Supreme Court of SA|2000-03-17

R v A No. SCCRM-99-182 [2000] SASC 51 (17 March 2000)

ISSUE AND VALIDITY Accused charged with producing and possessing cannabis for sale - evidence obtained from execution of warrants issued under s52 of the Controlled Substances Act 1984 excluded in the exercise of the Trial Judge's discretion - accused acquitted - questions of law reserved for consideration and determination by the Full Court - extent to which a warrant may be the subject of a collateral challenge - certainty and width - warrants not invalidated by failure to specify particular offences on their face - where a warrant is valid on its face the scope of any further collateral challenge is limited - cannot be a mere "fishing expedition" - burden and standard of proof in a challenge to validity - power of police officer issuing warrant to administer an oath. Power to issue a warrant under s52 of the Controlled Substances Act 1984 is administrative, not judicial, in character - applicability of principles of administrative law in determining the extent to which warrant may be challenged - judicial review at common law - discussion of the circumstances in which a challenge to the validity of a warrant may be permissible.

Counsel: MR M ABBOTT QC, WITH HIM MR D AGRESTA - Solicitors: PATSOURIS & ASSOCIATES

Counsel: MR B SELWAY QC, WITH HIM MR S HENCHLIFFE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2000] SASC 51

On Appeal from DISTRICT COURT (CASE STATED BY HIS HONOUR JUDGE BRIGHT)

In The Matter of QUESTION OF LAW RESERVED ON ACQUITTAL (NO 5 OF 1999)

(Court of Criminal Appeal: Mullighan, Lander and Williams JJ)

Court of Criminal Appeal: Mullighan, Lander and Williams JJ

MULLIGHAN J Pursuant to s350(2)(b) of the Criminal Law Consolidation Act 1935, questions of law have been reserved for consideration and determination by the Full Court. They arise out of the trial of the accused on an information containing one count of producing cannabis and one count of possessing cannabis for sale.

The accused came to trial on the information in the District Court on 28th June 1999. The learned Trial Judge permitted a voir dire enquiry as to whether certain evidence obtained by police as the result of a search of the premises of the accused pursuant to warrants issued under s52 of the Controlled Substances Act 1984 ("the Act") should be excluded.

The accused contended that the warrants were invalid on their face or, alternatively, that they were issued unlawfully and therefore invalid. The basis of the first contention was that the warrants did not describe the offences suspected of having been, being, or about to be, committed with sufficient particularity and consequently were invalid. The learned Trial Judge heard argument and rejected that contention. He held that the warrants were not irregular on their face. However, he permitted a voir dire enquiry as to the basis upon which they had been issued.

The warrants were issued by Detective Chief Inspector ("DCI") Newman, a member of the South Australia Police. The accused contended that DCI Newman was not a person authorised to administer or take an oath. As will be seen, s 52 requires that certain information be given to him upon oath. The learned Trial Judge decided that he could "go behind the warrant" to the extent of enquiring as to the information given upon oath to the person who issued the warrant so as to establish whether or not the information was sufficient for that purpose. DCI Newman was not available to give evidence but evidence was given by the police officer who gave the information to him on oath. After hearing evidence, the learned Trial Judge concluded that he was not satisfied beyond reasonable doubt that DCI Newman had been satisfied that an offence against the Act had been, was being, or was about to be, committed and that the warrants were reasonably required in the circumstances. He accepted that the burden of proof was upon the prosecution and held that it had not been proved beyond reasonable doubt that the warrants had been validly issued. He ruled that the evidence obtained upon the execution of the warrants had been illegally obtained and he excluded the evidence in the exercise of his discretion.

In consequence of that ruling, the prosecution tendered no evidence and the accused was acquitted on both counts.

The questions of law which are reserved for consideration and determination by the Full Court are:

"(1) Based on the facts as set out in this case stated, was I correct in finding that there were no irregularities on the face of the warrant? (2) If the answer to (1) is 'Yes', was I correct in ruling that there could be an inquiry held into the validity of the warrant notwithstanding that it appeared regular on its face? (3) Was I correct in ruling that the onus was on the prosecution to prove the validity of the warrant in these circumstances? (4) Was I correct in ruling that this onus was to be discharged beyond reasonable doubt? (5) Could the collateral attack on the warrant extend to the sufficiency of the information placed before the issuing officer? (6) Was I correct in ruling that the issuing officer had power to administer an oath as required by section 52 of the Controlled Substances Act 1984?"

Whilst the reasons for the ruling given by the learned Trial Judge do not refer to the capacity of DCI Newman to administer an oath, it seems clear, in view of question 6 that he concluded that he did have such power.

The offences with which the accused was charged are undoubtedly serious breaches of the criminal law. With respect to the first count, it was alleged that the amount of cannabis produced was 26 plants. The quantity of cannabis alleged to have been in the accused's possession for sale with respect to the second count is in excess of 2 kilograms. On each count, the maximum penalty is a fine of $50,000 or imprisonment for 10 years or both: see s32(5) of the Act.

S50 of the Act provides that a member of the police force and any other person appointed by the Minister responsible for the Act by instrument in writing, are authorised officers for the purposes of Part 7 of the Act which relates to search of premises for drugs and items amounting to evidence and seizure, forfeiture and analysis of drugs.

"Power to search, seize, etc. 52(1) Subject to this section, an authorised officer may-- (a) enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and (b) where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and (c) for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft. (2) While an authorised officer is in or on any premises pursuant to this section, the officer may-- (a) inspect or search the premises or any equipment or other thing on the premises; (b) require any person to produce any books, papers or documents or any substance, equipment or device; (c) examine any books, papers or documents and take extracts from any of them or make copies of any of them; (d) examine any substance, equipment or device; (e) take and remove from the premises samples of any substance or goods; (f) carry out any tests; (g) take any photographs; (h) require the holder of a licence, authority or permit under this Act to produce that licence, authority or permit for inspection; (i) where the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence; (j) give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act. (3) The powers conferred by subsection (1)(b) may only be exercised by an authorised officer who is a member of the police force. (4) An authorised officer must not exercise the powers conferred by subsection (1)(a) and (b) except upon the authority of a warrant issued by an officer of police, a special magistrate or a justice, unless the powers are being exercised in relation to premises that are being used in the course of an activity in respect of which a licence, authority or permit has been granted under this Act. (5) An officer of police, special magistrate or justice must not issue a warrant under subsection (4) unless satisfied, on information given upon oath-- (a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and (b) that a warrant is reasonably required in the circumstances. (6) Subject to subsection (7), an authorised officer who is a member of the police force may search any person whom he believes on reasonable grounds has in his possession any substance or equipment in contravention of this Act. (7) Before a person is searched pursuant to subsection (6), he shall, if he so requires, be taken before a justice. (8) A justice before whom a person is taken pursuant to subsection (7) may order that the person be searched, or that he not be searched, as he thinks the justice of the case requires. (9) Where an authorised officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, he may - (a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and (b) detain and search the vehicle, vessel or aircraft; and (c) seize and remove from the vehicle, vessel or aircraft anything that he has reasonable cause to suspect affords evidence of an offence against this Act. (10) Nothing in this section derogates from the power of a member of the police force to do anything pursuant to a general search warrant issued under the Summary Offences Act 1953. (11) In the exercise of powers under this Part, an authorised officer may be accompanied by such persons as the officer considers necessary or desirable in the circumstances. (12) A person must not-- (a) hinder or obstruct an authorised officer, or a person accompanying an authorised officer, in the exercise of the powers conferred by this Part; or (b) refuse or fail to comply with a requirement made of the person, or a direction given to the person, pursuant to this section. Maximum penalty: $10 000 or imprisonment for 2 years."

It may be seen that the powers given to authorised persons with a warrant of entry and search of premises and of seizure of items are extensive and may be exercised legitimately in a most intrusive manner.

