State of New South Wales v Corbett

State of New South Wales v Corbett - [2007] HCA 32 - HCA 2007 case summary — Zoe

[14]

GLEESON CJ. The facts and issues are set out in the reasons of Callinan and Crennan JJ. I agree that the appeal should be allowed and consequential orders made as proposed in those reasons. I agree generally with the reasons of Callinan and Crennan JJ. I also agree with Gummow J as to the issue of statutory construction raised by the terms of the Search Warrants Act 1985 (NSW).
GUMMOW J. The appeal to this Court from the New South Wales Court of Appeal[1] should be allowed. Orders 1‑5 made by that Court and entered 4 July 2006 should be set aside and in place thereof the appeal to that Court should be dismissed. In accordance with the undertaking given by the State upon the grant of Special Leave, the State (the appellant), must bear the costs of the respondents of the appeal to this Court and the costs order (order 6) made in favour of the present respondents by the Court of Appeal should not be disturbed.
The circumstances giving rise to the present litigation, an action in the District Court for trespass upon the property of the respondents at Goulburn, are explained in the reasons for judgment of Callinan and Crennan JJ. I agree generally with their Honours' reasons for allowing the appeal.
However, I will deal specifically with the issue of statutory construction raised by the terms of the Search Warrants Act 1985 (NSW) ("the Search Warrants Act"). Paragraph (b) of s 5(1) of that statute provides for the making of applications for a search warrant where there are reasonable grounds for believing that there is in or on any premises "a thing connected with a particular firearms offence". The phrase "connected with" a particular offence is given content by s 4(1) of the Search Warrants Act. This makes it clear that the "thing", on the one hand, may have been used in the past for the purpose of committing the firearms offence or, on the other, may be intended to be used for the firearms offence.
An appreciation of this time-scale is important for an understanding of the definition of "firearms offence" in s 5(2) of the Search Warrants Act. That phrase was defined in s 5(2) with reference initially to offences under the Firearms and Dangerous Weapons Act 1973 (NSW) and subsequently to offences under the Firearms Act 1989 ("the 1989 Act") and the Prohibited Weapons Act 1989 (NSW). At the time of the application for and the issue of the warrant with which this case is concerned, 3 June 1998, the 1989 Act had been replaced by the Firearms Act 1996 (NSW) ("the 1996 Act")[2]. However, the definition of "firearms offence" in s 5(2) of the Search Warrants Act was unchanged and still identified what by then was the repealed 1989 Act.
Schedule 3 to the 1996 Act contained detailed savings and transitional provisions. Item 12 stated:

[19]

It is to be expected that for some time after the repeal of the 1989 Act, the "reasonable grounds" basing some warrant applications would concern "a thing" used to commit a firearms offence while the 1989 Act was in force. The repeal of the 1989 Act would not remove a liability accrued under that statute to prosecution in respect of such an offence[3]. In these circumstances, notwithstanding the supervening repeal of the 1989 Act, the reference in the prescribed form under the Search Warrants Act to s 5(2) of that statute, with its identification of the 1989 Act, would be appropriate on its face to the state of affairs, an earlier offence, with which the warrant application was concerned.
What of the situation, as in this case, of an apprehension after the repeal of the 1989 Act, of an intended use of a firearm to commit an offence? The statement in par 2(a) of the application form "within the meaning of the Search Warrants Act 1985 (s 5(2))" must be read with Item 12 in Sched 3 to the 1996 Act and thus to refer to the "corresponding provision" in the 1996 Act. There is no sensible doubt that s 7 was such a provision corresponding to s 5 of the 1989 Act. The gist of each might be expressed as "possession of firearm". These words were inserted in the blank space in par 2(a) of the form by Inspector Jago of Goulburn Local Area Command, the officer who made the search warrant application.
Where then is the fatal defect alleged by the respondents? It is said to be the addition to the inserted words of the phrase "Firearms Act No. 25/1989 Sect 5(a)". But again, by dint of Item 12 in the transitional provisions to the 1996 Act, this is to be read as a reference to the corresponding firearm possession provision, namely s 7 of the 1996 Act.
This operation of Item 12 upon the warrant application form at stake in the present case demonstrates the interaction between the Search Warrants Act on the one hand and the 1989 and 1996 Acts on the other. It gives effect to the ambulatory operation of the identification of the relevant "thing" in s 4 of the Search Warrants Act. The ambulatory operation allows for applications for warrants where there are reasonable grounds for the belief that in or on the premises there is a "thing" which is connected with a particular firearms offence for the purposes of which the "thing" is intended to be used, as well as a "thing" used in the past for the purpose of commission of an offence whilst the 1989 Act was in force.
The appeal should be allowed and consequential orders made as indicated earlier in these reasons.
KIRBY J. This appeal comes from a judgment of the Court of Appeal of the Supreme Court of New South Wales[4]. The facts, legislation and issues relevant to its determination are set out in the reasons of Callinan and Crennan JJ[5].

