Corbett v State of New South Wales - [2006] NSWCA 138

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Corbett & Anor v State of New South Wales [2006] NSWCA 138
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 May 2006

JUDGMENT DATE:
13 June 2006

JUDGMENT OF: Giles JA at 1; McColl JA at 117; Gzell J at 118

DECISION: (1) Grant leave to appeal and direct the filing of a notice of appeal within seven days; (2) Appeal allowed; (3) Set aside the verdict and judgment for the defendant and the order for costs and in lieu thereof verdict and judgment for the plaintiffs for damages to be assessed; (4) Remit the proceedings to the District Court for a new trial as to damages; (5) Costs of the proceedings in the District Court thus far to be in the discretion of the judge hearing the new trial; (6) Respondent to pay the appellants’ costs of the application for leave to appeal and the appeal.

CATCHWORDS: Police search under authority of search warrant - claimed trespass because warrant invalid - submitted invalid because application for warrant did not describe a particular offence with which the firearms to be searched for were connected - described offence under Firearms Act 1989 - repealed and replaced by Firearms Act 1996 - similar offence under each statute - whether within savings clause in 1996 Act - whether substantial compliance with prescribed form - whether affected substance of warrant in a material particular - held went to belief of reasonable grounds asserted by applicant and warrant invalid - submitted invalid because appellant did not have reasonable grounds for asserted belief - held had reasonable grounds - submitted invalid because warrant failed to state offence in relation to which search was authorised - required to be in prescribed form - form did not require statement of offence - single judge decisions that nonetheless invalid - decisions incorrect - held not invalid.

LEGISLATION CITED: Firearms Act 1989
Firearms Act 1996
Firearms (General) Regulation 1997
Search Warrants Act 1985
Search Warrants Regulation 1994

CASES CITED: Arno v Forsyth (1986) 9 FCR 576;
Attorney General of Jamaica v Williams (1998) AC 351;
Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728;
Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151;
Australian Capital Equity Ltd v Beale (1993) 114 ALR 50;
Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 103 ALR 167;
Ex parte Bradrose Pty Ltd; re Albezia Pty Ltd (1989) 41 A Crim R 274;
Carroll v Mijovich (1991) 25 NSWLR 441;
Carver v Clerk of Bankstown Local Court [1998] NSWSC 358;
Cassaniti v Croucher (1999) 48 NSWLR 623;
Chapmans Ltd v Australian Stock Exchange Ltd (1994) 51 FCR 501;
Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299;
Chittick v Ackland (1984) 1 FCR 254;
Douglas v Blackler [2001] NSWSC 901;
George v Rockett (1990) 170 CLR 104;
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473;
Lawrence v NSW Police Service (2004) 144 A Crim R 396;
MacGibbon v Warner (CA, 27 November 1997, unreported);
Ousley v The Queen (1997) 192 CLR 69;
Preece v Boyd (2003) 38 MVR 540;
The Queen v Tillett (1969) 14 FLR 101;
R v Eid (1999) 46 NSWLR 116;
R v Inland Revenue Commissioners (1980) AC 952;
R v Solloway Mills & Co [1930] 3 DLR 293;
Ridgeway v The Queen (1995) 184 CLR 19
Warner v Elder (Temby AJ, 23 April 1997, unreported).

PARTIES: James John Corbett - First Claimant
Robyn Jean Corbett - Second Claimant
State of New South Wales - Opponent

FILE NUMBER(S): CA 41010/04

COUNSEL: J M Ireland QC & S Moffet - Appellant
M J Neil QC & P R Sternberg - Respondent

SOLICITORS: Maloney Lawyers, Potts Point - Appellant
Crown Solicitor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5459/01

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 22 October 2004

LOWER COURT MEDIUM NEUTRAL CITATION: (Charteris DCJ, 22 October 2004, unreported)

CA 41010/04
DC 5459/01

GILES JA
McCOLL JA
GZELL J
Tuesday 13 June 2006

CORBETT & ANOR v STATE OF NEW SOUTH WALES

Judgment

1 GILES JA: On 4 June 1998 police officers executed a search warrant (“the warrant”) at the property of Mr and Mrs Corbett on Mountain Ash Road, Goulburn (“the property”). The Corbetts alleged that the warrant was invalid and the police officers were therefore trespassers. They claimed damages for trespass, including aggravated and exemplary damages. The State accepted legal responsibility for the actions of the police officers.

