Siddique v Martin [2016] VSCA 274

1 The issue in this case is whether a magistrate erred by holding that he had no jurisdiction or power under s 78(6) of the Magistrates' Court Act 1989 to direct that certain articles belonging to Mohamed Siddique ('the applicant'), which were seized by police in the course of executing a search warrant in the applicant's home and another search warrant in the applicant's business premises, be returned to him. In particular, the question is whether s 78(6) can cover items which were seized in the course of executing a search warrant but which were not named or described in the search warrant.

2 The matter depends principally on the proper construction of s 78(6).[1] That in turn requires that attention be focused on the statutory text, context and purpose.[2]

3 In our view, the magistrate was in error.[3] In truth, he did have the necessary jurisdiction and power, at least insofar as the items in question had been seized lawfully (in the sense to which we refer below). So far as relevant, the applicable statutory provisions remain in the same form. Accordingly, this application for leave to appeal from a judgment given in the Trial Division should be granted, the appeal should be treated as having been instituted and heard immediately and allowed; the decision of the magistrate dismissing the application made by the applicant under s 78(6) of the Magistrates' Court Act should be quashed; and there should be an order that the Magistrates' Court re-hear and re-determine the applicant's application for the return of his property according to law.

4 Both search warrants were issued on 3 March 2014. In each case the search warrant recited that it was authorised by s 465 of the Crimes Act 1958. As at 3 March 2014,[4] so far as relevant, s 465 provided:

465 Issue of search warrant by magistrate

(1) Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place -

(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or

(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or

(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant -

may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law.

...

(2) Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 shall extend and apply to warrants under this section.

(3) The provisions of this section shall be read and construed as in aid of and not in derogation of the provisions with regard to warrants to search contained in this or any other Act.

(4) The Governor in Council may make regulations prescribing the form of any warrant to be issued under this section and any such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting, and if not then within fourteen days after the next meeting of Parliament.

...

The form of each warrant was in accordance with the form prescribed by Regulation 4 of the Crimes (Search Warrant) Regulations 2004 as then in force. The other relevant statutory provisions were contained in Subdivision 5 (Search Warrants) of Division 3 of Part 4 of the Magistrates' Court Act. As at 3 March 2014,[5] the relevant provisions thereof were as follows:

75 Search warrants

(1) A search warrant may be issued as authorised by any Act other than this Act.

(2) An application for a search warrant must be supported by evidence on oath or by affidavit.

...

76 Persons to whom search warrant may be directed

(1) A search warrant may be directed to -

(a) a named member of the police force; or

(b) generally all members of the police force; or

(c) any other person authorised by law to execute a search warrant.

(2) A search warrant directed to a named member of the police force may be executed by any police officer.

...

78 Authority conferred by search warrant

(1) A search warrant authorises the person to whom it is directed -

(a) if the warrant is to search for a person -

(i) to break, enter and search any place where the person named or described in the warrant is suspected to be; and

(ii) to arrest the person named or described in the warrant; and

(b) if the warrant is to search for any thing -

(i) to break, enter and search any place or vehicle named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and

(ii) to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and

(iii) to arrest any person apparently having possession, custody or control of the article, thing or material.

...

(5) For the purposes of subsection (1)(b)(ii) an article, thing or material may be brought before the Court by giving evidence on oath to the Court as to the present whereabouts of the article, thing or material and by producing a photograph of it.

(6) The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.

...

In s 78, 'Court' meant the Magistrates' Court of Victoria.[6]

5 As indicated above, s 78(6) of the Magistrates' Court Act is the centrally relevant provision. That subsection, together with subsection (5) of s 78, was inserted into the Magistrates' Court Act by the Summary Offences (Stolen Cattle) Act 1993, which was assented to on 5 October 1993 and which commenced on the same date.

6 In the present case, each warrant contained a heading 'Name and/or description of article, thing or material' and, beneath that heading, a box in which the following words appeared:

Any paint, frames, solvents, sketches, notebooks or any other item used in the manufacturing of the fraudulent WHITELEY paintings. Evidence of financial transactions, photographs and/or digital images relating to fraudulent WHITELEY paintings.