[22]

In intermediate courts, opinions are sometimes expressed reflecting a perceived need to moderate the rule of strictness. This has followed the inconvenience that the application of the rule can sometimes occasion and a sympathy for those who seek and execute search warrants (generally police officers) who are accountable in law for defaults when the rule of strictness is rigorously applied. Instances of such opinions may be seen, for example, in the dissenting reasons in two important cases in the New South Wales Court of Appeal[8]. The dissents concern, and respond to, the tension to which Brennan J referred in Halliday.
Notwithstanding such differences, intermediate courts in Australia have normally adhered to the rule of strictness. They have correctly interpreted that to be their duty, conforming to the unanimous reasons of seven Justices of this Court in George v Rockett[9]. Those reasons, in turn, constituted a strong reaffirmation of a line of federal cases such as R v Tillett; Ex parte Newton[10] and Parker v Churchill[11], extracted and cited with approval in Rockett[12].
The rule of strictness in this area of the law can only be fully understood against the background of its history in common law countries[13]; the basic principles expressed in that history commonly reflected in the constitutions of most such countries[14]; and the development of instruments expressing relevant norms of the international law of human rights to which Australia is a party[15].
History of search warrant law: In the 18th century, departures from the rule of strictness became common in England and, even more so, its colonies. Such departures constituted one of the causes of the American War of Independence against Britain[16]. They helped to explain the language of the Fourth Amendment to the Constitution of the United States of America[17]. Concurrently, the departures eventually led in Britain itself to judicial and parliamentary reaffirmation of the rule of strictness[18]. The law of search warrants, so expressed in Britain, became part of the law inherited by the Australian colonies as they were established.
Although Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution and its equivalents in other countries and has not expressly incorporated the relevant rules of international law in its domestic legislation, the rule of strictness is reflected both in legislative provisions governing search warrants and in judicial expositions of their requirements[19].
Reasons for strictness: What are the reasons that lie behind this rule of strictness? They include:

[33]