2 Charteris DCJ held that the warrant was valid and there was no trespass, but in case he was incorrect assessed damages of $25,000 for Mr Corbett and $5,000 for Mrs Corbett. He declined to award aggravated or exemplary damages.

3 The Corbetts applied for leave to appeal, on the grounds that the judge was in error in holding that the warrant was valid and that aggravated and exemplary damages should have been awarded. The application was heard on full submissions so that, if leave to appeal were granted, a further hearing would not be necessary.

4 The warrant authorised search for firearms. The Corbetts submitted that the warrant was invalid because -

(a) the application for the warrant failed to describe a particular offence with which the firearms to be searched for were connected; alternatively

(b) the police officer applying for the warrant did not have reasonable grounds for believing that there would be on the property firearms connected with the offence; alternatively
(c) the warrant failed to state an offence in relation to which the search was authorised.

5 In the manner the application proceeded, it became unnecessary for this Court to consider whether or not aggravated and exemplary damages should have been awarded.

6 It was common ground that, in considering the validity of the warrant, there had to have been strict compliance with the legislation under which it was issued. Speaking of a search warrant issued under s 679 of The Criminal Code (Qld), the High Court said in George v Rockett (1990) 170 CLR 104 at 110-111 -

“A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. 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. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law , vol.10, (1938), pp 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money (1765) 19 State Tr.1001; Entick v. Carrington (1765) 19 State Tr.1029. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick , at p 1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure , (1986), pp 1-2.

State and Commonwealth statutes have made many exceptions to the common law position, and s.679 is a far-reaching one. Nevertheless, 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.”

The search of the property

7 Mr Corbett had been a serving police officer since 1976. After other postings, he had come to hold a position in the radio section of the police service based at Goulburn. He held the rank of sergeant. Prior to 1997 he had developed a police radio communication system in the Goulburn area, in which he strongly believed.

8 Mr Corbett had had a series of emotional and mental problems from the early 1990s, with periods of mental instability. He had attempted suicide in 1992. Late in his posting to Goulburn he was told of a proposed police communications regime which would mean the end of his position at Goulburn, and which he believed would be inadequate and would put police safety at risk. Although he had many discussions with his superiors, he was unable to dissuade them from the new communications regime. His mental health deteriorated. In February 1998 he again attempted suicide, and thereafter went on sick leave.

9 In May 1998 Mr Corbett attended a New South Wales Police Union conference at Wollongong. He attempted to speak to Superintendent Stanton, a superior in the radio section who was closely involved with the new communications regime, about his concerns. He was rebuffed. He described himself as devastated. On the night of 28 May 1998 he returned to his room at the conference venue and took an overdose of medication. He left a suicide note addressed to his wife, which included critical and hostile observations about Superintendent Stanton and other police officers and also the words “Police will die”. Read in context and in their place in the note, these words expressed Mr Corbett’s belief that the new communications regime would put police safety at risk; but at the time the suicide note was thought to carry a threat of harm to the police officers.

10 Mr Corbett was found and taken to hospital, and then to a psychiatric hospital at Port Kembla. His suicide attempt, and the suicide note, were made known to senior officers at Goulburn. It is apparent that thought was immediately given to Mr Corbett’s possession of firearms, since a situation report dated 30 May 1998 recorded “Information from Mrs Corbett that there is no firearms on the property. Suspension notice to be served when appropriate”. A further situation report later that day included -

“COMMENT
Sgt COREETT,S property to be searcled 31.5.98 for firearms.
Firearms Suspension Notice forwarded to DOI Wollongong for serv,ing when applicable.” [sic]

11 It was known or ascertained that Mr Corbett held a shooter licence (“the licence”), hence the firearms suspension notice. He had in fact owned a pump-action shotgun, which he had surrendered in September 1997 during a weapons amnesty; the evidence of police knowledge of Mr Corbett’s possession of firearms was, however, rather confused and to some extent conflicting. So also was the evidence of consideration of and decisions upon suspension of the licence and application for a search warrant, and unfortunately the judge did not make full findings. In the manner the Corbetts’ submissions were put on appeal, I do not think the evidence need be canvassed in detail. Events necessary to the submissions can be shortly stated.