The reference to 'WHITELEY' was a reference to the well-known Australian artist, Brett Whiteley. Each warrant was expressed to authorise the first respondent, Michael Martin, a Detective Senior Sergeant of Victoria Police, and all members of the police force, to break, enter and search the place named in the warrant for any article, thing or material of any kind described in the warrant. The place named in the first warrant (No 850/14) was the private home of the applicant which was identified by its address. The place named in the second warrant (No 851/14) was the private business premises of the applicant, which was likewise identified by its address.

7 Both warrants were executed on 5 March 2014. In the case of the first warrant, 36 items were seized in the applicant's home. They included items found in a bedroom and in the kitchen. During the execution of the second warrant, 23 items were seized in the applicant's business premises. Those items were located in various parts of the premises.

8 In each case, some of the items seized were of a kind named or described in the warrant and some were not. Amongst the items seized that were not named or described in the warrant were several paintings attributed to renowned Australian artists other than Brett Whiteley, including Charles Blackman and Howard Arkley.

9 There is no suggestion that the executing officers were present within the applicant's home or within his business premises by his invitation or consent. In each case, they were there only because of the relevant search warrant. The function they were performing while they were there was the function of executing the search warrant and no other function. The Crown[7] has at all times contended that all of the items seized were seized lawfully.

10 On the day of the execution of the warrants, 5 March 2014, a Detective Senior Constable of Police, Josh Tink, completed and signed a numbered list of the items which had been seized in the applicant's home. Detective Senior Constable Tink also completed and signed a similar list of the items which had been seized in the applicant's business premises. Each list was entitled 'Property Seizure Record'. Neither list distinguished between items that had been named or described in the warrant and other items.

11 On or about 11 March 2014 Victoria Police compiled a document headed as follows:

Result of search [applicant's home address]

Search Warrant executed 05/03/2014

Under a side heading 'Items Seized', the document listed the 36 items which had been seized at the applicant's home. Once again, no distinction was drawn between items named or described in the warrant and other items. At the foot of the document, there were requests by the police that particular items be conveyed to specified places for analysis or examination or that the police be permitted to retain the items pending production at court.

12 A similar 'Result of search' form was prepared on or about the same day in respect of the items seized at the applicant's business premises. Again, there was no distinction between items named or described in the warrant and items not so named or described. Again, various police requests were set out at the foot of the document.

13 It appears that on that same day (11 March 2014), the 'Result of search' forms, together with digital images of the items seized were taken before a Judicial Registrar of the Magistrates' Court pursuant to s 78(1)(b)(ii) of the Magistrates' Court Act. The Judicial Registrar gave certain directions to the police as to the way in which the items seized could be dealt with.

14 On 16 May 2014, the applicant filed in the Magistrates' Court an application for a direction, pursuant to s 78(6) of the Magistrates Court Act, for the return to him of all of the items seized on 5 March 2014.

15 On 12 June 2014, the Magistrates' Court made consent orders for the return of some of the property that had been seized.

16 On 20 June 2014, the applicant commenced concurrent proceedings in the Supreme Court by writ against the police officers who executed the warrant and against an art expert who had accompanied them. The writ claimed damages for trespass on grounds including that some of the goods seized were seized unlawfully in that they were not goods described in the warrants.

17 On 27 August 2014 the applicant's application under s 78(6) for the return of the outstanding items came before the Magistrates' Court of Victoria (constituted by Magistrate Lance Martin). In a written decision, Magistrate Martin upheld a submission made by counsel on behalf of Detective Senior Sergeant Michael Martin to the effect that the court had no jurisdiction or power under s 78(6) of the Magistrates' Court Act to order the return of any of the items that were not of a kind named or described in the warrants. Magistrate Martin summarised counsel's submission as being to the effect that the property in question had been seized 'pursuant to the common law and not section 78 of the Act'. His Honour noted that counsel had relied on a line of cases commencing with Chic Fashions (West Wales) Limited v Jones[8] and ending with Goldberg v Brown.[9] His Honour mentioned in particular the decision of the English Court of Appeal in Ghani v Jones,[10] saying that the principles stated in that case had been accepted by Osborn J (as his Honour then was) in Goldberg v Brown. Magistrate Martin rejected a submission made by counsel for the applicant, based on R v McNamara,[11] to the effect that Ghani v Jones was not good law in Australia. In R v McNamara, in the passage cited by counsel for the applicant, Phillips CJ, Crockett and Southwell JJ said:[12]

