Rohozynsky v Holder & ors.

and describes those things in the terms quoted previously herein at paragraph 10. The material quoted from Form 3, commencing with the words "being things that" and continuing to the end of the quoted material, is omitted from Exhibit P4. 18 This seems to be, at first blush, an odd discrepancy; but it is readily explicable. 19 The original Regulation made pursuant to the Act was the Search Warrants Regulation 1986, ("the 1986 Regulation"). Clause 5 of the 1986 Regulation provided that a Search Warrant of the kind now relevant should be "in or to the effect of Form 3". Exhibit P4 in the present proceedings accords precisely with that particular Form 3. 20 The 1986 Regulation was repealed by the Search Warrants Regulation 1994, ("the 1994 Regulation"). Clause 5 of the 1994 Regulation provided that, as to a Search Warrant of the kind now relevant, "Form 3 is the form for a ………….. Search Warrant". Exhibit P4 accords, in the respects now relevant, with that new Form 3. 21 The 1994 Regulation was repealed in its turn by the 1999 Regulation. Clause 5 of that new Regulation retains the 1994 formula: that is to say, the formula "Form 3 is the form for a ………… Search Warrant". 22 Plainly, Exhibit P4 does not follow precisely the structure of the current Form 3. Is it, then, "to the effect of the prescribed form" so as thereby to satisfy section 14 of the Act, which section clause 5 of the Regulation cannot override? 23 In my opinion that question is to be answered by considering whether Exhibit P4 gives to a person reading it the same essential information as would have been given by the use of the current Form 3 correctly completed: cf Rainey v Lipphardt [1960] QWN 43; and see In N Blackbolt & Nut Association's Agreement (No. 2) [1962] 1 WLR 75 per Lord Evershed MR at 85. 24 I accept that, as was submitted by the first defendant with the ample support of curial authority, such a comparison is not to be undertaken in a spirit of arid pedantry or of "overzealous technicality", to borrow from Burchett J in Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] 58 A Crim R 1 at 21. That is not to say, however, that too broad a brush should be wielded. A Search Warrant authorises a police officer, normally supported by some other officer(s) to compel a householder to permit the sanctuary and the privacy of his premises to be disturbed by the authorised police officer(s). Such an intrusion, which the experience of the Courts shows to be all too capable of becoming on occasions a confronting and abrasive intrusion, is never to be either lightly authorised or loosely supervised by the Courts. 25 I consider it to be trite law that a Search Warrant of the kind here relevant must indicate, both to any police officer who is intending to execute the warrant, and to any householder whose peace and privacy are to be disturbed under cover of the Warrant, at least the following things:

1. The precise identification of the premises, the searching of which the Warrant authorises;

2. The precise identification of who exactly it is who will be entitled to enter and search, and if appropriate seize, under the authority of the Warrant;

3. What it is for which any such person may search; and what it is which, if found, may thereupon be seized under the authority of the Warrant;