I now mention the two warrants which were issued by DCI Newman. One was issued to Damien Epps and the other to Cameron Georg. They are both police officers and authorised persons pursuant to s50 of the Act. Both warrants were issued on 8th July 1998 and are in identical terms except as to the person to whom they are addressed, Mr Epps or Mr Georg. I set out only the warrant issued to Mr Epps:

" WARRANT TO ENTER PREMISES Controlled Substances Act, 1984 (Section 52) To: Damien EPPS, an authorised officer pursuant to Section 50 of the Act, Whereas I, Det Chief Inspector NEWMAN, an Officer of Police, of the State of South Australia, am satisfied on information upon oath received by me this day that there are reasonable grounds for suspecting that: an offence against the Controlled Substances Act, 1984, has been, is being, or is about to be committed, and that a warrant is reasonably required in the circumstances. YOU ARE HEREBY AUTHORIZED to enter at any time the premises 3/1 Lennox Street, CAMPBELLTOWN for the purpose of ascertaining whether the provisions of the Act are being complied with or have been contravened, and, where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises. Dated at this 8th day of July 1998. [Signed] Officer of Police"

A document entitled "Record of Warrant Application" dated 8th July 1998 was received into evidence before the learned Trial Judge on the voir dire. This is the document which was placed before DCI Newman and upon which the prosecution alleged he reached the requisite state of satisfaction set out in s52(5). It specifies Mr Epps as the applicant for the warrant, the premises to be the subject of the warrant, the accused as the suspect and the grounds of the application which set out observations of, presumably, police officers and other information relevant to the offences alleged in the information. The application also sets out the reason the warrant is required, namely to enter the subject premises "and enforce the provisions of the [Act]". It indicates that an oath or affirmation was administered by DCI Newman and it is signed and dated by him. It is unnecessary for present purposes to set out the grounds of the application. It is sufficient to say the information provided was, in my view, adequate to enable DCI Newman to have the state of satisfaction required by s52(5) and about the matters therein specified. It may be seen that the preamble in the warrant recites that DCI Newman was satisfied in those terms but does not specify any particular offence against the Act.

The first issue to be considered is the circumstances in which a warrant, given under s52, may be challenged on a voir dire enquiry in criminal proceedings and it involves two questions. The first is whether there can be a collateral challenge at all. It was correctly acknowledged in argument that the answer is in the affirmative: see Love v Attorney-General (NSW) (1990) 169 CLR 307 at pp322-323, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at p444, Grollo v Palmer & Ors [1995] HCA 26; (1995) 184 CLR 348 at pp359-360, Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at pp87, 100, 145-146 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at p275.

The second, and presently relevant, question is what may be the extent of such a challenge. The learned Trial Judge could hear and determine whether the warrants were valid but he did not do so. He heard evidence and determined whether the sworn information was information which could reasonably lead DCI Newman to what the learned Trial Judge described as "the belief and suspicions" required by s52(5).

Without question, the power exercised by an officer of police, special magistrate or justice under that subsection is an administrative power, even though it must be exercised judicially: Love v Attorney-General at p322. Consequently, the principles of administrative law apply in determining the extent of the collateral challenge. In my view, the learned Trial Judge erred in permitting the challenge on the basis of the sufficiency of the information placed before DCI Newman. These warrants did disclose on their face that there had been compliance with the conditions precedent for their issue. They disclosed on their face all of the relevant matters in s52(5), namely, that the warrant is directed to an authorised officer, that DCI Newman is an officer of police and therefore empowered to issue warrants, that he was satisfied on oath about the relevant matters, namely that there were reasonable grounds for suspecting that an offence against the Act had been, was being, or was about to be, committed and that a warrant was reasonably required in the circumstances. Also, the warrants specified particular premises and expressed the purpose of the entry on to the premises in terms of ss52(1)(a) and (b).

It was contended by Mr Abbott QC, for the accused, that the warrants were invalid on their face because they did not show that DCI Newman was satisfied by information given on oath that there were reasonable grounds for suspecting that a particular and specified offence had been, was being or was about to be, committed. He argued that the warrants should authorise entry into the premises by reference to a specified offence. Because they did not, they were invalid on their face. Reliance was placed upon Swanevelder v Holmes (1990) 52 SASR 549 and R v Tillett; Ex Parte Newton (1969) 14 FLR 101. I shall return to those cases shortly.

In R v IRC, Ex parte Rossminster Ltd [1979] UKHL 5; [1980] AC 952 referred to by Jacobs J in Tran Nominees Pty Ltd v Scheffler & Ors (1986) 42 SASR 361, the House of Lords considered whether a particular offence must be specified in a warrant issued under s20C of the Taxes Management Act 1970 (UK). The relevant part of that section provided that a warrant could be issued authorising entry on to premises if the person issuing the warrant was satisfied in the prescribed manner that there was reasonable ground for suspecting "that an offence involving any form of fraud in connection with, or in relation to, tax has been committed ....". Lord Wilberforce said at p999:

"The Court of Appeal took the view that the warrants were invalid because they did not sufficiently particularise the alleged offence(s). The court did not make clear exactly what particulars should have been given - and indeed I think that this cannot be done. The warrant followed the wording of the statute 'fraud in connection with or in relation to tax': a portmanteau description which covers a number of common law (cheating) and statutory offences (under the Theft Act 1968 et al). To require specification at this investigatory stage would be impracticable given the complexity of 'tax frauds' and the different persons who may be involved (companies, officers of companies, accountants, tax consultants, taxpayers, wives of taxpayers etc)."

Similar views were expressed by Viscount Dilhorne at p1005. Lord Salmon at p1020 and Lord Scarman at pp1023-1024, where he said:

"If the warrant to be valid must also contain particulars of the offences suspected, I would have expected to find this requirement expressly stated in, or necessarily to be implied from the language of, subsection (3) which confers the power to seize and remove things of possible evidential value. But in my judgment, subsection (3) says nothing of the sort. An officer can enter only if armed with a warrant issued under subsection (1), i.e. a warrant authorising entry and search. Having entered, he may seize and remove anything which he has reasonable cause to believe may be required as evidence '... in respect of such an offence as is mentioned in subsection (1) above'. I construe these words as a reference to the kind of offence there mentioned and not limited to the particular offences suspected, i.e. to any offence involving any form of fraud in connection with or in relation to tax. Such a construction is, as my noble and learned friend, Lord Diplock, points out, consistent with the power of seizure of goods other than those mentioned in the warrant conferred by a common law warrant to search premises for stolen goods: Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4; [1968] 2 QB 299, 314. There being nothing in the section to require the warrant to give particulars of the offences suspected, does the general law import the requirement? For the reasons given by my noble and learned friends I think not. Indeed, I would think it a wrong approach to modern legislation to reason by analogy from common law powers. The relevance of Entick v Carrington, 19 State Tr 1029, 1066 is that it recognises that, where the justification for what would otherwise be a trespass is a statute, the judge must look to the statute. Today that means looking to the legislative purpose of the enactment as well as the words and context of the specific provision. If that approach be adopted, there are strong grounds for holding that the statute does not require the revenue, before it has decided to take proceedings and when it is still at the investigatory stage of a case, to reveal to a possible wrong-doer its suspicions or the extent of its knowledge. I therefore reject the submission of counsel for the respondents that the warrants should have given particulars of the offences suspected."

In The Queen v Conley (1979) 21 SASR 166, this Court had to consider the validity of a written authority given under s11 of the Narcotic & Psychotropic Drugs Act 1934, a predecessor of the Controlled Substances Act, to police officers to enter and search premises. S11 provided, inter alia, that a member of the police force having reasonable cause to suspect that there is, in contravention of the Act, in any of the types of specified premises "any drug to which this Act applies" could, with the authority in writing of a special magistrate or an officer of police, break, enter and search the particular premises and, inter alia, seize any drug to which the Act applied. The Court rejected the contention that the particular drug had to be specified in the written authority and went on to say at p169:

"Search warrants can be invalid because of excessive generality in the stated objects of the search (cf Jones v German [1896] 2 QB 418; Re B.X. Development Inc and the Queen (1976) 70 DLR (3d) 366), but, having regard to the purpose of the legislation and the nature of the drug trade, we do not think that s11 should be construed as requiring any greater particularity than a repetition of the words of the section itself affords. We reject this argument."

The question is essentially one of statutory interpretation. Exactly the same point in the context of s52 was raised before, and rejected by, Jacobs J in Tran Nominees. He said at p374:

"It was contended that in order to be valid the warrant must state, with sufficient particularity, a specific offence. This argument in my judgment ought to be rejected for much the same reasons as are stated, but need not be repeated, in Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952. The purpose of entry pursuant to the warrant is to ascertain 'whether the provisions of this Act are being complied with or have been contravened' (s51(1)(a)); the issuing officer must have reasonable grounds for suspecting that 'an offence against this Act has been, is being, or is about to be committed'. But the purpose of the warrant is only to authorise entry, and in many cases it may be impossible to say what, if any, offence of offences have been committed until after search, which is authorised by the statute, and not by the warrant itself; but by contrast, the statutory power of seizure does contemplate a particular offence, for by sub-s. (2)(i) of s.52, seizure and removal is authorised only when the authorised officer 'has reasonable grounds to suspect that any offence has been committed and that the goods seized afford evidence of the offence'. Indeed, counsel conceded that even on his argument, this power of seizure would authorise seizure in relation to other or different offences under the Act than the offence which, it was said, should be stated with particularity in the warrant. Therefore it would be no advantage to the person affected by the warrant to state a particular offence in the warrant and the Act does not require it. If the warrant needs to contain any recitals at all - and Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 suggests it is desirable, but not essential - a recital adopting the language of sub-s. (5) of s.52 is sufficient, and the operative part of the warrant should, as does the present warrant, adopt the language of sub-ss.1(a), 1(b), and 11."