In submitting that evidence of the video tape and its contents was unlawfully obtained counsel referred firstly to Challenge Plastics Pty Ltd v Collector of Customs.[13] In that case it was held that the seizure of documents was not authorised under the common law on the ground of reasonable belief that they constituted evidence of contraventions of the Customs Act 1901 (Cth) other than those the subject of the relevant warrant. However, we do not see in the judgments in that case any dicta which are of assistance in the present case. It is sufficient to say that that case, as with George v Rockett[14] and Levine v O'Keefe,[15] show that the courts should be astute not to place a broad interpretation upon legislation relating to warrants the execution of which involves acts which would in the absence of legislation constitute trespass and an invasion of privacy.

18 By means of an application to the Trial Division for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, the applicant challenged the Magistrate's interpretation of s 78(6). However, the learned trial judge, Bell J, held, in substance, that the magistrate's interpretation was correct.[16] His Honour said that the Magistrate's conclusion was supported by the interpretation given to legislation conferring jurisdiction upon courts to order judicial review in respect of decisions of an administrative character made 'under an enactment'.[17] Bell J observed that the authorities were reviewed in Griffith University v Tang[18] in relation to the meaning of those words in s 4(a) of the Judicial Review Act 1991 (Qld) of which Gummow, Callinan and Heydon JJ said:

The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met.[19]

Applying this reasoning to the present case, it cannot be said, and was not by police said, that seizure of the paintings not specified in the warrants was 'expressly or impliedly required or authorised' by them.

19 In our respectful opinion, the reasoning of the High Court in Griffith University v Tang is not applicable to the present case. The issue in that case was whether the decision in question was of a kind reviewable under the Judicial Review Act. The High Court was not purporting to lay down universal criteria for determining whether one thing might be said to have been done 'under' another thing. It may be accepted that (where the first thing is an act and the second thing is a written instrument) '... the word "under" usually imports a direct connection between the relevant act and the instrument'.[20] However, it is necessary, as Lindgren J said in Energy Resources of Aust Ltd v Commissioner of Taxation,[21] to have regard to the context in order to identify the meaning of the word 'under' intended in a particular case. Lindgren J proceeded to say:

Dictionaries give the relevant definition as 'in accordance with' (The New Shorter Oxford English Dictionary (1993), 16b; The Macquarie Dictionary (1988), 16). Meanings recognised as possibilities in the cases include 'in accordance with' (Gilbert v Western Australia[22]), 'pursuant to' and 'by virtue of' (R v Clyne, Ex parte Harrap[23]) and 'by' (R v Tkacz[24]). The word 'under' admits of degrees of precision and exactness on the one hand, and of looseness and inexactness on the other.[25]

20 The context of the word 'under' here is a statutory provision (s 78(6)) which sets up a convenient, summary method for citizens to obtain the return of their own property after it has been taken from them against their will or without their consent by agents of the State invading their private homes or private business premises. It is important to keep this purpose of the provision, namely, to facilitate the recovery of a person's property, at the forefront of one's mind in the task of construction. The provision serves to lessen the effect of interference by the State. In Southam v Smout,[26] Lord Denning MR said, adopting a quotation from the Earl of Chatham:

'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement'. So be it - unless he has justification by law.

In Tran Nominees Pty Ltd v Scheffler,[27] Jacobs J said:

There is, I think, no doubt about the guiding principles. The issue and execution of a warrant to enter, or to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from statute: the court will construe such statutes strictly, resolving any ambiguity in favour of the subject, and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised (Inland Revenue Commissioners v Rossminster Ltd;[28] Crowley v Murphy[29]).

In New South Wales v Corbett,[30] Callinan and Crennan JJ referred to the:

established principle that strict compliance with statutory conditions governing the issue of search warrants is required as explained in the judgment of this Court in George v Rocket,[31] which concerned s 679 of the Criminal Code (Qld):[32]

[I]n construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

Given these observations and given what was said in the passage from R v McNamara[33] set out above, there is no reason to read s 78(6) strictly or narrowly. Quite the opposite. While a strict construction may be mandated with respect to the authorisation of State interference with private property, a broad construction is to be preferred with respect to a statutory provision that alleviates that interference. Nor does there seem to be any reason why Parliament would have intended to distinguish between seized items that had been named and described in the relevant warrant and other items seized in the course of executing the self-same warrant. We note again that, initially at least, the police officers responsible for the search and seizure saw no reason to draw any such distinction.