12 Sergeant Topham at Goulburn signed a suspension of the licence dated 29 May 1998, stated to be effective from the date of signature until 31 August 1998. It gave as the reason “your attempted self-harm”. It was not at that time served on Mr Corbett.

13 Searches were made to see if Mr Corbett had surrendered a firearm during the amnesty. The search was of some forty receipt books, without disclosing a surrender. Two to three days after the execution of the warrant there was located a receipt book which disclosed the surrender of the shotgun. The evidence included a police computer record of the surrender, but it was unclear whether the police computer system contained the record at this time or whether it only came about at a later time. It is clear enough, however, that the police officers next mentioned were not aware of the surrender of the shotgun.

14 Inspector Hines at Goulburn had a copy of the suicide note. He gave evidence of what he was told by Detective Smart, a friend of Mr Corbett, about Mr Corbett’s possession of firearms. Detective Smart’s evidence of what he told Inspector Hines was different from that of Inspector Hines. The judge said that he could not determine “the precise terms” of their conversations, but that he was satisfied “that Mr Hines genuinely believed at that time that Mr Smart had raised the issue of firearms being potentially possessed at his property and … that Mr Hines conveyed that information to Acting Inspector Jago”.

15 With approval of that course from an Assistant Commissioner, on 3 June 1998 Inspector Hines directed Acting Inspector Jago to apply for a search warrant. He gave Acting Inspector Jago a copy of the suicide note, and told him the information he had gained about Mr Corbett’s possession of firearms.

16 The judge summarised the evidence of Acting Inspector Jago -

“He said that he was aware of the February 1998 incident involving Mr Corbett and he later became aware of the late May 1998 suicide attempt. He had discussions with Inspector Hines and those discussions involved the prospect of issuing a search warrant. Detective Sergeant Godden was also present. Hines told him of the attempt at self-harm at Wollongong and of the suicide note. Hines reiterated his belief that police should be doing more to protect Mr Corbett, to protect his family and to protect the community generally. It was the witness’s interpretation of the suicide note that it contained veiled threats against Stanton and Emms. His reading of the note caused him great concern as regards the words ‘Police will die’. Inspector Hines told the witness that he had spoken to Detective Smart and as a result believed that firearms were at the house or on the property and it was possible that a firearm may have been secreted in a water pipe. Hines further advised that he had a conversation with the Deputy Commissioner of Police and ‘We were required to apply and execute a search warrant’. Detective Godden also had some input.”

17 The input of Detective Sergeant Godden was relaying advice obtained from elsewhere that an order “to recover the firearms” should be served on Mr Corbett and that if it was not complied with application should be made for a search warrant; at another point she spoke of the advice as “to suspend the firearms, suspend his licence and seize the firearms”, and of “serving the notice on him and asking him to surrender the firearms”. It is not easy to reconcile relaying of this advice on 3 June 1998 with the suspension and intention to search the property already in the situation report of 30 May 1998. However, it is evident from what thereafter occurred that Inspector Hines and Acting Inspector Jago believed that suspension of the licence was a prerequisite to execution of the warrant; this was a matter of some importance to the Corbetts’ submissions.

18 On the afternoon of 3 June 1998 Acting Inspector Jago applied for a search warrant to search the property for “unspecified firearms”. It was issued at 3.50 pm that day. I will come in more detail to the application for the warrant and the warrant.

