called as a witness.
The power conferred on Ms Smith by s 48 of the LEPR Act was to issue the warrant "if satisfied that there were reasonable grounds for doing so". The satisfaction must be that of Ms Smith. Satisfaction that there are reasonable grounds for issuing the warrant involves satisfaction that Constable Johnson had reasonable grounds for her belief that the searchable offence had been committed, and satisfaction that Constable Johnson had reasonable grounds for believing that there were relevant items in the premises. Ms Smith's power was confined by s 62, which imposes restraints on the issue of warrants. A warrant is not to be issued unless the information specified in s 62(1) is contained in the application. The information required by s 62(1) includes "the nature of the searchable offence": s 62(1)(b). Sub-section (3) states (non-exhaustively) matters that Ms Smith was required to consider when determining whether there were reasonable grounds for issuing the warrant: the second matter there specified is "whether there is sufficient connection between the thing sought and the offence": that is, in this case, an offence against s 326 (2). The submission was that it was not open to Ms Smith to be satisfied that there were reasonable grounds for issuing the warrant. To repeat, that was because there was no current judicial proceeding in which Mr Gillard could have believed that Ms Howard may have been called as a witness.
Behind each argument lay the proposition that, on the facts put forward to Ms Smith in the application for the issue of a warrant, Mr Gillard could not be convicted of an offence against s 326(2). The existence of a current judicial proceeding was an essential element of such an offence.

Resolution

The argument on appeal centred, as did the argument at first instance, on the construction of s 326(2): for proof of an offence, is it necessary that there be a current judicial proceeding in relation to which the threat is allegedly made? While there is no conclusive authority, Lansdell and Orcher point in opposite directions. Implicit in the argument advanced on behalf of the applicant is that Ms Smith, as the eligible issuing officer, ought to have considered the conflict in authorities, resolved the issue in favour of the position adopted by the applicant, and refused the application, because the facts stated in the application as the basis for Constable Johnson's belief that a s 326(2) offence had been committed were insufficient to sustain a conviction under that section, and her belief was therefore not reasonable.
I have come to the conclusion that the question of the validity of the issue of the search warrant is to be resolved, not by the construction of s 326(2), but by reference to s 48 of the LEPR Act. In the view that I have taken, it is unnecessary for this Court to determine whether, for conviction of an offence against s 326(2), that a current judicial proceeding is in existence is an essential element, or whether, as the primary judge held, that the alleged offender believes that a judicial proceeding is contemplated is sufficient. Nowhere in the LEPR Act is there any provision which requires an eligible issuing officer to determine whether the information contained in the application as the basis for the application is capable of "sustaining" (the language in the applicant's written submission) a charge under s 326(2).
In determining whether or not to issue a warrant, an eligible issuing officer is acting administratively, or ministerially, although the discretion to do so is to be exercised judicially: Baker v Campbell [1983] HCA 39; 153 CLR 52 at p 70, per Gibbs CJ (noting that his Honour was in dissent as to the principal issue in that proceeding). It is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence upon which reliance is placed by the police officer seeking the issue of a warrant.
Indeed, it is not the role of the eligible issuing officer to determine whether the information contained in the warrant is sufficient to provide the foundation for a conviction under the identified provision. Search warrants are issued in the investigative stages of the criminal process, and relied upon, often, to produce the very evidence that will provide that foundation: see George v Rockett [1990] HCA 26; 170 CLR 104.
I accept that, in this case, it was reasonably clear to Ms Smith, from the information in the application, that there was then no current relevant judicial proceeding. But it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence identified in the application. The question for that officer is whether that material provides "reasonable grounds" for the issue of a warrant, which may yield relevant evidence or information.
Nor is it the role of the eligible issuing officer to engage in the construction of the legislation in question; particularly is that so, where, as here, there existed an unresolved (unresolved until the decision of the primary judge in this very case) issue of the construction of that provision. Ironically, it was the very absence of certainty about the construction of s 326(2) upon which the applicant relied to advance her claim for leave to appeal.
In a very different context (the extent of the application of legal professional privilege) Mason J (as he then was) and others in the High Court have commented on the undesirability of committing the determination of complex legal issues to individuals exercising administrative functions: Baker v Campbell, at p 75-76; O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 at 26. A similar approach was taken by Brennan J (as he then was) in relation to s 155(1) of the Trade Practices Act 1974 (Cth), which required the provision of information which might have exposed the person supplying the information to the risk of penalty: Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 at 355. Yet that is the very nature of the exercise, it was implicit in the applicant's argument, upon which Ms Smith ought to have embarked.
The guidance to be obtained from these cases is limited, but not non-existent. In each case, the argument concerned an implicitly asserted obligation on a non-judicial officer to make decisions that are essentially judicial, and of some legal complexity.
The submissions of the applicant, if accepted, would require an eligible issuing officer to determine, in some cases (including this) complex legal issues, and to do so in almost a factual vacuum.
The question Ms Smith was obliged to ask herself was whether there were reasonable grounds for issuing the warrant, in the light of the information provided to her, and having regard to the provisions of ss 62(1) and (3). It was not for Ms Smith to engage in a fine dissection of what would suffice to support a conviction under s 326(2).
In my opinion, Ground 1 of the proposed appeal should be rejected.