21 Moreover, there is nothing unnatural or inappropriate in saying that goods seized in circumstances like the present are seized 'under a search warrant'. We do not accept the Crown's argument that the items in question were seized under purely common law powers and that, therefore, they cannot be said to have been seized 'under a search warrant'. Throughout this litigation, as mentioned above, the Crown has maintained that all of the items seized were lawfully seized. If that be so - at least, if the items were seized in accordance with the law as we understand it to be[34] - then, in our view, none of the items was seized under purely common law powers and all of them were seized 'under' a search warrant within the meaning and for the purposes of s 78(6) of the Magistrates' Court Act.

22 We will assume in favour of the Crown, without deciding, that Ghani v Jones[35] represents good law in Victoria, despite Levine v O'Keefe[36] and Challenge Plastics Pty Ltd v Collector of Customs.[37] But Ghani v Jones, as to part, is against the Crown and, otherwise, it is irrelevant. The leading judgment was given by Lord Denning MR. Before coming to the five principles for which the case is most commonly cited, being principles which were said to apply where the police seize property without a warrant and without arresting anyone, Lord Denning considered the law 'where police officers enter a man's house by virtue of a warrant or arrest a man lawfully, with or without a warrant, for a serious offence'. In relation to situations of that kind, Lord Denning said:[38]

I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford L.C., in Pringle v Bremner and Stirling[39] and Chic Fashions (West Wales) Ltd v Jones.[40]

A similar approach has been taken in Australia.[41]

23 The five principles which were later stated by Lord Denning in Ghani v Jones in relation to the seizure of goods without a warrant relate only to the seizure of goods without a warrant. By definition, they do not include any restriction equivalent to the restriction that applies where police officers enter a house by virtue of a warrant to search for goods named or described in the warrant. Without a warrant the police officers would be trespassing on private property and invading the privacy of the occupier of the house. In those circumstances the officers would need to rely upon purely common law powers, if available, to justify seizure of property. This stands in contrast to the powers which police officers have in the execution of a search with a warrant, where the power to seize recognised by the common law is inherently associated with the warrant; it is an extension of the authority conferred by the warrant. We understand Lord Denning to have meant that, in circumstances where the police have a warrant, the police officers' only authority to seize goods not named or described in the warrant is an authority to do so where, 'in the course of their search', they 'come upon' such goods, being goods which show the person to be implicated in some other crime.

24 This aspect of the law as laid down in Ghani v Jones has been referred to in the context of the 'chance discovery' principle.[42] As the learned authors of Search and Seizure in Australia and New Zealand say:[43]

This proposition does not authorise any new right to search a citizen's person or premises, nor does it sanction the institution of a search, independently of arrest or of a search warrant. Instead, the focus is upon the taking and retaining of property which comes by chance opportunity to the notice of police, during activity on their part which is itself lawful.

It is true that the chance discovery principle applies not only when police are in or on a place by virtue of a search warrant, but whenever police are lawfully in or on any place.[44] However, cases in which the police are in or on a private place by virtue of a search warrant are distinct for at least two reasons. First, as was said by Higgins J (as the former Chief Justice of the ACT then was) in R v Appleby,[45] apart from goods named or described in the warrant, the police may only seize goods adventitiously found in the course of the search authorised by the warrant. The size or nature of the items named or described in the warrant may circumscribe the steps that may be taken by the police in executing the warrant in private premises. For example, if the only item named or described in the warrant is a grand piano, the executing officers will have no power to open dresser drawers or a bread tin in the course of their search.[46] Second, once the police have located all of the material identified in the warrant, the warrant is 'dead' and no further search may be undertaken, unless consent has been granted by the occupier. The police must stop searching once they find all of the objects named in the warrant.[47]

25 In Reynolds v Commissioner of Police of the Metropolis,[48] referring to just this type of situation, Waller LJ said:[49]

The police power to search and take possession of documents came from the search warrant which had been issued and from the extension to take away any articles or documents which are found and may be relevant in evidence. The warrant authorised the police to 'search ... and to seize and carry forth ... any forged material, documents or instruments' which might be found, and there was no dispute that this included a power to take other goods which might be used in evidence.

