CONSIDERATION
The construction of s. 326(2) of the Crimes Act 1900
52Before giving consideration to the submissions of the parties, it is appropriate to set out some general principles relevant to the issue of search warrants to which I was taken by counsel for the plaintiff in the course of submissions. Many of those principles are conveniently collected in the judgment of Hall J in Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63 commencing at [47]; 72.
53Firstly, there must be specificity in the identification of the relevant offence(s) in a search warrant: Douglas v Blackler [2001] NSWSC 901 at [12]. In my view, that requirement has clearly been met in the present case.
54Secondly, the warrant should authorise seizure by reference to the offence which is specified: R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113. In my view, that requirement has also been met.
55Thirdly, where a warrant fails to specify any offence such failure will invalidate the warrant: Warner v Elder (unreported, Supreme Court of NSW, Temby AJ, 23 April 1997); Carver v Clerk of the Court (unreported, Supreme Court of NSW, Black AJ, 13 March 1998). That is consistent with the provisions of s. 62(1)(b) of LEPRA which require that the particulars of the grounds on which the application is based must include the nature of the "searchable offence" or other offence involved.
56The present is not a case in which the warrant failed to specify an offence. However, if the plaintiff's argument was accepted, it would be a case in which the offence, although specified, could not have been committed by the alleged offender. In my view, from the point of view of considering the validity of the warrant, such a situation would not be relevantly distinguishable from a case in which the offence was not specified at all. It would follow, in those circumstances, that the warrant would be invalid.
57Counsel for the plaintiff also relied upon the well established principle which applies to the construction of legislation which creates criminal offences, namely that ambiguities and doubts are to be resolved in favour of a defendant by refusing to extend the category of criminal cases to which a particular provision might be said to apply: Beckwith v R (1976) 135 CLR 569. However, it is important to bear in mind that such a principle becomes operative only in the event that the conclusion is reached that the provision in question is ambiguous. In that sense, the principle has been described as one of last resort: Beckwith (supra) at 576.
58In 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.
59That construction is confirmed by the terms of the second reading speech to the Amending Act delivered on 1 June 1995, in which the then Attorney-General for NSW, the Hon. J W Shaw QC, said (inter alia) the following:
"Clause 1.2 will also amend sections 325 and 326 of the Crimes Act so that it is an offence to take reprisals against a person who had a reasonable expectation of serving as a juror or witness in any judicial proceeding even if he or she did not eventually serve in that capacity.
Section 326, if strictly interpreted, relates only to persons who are witnesses or jurors as opposed to potential witnesses or jurors. The Court of Criminal Appeal has recently passed comment on related provisions in the case of Regina v Lansdell. Those comments were to the effect that a person need not be a witness or be called as one to come within the provisions. The essential feature of the offence turns on the belief of the accused that the person will or may be called as a witness. The amendment reflects that reasoning and will ensure that sections 325 and 326 extend to prospective witnesses and jurors who do not eventually perform that function" (emphasis added).
60The decision of the Court of Criminal Appeal in R v Lansdell (CCA (NSW) 22 May 1995 unreported) to which the Attorney-General referred was a case in which the Court considered the provisions of s. 323(a) of the Act which was in the following terms:
"A person who does any act:
intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena
...
is liable to imprisonment for seven years."
61The argument before the Court of Criminal Appeal centred around the meaning of the words "any person called or to be called as a witness" as they appear in s. 323(a). It was argued that the commission of an offence contrary to the section required that the "person" in question must have the status of a witness, or prospective witness, at the time the relevant act was done. In relation to that issue Simpson J reached the following conclusion:
"It is quite wrong to say that the offence is not committed unless the person has been designated as (a person to be called as a witness). The section is broad enough to include a person who, absent the very act constituting the offence with which the person is charged, is not a person called or to be called as a witness, but who, by reason of that act, becomes such a person, or is intended, by the act, to become such a person".
62Gleeson CJ, who agreed with Simpson J, added the following:
"The meaning of the expression (to be called as a witness) is to be found in the legislative purpose of the section. The offence is aimed at preventing the corruption or improper influencing of witnesses, and the critical element is the intention with which the alleged offender has acted. ... Where it is objectively likely that a person, because of her involvement in the relevant events, will be a witness in future legal proceedings, and that likelihood is known to (and, a fortiori, intended by) someone who thereupon sets out to influence her evidence, or her conduct, in one of the ways described in the section, then the requirements of the provision are satisfied".