The respondents presented three arguments to defeat the foregoing conclusion.
The first was that the reliance on the transitional provision had not been expressly raised in the appellant's notice of appeal. This objection has no substance. The point is sufficiently tendered by the general language of appellant's grounds 4 and 5. It involves an argument of law that was certainly advanced and dealt with by the Court of Appeal[22]. There is no procedural unfairness in this Court's now considering it[23]. Effectively the respondents acknowledged this by proceeding to argue the point both in their written and oral submissions.
Secondly, the respondents contended that, whilst the application form for the search warrant[24], the 1989 Act and other applicable regulations might be "instruments" within the transitional provision in the 1996 Act, an application for a search warrant was not an "instrument". It followed, so they argued, that the applicant police officer's reference to "Firearms Act No 25/1989 Sect 5(a)" in the application for the subject search warrant was not a reference in an "instrument" for the purpose of the transitional provision in the 1996 Act.
This narrow construction of the transitional provision should be rejected. The ordinary meaning of an "instrument", when used in a legal context such as the present, is a "formal legal document in writing" or a "formal document of any kind ... that is drawn up and executed in technical form"[25]. As the Court of Appeal recognised[26], depending on the circumstances, the word "instrument", appearing in an Act, might be given a wide scope or a narrow scope. Having regard to the present context, and the saving purpose of the transitional provision in question, its ordinary meaning should not be narrowly confined. As Gummow J points out[27], the context, in which the 1996 Act and its accompanying regulations are expressly stated to be excluded from the definition of "any instrument", suggests that the word was to be broadly construed. Otherwise, the 1996 Act and regulations must be taken to have been within the meaning of the word. To approach the meaning of "instrument" in this way conforms to many judicial elaborations of the word[28].
When this approach is adopted, an application for a search warrant is clearly to be regarded as an "instrument" that falls within the transitional provision, taking into account both the language and purpose of that provision.
Thirdly, the respondents submitted that this conclusion would not help the appellant because the question would remain whether, in the "instrument" in contention, the applicant police officer had in contemplation an incorrect statutory provision and was thus "asserting a belief in relation to s 5(a) of the 1989 [Firearms] Act"[29] which was unjustified in fact. This was the basis upon which the Court of Appeal rejected the appellant's appeal to the transitional provision. It might gain some support from the fifth of the reasons that I have suggested as explaining the persistence of the rule of strictness. If one of the purposes of such a rule, in relation to the search warrant issued on the basis of an application, is so that the person subject to it (or that person's representative) may know in advance the basis and limits of the permitted search, an appeal to a statutory fiction (substituting reference to other "corresponding" provisions for those expressly nominated) would normally be unknown and effectively unknowable to a recipient of the search warrant, confronted suddenly by the demand to submit to a search.
The answer to this argument is found in the clear language of the transitional provision itself. In effect, that language is designed to address the fact that not uncommon slips can occur where one statute replaces another yet, effectively, the new statute retains the substance of many of the repealed provisions. That was the situation here with the enactment of the 1996 Act to replace the 1989 Act. In a transitional period, references to repealed provisions will often continue to be made although the circumstances will make it plain that the true intended reference is to the corresponding provisions of the new statute where applicable, not the old one.
Thus, although the common law might be reluctant to import an imputed intention of such a kind, substituting one statutory provision for another expressly stated on an application form, Parliament can so provide, so long as it expresses its purpose clearly enough.
In my opinion the transitional provision applicable to this case is sufficiently clear. With the authority of Parliament, the misreference in the "instrument" to provisions of the 1989 Act was "to be read as a reference to the corresponding provision" of the 1996 Act. In effect, Parliament had acknowledged that an applicant (police officer) might state in the instrument (and even have in his mind) an identified provision of the 1989 Act but everyone would understand that this was to be read as a reference to the 1996 Act. At least this would be so as long as the latter contained a provision that would truly answer to the requirement of being "corresponding".
This s 7 of the 1996 Act plainly does in relation to s 5(a) of the 1989 Act. Accordingly, by force of the transitional provision there is an effective amendment of the "instrument", with a substitution for its reference to the superseded provision. So read, there was no error at all either in the application for the search warrant or in the warrant as issued.

[34]