19 On the morning of 4 June 1998 police officers went to the psychiatric hospital, and there served on Mr Corbett the suspension of the licence. They asked Mr Corbett to give them the licence, and he did. That the suspension had been served was communicated by telephone to Inspector Hines at Goulburn. He telephoned Acting Inspector Jago, who was then with a group of police officers en route from Goulburn to the property a little out of Goulburn, waiting to be told that the suspension of the licence had been served. Inspector Hines told Acting Inspector Jago to execute the warrant. The police officers continued on to the property and executed the warrant.

20 No firearms were found.

The search warrant legislation

21 The warrant was issued under provisions of the Search Warrants Act 1985 (“the Act”) and the Search Warrant Regulation 1994 (“the Regulation”). What follows is confined to the provisions material to the Corbetts’ submissions

22 Section 5 of the Act provided -

“5. Application for warrant in respect of certain offences, stolen property etc
(1) A member of the police force may apply to an authorised justice for a search warrant if the member of the police force has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises:

…

(b) a thing connected with a particular firearms offence,

…

(2) In subsection (1):

firearms offence means an offence under the Firearms Act 1989 , the Prohibited Weapons Act 1989 or the regulations under either of those Acts, being an offence committed in respect of a firearm or a prohibited weapon within the meaning of those Acts.

… “

23 Section 4 provided that a thing was connected with a particular offence if, amongst other matters, it was “a thing with respect to which the offence has been committed”, and that a reference to an offence included a reference to an offence “that there are reasonable grounds for believing has been, or is to be, committed.”

24 Then by s 6 -

“ 6. Issue of warrant

An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force:

(a) to enter the premises, and

(b) to search the premises for things of the kind referred to in section 5(1).”

25 By s 11, an application for a search warrant had to be in writing in the form prescribed by the regulations, and had to be made by the applicant in person; and the authorised justice could not issue the search warrant unless the information given by the applicant in or in connection with the application was verified before the authorised justice on oath or affirmation or by affidavit.

26 By s 12A -

“ 12A Information in application for warrant

(1) An authorised justice must not issue a search warrant unless the application for the warrant includes the following information:

(a) details of the authority of the applicant to make the application for the search warrant,

(b) the grounds on which the warrant is being sought,

(c) the address or other description of the premises the subject of the application,

(d) if the warrant is required to search for a particular thing, a full description of that thing and, if known, its location,

(e) if a previous application for the same warrant was refused – details of the refusal and any additional information required by section 12C,
(f) any other information required by the regulations.

(2) An authorised justice when determining whether there are reasonable grounds to issue a search warrant is to consider (but is not limited to considering) the following matters:

(a) the reliability of the information on which the application is based, including the nature of the source of the information,
(b) if the warrant is required to search for a thing in relation to an alleged offence – whether there is sufficient connection between the thing sought and the offence.

(3) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the warrant is being sought.

(4) … “

27 By s 13(1), the authorised justice was required to “cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant”.

28 By s 14 -

“ 14 Form of warrant

A search warrant shall be in or to the effect of the prescribed form.”

29 Sections 23 and 24 of the Act provided -

“ 23 Defects in warrants

A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

24 Abolition of common law search warrants

Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing is abolished.”

30 The Regulation prescribed the form for an application for a search warrant, which included a section for the authorised justice’s record of the grounds relied upon, and the form for a search warrant. Otherwise than by the prescribed form for an application, it did not require information additional to that to which s 12A referred. I refer to the material parts of the forms in describing the application for the warrant and the warrant.

The application for the warrant

31 The application made by Acting Inspector Jago on 3 June 1998 used a form not precisely the prescribed form, but no complaint was made of the minor departures.

32 The form as completed by Acting Inspector Jago relevantly read, his insertions in the form being indicated by italics -

“I say on oath that:

(1) I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in these premises, the following things:

Unspecified firearms

(2) I have reasonable grounds for believing that –

(a) the things are connected with the following indictable offence/firearms offence/narcotics offence within the meaning of the Search Warrants Act 1985 (S.5(2))

- Possession of Firearm Firearms Act No 25/1989 Sect 5(a)

(b) …

(3) …

(4) The grounds which I rely on are:

Police are in possession of documents written by the offender, where threats are made against other persons, including serving police officers. He was in possession of a number of firearms during the recent ‘amnesty’, however a search of records failed to locate them as having been surrendered.