This matter does not appear to have been in issue on appeal. In this parable of his judgment, His Honour was undoubtedly referring to s52 and not s51 which, it appears, has been mentioned in error. I accept and adopt the reasoning and conclusions of Jacobs J which, in my view, reflect the correct interpretation of the section in its context in the Act and accord with common sense.

I now turn to Tillett and Swanevelder relied upon by the accused. Tillett concerned the issuing of a warrant under s10 of the Crimes Act 1914-1966 (Cth). It was held that for the warrant to be valid it had to specify a particular offence. Section 10 provided that the Justice of the Peace (the person empowered to issue the warrant) had to be satisfied by information on oath that there is reasonable ground for suspecting that there was in any particular place "anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed" and, inter alia, anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence. He may issue a search warrant which not only authorised entry and search but also seizure of "any such thing" which may be found in the premises. The warrants issued in that case indicated that the state of satisfaction was that there were documents and the like "to which there are reasonable grounds for believing that the same will afford evidence as to the commission of an offence against the Commonwealth Crimes Act". Fox J held that as a consequence the scope of the warrants was too wide, that is, wider than the section authorised: see p110. He observed, "there are of course a great number and variety of matters which constitute offences against that Act, including those which are created by the comprehensive terms of ss5, 6, 7 and 7A".

Fox J was, of course, obliged to interpret s10 of the Crimes Act. It is unnecessary, for present purposes, to mention his conclusions in that regard. There is a point of distinction between s10 of the Crimes Act and s52 of the Controlled Substances Act. In the former, it is the warrant which gives the power for seizure of items. Under s52, it is subsection (2)(i) which gives that power. It may be supposed that the legislature would want to limit the power to seize and remove the property of a citizen to evidence relevant to a particular charge or charges. Hence the language of s10 which requires the person issuing the warrant to be satisfied that there were reasonable grounds for believing that the items seized would afford evidence of an offence against a law of the Commonwealth or a Territory. Particularity is required otherwise the warrant would be authorising seizure in general. Hence, the need to specify the offence in the warrant: see Tillett at pp112-113. Under s52 there is no reason to specify an offence or offences because the warrant does not give the power to seize and remove items which may afford evidence. The legislature has provided the restriction upon what may be seized and removed, namely only those items which the authorised officer suspects on reasonable grounds afford evidence of an offence. This distinction was accepted by Jacobs J in Tran Nominees: see pp374-375.

Furthermore, the offences under the Controlled Substances Act relate to a particular subject matter, namely to prohibited substances in the nature of drugs and to the manufacture, production, sale, supply, possession, handling or use of such drugs. Unlike the laws of the Commonwealth or a Territory, the Act, relatively speaking, covers a limited field of criminal activity, and until the evidence is obtained, the particular manner of illegality in relation to drugs may well not be known. The overt acts justifying the state of satisfaction to issue a warrant under s52 may not reveal whether the nature of the suspected offending is production or supply or consumption. The true interpretation of s52, in the context of the Act, militates against the conclusion that a warrant will be invalid unless a particular offence against the Act is specified. It would usually be impossible for the person seeking the warrant and the person issuing it to do so.

Swanevelder is not authority for the proposition for which the accused contends. That case was also concerned with the interpretation of s52. Olsson J purported to summarise the decision in Tran Nominees by stating various propositions, including the following, at p556:

"h a warrant cannot authorise entry, breaking or opening in general or for purposes unrelated to offences created by the CSA. Whilst, having regard to the reasoning in R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1979] UKHL 5; [1980] AC 952, it may be unnecessary for the warrant to refer to a specific proscribed offence or specific proscribed offences and authorise entry, breaking or opening at a nominated location by reference to the offence or offences so specified, it must certainly be established beyond reasonable doubt that the issuing officer did in fact arrive at the necessary state of satisfaction required by the statute. A s52 warrant is quite different in its nature and effect from a general warrant issued in conformity with s67 of the SOA."

I shall return to this passage of the judgment of Olsson J later for another purpose, but it may be seen that His Honour did not suggest that, in order to be valid on its face, a warrant under s52 had to specify a particular offence, but the contrary.

I reject the argument of the accused as to the validity of the warrants on their face. As has been seen, the warrants in the present case follow the terms of s52(5), except in respect of one matter which is immaterial, and set out all of the relevant matters. The departure from the language of s52(5) is that it uses the language "on information given upon oath" and the warrants state "on information upon oath received by me". As I say, the difference is immaterial. It was canvassed in argument as to whether the expression used in the warrant may be interpreted such that DCI Newman did not administer the oath but I see no reason to draw such a conclusion. The giving and receiving of information is likely to occur at the same time. I do not think the difference in language affects the validity of the warrants. In my view, the warrants were not invalid on their face by reason of no particular offence being specified. The learned Trial Judge was correct in so concluding.

The next question is whether, given that the warrants are valid on their face, they could be challenged further in collateral proceedings, such as occurred before the learned Trial Judge, to establish that a critical statement on the face of the warrant was incorrect. The accused challenged the statement that DCI Newman was relevantly satisfied.

In my view, if a warrant is valid on its face, the scope of any further collateral challenge is limited. It is unnecessary for present purposes to attempt to define the permissible limits of such a challenge, however, examples may be that the information was not given on oath, or Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at pp229-230; see also Aronsen and Franklin Review of Administrative Action (Law Book Company, Sydney, 1987) at pp68ff. It is appropriate to confine consideration of whether the warrant could be the subject of a collateral challenge to the present circumstances. Given that the warrants are valid on their face, there could be no collateral challenge founded upon alleged insufficiency of material placed before DCI Newman by the applicants for the warrants: Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 per Mason CJ and Toohey J at p105-106, with whom Brennan, Deane and Dawson JJ agreed, see pp118, 124 and 128; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 per Gaudron J at p87, Gummow J at pp126, 127, 130 and 131, and Kirby J at p151; see also McHugh J at pp102-103; Se_lby v Pennings_ (1988) 19 WAR 520 per Ipp J at pp535-536.

The relevant question is whether DCI Newman was satisfied as to the matters about which he had to be satisfied under s52(5) of the Act. I accept the submission of the Solicitor-General that the sufficiency or otherwise of the information presented to him by the person seeking the warrants is not relevant to that question, except for any issue of Wednesbury unreasonableness which does not arise in the present circumstances. As the issuing of the warrants were administrative actions, the relevant principles of administrative law apply. They are succinctly discussed in Upham v The Grand Hotel (SA) Pty Ltd & The DAC [1999] SASC 414 at p28. In that case the Court was concerned with a decision by the Development Assessment Commission quashing a provisional grant of consent for the use of premises. Doyle CJ and Bleby J, in a joint judgment and with whom Wicks J agreed, said at p28:

"The power or jurisdiction is lacking only if the relevant authority has made that assessment. The distinction between power or lack of power turning upon the existence of a state of affairs determined objectively, and power or lack of power turning upon the formation of an opinion or the making of an assessment by the person on whom the power is conferred, is well known in administrative law, and its consequences in terms of judicial review are equally well known."

Their Honours then gave examples by reference to authority.

For present purposes, it is necessary to mention only some of those cases. In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, Dixon J, as he then was, in referring to a power to be exercised on the basis of satisfaction as to the state of corporate voting power said, at p360:

"His decision, it is true, it not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reasoning into consideration or excludes from consideration some factor which should effect his determination, or any of these grounds, his conclusion is liable to review."

Gibbs J expressed the same view in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at pp118-119 and he added that in addition the courts will interfere "if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it" (p118). In Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, Gibbs CJ said at pp352-353:

"When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition.."