...

In those passages [from Ghani v Jones and Chic Fashions] the court was considering the common law extension of search on a search warrant.

Mr Zucker, however, expressly conceded that under the search warrant the police were entitled: (a) to search at Bardwell Hall for and seize any documents which on reasonable grounds at the time of seizure they believed to be forgeries; and (b), by a common law extension, if they came upon any documents which on reasonable grounds they believed to show the first plaintiff to be implicated in some other criminal offence, to seize them also.

In my opinion this concession was rightly made. The correctness of these propositions derives strong support from the passage from the judgment of Lord Denning MR, in Ghani v Jones at p. 706, concurred in by Edmund Davies LJ and Sir Gordon Willmer, which has already been cited by Waller LJ in his judgment: see also Frank Truman Export Ltd v Metropolitan Police Commissioner.[51]

27 In R v Elomar (No 11),[52] Whealy J, in the course of expounding general principles affecting search warrants, observed that 'the common law extends the reach of a warrant to include a power of seizure of evidence, found during the search authorised by the warrant, relating to serious offences not mentioned in it'.[53] His Honour cited Reynolds, Ghani v Jones, Chic Fashions and other cases in the same line, in support of that proposition.

28 At the end of the hearing of the present application for leave to appeal, the Court gave leave to the parties to file and serve further written submissions relating to cases in the line of Reynolds and R v Appleby and, in particular, to that which, in Reynolds, Waller LJ described as 'the common law extension of search on a search warrant', being the same thing as that which Slade LJ referred to as an entitlement 'under the search warrant'.

29 The applicant submitted that these cases were strongly supportive of his argument as to the proper construction of s 78(6) of the Magistrates' Court Act. The Crown submitted in response that neither Reynolds nor R v Applebee supported the proposition that 'the common law power of seizure is dependent upon or derived from the authority conferred by a warrant'. The Crown submitted that the 'common law power of seizure is distinct from, entirely additional to and separate from the authority conferred by a statutory warrant'. Of course, in framing its submissions in that way, the Crown was assuming the correctness of that which it needed to establish, namely that the power of seizure exercised by the police officers on 5 March 2014 was purely a 'common law power'.

30 The Crown submitted that none of the judges in Reynolds had suggested that the 'common law power of seizure' was in any way dependent upon the authority of the warrant. Reference was made to a comment by Purchas LJ in Reynolds that the trial judge had erred by omitting to refer during his charge to the jury to 'the distinction between the powers under the search warrant to search and seize documents defined within the authority of the warrant, and the power to seize other documents which the officers come upon during that search and which fall within the category of documents within the common law extension'.[54]

31 In our view, the distinction to which Purchas LJ was referring was the obvious distinction between the extent of the powers of search conferred expressly by a search warrant and the extent of the powers conferred by the 'common law extension of search on a search warrant'. Nothing said by Purchas LJ indicates that he was treating the latter as being completely independent of the search warrant itself. Quite the contrary. And, of course, the respective judgments of Waller LJ and Slade LJ explicitly tie the 'extension' to the search warrant.

32 In its submissions, the Crown sought to contrast the reasoning of Higgins J in R v Applebee[55] with Reynolds, and submitted that the common law did not confine the extension to 'goods adventitiously found' during execution of a search warrant. The Crown submitted that the contrary proposition stated by Higgins J in 1995 does not appear to have been adopted or taken up in subsequent authorities. However, in 2010, in Slaveski v Victoria,[56] Kyrou J (as his Honour then was) referred with apparent approval to the relevant part of the judgment of Higgins J in R v Applebee. Further, in our view, what Higgins J had said in R v Applebee was entirely in accordance with prior authority, including Chic Fashions and Ghani v Jones. Higgins J himself referred to Chic Fashions as authority for the proposition that the seizure of extraneous goods 'was permissible' if they were 'adventitiously' found in the course of the authorised search.[57] We refer again to the description by the learned authors of Search and Seizure in Australia and New Zealand of the related principle as the 'chance discovery' principle.[58] We note in addition that the learned authors say that the corresponding American principle is known as 'inadvertent discovery'.[59]