4. What alleged offence(s) persuaded the authorising Justice to issue the warrant. 26 The items 1., 2. and 3. are, in my opinion, plainly expressed in Exhibit P4 in terms which would have been sufficiently clear had they been transferred into the current Form 3. 27 The item 4. is not explained in precisely the way envisaged by the current Form 3; but it is explained in terms which make plain what particular items are the objects of the search and putative seizure; and which make, in my opinion, sufficiently clear the nature of the alleged offences that are said to have justified the authorising of the Warrant. 28 I conclude, therefore, that the use of an out-of-date form of Warrant is insufficient, in the present case, to invalidate the Warrant actually issued. 29 The plaintiff puts a further submission in support of his argument that Exhibit P4 does not comply with section 14 of the Act. This further submission compares and contrasts certain portions of Exhibit P4, and the corresponding portions of Exhibit P1, the application for that Warrant. 30 In order to deal with this further submission, it is necessary to refer, once again, to the historical evolution of the prescribed form of application for a Search Warrant of the kind now relevant. 31 The application form which was prescribed by the 1986 Regulation contained no provision for the furnishing by an applicant of details of any previous applications that had been refused. The form did provide, however, two possible bases upon which the application might be made. They were expressed thus: "(2) I have reasonable grounds for believing that (a) the things are connected with the following indictable offence/firearms offence/prohibited weapons offence/narcotics offence within the meaning of the Search Warrants Act 1985 (s 5) )(2): ……………………………….. (b) the things were stolen or otherwise unlawfully obtained." 32 An identical provision is made in the forms prescribed successively by the 1994 and 1999 Regulations. Those Regulations introduce and retain, respectively, the need for the provision of additional information when there has been an earlier and unsuccessful application for a Warrant. 33 The consistent retaining in the 1994 and 1999 Regulations of paragraph (2) of the form prescribed by the 1986 Regulation mirrors the consistent requirement of section 5 of the Act itself. The relevant provisions of section 5 are: "(1) A member of the police force may apply to an authorised justice for a search warrant if the member of the police force has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises: (a) a thing connected with a particular indictable offence, (b) a thing connected with a particular firearms offence, (b1) a thing connected with a prohibited weapons offence, or (c) a thing connected with a particular narcotics offence, or (d) a thing stolen or otherwise unlawfully obtained." 34 It will be observed that the five categories which are nominated in section 5(1) are stated as alternatives. Reasonable grounds, in the sense defined by section 5(1), as to any one of the five alternatives will entitle the relevant police officer to make an application for a Warrant; but that could not preclude an applicant from relying, in an appropriate case, upon any combination of any two or more of the five alternatives. 35 In the present case the application was made upon the basis of reasonable grounds for believing, in the requisite sense, that the nominated items of property "were stolen or otherwise unlawfully obtained". The Warrant actually issued does not use that categorical description; choosing instead to speak of the nominated items of property as things connected with certain stipulated offences, none of which is "a particular firearms offence"; "a prohibited weapons offence"; or "a particular narcotics offence". Quite why this was done is wholly unexplained. 36 The plaintiff submits that the Warrant actually issued does not comply with the required statutory formalities "since it set out a basis for issue which was not part of that application". 37 The consideration of this submission calls into play section 12A of the Act, which provides relevantly: "(1) An authorised justice must not issue a search warrant unless the application for the warrant includes the following information: (a) details of the authority of the applicant to make the application for the search warrant, (b) the grounds on which the warrant is being sought, (c) the address or other description of the premises the subject of the application, (d) if the warrant is required to search for a particular thing, a full description of that thing and, if known, its location, (e) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 12C, (f) any other information required by the regulations. (2) An authorised justice when determining whether there are reasonable grounds to issue a search warrant is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence. (3) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the warrant is being sought." 38 The way in which the applicant for the Warrant defines the grounds of the application is, in my opinion, critical to the proper operation of these provisions. It is equally critical, in my opinion, to the proper operation of section 6 of the Act, which defines as follows the foundational power of a Justice to issue a Warrant at all: "6. An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force: (a) to enter the premises, and (b) to search the premises for things of the kind referred to in section 5(1)." 39 It cannot be correct to suppose that a Justice can be "satisfied that there are reasonable grounds" for the taking of so serious a step as that of issuing a Search Warrant, unless the grounds are first propounded as reasonable, not by the Justice, but by the police officer who is applying upon those grounds for the issue of a Warrant. 40 I am, therefore, of the opinion that if there is a demonstrable difference in substance between the ground(s) propounded in the application of the first defendant; and the grounds stated by the second defendant in the Warrant as being the grounds justifying the issue of the Warrant, then the present argument of the plaintiff should succeed. 41 Is there, then, such a demonstrable difference in substance? I think not. To have told any reader of the Warrant that the foundational offences were those of stealing or of some other unlawful obtaining, would not have conveyed anything that was different in substance from, or clearer in purport than, a statement of those foundational offences in terms of the offences of stealing; of receiving; of obtaining a benefit by deception; or of having unlawful custody of the nominated items. 42 I conclude therefore that Ground I has not been established. · Ground II - The Occupier's Notice did not comply with the requirements of the Act and regulations and was misleading 43 A copy of the Notice is Exhibit P5. 44 Section 15 of the Act provides, relevantly: "(1) An authorised justice shall prepare and furnish an occupier's notice to the person to whom the authorised justice issues a search warrant. (2) An occupier's notice furnished in relation to a search warrant: (a) shall be in or to the effect of the prescribed form, (b) shall specify: (i) the name of the person who applied for the warrant, (ii) the name of the authorised justice who issued the warrant, (iii) the date and the time when the warrant was issued, and (iv) the address or other description of the premises the subject of the warrant, and (c) shall contain a summary of the nature of the warrant and the powers conferred by the warrant. (3) A person executing a search warrant shall: (a) upon entry into or onto the premises or as soon as practicable thereafter, serve the occupier's notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or (b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of the premises, either personally or in such other manner as the authorised justice who issued the warrant may direct, as soon as practicable after executing the warrant." 45 The plaintiff points to the presence on the first page of the Notice, and introduced by the words: "The things the police are empowered to search for are:", of a statement identical with the corresponding statement in the Warrant itself. The plaintiff contrasts this material with the presence on the second page of the Notice, and prefaced by the heading: "Basis for the issue of the Warrant", of the following: "The Warrant was granted on the basis that the authorised justice found that there were reasonable grounds for the issue of the warrant and, in particular, that the applicant police officer had reasonable grounds to believe that there were on the premises, the things listed above which were: Things stolen or otherwise unlawfully obtained." 46 The plaintiff submits that the inclusion in one Notice of these two bodies of material is confusing and misleading, and that the result is that the Notice as a whole "deprived the plaintiff of his right to know the true basis for the issue of the Warrant". 