Brennan J approved the observation of Latham CJ in R v Connell; Ex Parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, and went on to say at p370:

"The question for the court is not whether the Court would have formed the opinion but whether the repository of the power could have found the opinion reasonably. Although the area of judgment that a court must leave to a repository of power is not unlimited, as [sic] allegation of unreasonableness in the formation of an opinion may often prove to be no more than an attack upon the merits of the by-law made in purported exercise of the power."

See also Dawson J at p375. The same view was expressed by Mahoney AP in Carroll v The Attorney-General for New South Wales (1993) 70 ACrimR 162 at p182 and by Spigelman CJ in Trimbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 at pp63-65 with whom the other members of the Court, Mason P and Meagher JA, agreed and in Minister for Immigration and Ethnic Affairs v Wu Shan Liang at pp275-276.

In my view, in the circumstances, the learned Trial Judge erred in his conclusion that he could examine on the voir dire whether the information placed before DCI Newman was sufficient to enable him to reach the requisite state of satisfaction. To do so involved an enquiry not of the existence of the state of satisfaction but of its correctness which, in the circumstances, was not permissible as there could not be any suggestion that DCI Newman did not comply with the requirements of s52(5) or that in issuing the warrants he acted with Wednesbury unreasonableness. Any enquiry for that purpose should not be undertaken as a matter of course, but only if there is a sound basis for doing so. The observations of Wells J in The Queen v Williams (1976) 14 SASR 1, at p3, are pertinent to any request for a voir dire, including in the context of a challenge to the validity of a warrant. He said at p3:

"But it should not be, as it sometimes is, assumed that the trial judge ought to have resort to such a procedure without strong reasons. The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition. Ordinarily, a trial judge will not allow a voir dire hearing simply at the request of counsel. It is within his discretion whether or not to do so, and for the exercise of the discretion there must be proper and adequate material before him. That material may be found in an explicit assurance by counsel for the defence that he intends to adduce certain evidence, or in some passage or passages in the depositions."

See also The Queen v Bradshaw (1978) 18 SASR 83. In the case of a challenge to a warrant, the scope for such an enquiry is usually much more limited. If the warrant is issued other than by a superior court and is deficient on its face, there is no presumption of validity and it will usually be struck down: see Tillett at p106 and Ousley per McHugh J at p108. If it is valid on its face, no such presumption is required and the circumstances of collateral challenge, as has been mentioned, are limited. There can be no mere fishing expedition. An accused may not simply put the prosecution to proof. That is not to say that evidence may not be lead to disprove certain matters stated in the warrant going to its validity, but only if there is an apparent reason to call such matters into question.

The next question is who bears the burden of proof and to what standard when there is a collateral attack upon a warrant which is valid on its face. The learned Trial Judge held that once the challenge is made, the prosecution carries the onus of establishing validity beyond reasonable doubt which, I suppose, means of "maintaining" the validity of the warrant. In doing so, he followed the decision of Olsson J in Swanevelder which he regarded as binding upon him.

Earlier in these reasons I mentioned that Olsson J in Swanevelder set out propositions which he derived from Tran Nominees. I have cited the passage from his judgment where he says that it must be established beyond reasonable doubt that the person issuing the warrant did, in fact, arrive at the necessary state of satisfaction required by the statute. I have not been able to find a reference in Tran Nominees to either the burden or degree of proof. In any event, the Court in Tran Nominees was concerned with a warrant that was not valid on its face. It seems that in setting out the relevant proposition, Olsson J included his own view about that matter. I do not share that view.

The question of burden and degree of proof is to be resolved by understanding the task which had been undertaken by the learned Trial Judge. He had been asked to exclude evidence obtained after entry into, and a search of, the premises upon the authority of the warrants. There was no question as to the admissibility of the evidence. It was relevant to, and probative of, a fact in issue in the proceedings. The only basis for exclusion of the evidence is if it had been obtained unlawfully because the entry and search was illegal due to invalidity of the warrants. If so, the well known discretion to exclude the evidence discussed in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 had to be considered and exercised. It is well established that in such cases the onus of proving the circumstances which justify the exercise of the discretion is on the accused and that the degree of proof is on the balance of probabilities. If any authority is required to support that conclusion, it is sufficient to refer to Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, per Deane J at p19, and the cases therein referred to and, in particular, Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 and MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512: see also Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656. Furthermore, these cases show that even when there is an onus on the Crown, such as where there is a challenge to the voluntariness of a confession, the degree of proof is on the balance of probabilities.

Even if the evidence of the police officer was admissible on the voir dire, given that the warrants were valid on their face, the evidence did not, and could not, establish invalidity. As I said earlier, the contents of the application for the warrants was more than sufficient for DCI Newman to reach satisfaction about the relevant matters.

Before turning to the last matter advanced to establish invalidity of the warrants, I mention what appears to be the reason for the conclusion of the learned Trial Judge that the warrants had not been shown to be valid. In giving reasons for his ruling that the warrants were invalid, the learned Trial Judge, having said that once challenged, the onus of proving validity is on the Crown, went on to say:

"In this case, because of the unavailability of a crucial witness [DCI Newman], the Crown was unable to prove that the warrant was valid. I commented that I thought the warrant was probably valid, but, following Swanevelder v Holmes, the onus was on the Crown to prove the validity beyond reasonable doubt and it failed."

If, by that observation, the learned Trial Judge was saying that in the absence of oral evidence from DCI Newman that he did have the relevant state of satisfaction, the onus had not been discharged, he was in error. As has been mentioned, the warrants were valid on their face. There was no evidence before the learned Trial Judge capable of establishing to the contrary. In some cases the warrant itself may constitute evidence of whether the issuing person had complied with the statutory requirements. It may depend upon whether the warrant was admitted into evidence and, if so, for what purpose. If it was admitted as evidence of the truth of its contents, the recital in the warrant may be evidence of compliance with the statute.

The last issue is whether DCI Newman had the power to administer an oath. If not, it was submitted, the warrants were invalid because a necessary condition precedent to the issuing of the warrants was absent. The learned Trial Judge rejected this contention and followed the decision of Jacobs J in Tran Nominees on the same point. It will be remembered that s52(5) of the Act provides that an "officer of police, special magistrate or justice must not issue a warrant ... unless satisfied, that an information given on oath ...". Jacobs J concluded that the officer of police had power to administer the oath for two reasons. The first is expressed in the following passage of his judgment at p376:

"It is not in dispute that a special magistrate or justice has power to administer an oath, and it would be surprising if the remaining and first-named member of the 'triumvirate' should find himself thus circumscribed in the power which each of them is thus authorised to exercise. There are strong grounds for holding, that whatever may be his position under the 'general' law, this 'special' Act designates an officer of police as a person authorised to take the information on oath, in common with a special magistrate or justice."

The second ground is that he regarded the issuing of a warrant as a quasi-judicial function. He said at pp377-388:

"There is nothing in s52(5) to warrant the suggested discrimination between 'officers of police', and holders of the other offices referred to in the section. There are, however, other statutory provisions touching the matter. Prior to its repeal by Act No 56 of 1984, s41 of the Acts Interpretation Act, 1915-1984, provided as follows: '41. Any court, judge, officer, commissioner, arbitrator or other person authorized by law to hear and determine any matter or thing, or to take evidence, may receive and examine evidence, and may administer an oath to or take an affirmation from any witness.' It may have been stretching the language of that section to say that Inspector Ryan was 'hearing or determining' a matter or thing, or receiving 'evidence', or that Constable Raven was a 'witness'; but the very Act which repealed that section introduced, in its stead, amendments to the Evidence Act which are couched in wider terms. The definition of 'court' in that Act was amended to read as follows: '"court" includes a tribunal, authority or person invested by law with judicial or quasi-judicial powers, or with authority to make any inquiry or to receive evidence;' and s7 of that Act was amended to read: '7.(1) Every court has authority to administer an oath or an affirmation. (2) Where an oath or affirmation is to be taken before a court, or in connection with proceedings before a court, it may be administered by - (a) the court itself; (b) an officer of the court; (c) any person authorized by the court to administer the oath or affirmation; or (d) any other person authorized by law to administer the oath or affirmation.'"

