National Parks and Wildlife Act 1970 (Tas), s42(8).

R v Macleod [1991] Tas SR 144, followed.

Bunning v Cross (1978 - [1978] HCA 22; 1979) 141 CLR 54; Cleland v R [1982] HCA 67; (1982) 151 CLR 1, applied.

Criminal Law - Jurisdiction practice and procedure - Warrants - Search warrants - Issue and validity - Reasonable grounds - Applicant's satisfaction irrelevant.

National Parks and Wildlife Act 1970 (Tas), s42(9).

Firearms Act 1996 (Tas), s136(2).

R v Macleod [1991] Tas SR 144, followed.

Judgment ID Number: [1999] TASSC 24

1 The applicant seeks review of a decision by a magistrate to receive evidence obtained during a search made with the authority of warrants, issued pursuant to the Firearms Act 1996 and the National Parks and Wildlife Act 1970, and found by the learned magistrate to have been improperly granted. The matter raised concerns as to the basis on which a discretion ought be exercised upon a finding that a particular warrant is invalid. The primary finding of the learned magistrate was that neither justice who had separately issued the warrants had purported to exercise any discretion in authorising their issue. The learned magistrate applied a number of propositions stated in R v Macleod [1991] Tas SR 144, namely that:

* the function of the justice is judicial not administrative;

* the justice must satisfy himself as to the existence of the requisite criteria and ought not merely rely on the suspicions of the informant;

* the justice must be satisfied that there exists a reasonable basis for suspicion;

"It is clear to me from the evidence that neither of the Justices appreciated the nature of their role. I note that the test as laid down in Section 136(2) of the Firearms Act is, on the face of it, somewhat more stringent than that in Section 42(9) of the National Parks and Wildlife Act.

The Firearms Act test is similar to that laid down in Section 90A(1) of the Poisons Act, of which Slicer J (at page 153) said:-

'In my opinion the evidence of the justice indicates two errors in his decision to issue the warrant. The first is that he applied the wrong test in the exercise of his discretion. The test required by Parliament is that he satisfy himself on the material put to him by the applicant that there was reasonable ground for suspicion. It is not that he is satisfied that the applicant is so satisfied.

A Justice of the peace is exercising both an administrative and judicial function at the time he is being asked to issue a warrant. (See Baker v Campbell). His judicial function requires him to exercise his own judgment on the basis of the material placed before him. It is his state of mind which is paramount.'

Having considered the documentary evidence and the evidence of Mr Stone and applying the test as laid down by Slicer J in Macleods case (supra) and also the decision of the High Court in George v Rochett [1990] HCA 26; (1990) 170 CLR 104 at 111 I find that the warrant issued by Mr Stone was not valid.

The test under Section 42 of the National Parks and Wildlife Act is that 'the justice is satisfied that there is reasonable cause to permit entry'. As I have said the information provided to Mr Holton contained more detail than that provided to Mr Stone. However it is clear from the authorities that it must be the justice who is satisfied that there is 'reasonable cause' not the officer who makes the application. Mr Holton's evidence does not persuade me that he even addressed his mind to this requirement. Indeed I am positively persuaded that he did not.

I find that the warrant issued by Mr Holton was not valid."

2 Having reached that conclusion he determined that the evidence obtained (namely, the finding and seizure of firearms) ought be admitted in the exercise of the discretion in accordance with the principles stated by the High Court in Bunning v Cross (1978 - [1978] HCA 22; 1979) 141 CLR 54. He did so on the basis of consideration of four factors, namely:

1 whether the conduct was a consequence of a mistake or showed a deliberate disregard of legal principles;

3 The learned magistrate dealt with the relevant factors in the following manner at 15 - 18:

"(1) The basis of my finding that the warrants were invalid had nothing to do with the manner or conduct of the police officers who conducted the search. The invalidity arose from the way in which the Justices dealt with the applications. I am satisfied that neither of the Justices was reckless or careless in their approach. It is apparent to me that they simply did not appreciate the true nature of their functions either under Section 136(2) or Section 42(9).

Further, there is no evidence to suggest that Constable Littlejohn did not act in good faith either in preparing and presenting his applications to the justices or in his subsequent conduct. To quote from Bunning v Cross (supra) at page 78: - 'no deliberate disregard of the law appears to have been involved.'