Two recent attempts at self harm have been made by the offender, which included the ingestion of medication and then leaving the residence and wandering into bushland. The most recent attempt being last weekend, which caused him to be admitted to hospital at Port Kembla for treatment. He has made threats against Senior Officers within the Police Service and as a result concerns are held for the personal safety of the offender and other persons .”

33 The prescribed form indicated by a footnote to para (2)(a) “Insert description of offence”, and by a footnote to para (3) “Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient, use a separate sheet”.

34 The authorised justice, not identified in the evidence, was a justice of the peace (“the JP”). Acting Inspector Jago swore before the JP to the information in the application. He provided further information on oath which was noted by the JP in manuscript by an asterisk against the lines in para (3) in the application “during the recent ‘amnesty’ …been surrendered” and the asterisked inclusion -

“Pump action 12 gauge shotgun

Has Current Firearms License. Action is being taken to suspend License.

Person of Interest is a Police Officer.”

35 According to Acting Inspector Jago, he told the JP that “we had been informed that there was a pump action shotgun 12 gauge”. The JP asked whether Mr Corbett had a current shooter’s licence, and he said he did. The JP asked whether they were doing anything about the licence, and he “advised him that we were applying to have it suspended prior to the execution of the search warrant being undertaken”.

36 In his record of the application the JP retained the alternative that on considering the application he “found … that there was reasonable grounds for issuing the warrant”, and completed the part of the form -

“3. The relevant particulars of the grounds on which I relied to justify the issue of the warrant are as follows:

See Deposition on oath.

Writings of POI

Perused, contain threats.”

37 The deposition on oath was no doubt the application as supplemented by the further information provided by Acting Inspector Jago. According to Acting Inspector Jago, he did not show the JP the suicide note but “told him about it”; this must have been in explanation of the references in para (3) of the application to threats against police officers.

The warrant

38 The warrant as issued could not be found, and its form and content must be inferred.

39 The prescribed form began with provision in relation to expiry of the search warrant, then provided for particulars of the grant by the authorised justice of -

“ … this search warrant authorising ……………………………..…

…………………………… ……of …………………………………...
(name) (rank) (place of work)

(the applicant) a police officer and all other police officers:

1. To enter between the hours of 6.00 am and 9.00 pm

………………………………………………………………………….…

.………………………………………………………………….
(address)

being a ……………………………………………………………………
(description of premises; eg dwelling house)

and

2. There to search for the following things: ……………………

…………………………………………………………………………….

……………………………………………………………………..………

……………………………………………………………………………..

In executing this search warrant the applicant may exercise the powers provided by the Search Warrants Act 1985. These include power to: … “

40 After detailing the powers, the prescribed form ended with provision for signature by the authorised justice and a date. The footnote for completion of para (2) was “Describe the things to be searched for with particularity. If space insufficient attach separate sheet or continue on the back of this form”.

41 Acting Inspector Jago took to the JP a partially completed form of search warrant. He produced for the purposes of his evidence a document in the same form and content as he took to the JP. It followed the prescribed form, authorising entry on the property -

“(2) There to search for the following things:

Unspecified firearms ”

42 The prescribed form did not require statement of an offence in relation to which the search was authorised, and the form as taken to the JP did not do so.

43 Acting Inspector Jago said that the JP “completed the blank areas” on the form of search warrant and signed it. He referred to the JP’s insertion of time, date and name. The judge did not make a finding, but in my opinion it should be inferred that the warrant as issued was in the prescribed form, and was without addition to the words “unspecified firearms” inserted by Acting Inspector Jago in para (2) and without statement of an offence in relation to which the search was authorised.