Ground 2

The second proposed ground of appeal concerns the position taken on behalf of the applicant before the primary judge, that the application for the warrant was made by Constable Johnson, not for the purpose of furthering the investigation into an offence against s 326(2), but to further the investigation into the suspicious death of Mr Avouris.
On appeal, counsel for the applicant took issue with the finding that the allegation that the warrant had been sought for an ulterior purpose had never "squarely" been put to Constable Johnson. He referred to the cross-examination of Constable Johnson concerning the identification of the items for which she sought a warrant to search. The proposition contained in the questioning appeared to be that those items were unlikely to aid in the prosecution of a s 326(2) offence, and were not, in any event, necessary because there were said to have been witnesses present at the time the threat was allegedly made.
There was nothing in the cross-examination to which reference was made that calls into question the finding by the primary judge that an allegation that the warrant was sought for the purpose of the murder investigation was not squarely put to Constable Johnson. Moreover, there is nothing in the evidence that supports the proposition that that was the case. Part of the allegation against Mr Gillard was that, at the time of the threats, he was wearing Rebels-related clothing. Evidence that, in premises with which he was associated (Neurea Street) there was found Rebels-related paraphernalia could plainly provide evidence corroborative of that allegation. Detective Sergeant Baker's affidavit evidence was to the effect that there was, prior to the execution of the search warrant, no corroborative evidence of Mr Gillard's use of Rebels-related clothing.
A clear inference (to the extent that is necessary for, or open to, this Court to draw inferences), is that the warrant was sought in order to obtain evidence that could support the allegation that Mr Gillard's threat to Ms Howard was made in an atmosphere of intimidation created by his manner of dress.
There is nothing in the evidence that is remotely capable of supporting Ground 2. I would reject it.
Because the issues have been fully argued, and because the first ground (at least) raised issues of some legal complexity, I would grant leave to appeal. However I would dismiss the appeal.
The orders I propose are: (1) Leave to appeal granted; (2) Appeal dismissed.

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. Decision last updated: 27 August 2015

Law Enforcement (Powers and Responsibilities) Regulation 2005(NSW)

Trade Practices Act 1974(Cth)

Solicitors: Legal Aid NSW (Applicant) NSW Crown Solicitors Office (Respondents) File Number(s): 2015/48647 Decision under appeal Court or tribunal: Supreme Court Citation: Polley v Johnson and Anor [2014] NSWSC 1191 Date of Decision: 29 August 2014 Before: Bellew J File Number(s): 2012/271413

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (4)

Cases Cited (6)

Cited By (5)