(2) The cogency of the evidence sought to be admitted here is quite strong. On the evidence to date there is no other evidence upon which counts 3, 4, 5, 6 (and possibly 7 and 8) could be sustained. Given that I have determined that the illegality was not deliberate or reckless I am of the view that cogency is a relevant factor here.

(3) As to the question of whether the law might easily have been complied with I note that in this case I have found that the illegality stemmed from the invalidity of the warrants which in turn was not the fault of the police officer conducting the search. The warrants could just as easily have been valid if the justices had properly addressed their respective functions.

(4) The nature of the offences with which the Defendant is charged is quite different. It was suggested that these offences are not in themselves of such a serious nature as to justify the exercise of the discretion on public policy grounds. However when one considers the preamble to the Firearms Act and the penalty provisions under Section 85(1) and Section 118(1) of that Act it is apparent that Parliament was not of a similar mind.

Section 85(1) provides a maximum penalty of a fine of $2,000 or imprisonment for 12 months. Under Section 118(1) the maximum penalty is a fine of $5,000 or imprisonment for 2 years.

The Wildlife Regulations 1971 (Regulation 28) provide for fines not exceeding $10,000 or $5,000 depending upon the species of animal involved.

The potential penalties involved are therefore significant.

I have considered all of the above factors in the context of the case before me and for the reasons which I have expressed I conclude that it would not be appropriate to exercise my discretion to exclude the evidence obtained during the search of the Defendant's home."

4 Paying regard to the basis on which an appellate court should consider an exercise of discretion (House v R [1936] HCA 40; (1936) 55 CLR 499), I have, with respect, reached a different conclusion in relation to the first, third and fourth propositions.

5 The police officers had an obligation to bring to the attention of the justices the relevant legal principles associated with the issue of warrants. Those requirements are clearly defined by statute. The Firearms Act, s136(2), provides:

"(2) A magistrate or Justice of the Peace may issue a warrant if satisfied that there are reasonable grounds for believing that an offence under this Act has been, is being or is about to be, committed on the premises.",

whilst the relevant provision in the National Parks and Wildlife Act,s42(8) and (9), state:

"(8) In exercising the powers conferred, or in performing the duties imposed, by section 41 or this section, an authorized officer must not enter any premises or any part of any premises used as a principal residence except where the officer has obtained a warrant under subsection (9) or the permission of the occupier to enter the residence.

(9) If a magistrate or justice is satisfied, on the application of an authorized officer, that there is reasonable cause to permit entry to any premises or any part of any premises used as a principal residence, the magistrate or justice may issue a warrant authorizing an authorized officer to enter the premises or the part of premises specified in the warrant for the purposes of exercising the powers conferred, and the duties imposed, by section 41 or this section in those premises or that part."

6 The justices gave evidence that they acted solely in accordance with the advice which had been provided by Constable Littlejohn. His failure to bring to their attention the relevant statutory provisions and the general principles discussed in R v Macleod (supra) amounted to more than a mistake. It evidenced either ignorance of, or indifference to, legal principles defined by Parliament and the courts designed to safeguard liberty and privacy. But that alone would not necessarily afford this Court a proper basis for review.

7 The applicant was charged with eight offences under the Firearms Act 1996, Police Offences Act 1935 and the Wildlife Regulations 1971. Six of the charges were dismissed by the learned magistrate. Significantly, one of the charges dismissed concerned the allegation that the applicant had resisted:

"Paul Neil LITTLEJOHN a police officer in the execution of his duty, by pulling away from him and continuing to run",

contrary to the Police Offences Act 1935, s34B(1)(a)(i). The officer had entered the property of the applicant and handed the warrants to him as evidence of his authority. Constable Littlejohn deposed that he requested the applicant to accompany him whilst the search was conducted and permitted him to finish what he was doing before proceeding. His evidence-in-chief continued:

"After placing the particle board in the shed, Mr Smith returned towards his vehicle, I followed him, he passed his vehicle and continued on out into Cotton Street. He then started to walk in a westerly direction, I asked him to return so a search could be conducted. He then walked down the driveway of the house to the west of 53, through a gate, around the back of that premises and jumped that premises western boundary fence. I observed Mr Smith squatting on the ground behind the fence, immediately informed him that he was required to return to his premises so that the search could be conducted and if he did not, he would be charged with hindering. I then jumped the fence and Mr Smith immediately ran in a southerly direction across Cotton Street towards Laura Street. He ran into the house on the corner, the north-eastern corner of Laura and Cotton Street by running up the driveway and then very quick turn along the front fence. I managed to take hold of the defendant this time and informed him that he was under arrest for hindering. I lost my footing and my grip and Mr Smith then jumped the front fence and continued in a southerly direction on Laura Street before turning left into the Laura Street apartments. He then ran through the Laura Street apartments and then over their eastern fence, paling fence and into the rear of the premises, I was still pursuing the defendant. The defendant then went to straddle a wire gate and as he was attempting to straddle that gate I again took hold of him and informed him that he was under arrest."

8 The learned magistrate found that there was no requirement for the applicant to remain in the company of the police officer, and that there had been no act of resistance. In any event, the officer was not acting in the lawful execution of his duty. At one stage there were four police officers in attendance and the applicant was handcuffed. Once inside, the officers made a search of the premises. The evidence in chief of Constable Littlejohn continued:

"Once in that room my attention was drawn to wooden wardrobe, Constable Twining asked the defendant to open the wardrobe and he initially declined, and after Constable Twining had informed the defendant that he would have to use force to open it, and it was a shame to ruin a nice piece of furniture, the female produced the keys. Constable Twining opened the front door and immediately removed a Rugar under and over 12 gauge shot. The firearm was handed to me, I immediately broke the firearm to declare the firearm clear. Constable Twining then handed an Anschulz 22, I again worked the bolt and determined that weapon also to be clear. Constable Twining then handed me a further Anschulz 22 with what was a silencer attached to the barrel."

9 The attendance at the premises was not fortuitous. Constable Littlejohn had, some two months previous, intercepted and searched the applicant's vehicle for wildlife. The arrest, handcuffing and the threat of force in opening the wardrobe came about because the officer believed he possessed a valid warrant. He showed indifference in relation to any powers conferred by the warrant (including the right to require the presence of the suspect) and that indifference compounds the invalidity of the original conduct in obtaining the warrant. The police officer might well have acted in the belief that his status afforded him power to treat a suspect in the manner in which he did. But his conduct, viewed objectively, permits the conclusion that he was reckless in that exercise of power.

10 The second basis governing discretion, stated in Cleland v R [1982] HCA 67; (1982) 151 CLR 1, that of judicial approbation of improper conduct, was not considered by the learned magistrate. It was a relevant and, given the circumstances of this case, compelling reason, which required exclusion of the evidence improperly obtained.

11 The third finding that the warrants "could just as easily have been valid if the justices had properly addressed their respective functions" might be justified, but it does not necessarily accord with the evidence. The justices, had they considered the material required to be placed before them and exercised their own judgment, might well have declined to authorise the warrants, or it might have been difficult to persuade them. Further, it is incorrect to conclude that "the illegality ... was not the fault of the police officer conducting the search". The officer might well have acted honestly and believed that he was fulfilling his duty but he had nevertheless been the cause of the error. The test is not one limited to a moral evaluation of conduct.

12 The fourth conclusion involves the question of the maximum statutory penalty. Given that the Criminal Code 1924 provides for a penalty of twenty years' imprisonment for all but a few excepted crimes, it could be said that each crime is serious and that public policy would require admission of evidence in every case. The learned magistrate was required to consider the seriousness of offences as presented to him. These offences involved the inadequate storage of firearms. The applicant was the holder of a licence and the firearms were registered. The finding of the learned magistrate was that:

"... the firearms themselves were stored in a wardrobe that is relatively sturdy, but even so, it was capable of being entered without great difficulty by someone determined to get the firearms, and of course if that had occurred the ammunition for the firearms was right there under the bed."

13 The finding was appropriate and the imposition of a penalty of a fine of $400 reflected the seriousness of the two offences. That finding impacts on the approach taken by the learned magistrate in the exercise of his discretion which was based on different considerations.

14 The exercise of discretion was dependent upon inferences which were not permitted by the evidence and an incorrect application of principle. The ground of appeal is made out, and the motion to review upheld. There is no reason to remit the matter for rehearing.

15 The motion to review is upheld and the order of the learned magistrate set aside. The convictions in relation to charges numbered 4 and 5 comprised in Complaint 31910/97 are quashed.