I have not found it necessary to cover all of the grounds mentioned in argument. It may be said that there are no general powers given by the law of this State for persons to administer oaths, but specific powers for specific purposes. For example, the Oaths Act 1936 provides for the Governor, members of the Executive Council and Judicial Officers to take oaths: see ss5, 6, 6A and 7. S28 of the Oaths Act deems Judges of the Supreme Court, Judges of the District Court, Special Magistrates, Registrars of various Courts, legal practitioners and others to be Commissioners for taking affidavits in the Supreme Court. S S7 of the Evidence Act 1929 gives to every court the authority to administer an oath. In this State there is no general offence of falsely administering an oath or of false swearing. The Evidence (Affidavits) Act 1928 enables affidavits for use in courts of the State to be sworn before justices of the peace who are not commissioners for taking affidavits, proclaimed managers, postmasters and police officers: see ss2 and 2a.

So, it may be seen that various persons are authorised by statute to administer oaths for specific purposes. In my view, Jacobs J was correct in concluding that s52(5) gives the authority to an officer of police to administer an oath for the purpose of that subsection. Parliament has entrusted to the officers of police, special magistrates and justices the responsibility of issuing warrants in the circumstances prescribed. There is no reason to interpret the section so as to distinguish between them. There is no reason to suppose that Parliament intended that when a warrant was sought from an officer of police, someone else would have to administer the oath. As far as I can see, no-one else could administer the oath other than those designated by the section, as there is no general power to administer an oath. Furthermore, the legislature no doubt had in mind that particular circumstances may require a warrant to be obtained urgently and that the person issuing the warrant may be obliged to act accordingly. In such circumstances, the information may be given orally, with an accurate record of what occurred being kept, and the issuing person would need to administer the oath. The common sense interpretation of the section and that most likely to afford efficacy is that the person asked to issue the warrant is authorised to administer the oath. I have not found it necessary to consider whether "officer of police" in the section means a member of the police force of or above the rank of inspector as Detective Chief Inspector Newman was, at all relevant times, already an officer of police.

With respect, I do not accept the second basis upon which Jacobs J held that an officer of police was authorised to administer the oath. As has been seen, the function of the officer of police is administrative and not judicial in nature. Even though it is said that it must be exercised judicially, that does not alter its character of the warrant as an administrative act. I do not think that it is correct to describe it even as a quasi-judicial act as did Jacobs J. Consequently s7 of the Evidence Act, in my view, is of no assistance. That section is in the same terms as considered in Tran Nominees and I do not accept that an officer of police issuing a warrant under s52(5) can be regarded as a court or as any one of the persons designated in s7(2) of the Evidence Act. However, it is unnecessary for present purposes to reach any conclusion about that matter and the correctness of the decision of Jacobs J.

I would answer the questions reserved as follows:

2 Yes, but limited to whether the person issuing a warrant under s52(5) of the Controlled Substances Act was satisfied as to the matters set out therein on information given upon oath. There could not be an inquiry into whether the material placed before that person was insufficient to satisfy him of those matters unless an issue of Wednesbury unreasonableness arises.

LANDER J I have had the advantage of reading in draft the reasons of Mullighan J and Williams J.

There is no need in these reasons to recite the facts or the questions posed for this Court.

The questions require a consideration of the Controlled Substances Act (the Act) and in particular s 50 and s 52 of that Act.

All members of the Police Force, including all commissioned officers, are authorised officers for the purposes of Part 7 of the Controlled Substances Act. Only authorised officers can exercise the powers in s 52(1)(a) and s 52(2) but only members of the Police Force can exercise the powers in s 52(1)(b).

An authorised officer and in particular a member of the Police Force cannot exercise the powers in s 52(1), except upon the authority of a warrant issued by a person mentioned in s 52(4), unless the powers are being exercised within the exception in s 52(4).

An 'officer of police', a special magistrate or a justice can issue a warrant authorising the exercise of the powers in s 51(1). An 'officer of police' is a different person to the 'member of the police force' referred to in s 50(1). An officer of police in s 52 must mean a commissioned officer. Not all police officers can exercise the powers given under s 52(4) of the Act; the only police officers who can issue warrants under s 52 are commissioned officers.

It follows, in my opinion, therefore that only a commissioned police officer, a special magistrate or a justice can authorise the issue of a warrant to exercise the powers in s 52(1)(a) and (b) and it is only a member of the police force who may be empowered to exercise the powers in s 52(1)(b).

A commissioned officer or a special magistrate or a justice cannot issue a warrant under s 52(4) unless satisfied on information given upon oath of the matters referred to in s 52(5)(a) and (b).

A magistrate is a judicial officer and exercises judicial power. A justice of the peace may also exercise judicial power. A police officer is not a judicial officer and does not exercise judicial power. Whilst two of the persons who have the power to issue a warrant are or may be judicial officers that does not determine the nature of the act to be performed. However a person issuing a warrant under s 52(5) does not act in a judicial capacity for the purpose of adjudicating on the rights of parties: Love v Attorney General (NSW) (1990) 169 CLR 307 at 321.

The issue of a warrant under s 52(5) of the Controlled Substances Act is an administrative act: Ousley v R [1997] HCA 49; (1997) 192 CLR 69. Being an administrative act it is "an instrument made pursuant to a circumscribed statutory authority": Love v Attorney General (NSW) (supra) at 323.

It is irrelevant therefore that a magistrate is otherwise a judicial officer and that a justice may also act as a judicial officer. When considering whether to issue a warrant under s 52(5) and, when issuing a warrant under that subsection, whether the person be a commissioned police officer, a special magistrate or a justice that person is acting administratively. Although a commissioned officer, a special magistrate or a justice are not exercising a judicial power they must exercise the administrative power which devolves upon them judicially (Ousley v R (supra) at 87, 100, 145-146; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359-360; Coco v R [1994] HCA 15; (1994) 179 CLR 427 and 424; Love v AG (NSW) (supra) at 322-323) in the sense that they must act in a just and fair manner.

The last question posed to this Court, whether a person acting administratively, and in particular a commissioned police officer, can administer an oath, can conveniently be considered first.

The statutory offence in South Australia for unlawfully administering an oath in s 242 of the Criminal Law Consolidation Act 1935 which made such conduct an offence was repealed by the Statutes Amendment And Repeal (Public Offences) Act 1992. Whether any common law offence or previous statutory offence has been revived by reason of the repeal of s 242 does not need to be examined; see Unlawful Oaths Act 1797 (UK); Unlawful Oaths Act 1812 (UK); Statutory Declarations Act 1835 (UK) and s 23 of the Oaths Act.

Whilst it may not be a statutory offence to administer an oath without authority it does not follow that any person can therefore administer a valid oath to another person.

In Tomlins Law-Dictionary 4th Edition (1835) under the heading of 'Oath' it is stated:

"All oaths must be lawful, allowed by the common law, or some statute; if they are administered by persons in a private capacity, or not duly authorized, they are coram non judice, and void; and those administering them are guilty of a high contempt, for doing it without warrant of law, and punishable by fine and imprisonment. 3 Inst. 165; 4 Inst. 278; 2 Roll. Abr. 277."

Some doubt must have arisen as to the efficacy of the administration of oaths outside judicial proceedings which was addressed in s 13 of the Statutory Declarations Act 1835 (UK). However in my opinion a commissioned police officer would need to have statutory authority to administer an oath to any person, because there is no general power given in any statute for a commissioned police officer or any other person to administer oaths. A commissioned police officer's authority to administer an oath for the purpose of determining whether a warrant should issue under s 52(4) of the Act must be derived from s 52(5) of the Act or some other statute.

If such an authority arises from one or both of these two sources it is also necessary to consider whether the power to administer an oath carries with it the further power to take an affirmation.

Section 15 of the Oaths Act provides that every person who is authorised to administer an oath shall have authority to take an affirmation. I think, however, that section only applies to the oaths referred to in Part 2 of the Oaths Act and would not include the administration of any oath for the purposes of this Act; see s 13 and s 16 of the Oaths Act.

However s 25 of the Oaths Act empowers a person, authorised to administer an oath under s 52(5), to instead take the person's declaration. Section 25 is within that part of the Oaths Act entitled Statutory Declarations. That Part does not apply to judicial proceedings (s 24) but for reasons already given the act of issuing a warrant is not a judicial proceeding. Section 25 allows any justice or notary public or "any officer by law authorised to administer an oath, or affirmation, to take the declaration of any person ...". In my opinion a commissioned police officer, if he or she is otherwise empowered to administer an oath under s 52(5), would be entitled to take a declaration in lieu of an oath.

Not only does s 25 of the Oaths Act empower a person, who is otherwise authorised to administer an oath to take a declaration, but s 6(3) of the Evidence Act requires a person administering an oath to offer the person to whom the oath is to be administered the choice to make an affirmation instead of an oath "in all circumstances in which, and for all purpose for which, an oath is required or permitted by law". Whilst s 6 is included in Part II of the Evidence Act the section is not confined to oaths or affirmations administered for the purpose of taking evidence in court. That follows from the breadth of the section itself.