33 Next, the Crown sought to rely on the following passage from the judgment of Holland J in Trimboli v Onley (No 3):[60]

If the conditions for lawful seizure did not exist at the time when the goods were removed from the premises, it cannot subsequently arise under the warrant if the conditions afterwards come to be fulfilled. If the defendant did not entertain the requisite belief at the time he removed the goods from the premises he cannot, under the warrant, support a claim to be entitled to retain the goods on the basis of a later belief that he had formed. If he was able to show that the goods were the subject of or were evidence of the commission of a crime and that under the common law should be withheld from the plaintiff or delivered up to prosecuting or other authorities legally entitled to seek possession of them, the court would have to consider that matter but in such case the defendant would not be showing justification under the search warrant.

The Crown asserts that this passage demonstrates a clear distinction between retention of items under a warrant and retention of items under the common law. However, Trimboli v Onley (No 3) was not a case relating to the seizure of goods not named or described in the warrant. Rather, it was a case about whether, under s 10 of the Crimes Act 1914 (Cth), the officer executing a search warrant was required at the time of seizure to have the subjective belief that the thing seized answered the description in the warrant.[61] If anything, the passage set out above from the judgment of Holland J tends against the Crown's argument in the present case. At best for the Crown, it is irrelevant.

34 Next the Crown submits that the common law may authorise seizure in circumstances where there was no warrant in existence at the time of the seizure, or alternatively no valid warrant in existence at the time of the seizure. According to the Crown, it follows from the fact that a warrant is not necessarily required that the common law power cannot be dependent on or derived from a warrant. This proposition does not assist the Crown. It may be that in some situations a police officer has a common law power to seize the property of a citizen without a warrant. In that regard, we have already indicated that we are prepared to assume, in favour of the Crown, that Ghani v Jones is good law in Victoria. However, the fact that the common law may operate independently of a search warrant in some situations does not mean that, where a search warrant has in fact been issued and is being executed, the power of the executing officers to seize items other than those named or described in the warrant arises independently of the warrant. To the contrary, that power is to be characterised and delimited by reference to the warrant. Thus, in R v Applebee,[62] Higgins J said:

[W]hilst any suspected goods found in the course of an otherwise valid search may be seized, the purpose of the search must be limited to the valid authority, if any, conferred by the warrant and by the legislation under which it is issued.

Therefore, it may readily be said that any lawful seizure of such items is a seizure 'under a search warrant' in the sense that it is justified by the powers conferred by 'the common law extension of search on a search warrant'. And all the more so in relation to a provision like s 78(6) of the Magistrates' Court Act, having regard to the purpose of that provision to create a convenient facility for citizens to obtain the return of their own property seized from them in their own homes or businesses by agents of the State.

35 These same considerations show that the Crown gains nothing in this case by its reliance on the additional cases in the same line as Ghani v Jones which it cites in this context, namely Rowell v Larter,[63] Goldberg v Brown,[64] Jaroo v The Attorney General of Trinidad and Tobago,[65] Wright v Queensland Police Service,[66] R v Whittall[67] and Dixon v Stephens.[68]

36 The Crown also submitted that the fact that there had been judicial references to an 'extension' of the authority conferred by a warrant does not necessarily mean that the relevant power derives from or is dependent upon the statutory warrant. We have already dealt with that point. Ultimately, it does not matter whether, for all purposes, the 'extended' power derives from or is dependent upon the statutory warrant. What matters is whether a relevant seizure is appropriately regarded as a seizure 'under a search warrant' within the meaning of s 78(6). We reject the Crown's submission that a clear distinction between items named in the warrant and other items seized but not named in the warrant is both possible and appropriate for the purposes of s 78(6).

37 Further, in our view, it can be said that the extended power is 'incidental' to the principal power conferred by the warrant. The Crown denied this, citing ASIC v Banovec (No 2).[69] In that case, White J drew a distinction between implying a conferral of powers from the terms of an express grant and implying a conferral of power to better effectuate the purpose for which the express powers are granted. No doubt that is a proper distinction, but it has no application here. There is no question about the existence of the extended power. It plainly exists. The question is whether it can be said that goods seized in the exercise of that power are goods seized 'under a search warrant'. For all of the reasons to which we have already adverted, we would answer that question in the affirmative.