63Whilst the Court in Landsdell was considering a different provision, the broad approach which was taken to the construction of that provision is instructive. Like s. 323(a), s. 326(2) is directed towards the prevention of threats and reprisals to (amongst others) witnesses. Also like s. 323(a), s. 326 has a pivotal element, namely the belief of the defendant. In my view, a similarly broad approach should be taken to the construction of s. 326(2).
64In addition, the terms of the section are such as to clearly contemplate witnesses being called to give evidence at some time in the future. So much is evident from the use of the words "will or may be ... called". The use of the word "will", in particular, tends against the restricted interpretation urged on behalf of the plaintiff.
65Further in my view, the decision of Spigelman CJ in Orcher (supra) does not assist the plaintiff. In that case, the appellant had been arrested for a breach of bail conditions and, whilst in custody, had made threats against the arresting police officer. He was charged with an offence contrary to s. 326(1)(c) of the Act. The second of two questions posed for consideration by the Court of Criminal Appeal was whether the conduct of the police officer in arresting the appellant and taking him to the police station was an act done in, or in connection with, a judicial proceeding.
66Spigelman CJ, with whom Grove and Sully JJ agreed, concluded that the question should be answered in the negative. In particular, his Honour said (at 280):
"The scope and purpose of the statute requires a close connection with the conduct of a judicial proceeding. It requires some form of possible impingement on the conduct of a public justice official with respect to the proper conduct of a judicial proceeding.
In my opinion, threats to an arresting officer do not have the potential to detrimentally affect the conduct of a judicial proceeding. No doubt an arrest ensures that it is possible to commence such a proceeding, but the arresting officer does not, as such, have a role in the proceedings. The arrest is a necessary preliminary step. However, it is not part of the conduct of a judicial proceeding. The conduct in question here may have affected the course of justice by deterring the commencement of judicial proceedings. In my opinion that is not within the scope of the words 'in connection with" such proceedings".
67In reaching those conclusions, his Honour was considering the terms of a different statutory provision which required that the relevant act be done "on account of anything lawfully done by a person ... as a public justice official in, or in connection with, any judicial proceeding". His Honour's reasons must necessarily be viewed in that context. The necessity for there to be a close connection between the thing lawfully done by the public justice official and relevant judicial proceedings stemmed from the inclusion of the term "in or in connection with any judicial proceeding" which was expressly incorporated in the provision. It was that phrase which was the focus of the Court's attention. No equivalent words appear in s. 326(2).
The reason for the issue of the Warrant
68The proposition that the warrant was sought for a purpose other than that stated in the application was never squarely put to the first defendant in cross-examination. The closest that counsel then appearing for the plaintiff came to putting the proposition was in the passage of cross-examination set out at [17] above where two similar, open ended questions were put to the witness. On each occasion, the answer given by the first defendant made it clear that the purpose of seeking the issue of the warrant was to investigate the threat to Ms Howard, not the murder of Avouris.
69If it was the plaintiff's case that the purpose for which the warrant was sought was not that stated in the application then in my view, that specific proposition should have been squarely put. The failure to do so amounted to a breach of the rule in Browne v Dunn (1893) 6 R 67. That rule is not a preclusive rule of evidence. However if the rule is offended, a trial judge has the power to exercise his or her discretion in a way which will remedy any unfairness which has arisen. The exercise of that discretion may include preventing the party in question from relying upon a particular subject upon which the relevant witness was not cross examined: Scalise v Bezzina [2003] NSWCA 362 at [96] per Mason P.
70For the reasons I have stated, there was a fundamental necessity to put the relevant proposition to the witness. In circumstances where there was a failure to do so, the plaintiff should not now be permitted to make a submission that I should find that the warrant was issued for some purpose other than that which was stated in the application
71In any event, and even if I had reached the view that the rule in Browne v Dunn was not breached, it remains the case that the evidence simply does not support the submission which was put on behalf of the plaintiff. The purpose for which the warrant was sought was set out in the application. The first defendant stated in cross-examination, more than once, that the purpose was related to the threat made to Ms Howard, and was unrelated to the investigation of the murder of Avouris. That evidence was clear and unequivocal. There is no reason, in my view, to reject it as being untruthful or unreliable. I am satisfied on the evidence that the purpose for the issue of the warrant was that stated by the first defendant in the application. I reject the submission that it was in fact a "cover" for something else.