In my opinion although the three persons referred to in s 52(5) of the Act are performing an administrative function, if they are empowered to administer an oath, they would also be empowered to take an affirmation or as I have already said to take a declaration, for the purpose of obtaining the information referred to in s 52(5).

The question remains whether s 52(5) or some other statutory provision authorises a commissioned officer to administer an oath for the purposes of performing his or her function under s 52(5).

The Solicitor General argued that s 52(5) would be entirely ineffective unless someone has the power to administer the relevant oath. Therefore he argued the Court would 'fill the gap and imply a power to administer the oath". He relied on D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 109-110.

There is a principle of statutory construction that where an Act confers a power upon a body or person that body or person also receives any incidental power necessary to carry out the express grant of power.

A provision of similar kind was considered in Oath Before Justice [1572] EngR 263; (1611) 12 Co Rep 1301, 77 ER 1405. In that case a statute empowered Justices to compel persons to appear before them and take an oath. It was held that such a power carried with it the power to issue a warrant to bring the persons before the Justices; quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest. In Ex parte Martin (1879) 4 QBD 212 Pollock B said at 215 "... that where jurisdiction is given by statute the means of carrying it out must also be provided...".

An Act of Parliament will be construed so that whatever is necessary to carry out a grant of power is implied in the grant of power itself: Johns v Connor [1992] FCA 193; (1992) 107 ALR 465 at 473.

It follows that s 52(5) must be construed such that the grant of the power to a commissioned officer to issue a warrant "if satisfied on information given on oath" carries with it implicitly the power to administer an oath. Otherwise the grant of power to issue the warrant would be ineffective.

For completeness and in case I am wrong about the construction of the Act I shall address the alternative argument put by the Solicitor in respect of this question. He argued that if s 52(5) was not the source of power to administer an oath then the power arose under s 7 of the Evidence Act.

"Every court has authority to administer an oath or an affirmation."

Ordinarily it would not be thought that a commissioned police officer could be described as a court. However court is defined in s 4:

"Includes a tribunal, authority or person invested by law with judicial or quasi judicial powers or with authority to make an inquiry or to receive evidence."

The definition assumes that the body or person will be exercising judicial or quasi judicial powers or have authority to make an inquiry or to receive evidence. There is no doubt that a commissioned police officer is not exercising judicial or quasi judicial power in exercising the power under s 52(5). If an authority or person is carrying out an inquiry or receiving information upon oath in circumstances where that authority or person has not been invested with judicial or quasi judicial powers it seems to me that the authority or person must be acting administratively, because the authority or person, whilst not acting in any sense judicially, is invested by law to carry out an inquiry or to receive evidence.

In my opinion the definition of court is so wide that it would include a commissioned police officer or a special magistrate or a justice acting administratively in the circumstances contemplated in s 52(5) of the Act.

I agree with Jacobs J in Tran Nominees v Scheffler (1986) 42 SASR 361 that because of the width of the definition of court in the Evidence Act a commissioned police officer is empowered by s 7 the Evidence Act to administer an oath. However I disagree, with respect, with Jacobs J in so far as he reached that conclusion because he was of the opinion that the police officer was acting quasi judicially. In my opinion for the reasons given in Ousley v R (supra) the commissioned police officer is not acting judicially or quasi judicially but rather administratively, being a person invested by law with authority to make an inquiry or to receive evidence.

It follows that I agree with the Solicitor's alternative argument that if the power to administer an oath is not implicit in s 52(5) itself the power does arise out of s 7 of the Evidence Act.

For those reasons I would answer question 6, yes.

The first question raises for consideration what is required for a warrant, which is issued under this section, to be valid on its face. There is no form of warrant in the legislation although the Act empowers the Governor to make regulations prescribing the form of any warrant: s 63(4)(c). Nor does the legislation specify what must be included in the warrant. In those circumstances the detail required on the warrant to make the warrant valid will be determined by a consideration of the legislation authorising the warrants.

It must be remembered that this case concerns a warrant issued by a subordinate authority: Re Tillett; Ex parte Newton (1969) 14 FLR 101. Historically a distinction has been drawn between warrants issued by subordinate authorities and inferior courts and warrants issued by superior courts. It has been said that in respect of subordinate authorities and inferior courts it is necessary that the warrant disclose jurisdiction on the face of it. On the other hand it has been said no such obligation lies in respect of a warrant issued by a superior court; Ousley v R (supra) per Gaudron J at 88 and 89. The distinction may have arisen because a presumption of regularity arises in respect of warrants issued by superior courts. Whether there should be any such distinction where in all cases the issuing officer is exercising an administrative function does not need to be decided in this matter.

There is no doubt that a warrant issued under this section must disclose jurisdiction. Because the legislation does not prescribe the matters which must be included then regard must be had to the legislation itself to determine what information should be included to make the warrant valid. A search warrant which is excessively general will be invalid: The Queen v Conley (1979) 21 SASR 166. A warrant must have the degree of particularity demanded by the legislation. It is sufficient, in my opinion, for a warrant issued under this section to repeat the words of the section itself: The Queen v Conley (supra); Reg v Inland Revenue Commissioner ex parte Ross minster Ltd [1980] AC 953.

In this case with one minor exception the warrant did exactly that. The warrant states that the issuing commissioned officer was satisfied "on information upon oath that there are reasonable grounds for suspecting an offence against the Controlled Substances Act, 1984 has been, is being, or is about to be committed and that a warrant is reasonably required in the circumstances". These words repeat the subsection except that the subsection speaks of "information given upon oath". I do not think the difference in wording is material. In particular the difference in wording does not make the warrant invalid on its face.

It was argued, however, that the warrant was invalid because it did not specify a particular offence.

Some warrants will not be valid unless the warrant discloses on the face of it that it has been issued to aid in the gathering of evidence in relation to a particular offence: R v Tillett; Ex parte Newton (supra). But whether a warrant must disclose a particular offence or whether it is sufficient for the warrant's validity that reference is made to offences generally under the authorising Act depends upon the construction of the authorising Act.

This Act is concerned with very serious drug offences. It gives very wide ranging powers to authorised officers and even more under ranging powers to police officers who have been authorised to exercise these powers by one of the persons mentioned in s 52(5). The powers given to authorised officers and police officers are more wide ranging than would be necessary if a warrant had to be restricted to a particular offence. For example s 52(2)(1) empowers an authorised officer "where the officer suspects on reasonable grounds that an offence against this Act has been committed, (to) seize and remove anything that the officer has reasonable cause to suspect affords evidence of the offence...". If the warrant had to identify a particular offence the Act would not have empowered the authorised officer in those terms. That sub paragraph does not restrict the authorised officer to any particular offence disclosed in the warrant. Indeed it assumes that the authorised officer will use his or her power to inspect, search or gather evidence in respect of any offence.

To allow the authorised officer and police officers to exercise all of the powers in s 52 is consistent with the purpose of the legislation which is to obtain evidence of drug related offences. To require a warrant to be restricted to a particular offence would frustrate the legislation and make the detection of drug related offences extraordinarily and unnecessarily difficult.

The section does not expressly or by implication require the particularisation of an offence: Reg v Inland Revenue Commissioner (supra).

I agree with Jacobs J in Tran Nominees v Schefflar (supra) at 74 that the Act does not require the warrant to state a particular offence and no advantage would be served by doing so. In my opinion Swanevelder v Holmes (1990) 52 SASR 549 is not authority contrary to that conclusion and indeed supports that conclusion (556).

In my opinion this warrant was valid on its face and the first question should be answered "yes".

I turn to the second question. Although the second question is somewhat imprecise I think, having regard to the questions which follow, the question asks this Court whether the warrant is subject to a review within the criminal proceedings themselves. It does not raise for consideration question of judicial review independent of the criminal proceedings; Ousley v R (supra) per McHugh J at 100 and Gummow J at 127. I shall use the term 'collateral attack' in the same way McHugh J did in Ousley v R (supra) (98). It should be understood where I refer to a collateral attack I do so in circumstances when the court in the criminal proceedings themselves is called upon to determine the validity of a warrant issued under this section. The court will be asked to determine the validity of a warrant where that warrant has been executed and evidence obtained which is sought to be tendered by the prosecution in the criminal proceedings.

