R v Khajehnoori [2005] ACTSC 76

2. The accused has been arraigned on the following charge:

`The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on the 13th day November 2003 Behroz Khajehnoori, at Canberra in the Australian Capital Territory, possessed a drug of dependence, namely methamphetamine.'

`The accused is charged with possessing methamphetamine.

The accused resides at 6 Nash Place Stirling.

At about 7.00 am on 13 November 2003 Police executed a search warrant at 6 Nash Place Stirling. The accused was home at the time and the search of the premises was conducted in his presence.

Police, whilst searching the accused's bedroom, located a small black box which contained a pair of silver cufflinks and a single capsule.

The case against the accused consists of:

1. Evidence of the location of the capsule.

2. Admissions by the accused as follows;

i) the room in which the capsule was located was his bedroom and,

ii) he was the owner of the cufflink box in which the capsule was found.

3. Forensic evidence: analysis of the capsule showed it contained methamphetamine.'

4. It is convenient to deal with ground (b) first. The capsule contained brown power. The weight of the sample was 0.114 gm. The concentration of the prohibited substance was 13.3% of the sample with a weight of 0.015 gm. Possession of methamphetamine is an offence carrying a maximum penalty of $5,000, imprisonment for two years or both (s 171(1) Drugs of Dependence Act 1989 (ACT)). It is submitted for the accused that the drug of dependence was of such a minute quantity that it could not be said, as a matter of common sense and reality, that it was that drug of which the accused was presently in possession. Reference was made to the decision of the High Court in Williams v The Queen [1978] HCA 49; (1978) 140 CLR 591, particularly at 599-600 per Gibbs and Mason JJ (Jacobs J agreeing) and 602 per Murphy J. In that case, the police found fragments of green leaf material in the pockets of two coats belonging to the applicant. It was mixed up with pocket fluff and was so minute that the analyst did not bother to weigh it. The offending material was so minute as to be effectively invisible to the naked eye. It was in that context that Gibbs and Mason JJ said (at 600):

`A consideration of these situations confirms us in thinking that when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession, not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession.'

5. Bourke v R (1993) 67 A Crim R 518 was a similar case in that a plastic bag containing a white powdery substance was located in the appellant's jeans and, on analysis, the power was found to contain `minute traces' of heroin. The calculated weight of the heroin was less than 0.01 gm.

6. In my opinion, that principle has no application in the present circumstances. The capsule, similar in size to each cufflink with which it was found, is not similar in kind to the traces of material discussed in those authorities. The amount of methamphetamine here is small but there is no evidence that the amount of active ingredient in the present case packaged in the way that it was would be so devoid of effect as to have no real identity as a drug of dependence.

7. The search warrants referred to in the case statement were both to search a place and to search in relation to a person. The same defects are alleged in relation to each. For the purposes of these reasons it is only necessary to deal with that in relation to place. The search warrant in relation to the place included the following:

`WHEREAS I Karen Margaret FRYAR a Magistrate within the meaning of Section 187(3) of the Drugs of Dependence Act 1989, of the Australian Capital Territory, being satisfied by information on oath placed before me this date, that there are reasonable grounds for suspecting that there is at any place situated at:

6 Nash Place STIRLING, in the Australian Capital Territory, also known as Block 3, Section 10 Stirling in the said Territory

a thing or things of a particular kind, namely:

Amphetamine, syringes, spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else, which the Informant believes on reasonable grounds to be connected with an offence against Section 164(2) of the Drugs of Dependence Act 1989, namely Possess a Drug of Dependence for the Purpose of Supply.

YOU ARE HEREBY AUTHORISED ... and to search the said place ...and to seize such thing or things of a particular kind specified above ... that the person named in this warrant believes on reasonable grounds to be connected with an offence against the Drugs of Dependence Act 1989 ...'

[emphasis added]

8. The relevant parts of s 187 of the Drugs of Dependence Act 1989 are as follows:

`(3) If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to--

(a) enter any place named or described in the warrant; and

(b) search the place for things of that kind; and

(c) if the place is a private place--to search any person found at or in the place, or any person whom he or she reasonably believes to be about to enter or to have recently left the place, and the clothing that the person is wearing, or property in the apparent control of the person, if the police officer believes there are reasonable grounds for suspecting that things of that kind may be on the person or in the clothing that the person is wearing or in property in the apparent control of the person; and

(d) to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.

...

(6) A warrant issued under this section shall state or set out--

(a) the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised; and

...

(c) a description of the kind of things authorised to be seized; and

(d) any conditions to which the warrant is subject; and

...

(7) If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.'

