Vincent v Randall & Anor

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

HIDDEN J 19 August 1999 No 30085 of 1997 Susan Margaret Vincent v M Randall & Anor Reasons for judgment

1 HIS HONOUR: In the evening of 7 August 1996 police executed a search warrant at a home in Waterloo occupied by the plaintiff, Susan Margaret Vincent, her husband, Colin Vincent and their two children. The first defendant is the justice who issued the warrant and the second defendant, Senior Constable Steven Campbell, is the police officer who applied for it and who, with other police, executed it. By summons in this Court, the plaintiff seeks a declaration that the warrant was invalid and an order that it be set aside. 2 I received evidence, both by way of affidavit and orally, about the circumstances giving rise to the issue of the warrant and the events of the evening in which the search was carried out. The plaintiff's solicitor objected to evidence about the search, on the basis that it was irrelevant to the validity of the issue of thewarrant. I allowed the evidence, stating that I would determine its relevance in the light of final submissions about the merits of the matter.

Facts 3 On 3 August 1996 Mr and Mrs Vincent's fourteen year old daughter, Keira, attended Redfern police station, where Snr Cnst Campbell was on duty. There was conflict in the evidence about how she came to be at the police station, but I do not find it necessary to resolve it. She told Snr Cnst Campbell that her parents had been selling cannabis from the home at Waterloo for some time. She said that each morning they obtained the cannabis from a woman, whom she knew only as Taina, at a block of flats in Brighton-Le-Sands. She also claimed that her parents were receiving stolen property. 4 Snr Cnst Campbell located a building at Brighton-Le-Sands which answered the description provided by Keira, and enquiries revealed that one of the flats was occupied by a woman whose Christian name was Taina. He also obtained police intelligence reports relating to Mr and Mrs Vincent, which led him to the view that they were engaged in the supply of cannabis and, indeed, heroin. These were reports of information received between 5 March and 11 July 1996 to the effect that they were dealing in drugs, mainly cannabis. For the most part, the source of the information appears to have been unnamed members of the public and two of the reports suggest that Keira herself was involved. None of the reports was the result of police surveillance. 5 On 7 August, the day of the search, Snr Cnst Campbell attended Redfern Local Court and sought the issue of a warrant by the first defendant, an authorised justice within the meaning of s3 of the Search Warrants Act 1985. He presented a typed application for the warrant, which asserted that information had been received from "a reliable source" that Mr and Mrs Vincent were "actively engaged in the supply of cannabis and other drugs and receiving stolen property". The source was said to be a "young informant", a member of the family living at the subject premises, who had witnessed Mr and Mrs Vincent "buying and selling the prohibited drugs for a lengthy period of time". It went on to summarise Keira's account of her parents' obtaining drugs from Brighton-Le-Sands and returning to the home, where they were "packaged and sold". Finally, it asserted that both Mr and Mrs Vincent were known to police "through their association with drugs", there being "several intelligence reports from other informants and police in relation to selling drugs". 6 Snr Cnst Campbell did not show the justice any of the intelligence reports which he had obtained. In response to a question from the justice, he said that both Mr and Mrs Vincent had recorded convictions for possessing cannabis. As he acknowledged in evidence before me, this was not true of either of them. In oral evidence, he said that he had gained that mistaken impression from the material about Mr and Mrs Vincent which he had read four days earlier, after he was approached by their daughter. 7 The justice issued the warrant, setting out in writing his reasons for doing so in accordance with s13(1) of the Act. Those reasons referred to the information in the typewritten application for the warrant, together with "further information received orally and on oath in respect of informant and informant's information". There was no evidence before me of what that further information was. They also included the erroneous belief that Mr and Mrs Vincent had convictions for possessing cannabis. 8 As earlier observed, the search took place that evening. The plaintiff was present but her husband was not, although he arrived home before the police had left. From outside the premises Sgt Janne McMahon saw a man throw a quantity of self-sealing plastic bags and a set of scales from the first floor balcony. It was not Mr Vincent, who was not in the house at the time. There were two other men in the house, but Sgt McMahon was unable to identify either of them as the man she had seen. 9 Police located a number of small plastic satchels of cannabis in a box in Mr and Mrs Vincent's bedroom. The plaintiff denied any knowledge of it. There was some dispute in the evidence as to what Mr Vincent said about it when he arrived but, again, I do need to resolve it. Either he denied knowledge of it or, at least, made no admission about it. The plaintiff accompanied police to Redfern police station, where she declined to be interviewed. A subsequent examination of the satchels at the fingerprint section failed to detect any fingerprints on them. In the event, no one was charged. 10 In evidence before me, both Mr and Mrs Vincent denied the allegations their daughter had made about them. They said that she had run away from home at that time, apparently resentful of the discipline which they had imposed upon her. Since then she had returned to live at home, and Mr Vincent said that her behaviour had improved. There was no evidence from her in this Court.