38 The Crown's submissions also dealt with a suggestion which the Court had raised with the parties as to whether the expression 'under a search warrant' might mean 'under or purportedly under a search warrant', having regard to the decision of the Full Court of the Federal Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd.[70] However, on the assumption that all of the goods were seized in accordance with the law as we understand it to be (in the sense referred to above), this question need not be further considered here.[71]

39 In any event, we note that, in dealing with this last issue, the Crown said in its written submissions that it accepted as good law Price v Messenger.[72] The Crown acknowledged that that case stood for the proposition that police officers may lawfully seize in the execution of a search warrant any goods reasonably believed by them to be included in the search warrant, even if it be shown subsequently that the reasonable belief was wrong. As the Crown further acknowledged, that proposition was endorsed by Lord Denning in Chic Fashions.[73] We take it that, in consequence, the Crown would accept that goods in this category would properly be described as goods seized 'under a search warrant' within the meaning and for the purposes of s 78(6). If that be correct, it would seem to be quite extraordinary to treat differently goods not named or described in the warrant but lawfully seized in the course of executing the warrant in accordance with the 'common law extension of search on a search warrant'.[74] Those goods ought also to be properly described as goods 'seized under a search warrant' within the meaning and for the purposes of s 78(6).

40 For these reasons, we will grant leave to appeal, allow the appeal and make the further orders which are foreshadowed in paragraph 3 above.

[1] The terms of s 78(6) are set out at [4] below.

[2] Deal v Father Pius Kodakkathanath (2016) 334 ALR 37, 47 [37] (French CJ, Kiefel, Bell and Nettle JJ); Comcare v Martin [2016] HCA 43 [42].

[3] The Magistrates' Court of Victoria was named as the second respondent to the application for leave to appeal. It indicated that it did not intend to take an active role in the proceedings and would abide by the decision of this Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

[4] Subsequently, as from 1 July 2014, by virtue of the Victoria Police Amendment (Consequential and Other Matters) Act 2014, s 465 was amended by substituting, for the expression 'member of the police force' where twice occurring, the expression 'police officer'.

[5] As from 1 July 2014, by virtue of the Victoria Police Amendment (Consequential and Other Matters) Act 2014, s 76 was amended by substituting, for the expression 'member of the police force' where twice occurring, the expression 'police officer' and by substituting, for the expression 'members of the police force', the expression 'police officers'.

[6] This definition appeared in s 3 of the Magistrates' Court Act.

[7] We use the term 'the Crown' as a convenient shorthand only. We need not, and do not, indicate any view as to whether the execution of search warrants in this case amounted to the 'the execution of the King's process': cf Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 639-44.

[8] [1967] EWCA Civ 4; [1968] 2 QB 299 ('Chic Fashions').

[9] [2003] VSC 104; (2003) 38 MVR 389 (Osborn J).

[10] [1970] 1 QB 693.

[11] [1995] VicRp 18; [1995] 1 VR 263.

[13] [1993] FCA 247; (1993) 42 FCR 397.

[14] [1990] HCA 26; (1990) 170 CLR 104.

[15] [1929] ArgusLawRp 100; [1930] VLR 70.

[16] Siddique v Martin [2015] VSC 423.

[18] [2005] HCA 7; (2005) 221 CLR 99.

[19] Ibid 130-1 [89] (Gleeson CJ reached the same conclusion; Kirby J dissented).

[20] Elmslie v Federal Commissioner of Taxation [1993] FCA 549; (1993) 46 FCR 576, 592; discussed in Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) [12.11].

[21] [2003] FCA 26; (2003) 52 ATR 120, 128 [37]. Cited in the same context by Pearce & Geddes, above n 20 [12.11].

[22] [1962] HCA 7; (1962) 107 CLR 494, 516.

[23] [1941] VicLawRp 47; [1941] VLR 200, 201 (O'Bryan J).

[24] [2001] WASCA 391; (2001) 25 WAR 77 [23]-[26] (Malcolm CJ).

[25] Energy Resources of Aust Ltd v Commissioner of Taxation [2003] FCA 26; (2003) 52 ATR 120, 128 [37] (citations in original). See, further, Pearce & Geddes, above n 20 [12.11].