9. It is submitted for the accused that the words `or anything else' lead to invalidity of the warrant. It was submitted that this was held by Spender J in R v Stankovich [2004] ACTSC 93 particularly at 42 where his Honour said:

`Section 187(2) of the Act, properly understood, and s 187(4)(b) requires a Magistrate to be satisfied that there are reasonable grounds for suspecting that there is, or will be, a thing or things of a particular kind -- naming them -- on or in the clothing that is being worn by, or in any property in the apparent control of a named person, and which things are "connected with a particular offence", describing that offence. There is no basis for referring to "anything else". It is necessary for the Magistrate to be satisfied that the suspicion is that the thing or things are connected with a particular offence, describing it.'

10. There is some difficulty in analysing precisely what was found in Stankovich. It is submitted by counsel for the prosecution that there was some disconformity between the ex tempore ruling and the later reasons and that the two warrants appear to have been treated somewhat differently in the relevant respect. Be that as it may, it seems to me that what Spender J said (at 42) is correct and that the reference to `anything else' is contrary to the requirement for specificity required by ss 187(2) and (as applicable to this warrant) s 187(3).

11. Counsel for the accused has also referred to the decision of Ryan J in Freeman v Roberts (1992) 37 FCR 399, particularly at 403. In that case, his Honour dealt with the words `any other things' in the preamble to a condition of a warrant purporting to be issued pursuant to s 10 of the Crimes Act 1914 (Cth). That case, on that point, was decided on the narrow ground that the words in question rendered the third condition of the warrant inconsistent with the first and second conditions and so created an inconsistency which made it impossible to determine the scope of the warrants. That was particular to the form of warrant in that case. His Honour did say, however:

`This type of inconsistency is unacceptable in a warrant because it renders it impossible for the subject of the warrant to identify the documents and things to which it relates.'

It is also of some significance that his Honour declined to sever the words in question because it was held that they affected the entirety of the warrants.

12. I should add that I do not regard the decision of Higgins CJ in R v Trevitt [2005] ACTSC 48 as directed to the particular point at issue here. However, as I have said, I agree with the substance of the reasoning of Spender J that the words `or anything else' are not authorised to be included in the warrants pursuant to s 187. The real question is whether those words can now be severed.

13. There is a long line of authority in the Federal Court in which it has been held that the invalid portion of a search warrant may be severed leaving the rest of the warrant valid in appropriate circumstances. A recent application of that principle in the Full Federal Court is Von Arnim v Health Insurance Commission [2004] FCAFC 33 in which the principal authorities are referred to including Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 which was relied upon here by counsel for the prosecution. Their Honours state the test of severance as being whether the matter to be omitted can be omitted without altering the meaning of the remainder of the warrant. It was held in that case that the effect of severing the ineffective parts of the warrant was merely to narrow the scope of the evidential material that might lawfully be seized and so was permissible. Furthermore, the Court confirmed that severance can be effected after the warrant has been executed, referring to the judgment of the High Court on a special leave application in Malubel Pty Ltd v Elder (No 2) (1999) 73 ALJR 269. The judgment in Malubel described the principles as settled by the line of Federal Court decisions.

14. In my opinion, applying the test laid down by this line of authority, the words in question can be severed without affecting the balance of the warrant. The article seized here was clearly within the specified property and involved no extension of any search by reason of the added words to be severed.

15. It was submitted for the accused that the words in question affect not only the form of the warrant itself but the formation of the appropriate satisfaction by the magistrate issuing the warrant, referring to Ousley v R (1997) 192 CLR 69 per Toohey J at 81 and Gaudron J at 88.

16. In my opinion, this submission, even if otherwise correct, is also answered by severance. There could be no suggestion of failure to reach the necessary satisfaction in relation to the specified articles. Once the ex poste facto severance has taken place there is no room for operation of this submission. I might add that this argument would have also been an answer to all of the cases in which severance took place.

17. Counsel for the accused also put another argument in written submissions (that was not further elucidated during oral argument) founding upon the words `on the day when, or a day within 28 days after the date when, the information is laid' in s 187(3). It is submitted that the omission of those words means that there was a mismatch between the satisfaction and the authorisation as the satisfaction was not directed to the relevant time period. However, the words of the preamble are `there are reasonable grounds for suspecting that there is at any place ...'. The emphasised words are consistent only with the reasonable grounds for suspecting relating to the day when the information was laid and so complied with the section. In any event, there would be a clear case for application of the presumption of regularity if it were necessary to resort to that presumption.

18. For the sake of completeness I should add that counsel for the accused referred to s 30 of the Human Rights Act 2004 (ACT) in relation to the operation of s 187 of the Drugs of Dependence Act but without any particular suggestion as to how the construction of that Act would be altered. I can see none.

19. It follows that each attack upon the validity of the warrant in its application to this case is rejected. In those circumstances, it is unnecessary to go on to consider the effect of s 138 of the Evidence Act 1995. I would merely indicate that, in my opinion, the effect of s 187(7) and the fact that the seized article was within the specified articles in the warrant would be factors providing support for the argument that the evidence ought not be excluded.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Solicitor for the prosecution: Australian Capital Territory Department of Public Prosecutions