That question can be easily answered. Because the issue of this warrant is an administrative act it is subject to challenge in collateral proceedings where the challenge is relevant to the resolution of the issues in the proceedings: Ousley v R (supra) at 80, 87, 100, 127 and 145-146. That collateral challenge is available notwithstanding the warrant is valid on its face: Coco v R (supra); Ousley v R at 102.

The answer to the second question must be yes.

The next two questions should be left until the fifth question is answered.

Whilst the validity of the warrant can be challenged in collateral proceedings that does not mean that collateral challenge, assuming the warrant discloses jurisdiction and is otherwise valid on the face of it, is at large: Ousley v R (supra) per Gaudron at 87. The question posed does not ask this court to determine the matters generally which may be inquired into on a collateral challenge. It simply asks whether the collateral challenge could extend to the sufficiency of the information placed before the issuing officer, which was the subject of the challenge before the trial Judge.

It is no part of any inquiry, on the voir dire in criminal proceedings on the hearing of a collateral attack on the validity of a warrant issued under s 52(5), to determine whether there was sufficient information put before the person issuing the warrant to enable that person to be satisfied of the matters in s 52(5)(a) and (b): McArthur v Williams (1936) 55 CLR 324 at 365-366; Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 104-105; Ousley v R (supra) at 87, 127, 131. Whether such a challenge can be mounted outside the criminal proceedings (Ousley v R (supra) per Gummow J at 127 relying upon Grollo v Palmer (supra) does not need to be discussed here.

In my opinion the fifth question must be answered no.

In this matter for the reasons already given the warrant was valid on its face in that it disclosed jurisdiction and included all matters required by the subsection.

In those circumstances whilst the appellant was entitled to challenge the warrant the appellant was not entitled, in the criminal proceedings, to challenge the sufficiency of the information which has been put before Detective Chief Inspector Newman. In the circumstances of this case the collateral attack was limited to an inquiry into whether Detective Chief Inspector Newman was satisfied of the matters referred to in the warrant.

In circumstances where the warrant is valid on the face of it no obligation lies upon the prosecutor to establish affirmatively that the person who issued the warrant was satisfied of the matters contained in the warrant.

The purpose of the challenge was to attempt to satisfy the Court on the voir dire hearing that the warrant was invalid and in those circumstances the evidence had been obtained illegally. In those circumstances the purpose of the challenge was to ask the Court to exercise its discretion to exclude the evidence illegally obtained.

The onus is upon the person challenging the validity of the warrant to establish, on the balance of probabilities, that the issue of the warrant was invalid. It is not for the prosecution to prove beyond reasonable doubt the fulfilment of the preconditions in the statute in circumstances where the warrant is valid on the face of it.

Instead if an accused person challenges the validity of the warrant for the purpose of seeking a ruling to exclude otherwise admissible evidence because the evidence has been illegally obtained that person bears the onus of proving on the balance of probabilities that the warrant is invalid.

That must be so, in my opinion, for two reasons. First such an approach is consistent with the obligations which fall upon accused persons to exclude evidence otherwise admissible; Wendo v R [1963] HCA 19; (1964) 109 CLR 559; McPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 519 and Cleland v R [1982] HCA 67; (1982) 151 CLR 1. Secondly that is the onus which is cast upon anyone on an application for judicial review of an administrative action. If it was for the prosecutor to establish the validity of the warrant beyond reasonable doubt then the prosecutor would bear an onus and a standard which would not be cast upon a prosecutor in any other administrative proceedings.

It follows from what I have said that I disagree with the dictum of Olsson J in Swanelevelder v Holmes (supra) in so far as his Honour suggested that the onus lay upon the prosecution to establish the steps pre-requisite to the issue of the warrant beyond reasonable doubt.

If a person seeks to challenge a warrant otherwise valid on the face of it in criminal proceedings for the purpose of seeking to have any evidence obtained on the execution of that warrant excluded in the exercise of the trial Judge's discretion that person has the onus of establishing on the balance of probabilities that the warrant is invalid.

In particular if that person asserts that the issuing officer was not satisfied of the matters in s 52(5)(a) and (b) then that person has the onus of establishing that assertion on the balance of probabilities.

I would answer questions 3 and 4 accordingly.

For those reasons I would answer the questions as follows:

2. Yes, limited in the present case to whether Detective Chief Inspector Newman was satisfied on the information given on oath.

WILLIAMS J This is a case stated by a judge of the District Court of South Australia on the application of the Director of Public Prosecutions reserving questions of law pursuant to ss 350(2)(b) and 351 of the Criminal Law Consolidation Act 1935. The questions concern the requirements needed for a valid warrant issued to a member of the police force by an "officer of police" under s 52(4) and (5) of the Controlled Substances Act 1984 ("the Act") and the procedure, including the grounds, for challenging the validity of a warrant.

Antonio Ascensio was charged upon information with one count of producing cannabis (s 32(1)(a) of the Act) and one count of possessing cannabis for sale (s 32(1)(e)). The particulars of the first count alleged the commission of an offence between 10 April 1998 and 10 July 1998 at Campbelltown. The particulars of the second count alleged the commission of an offence on 9 July 1998 at Campbelltown. Arising out of a preliminary point raised by the defence, the Trial Judge ruled that certain prosecution evidence was inadmissible on the ground that the evidence was obtained as the result of an illegal entry and search of premises under invalid warrants. The learned trial Judge exercised his discretion by applying the principle of Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. The prosecution tendered no evidence and the accused was acquitted on both counts.

The two warrants are respectively addressed to two members of the South Australian police force, Mr Epps and Mr Georg but are otherwise in the same terms. The warrants were issued concurrently on 8 July 1998 by a commissioned police officer Detective Chief Inspector ("DCI") Newman whose own appointment was formally proved.

To: Damien EPPS, an authorised officer pursuant to Section 50 of the Act,

Whereas I, Det Chief Inspector NEWMAN, an Officer of Police, of the State of South Australia, am satisfied on information upon oath received by me this day that there are reasonable grounds for suspecting that:

an offence against the Controlled Substances Act, 1984, has been, is being, or is about to be committed,

and that a warrant is reasonably required in the circumstances,

YOU ARE HEREBY AUTHORIZED to enter at any time the premises

for the purpose of ascertaining whether the provisions of the Act are being complied with or have been contravened, and, where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises.

The circumstances in which DCI Newman issued the warrants were reduced to writing upon a standard form (P.D.23) entitled "Record of Warrant Application" and signed by him. The document reads as follows:

On 22/06/98, covert surveilance was conducted on premises of Tony FARANDA at 11 Belinda Ave. EVANDALE. During this period of surveilance numerous persons were seen to arrive and then leave shortly afterwards. A vehicle registered to the subject ASCENSIO was seen to attend. A number of these persons are known to be involved in drug distribution. It was suspected at the time that the visits be(sic) these people coincided with a possible drug delivery by a Cheryl FEWSTER. FEWSTER has extensive priors to drugs(sic) (including sale/supply) Subject ASCENSIO was identified as an associate of FARANDA. FARANDA has extensive criminal history involving drug distribution and other serious offences. FARANDA has been the subject of numerous Operations involving DTF/ISS & the NCA. Subject ASCENSIO was identified as an associate of FARANDA. ASCENSIO is recorded on PIMS with numerous convictions for unlawful gaming.

E.T.S.A. checks have confirmed that the accounts for above address is in the name of the subject ASCENSIO. Daily usage account for the premises is currently 41 units per day. The average daily consumption for domestic premises is between 5 and 15 units per day. 41 units is an excessive amount for domestic premises. High power usage is often consistant(sic) with the growing of cannabis hydroponically.

Observations conducted of the above premises by Police on 08/07/98 did not assist in identifying the source of high power consumption (eg. Swimming pools/sauna etc.) The unit appeared to be only a two bedroom dwelling. Evidence suggested only one person was residing at the premises.

To enter premises at Unit 3/1 Lennox St. CAMPBELLTOWN and enforce the provisions of the Controlled Substances Act 1984.

COMMISSIONED OFFICER: (Sgd) W. Newman DATE: 8 / 7/98

To enable him to make his ruling the Trial Judge allowed a voir dire hearing on the defendant's preliminary objection to the admissibility of evidence obtained through a search of the defendant's premises under the authority of the warrants. Counsel for the accused argued that the warrants were invalid on their face and were unlawfully issued.

The Trial Judge allowed evidence as to the circumstances in which the warrants were issued. DCI Newman was not available to give evidence but his signed record dated 8 July 1998 detailed the procedure adopted upon the application of Mr Epps, to whom DCI Newman administered an oath or affirmation for the purposes of supporting his warrant application.