47 It can be allowed at once that Exhibit P5, like all of its companion documents, is clumsily drawn as to the material inserted into the basic printed document. As with the cognate point that arose in connection with Ground 1, I would see force in the plaintiff's central submission as quoted above, were it to be demonstrated that there was some fundamental inconsistency, and a fortiori some fundamental contradiction, between the substance of what is conveyed by, respectively, the two contrasted bodies of material. In my opinion, and for the reasons stated in connection with Ground 1, I do not perceive any such inconsistency or contradiction. I think, as well, that the other formalities required by section 15 are sufficiently covered by the form of Exhibit P5. 48 I conclude therefore that Ground 2 has not been established. · Ground III - There were no reasonable grounds for believing that there was (or would be within 72 hours) a Bobcat ("the Bobcat") on the subject premises; · Ground IV - There were no reasonable grounds for believing that the other things specified in the Application were (or would be within 72 hours) on the premises; · Ground V - There were no reasonable grounds for believing that the Bobcat was stolen or otherwise unlawfully obtained; · Ground VI - There were no reasonable grounds for believing that the other things specified in the Application were stolen or otherwise unlawfully obtained; 49 As to Grounds 3 and 4, it is helpful to note the following extracts from the plaintiff's written submissions: "The justice accepted numerous assertions of fact without having before her the factual basis for the assertions or testing assertions which clearly called for further enquiry: (Patten v Justice of the Peace, Redfern Court (1986) 22 A Crim R 94; Jackson v Mijovich (BC 9102194) (i) "The location was identified by this employee" - There is no evidence of how this was done. (ii) "Detectives attended the subject premises and identified them as being …" - There is no evidence of how this was done or what description was given to them. (iii) "No further signals have been emitted from the subject Bobcat as it is apparent that the Bobcat is confined." - The assertion is misleading, because the most that could be said is that no further signals were detected. There is no evidence that the Bobcat was confined - it is a conclusion based on one possible explanation for the lack of a signal (see above). (iv) "The technology of Quick Track is such … etc… . This confirms that the bobcat is still on the premises." - There was no enquiry as to how the technology worked, how accurate it was (eg within what range), whether it was affected by any other technologies or transmitters, what other possible explanations there may be for a lack of transmission, and whether any signals had been received before the "four definite signals" were said to have been received on the 13th of February." 50 As to Grounds V and VI it is helpful to note the following extracts from the plaintiff's written submissions: "Similarly to Ground III, the justice was provided with: (a) assertions of fact without the factual bases for them; (c) assertions which required testing or further information; The relevant assertions were: (i) "a phone number which appears to be connected with another business" - There is no evidence of why it so appeared and to whom; (ii) "Enquiries indicate the address at 123 Redfern Street, Wetherill Park appears to be fictitious and not linked to this business of Bolton Excavation Company" - There is no evidence as to why it appeared fictitious or to whom. (iii) "The credit card details provided do not relate to any account and is believed to be false" - There is no evidence of the basis for either assertion. Furthermore, payment by the card was said to have been "processed and authorised" (iv) "Bobcat reported stolen on 10/2/03" - There is no evidence of, by whom and why it was so reported. Nor was there any evidence of any enquiry into the terms of the hire agreement (for which consideration was apparently received)." 51 Section 13 of the Act provides relevantly: (1) An authorised justice who issues a search warrant shall cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant." 52 As previously herein noted, see [7], the second defendant duly completed a document purportedly complying with the statutory requirements. At [7] I have quoted the relevant manuscript entry made by the second defendant. 53 Patten, to which the plaintiff refers, established principles which are distilled sufficiently for present purposes in the following extracts from the headnote of the report: " (1) The presence of the word "may" provided the justice with a discretion as to whether or not to issue his warrant. In exercising this discretion the justice issuing a warrant must himself always be satisfied that reasonable grounds exist to believe that there are in the premises goods relevantly considered to have been involved in an indictable offence as referred to in the section. The justice in acting under this section cannot simply rubber-stamp the belief of the police officer seeking the issue of the warrant. He must form his own independent view and in doing so he must act judicially. As such he must assess the material placed before him and test it before finally accepting it. He should not accept merely bald assertions of fact which could well be inadequately based. In this case, in so far as it appears from material placed before the court, no testing of this critical assertion was undertaken by the first defendant. It followed that the issue of the warrant in this case was tainted by the absence of, inter alia, that essential enquiry. Palethorpe v Nebbia (1937) QWN 33; Bowden v Box (1916) GLR (NZ) 443; (2) The duty of a court reviewing the issue of a search warrant is not to inquire whether the justice himself was satisfied at to the grounds for the issue of a warrant but as to whether he should have been so satisfied. (3) There is no presumption of regularity involved in the issue of search warrants. Tillet; Ex parte Newton (1969) 14 FLR 101 at 106, cited." 54 Jackson applied in substance those principles. 55 I approach my present task upon the footing of the stated principles. 56 For present purposes the correct starting point is the requirement of section 6 of the Act that the second defendant, before issuing a Warrant, be "satisfied that there are reasonable grounds to do so". These are not simply synonymous with the reasonable grounds for belief that the first defendant was required by section 5 of the Act to have. The second defendant did not have to be satisfied of nothing more than the reasonableness of the first defendant's belief that there existed the section 5 statutory pre-conditions to the making of an application. The second defendant had to be satisfied that, assuming that the application was prima facie justified in terms of the section 5 requirements, it was reasonable, having proper regard to the requirements of section 12A (2), and having proper regard to all other relevant considerations, to issue the Warrant. 57 In the present case, and in marked contrast to both Patten and Jackson, there was no evidence placed before the Court by the first and second defendants. Accepting, as I do, that it might well have been thought inappropriate to involve the second defendant as a witness, and a potentially controversial one at that, in the hearing, I am, I should say frankly, at something of a loss to see why the first defendant did not give some evidence of the course of the application, including both its preparation and its presentation. There being no such evidence, it is in my opinion relevant to have in mind the observations of Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-2, albeit his Honour was dealing with the onus of proof of a plaintiff in an action at law for damages for negligence: "But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer ………………….. " 58 It seems to me that if one looks at the terms of the grounds actually advanced by the first defendant to the second defendant in support of the Warrant application, the first thing to leap out is the frank acknowledgement that: "there is no evidence to connect the residents of these premises with the initial hirer of the machine". In other words, there was no evidence that the persons whose peace and privacy were to be rudely interrupted should a search be authorised, had any connection with any offence respecting the machine; or any knowledge that the machine was sitting in a detached corrugated iron shed near their dwellings; or any other knowledge of or concerning the machine. 59 Reading the first defendant's application, which is the only available evidence of her perception of what it was that entitled her to move pursuant to section 5(1), I would accept that the "grounds which I rely on", verified on oath as they were, demonstrated reasonable grounds for the applicant's believing that there was then located in the detached shed a machine of significant commercial value that had been previously either stolen or otherwise unlawfully obtained. As the High Court of Australia said in George v Rockett (1990) 170 CLR 104 at 116: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture." 60 Patten holds, and I respectfully accept, that there is no presumption of regularity in the case of the issue of a Search Warrant. That must entail that, if the validity of the Warrant be challenged, it must be possible to reason from evidence properly available to conclusions:

(1) that, so far as concerns the particular applicant for the Warrant, section 5(1) of the Act has been satisfied;

(2) that, so far as concerns the particular issuing Justice, the requirements of sections 6 and 12A of the Act have been satisfied; and

(3) that, because section 12A (2) is inclusive and not exclusive, the Justice has exercised otherwise that critical and independent judgment of which Patten speaks. 61 In the present case the whole of the evidence properly available are the documents Exhibit P1 through Exhibit P5. As previously explained, the applicant's own stance can be discerned only from a careful reading of the application Exhibit P1; and I am persuaded that it is sufficient to show that the applicant did comply with sections 5 and 11 of the Act. 62 The position of the second defendant as issuing Justice is more problematical. Her stance can be derived only from reading together the whole of Exhibit P1 including her own additional notations, and the whole of Exhibit P2, the statutory record made by the Justice. 63 Exhibit P2 is, to speak with respectful frankness, more than a little slap-dash. 64 Paragraph 1 of the document calls for the maker of the document to indicate whether the application was made in person or whether it was made otherwise and conformably with certain statutory provisions respecting very urgent applications. No choice has been made. 65 Paragraph 2 is printed. It calls upon the maker of the document to affirm either that it was, or that it was not, found that there were reasonable grounds for issuing the warrant. In this case, at least, a choice has been made. 66 Paragraph 3 calls upon the maker of the document to set out "(t)he relevant particulars of the grounds on which I relied to justify the issue of the warrant". A foot-note advises: "Either identify in the application the relevant particulars of the grounds or specify them. If space insufficient continue overleaf or attach separate sheet."