The consequence of this reasoning is that it is unnecessary for me to consider the other arguments advanced by the appellant as explained in the reasons of Callinan and Crennan JJ[30]. As I approach it, this is not a case in which there is any departure from (or qualification of) the rule of strictness which this Court has long adopted in expressing the law governing the requirements of precision and accuracy in applications for, and the issue and execution of, search warrants.
Understood with the assistance of the transitional provision, there was no relevant inaccuracy or imprecision in the application form. There was no invalidating flaw based on the reference in that application to a section in the repeal provisions of the 1989 Act. Read with the aid of express statutory provisions, the nominated section of the 1989 Act is taken as a reference to the corresponding provision of the 1996 Act. Necessarily, in the context that is also taken to be a "corresponding provision" that was in the contemplation of the police applicant when he applied for the subject warrant. His evidence at the trial supports, and certainly does not contradict, this conclusion.
It cannot be suggested that either of the respondents was in fact misled by the incorrect statutory citation. Mr Corbett was still in hospital when the search warrant was sought and executed. The reference to the provision of the 1989 Act would have had no more meaning for Mrs Corbett, as delimiting the ambit of the search, than would a concurrent reference to the transitional provision in the 1996 Act that had the effect of correcting the erroneous reference. The real indication of the applicable ambit of the search warrant was contained in the words of the application for the search warrant that remain unaltered, namely "Possession of Firearms". That phrase adequately, and accurately, identified the subject matter of the search that was then conducted. The new provision was thus "corresponding".
So far as the issue raised in the Notice of Contention is concerned, I agree, for the reasons given by Callinan and Crennan JJ[31], that the respondents' submissions on their Notice of Contention should be rejected on the basis that no error has been shown in the concurrent findings of fact below. As my conclusions on the other arguments canvassed in the appeal are immaterial to the orders that I favour, I will refrain from expressing them. The foregoing is sufficient to require that the appeal be allowed.
CALLINAN AND CRENNAN JJ. This is an appeal from a decision of the Court of Appeal of New South Wales[32] remitting a matter to the District Court of New South Wales, following a finding that a search warrant obtained pursuant to the provisions of the Search Warrants Act 1985 (NSW)[33] ("the Act") was invalid.
On 4 June 1998, pursuant to that search warrant, officers of the New South Wales Police Service (for whom the appellant has accepted legal responsibility) entered and searched the respondents' property at Goulburn for firearms. The respondents later commenced proceedings against the appellant seeking damages for trespass, on the basis that the search warrant was invalid and did not authorise the entry of the police officers onto their property.
This appeal turns on the language of s 5(1)(b) of the Act. That section requires an applicant for a search warrant to have reasonable grounds to believe that in or on nominated premises there will be "a thing connected with a particular firearms offence".

[61]

Mr Corbett, a police officer with the New South Wales Police Service since 1976, was based at the relevant time in rural New South Wales. In the 1980s, through the course of his work with the Police Service, Mr Corbett attended various traumatic incidents, including the bombing of a Hilton hotel, the Granville rail disaster and a serious plane crash near Goulburn, involving a number of fatalities. In about 1990 Mr Corbett was involved in a serious motor vehicle accident in which he suffered significant injuries, including head injuries. Throughout the 1990s, Mr Corbett experienced mental health problems, and attempted to commit suicide three times: once in 1992 and twice in 1998. In about 1992 Mr Corbett had held a shotgun to the head of his wife, the second respondent, and pulled the trigger. The primary judge noted that it was "[d]ue to the remarkably good fortune of the safety catch being engaged [that] the firearm did not discharge"[39].
A number of psychological and psychiatric reports were received in evidence at the trial, which identified a range of symptoms experienced at various times by Mr Corbett, including depression, fear, anger and anxiety, as well as possible diagnoses, including post-traumatic stress disorder or other mood disorders. Mr Corbett acknowledged that during the mid‑1990s he had consumed alcohol to excess. The primary judge made a finding that Mr Corbett had experienced "a series of emotional and mental problems" and was "from time to time unstable", but that he was "no longer seriously ill".
During the latter part of his career, Mr Corbett became involved with systems of police radio communication, and in particular he spent significant effort developing a rural radio network in the Goulburn area, which allowed police to have 24 hour radio contact. Previously, between certain hours late at night and early in the morning, police contact could only be made via telephones.
A decision was taken in about 1997 to implement a new communications regime in which police radio systems would operate in conjunction with a mobile phone service provider. This development had the consequence that Mr Corbett would no longer have a position in the Goulburn area, and that the radio system he had established would no longer be used. The primary judge noted that Mr Corbett "became very concerned for police safety as a result of the proposed new communication system" and his Honour inferred that Mr Corbett "felt the system would fail police personnel and as a result the lives of police officers could be jeopardised".
After his second suicide attempt in February 1998 Mr Corbett went on sick leave and has not resumed employment as a police officer since then.