The Trial Judge held that the warrants were valid on their face. In this respect His Honour rejected the accused's argument that the warrants did not sufficiently disclose a particular offence.

In regard to the circumstances in which the warrants were issued the Trial Judge rejected the defendant's argument that the issuing police officer did not have authority to administer an oath. Given DCI Newman was not available to give evidence the Trial Judge held that he was not satisfied beyond reasonable doubt that the issuing officer had been satisfied by information on oath as to the matters recited in the warrants. When the validity of the warrant was put in issue the Trial Judge treated the prosecution as having the onus of proving beyond reasonable doubt that the sworn information was sufficient to lead the issuing officer to have the state of mind required by s 52(5) as a precondition to its operation. His Honour cited Swanevelder v Holmes (1990) 52 SASR 549 as authority for his decision on the lastmentioned point. No reference was made to McArthur v Williams (1936) 55 CLR 324.

The questions reserved by the Trial Judge for the consideration and determination of this Court are as follows:

1. Based on the facts as set out in this case stated, was I correct in finding that there were no irregularities on the face of the warrant?

2. If the answer to (1) is "Yes", was I correct in ruling that there could be an inquiry held into the validity of the warrant notwithstanding that it appeared regular on its face?

3. Was I correct in ruling that the onus was on the prosecution to prove the validity of the warrant in these circumstances?

4. Was I correct in ruling that this onus was to be discharged beyond reasonable doubt?

5. Could the collateral attack on the warrant extend to the sufficiency of the information placed before the issuing officer?

6. Was I correct in ruling that the issuing officer had power to administer an oath as required by section 52 of the Controlled Substances Act 1984?

Part 7 of the Controlled Substances Act 1984 is headed "Search, Seizure, Forfeiture and Analysis." Relevant extracts are as follows:

"50(1) The following persons are authorised officers for the purposes of this Part:

(b) any other person appointed by the Minister, by instrument in writing, to be an authorised officer for the purposes of this Part.

(2) The Minister must provide an authorised officer appointed under subsection (1)(b) with a certificate of identification in the prescribed form.

(3) An authorised officer appointed under subsection (1)(b) must, upon demand by a person in relation to whom the officer is exercising any powers under this Act, produce the certificate of identification for the inspection of that person."

"52(1) Subject to this section, an authorised officer may-

(a) enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and

(b) where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and

(2) While an authorised officer is in or on any premises pursuant to this section, the officer may-

(a) inspect or search the premises or any equipment or other thing on the premises;

(h) require the holder of a licence, authority or permit under this Act to produce that licence, authority or permit for inspection;

(i) where the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;

(j) give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act.

(3) The powers conferred by subsection (1)(b) may only be exercised by an authorised officer who is a member of the police force.

(4) An authorised officer must not exercise the powers conferred by subsection (1)(a) and (b) except upon the authority of a warrant issued by an officer of police, a special magistrate or a justice, unless the powers are being exercised in relation to premises that are being used in the course of an activity in respect of which a licence, authority or permit has been granted under this Act.

(5) An officer of police, special magistrate or justice must not issue a warrant under subsection (4) unless satisfied, on information given upon oath-

(a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and

(b) that a warrant is reasonably required in the circumstances.

(10) Nothing in this section derogates from the power of a member of the police force to do anything pursuant to a general search warrant issued under the Summary Offences Act 1953.

I will refer to a Ministerial appointee under s 50(1)(b) as an "inspector".

Section 52(1)(a) should be read with s 55 which states that the Health Commission is empowered to grant licences, authorities and permits. A system of licensing (see ss 13-18) regulates the lawful production, sale and possession of controlled substances. Authorities issued under s 18 enable drugs to be prescribed medicinally beyond the normal limitations fixed by the Act. Permits issued under s 56 regulate the employment of controlled substances for research, instruction or teaching purposes. It will be noted that the combined effect of s 52(1)(a) and s 52(4) enables premises being used for any of these activities to be entered without warrant by an inspector.

For the purposes of argument counsel identified the following general questions as underlying this reference:

"a. In what circumstances can a warrant issued under section 52 of the Controlled Substances Act, 1984 be challenged in criminal proceedings where the Crown seeks to rely upon evidence obtained under the warrant?

b. What must be disclosed on the face of a warrant given under section 52 of the Controlled Substances Act, 1984?

c. Who bears the onus when validity of a warrant given under section 52 of the Controlled Substances Act, 1984 is in issue?

In my opinion it is convenient to deal with these questions, if only in some respects, to confirm existing authority. However one point of principle is deserving of particular attention. The District Court Judge regarded himself as bound by the authority of a single judge in Swanevelder v Holmes at 555 and 556. That case has been treated as standing for the proposition that upon a challenge to a warrant under s 52 "...it must certainly be established beyond reasonable doubt that the issuing officer did in fact arrive at the necessary state of satisfaction required by the statute (Swanevelder v Holmes at 556). The Solicitor-General disputes this proposition.

During the course of argument on the case stated it was observed that a recital in the warrant departed, at least literally, from the language employed in s 52 of the Act. The Solicitor General did not seek to justify this drafting error and the point was not taken or considered before the District Court Judge. The form of warrant has been in use for many years and in the relevant respect has previously come under the scrutiny of this court without comment in Tran Nominees Pty Ltd v Scheffler & Ors (1986) 42 SASR 361. It may be questioned whether the Court would be "over zealous to search for ambiguities or obscurities" in language which has not previously been called in question (see R v IRC ex parte Rossminister [1979] UKHL 5; [1980] AC 952 per Lord Diplock at 1008).

Each of the warrants recites that the issuing officer was satisfied "on information upon oath received by" him whereas the language of s 52(5) requires that the issuing officer be satisfied "on information given upon oath". The adverbial phrase "upon oath" which in s 52(5) qualifies "given" in the warrant becomes an adjectival phrase qualifying "information". These two expressions are capable of supporting slightly different meanings but on one view the warrant's recital may also be treated as effectively satisfying the subsection.

The heading for each warrant carries a reference to s 52 of the Act and this is an important aid in construing the warrant. In my opinion, as a matter of construction of the warrant, one is entitled to ignore the ambiguity and conclude that based on "information given [to him] on oath" DCI Newman reached the state of satisfaction as recited. Although the drafting could be improved, the departure from the statutory formula is insufficient to invalidate the warrant for the purpose of applying the Bunning v Cross discretion.

The legislative history is useful to an understanding of the drafting of the current Act. The provisions relating to entry, search and seizure contained in s 52 has evolved from the Opium Act 1895 and more recently developed in the Narcotic and Psychotropic Drugs Act 1934 (see R v Romeo (1982) 30 SASR 243 per Cox J at 273). The circumstances in which premises may be entered, the class of authorised persons and extent of the power has been gradually refined. In the Act No.644 of 1895 any "officer of police" having reasonable cause to suspect an infringement of the Act, which was narrow in its proscription, was authorised to enter premises and apprehend without a warrant. In the Dangerous Drugs Act 1934 the ambit of drug control was further extended. In addition to a power to enter and search conferred upon "any member" of the police force where there was reasonable cause to suspect "a contravention of the Act", a power of entry and inspection was introduced with respect to premises of drug manufacturers and others licensed or authorised under the Act. This latter power was exercised by "any member of the police force of or above the rank of sergeant" who was authorised by order of the Minister or the Central Board of Health. A public servant could be similarly authorised. In 1978 public servants were removed from the class to whom authority could be given.

When the Act was introduced in 1984 these various powers were run together in ss 50 and 52. Although maintaining provision for an inspectorate acting under Ministerial control to oversee the licensing provisions, the new Act gives special powers of entry including forcible entry under warrant and personal body search to the police force whilst the power of Ministerial inspectors are more limited. In any event a warrant is still required by inspectors who are exercising powers otherwise than at "licensed" premises. Section 52 of the Act recognises a distinction between an "officer of police" and more generally a "member of the police force". In my view "an officer of police" in this context means a commissioned officer. Parliament has now entrusted the power of issuing warrants under s 52(5) to special magistrates, justices and commissioned police officers whom I will call collectively the "issuing officers".

R v A No. SCCRM-99-182 [2000] SASC 51

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Judgment (294 paragraphs)

R v A No. SCCRM-99-182 [2000] SASC 51 (17 March 2000)

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Legislation Cited (30)

Cases Cited (39)