This would indicate plainly enough, it might be thought, that a careful and precise particularisation is required. I have quoted earlier herein at [7] what was actually inserted. 67 I have read the Justice's manuscript additions to the application, Exhibit P1; together with her manuscript insertions into paragraph 3 of Exhibit P2. I can see at once a justification for the issue, in the proper exercise of the relevant discretion, of a Warrant authorising an urgent search of the "outdoor shed" nominated in the Warrant itself. I can see no evidence whatsoever that could justify the extension of the Warrant to cover "other sheds within the curtilage". I can see, indeed, no evidence that there were in fact in existence such "other sheds". 68 Most significantly of all, however, I can see no basis whatsoever for its having been thought reasonable to issue a Warrant for the dwelling house. The Justice had been told that the identity/identities of the occupant(s) of the dwelling house was/were unknown to police. She had been told that there was no evidence to link the occupants, whoever they might be, with the original hirer. I take that to mean that there was no evidence to link any such occupant with any false credit card or other personal details given out by the original hirer. 69 Those facts and circumstances seem to me to warrant fairly a conclusion that the second defendant did not bring her mind to bear, in the way explained in Patten as being essential, upon the reasonableness of her issuing a Warrant in the sweeping terms that she in fact authorised. 70 Insofar as Grounds III, IV, V and VI are to be understood as attacking the section 5 belief of the applicant, I am of the opinion that they have not been made good. 71 Insofar as the grounds, or any of them, are to be understood as attacking the exercise by the Justice of her statutory powers, duties and discretion, then I am of the opinion that they have been established. · Ground VII The Application did not comply with s11(1) of the Act in that it contained no reference to any belief that the things specified in the Application were connected with any offence 72 The plaintiff's submission is put succinctly and as follows in the written submissions of his Counsel: "This Honourable Court may find that the Second Defendant issued the Warrant on the basis of a connection with specified offences rather than a belief that the things were stolen or unlawfully obtained. In that case, there was simply no evidence that the applicant believed (on reasonable or any grounds) that the things were connected to any offences. The principle in Cassaniti (see paragraph 8 above) would apply and the warrant would be invalid for that reason." 73 I do not accept this submission. I cannot add usefully to what I have said in connection with Grounds I and II. · Ground VIII The record of the authorised justice does not disclose sufficient grounds to justify the issuing of the warrant 74 At the hearing I took this ground to be propounding that the statutory obligation of an issuing Justice to provide a record in the form of Exhibit P2 entailed that failure to do so properly, could invalidate the particular Warrant. 75 That could not be so; and in the event, Counsel for the plaintiff, quite properly if I may say so, conceded as much. 76 I think, however, that Exhibit P2, when considered in fair conjunction with Exhibit P1, does not afford, in the absence of any other relevant evidence, and there is none, an acceptable evidentiary basis for a finding, not that the Justice was not in fact satisfied that there were reasonable grounds for the issue of the Warrant, Exhibit P4; but that she could have been reasonably so satisfied upon the basis of the evidence that was placed before her. I cannot add usefully in that connection to what I have earlier written on the topic.

Conclusions and Orders 77 I consider that the plaintiff has made good his claims to relief in terms of paragraphs 1 and 2 of the amended summons. 78 I am not persuaded to make the order sought in paragraph 3 of the amended summons. I know very little about the actual execution of the Warrant. In that case I think that the better course is not to make a general declaration about that execution. The Warrant itself having been declared invalid and quashed, it must follow that anything seized under the authority of that Warrant was, at least prima facie, seized unlawfully. Section 138 of the Evidence Act 1995 (NSW) is ample to do, in such a case, what I apprehend might be the actual purpose of the claim made by paragraph 3 of the amended summons. 79 I make orders in accordance with paragraphs 1 and 2 of the plaintiff's amended summons filed on 18 November 2004. 80 I order the first defendant to pay the plaintiff's costs. 81 I make no order as to any costs of the second and third defendants.

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