Validity of the warrant 11 By s6 of the Act a justice may issue a search warrant if he or she is "satisfied that there are reasonable grounds for doing so…". The requirement of reasonable grounds is common to search warrants legislation throughout the country and it has been considered in a number of decisions, both at first instance and on appeal. In George v Rockett (1990) 170 CLR 104 the High Court was called upon to consider a provision in the Queensland Criminal Code. In a joint judgment, the Court described the policy governing such a provision in this way (at 110-11): In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. … …in construing and applying such statutes, it needs to be kept in mind that they authorize 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. 12 Dealing with the requirement of reasonable grounds, their Honours continued (at 112): When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … …it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. 13 The question for a court reviewing the issue of a warrant is not whether the justice was satisfied of reasonable grounds but whether, on the material presented, he or she should have been so satisfied: Patten v Justice of the Peace, Redfern Court (1986) 22 ACrim R 94 at 98. A valuable statement of the principles governing this area, together with a summary of the relevant authorities, is to be found in the decision of Finlay J in Jackson v Mijovich (Finlay J, unreported, 22 March 1991) at pp8-16. His Honour observed (at p13) that a justice issuing a warrant "must act independently and judicially; and I would add, with great care". 14 Several of the cases to which I was referred, including Jackson v Mijovich itself, were concerned with the question whether there were reasonable grounds for the issue of a warrant. These involved an examination of the adequacy of the material that was before the justice and, in particular, whether further information should have been sought before the warrant was issued. The researches of the plaintiff's solicitor and counsel for the second defendant were unable to produce a case where, as here, the justice had been given supplementary information which was false. 15 In the light of the authorities, it is clear that I must consider the question whether there were reasonable grounds for the issue of the warrant by reference only to the material that was before the justice. I consider that the objection by the plaintiff's solicitor to the evidence of what transpired when the search was conducted was well founded, and I do not propose to have regard to it. 16 It needs hardly be said that it is most unfortunate that the justice was supplied with false information about the criminal records of the plaintiff and her husband, and it is particularly this aspect of the matter which has troubled me. I accept that it was a genuine mistake on Snr Cnst Campbell's part. The contrary was not suggested. Nevertheless, it is entirely unsatisfactory that information of such significance should have been supplied without reference at that time to police records, and based purely upon recollection of material which had been perused some days earlier. To have checked those records before answering the justice's question was essential and, in the circumstances, would have occasioned no inconvenience or delay. The lesson to be learned is that a police officer applying for the issue of a search warrant should have all relevant documentation immediately to hand, so that any queries by the justice can be answered accurately. 17 However, counsel for the second defendant submitted that, if the information about the criminal histories were put aside, the remaining material was sufficient to provide reasonable grounds for the issue of the warrant. It is not to the point, she argued, that the justice was concerned to know the nature of the criminal records of the plaintiff and her husband. Whether the other information was sufficient was a matter for me to determine, conformably with the principles enunciated by Foster J in Patten (supra). Clearly, that is so. 18 It must be remembered that material sufficient to provide reasonable grounds for the issue of a warrant may fall short of proof of the offence suspected. In Parker v Churchill (1985) 9 FCR 316, Burchett J was dealing with a warrant issued under s10 (since repealed) of the Crimes Act 1914 (Cth). That section provided for the issue of a warrant by a justice who was "satisfied … that there is reasonable ground for suspecting" one or more of the things set out in the section. For present purposes, I see no relevant difference between that provision and s6 of the Search Warrants Act , with which I am dealing. As his Honour observed (at 232), "Suspicion and belief are not of course dependent upon proof." His Honour went on to refer to authority bearing on that question. In George v Rockett the Court said (at 116): The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 19 After careful reflection, I have concluded that the submission of counsel for the second defendant is sound. True it is that the initial information about the activities of the plaintiff and her husband, emanating from their fourteen year old daughter, called for scrutiny. On the face of it, one might question the motive of a teenage girl making such an allegation against her parents and might feel the need to inquire whether, apart from their alleged criminal activity, there were problems in her relationship with them. It appears that no such inquiry was made by Snr Cnst Campbell or, more importantly, the justice. The need for scrutiny was not lessened by the fact that Keira herself was named in two of the intelligence reports as being involved in the distribution of drugs. 20 On the other hand, some support for her account was afforded by the fact that police were able to confirm that a woman having the Christian name of the person said to be her parents' supplier lived at premises in Brighton-Le-Sands similar to those which she had described. In addition, her allegation was consistent with the intelligence reports spanning a period of some months prior to the issue of the warrant. Keira's information that her parents were receiving stolen property was spare indeed and, of itself, could not have justified a warrant. However, the same cannot be said of her allegation that they were dealing in drugs. The material bearing on that question, viewed in its totality, was sufficient to constitute reasonable grounds for the issue of the warrant. 21 Accordingly, the plaintiff has not made out a case for the relief which she seeks. The summons should be dismissed. I shall hear the parties on costs. **********

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