[26] [1964] 1 QB 308, 320, cited with approval in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 639. It is true that Southam v Smout was itself a case relating to the service of civil process, not criminal process, and that Plenty v Dillon was a case relating to the service of a mere summons (ie, non-compulsory process), albeit in a criminal proceeding. However, in cases relating to criminal search warrants and the like, also, the courts have 'stated in unequivocal terms the sanctity and inviolability of the home and person from executive interference without proper authority conferred by law': Esso Australia Ltd v Curran (1989) 39 A Crim R 157, 162 (Hill J). See also Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 435-7; George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 1101 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606, 627-8 [87] (Callinan and Crennan JJ).

[27] (1986) 42 SASR 361, 369 (citations in original). Cited as representing '[t]he Australian position' in K. Tronc, C. Crawford and D. Smith, Search and Seizure in Australia and New Zealand (LBC Information Services, 1996) 13.

[28] [1979] UKHL 5; [1980] AC 952.

[29] [1981] FCA 31; (1980) 34 ALR 496.

[30] [2007] HCA 32; (2007) 230 CLR 606, 627-8 [87].

[31] [1990] HCA 26; (1990) 170 CLR 104, 110-1 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). See also Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1, 20 (Brennan J); cf Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 436 (Mason CJ, Brennan, Gaudron and McHugh JJ).

[33] [1995] VicRp 18; [1995] 1 VR 263.

[35] [1970] 1 QB 693.

[36] [1929] ArgusLawRp 100; [1930] VLR 70.

[37] [1993] FCA 247; (1993) 42 FCR 397.

[38] Ghani v Jones [1970] 1 QB 693, 706 (emphasis added, citations in original).

[40] [1967] EWCA Civ 4; [1968] 2 QB 299.

[41] Esso Australia Ltd v Curran (1989) 39 A Crim R 157, 169, and cases there cited.

[42] See Tronc, Crawford and Smith, above n 27, 20, and cases there cited.

[45] (1995) 79 A Crim R 554, 556-9. See also Slaveski v Victoria [2010] VSC 441 [173] (Kyrou J, as Kyrou JA then was).

[46] Example given in Tronc, Crawford and Smith, above n 27, 304.

[47] R v Applebee (1995) 79 A Crim R 554, 558; Tronc, Crawford and Smith, above n 27, 305 and cases there cited.

[48] [1985] 1 QB 881 ('Reynolds').

[50] Ibid 894-5 (emphasis added). Compare the use of the expression 'common law extension' by Purchas LJ in his separate judgment.

[51] [1977] QB 952, 959-60 (Swanwick J).

[52] [2009] NSWSC 385.

[54] Reynolds [1985] 1 QB 881, 902B (underlining added in the Crown's submissions).

[55] (1995) 79 A Crim R 554, 558.

[56] [2010] VSC 441 [173].

[57] (1995) 79 A Crim R 554, 558.

[58] See, again, Tronc, Crawford and Smith, above n 27, 20.

[60] (1981) 56 FLR 321, 337 (italics in original, underlining added as in the Crown submissions).

[61] This was recognised by Hill J in Esso Australia Ltd v Curran (1989) 39 A Crim R 157, 166, and by Kyrou J in Slaveski v Victoria [2010] VSC 441 [161]-[164].

[62] (1995) 75 A Crim R 554, 558.

[63] (1986) 6 NSWLR 21.

[64] [2003] VSC 104.

[65] [2002] UKPC 5; [2002] 1 AC 871.

[66] [2002] QSC 46; [2002] 2 Qd R 667.

[67] (Unreported, Queensland Court of Criminal Appeal, No 49/1983, 17 May 1983).

[68] (Unreported, New South Wales Supreme Court, No 1328/1971, 2 September 1971).

[69] [2007] NSWSC 961.

[70] [1979] FCA 21; (1979) 24 ALR 307.

[71] The Magistrates' Court may need to consider the question in the event that, on the rehearing, either party contends that any of the articles in question was neither named nor described in the relevant warrant, nor seized in accordance with the extended power.

[72] [1800] EngR 172; (1800) 126 ER 1213.

[73] [1967] EWCA Civ 4; [1968] 2 QB 299, 309E-310A.

[74] Reynolds [1985] 1 QB 881, 888 (Waller LJ).