[87]

Something more needs to be said about the decision of the Court of Appeal. Three issues were dealt with discretely. The first was whether the description of a particular offence in the application for the search warrant complied with the statutory requirements. The second issue was whether the applicant had reasonable grounds for believing there would be things connected with the offence on the property. The third issue was whether the actual search warrant, which was assumed to contain no reference to a particular offence[43], complied with statutory requirements.
With respect to the first issue, in concluding that the application failed to comply with statutory requirements, the Court of Appeal relied on differences between the 1989 Firearms Act and the 1996 Firearms Act. Each piece of legislation defined "firearm" and each contained a licensing regime. The latter legislation defined "firearm" more broadly and had what was described in the Court of Appeal as a "tighter" licensing regime[44]. In finding that Acting Inspector Jago's belief was a "belief in a non-existent offence"[45], the Court of Appeal stated that any belief in the presence of unspecified firearms would necessarily require him to have considered the range of firearms and the firearms licensing regime covered by the applicable legislation[46]. By reference to Carroll v Mijovich[47] and Cassaniti v Croucher[48] the Court of Appeal found the warrant defective in a manner incapable of being cured[49].
In relation to the second issue, the Court of Appeal determined that Acting Inspector Jago had a reasonable belief that once the licence had been suspended, any firearms on the property were connected with the offence of possession of a firearm[50].
In its finding, on the third issue, that the actual search warrant (which was not available at trial) complied with the Act, the Court of Appeal inferred that the search warrant contained no reference to a particular offence[51]. The Court of Appeal then relied on the relevant form for search warrants under the Regulations, which did not require a reference to a particular offence, as an indication by the legislature that a description of the offence did not have to appear on the face of the warrant.[52]
The first finding by the Court of Appeal regarding the application form, and what was required by s 5(1)(b), is the subject of this appeal. The second finding, relating to the "reasonable belief" of Acting Inspector Jago, is the subject of the notice of contention. The third issue, also raised in the notice of contention, was not pressed.

[88]

The submissions of each party can be stated briefly. Each accepted the established principle that unless the entry and search of the respondents' property was authorised by the search warrant, a trespass would have been committed[53]. The appellant's primary submission in this Court was that there was no lack of compliance with the Act and that the incorrect reference to the 1989 Firearms Act in the application did not result in a material defect in the search warrant or vitiate the authorised justice's decision to issue the search warrant. It was contended that par 2(a) of the application form did not require that a particular legislative provision concerning the offence be stated. According to the appellant, it would have been sufficient for the purposes of the application form if Acting Inspector Jago had simply stated "possession of firearm". It was submitted that the particular reference to the 1989 Firearms Act, provided automatically by the computer system, was surplusage. In this Court, as well as before the Court of Appeal, the appellant argued that, in any event, the offence stated in the application for the search warrant (the unauthorised possession of a firearm under the 1989 Firearms Act) was "materially identical"[54] to the cognate offence applicable under the 1996 Firearms Act.
It was submitted by the appellant that the elements of the offence which must have been contemplated by Acting Inspector Jago when applying for the search warrant were the same for the old offence under the 1989 Firearms Act as for the then current offence: that is, a person possessing or using a firearm without authorisation to do so through a licence or permit. Once Mr Corbett's licence was suspended, it would have been illegal for him to possess a firearm. Transitional provisions in the 1996 Firearms Act were also relied upon[55].
Alternatively, it was contended that as the description of the offence in the application form, by reference to repealed legislation, did not affect the substance of the search warrant in a material particular, the savings provision in s 23 of the Act would apply to the search warrant. In a similar vein, it was contended that the substantial compliance with Form 1 under the Regulations fell within s 80(1) of the Interpretation Act 1987 (NSW)[56].
In essence, the respondents submitted that the erroneous reference in the application for the search warrant to s 5(a) of the 1989 Firearms Act (instead of s 7(1) of the 1996 Firearms Act) constituted a failure to comply with ss 5(1)(b) and 11(1) of the Act because Acting Inspector Jago could not have a reasonable belief in an identified offence which did not exist. It was said that this amounted to a failure to describe an offence, which meant that the application contained a defect of substance.
The respondents then contended that the authorised justice was required by ss 6 and 12A(2)(b) of the Act to consider and be satisfied that there were reasonable grounds for believing that the things to be searched for were connected with the particular offence referred to in the application before issuing a search warrant. It was submitted that the justice could not have been so satisfied when faced with Acting Inspector Jago's application containing the erroneous reference to a section in legislation which had been repealed and replaced.
In that context, the respondents, like the appellant, contended that by force of the transitional provision in the 1996 Firearms Act, the references to the 1989 Firearms Act in s 5(2) of the Act and in par 2(a) of Form 1 must be read as references to the corresponding provisions of the 1996 Firearms Act. That contention should be accepted[57], for the reasons explained by Gummow J[58].
In support of their main argument, the respondents relied on 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 Rockett[59] ("Rockett"), which concerned s 679 of the Criminal Code (Q)[60]:

[93]

De Grey CJ was referring to circumstances existing before the institution of a professional police force in England in 1829[69]. A victim of crime could inform a justice and apply for a common law search warrant. These were subsequently executed by a local constable, in the presence of the victim or informer.
General warrants, which did not particularise a person whose premises were to be searched or the objects of the search, were used for the purposes of controlling the writing and printing of seditious or radical political works, first by the Star Chamber[70], then by the Secretary of State. In Australian Broadcasting Corporation v O'Neill[71] there was discussion of the censorship of publications by the Crown first asserted by Ordinance in 1534 and enforced by a licensing system which was dismantled by 1695[72].
In a trio of cases in the mid-18th century, after licensing of publications was no longer required, the common law courts struck down such general warrants[73]. In Wilkes v Wood[74], Lord Pratt CJ (later Lord Camden) instructed a jury that a warrant which did not identify a particular object of the search was "totally subversive of the liberty of the subject"[75]. In Money v Leach[76] Lord Mansfield CJ found that a general warrant was invalid because no person was "named or particularly described"[77] to identify the premises and object of the search. In Entick v Carrington[78] ("Entick") the principle that an applicant for a warrant had to specify the object of the search was confirmed[79]. Those three cases led to the English Parliament's famous declaration by resolution in 1766 that general warrants were unlawful[80].
The need to specify the object of a search by reference to a particular offence is now a common statutory requirement, reflected in s 5(1)(b) of the Act. In the Second Reading Speech, the Attorney‑General referred to Entick and acknowledged the continuing application of the common law principles described above: "freedom from arbitrary search was hard fought for in our constitutional history"[81].
Search warrants in aid of the criminal law may be issued in all jurisdictions in Australia[82]. All such legislation seeks to balance long established individual rights against the public interest in combating crime.
A search warrant under the Act is a statutory authorisation to enter, search for and seize, a particular "thing". That purpose is easily distinguishable from the purpose of a charge, indictment, conviction, judgment or order. The requirement for strict particularity in the description of an offence in an indictment or charge is explained by Dixon J in Johnson v Miller[83]:

[103]

Section 5(1)(b) should be construed by reference to the principle that the applicant is required to state reasonable grounds for believing in a particular offence so as to ensure that the issuing justice knows the specific object of the search warrant and accordingly limits its scope. Strict compliance, in the sense described in Rockett[101], is achieved when that purpose is fulfilled. To invalidate the warrant here because of the incorrect reference in the application would not serve that purpose.
Here, the application stated an intelligible offence, namely "possession of firearm", an offence which had been well known in New South Wales for decades. Prior to the Act, successive firearms legislation contained provisions for obtaining search warrants in respect of firearms[102]. The reasonable belief, which the applicant was required by the statute to have, and state, was a reasonable belief that there was "a thing" (here, "unspecified firearms") connected with "a particular firearms offence" (here, "possession of firearm"). It was the nature of the offence which was critical, not the reference to the section of repealed legislation which had been replaced with cognate legislation. The nature of the offence had to be stated sufficiently to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize.
Here there could be no mistake about the object of the search or about the boundaries of the search warrant. Given the construction of s 5(1)(b) stated above, the Court of Appeal erred in its approach. The reference to the repealed Act in the application form was mere surplusage, which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Accordingly, the applicant complied with the statutory requirements and the warrant is not invalidated by the description of the offence in the application form.
The respondents' submissions concerning the issuing justice's obligations under ss 6 and 12A(2)(b) equally fail because they depended on the respondents' arguments in relation to s 5(1)(b) which have been rejected. Accordingly the appeal should be upheld.
It is unnecessary to consider the appellant's alternative arguments directed to validating the search warrant, if it were found to be defective.

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