Submission (a): description of a particular offence in the application

44 The firearms offence was identified in the application as “Possession of Firearm Firearms Act No 25/1989 Sect 5(a)”. As at 3 June 1998 the Firearms Act 1989 (“the 1989 Act”) had been repealed and replaced by the Firearms Act 1996 (“the 1996 Act”). In completing the application Acting Inspector Jago had taken the words in para (2)(a) from options thrown up by a police computer, which had evidently not been updated. (Nor had the Act been amended; it still referred in s 5(2) to the 1989 Act, the updating coming with the Statute Law (Miscellaneous Provisions) Act (No 2) 1998 sch 2.31.)

45 The Corbetts submitted that the identified firearms offence did not exist, that the failure to describe an offence meant that the application was defective, and that this was a defect of substance vitiating the warrant not cured by s 23 of the Act.

46 In Cassaniti v Croucher (1999) 48 NSWLR 623 this Court (Mason P and Foster AJA, Heydon JA dissenting) held, in relation to a search warrant issued under the Act on an application which failed to state an offence at all in para(2)(a), that there had been non-compliance with the statutory conditions governing the issue of the search warrant. Mason P and Foster AJA considered that there had been non-compliance because the prescribed form required the statement of reasonable grounds for believing that the things in para (1) were connected with an offence identified in para (2)(a), and the authorised justice could not issue a search warrant unless the application included that information. Heydon JA’s dissent was not as to the need to identify an offence; his Honour considered that regard could be had to the grounds stated in para (4) in order to find the offence.

47 The Corbetts submitted that the position was the same where the identified offence did not exist. On one view, there would be compliance with the statutory conditions in that the application did include a statement of reasonable grounds for believing that the things in para (1) were connected with an offence identified in para (2)(a); the defect would be a different defect, that the belief could not be a reasonable belief because the offence did not exist. In R v Eid (1999) 46 NSWLR 116, however, it was held that a warrant issued under the Listening Devices Act 1984, s 16(1) of which required that the applicant suspected or believed that a prescribed offence had been, was about to be or was likely to be committed, was invalid because the identified offence did not exist (because the legislation under which it arose was later declared unconstitutional). In Lawrence v NSW Police Service (2004) 144 A Crim R 396 warrants similarly issued were held to be invalid because the warrant itself had to specify the prescribed offence and the statement of the offence, “Trafficking in prescribed substance”, did not sufficiently identify an offence under the Controlled Substances Act 1984 (SA) and thus did not identify an offence known to the law.

48 The State did not seek to distinguish Cassaniti v Croucher on the ground that there was the statement of an offence, albeit one which did not exist. It submitted that the erroneous reference to the 1989 Act did not vitiate the warrant because the 1996 Act provided for a materially identical offence of possession of a firearm.

49 Section 5 of the 1989 Act had provided -

“A person shall not -

(a) possess a firearm; or

(b) use a firearm,

unless authorised to do so by a licence or permit.”

50 Section 7(1) of the 1996 Act provided -

“(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.”

51 The State first relied on the savings clause in cl 12 of Pt 2 of Sch 3 to the 1996 Act -

“Except as provided by the regulations, a reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act 1989, or the Firearms Regulation 1990, is to be read as a reference to the corresponding provision of this Act, or the regulations made under this Act, respectively.”

52 The relevant instrument had to be the application as completed by Acting Inspector Jago, with his reference to s 5(a) of the 1989 Act read as a reference to s 7(1) of the 1996 Act.

53 “Instrument” in some contexts can have wide scope, for example for the offence of making or using a false instrument (Crimes Act 1900, s 300) extending to any document, a credit card or a computer disc (Crimes Act, s 299). In the context of review of an instrument made under an act or an ordinance, it may be confined to an instrument of a legislative or administrative character (Chittick v Ackland (1984) 1 FCR 254), not extending to a contract (Chapmans Ltd v Australian Stock Exchange Ltd (1994) 51 FCR 501). In the context of the interpretation of legislation it may be confined to an instrument of a legislative character (see Australian Capital Equity Ltd v Beale (1993) 114 ALR 50 at 63).

54 Whether or not the savings clause was confined in this manner, it did not apply to all references in a document to a provision of the 1989 Act, whatever the kind of document or whenever it was brought into existence. Even if it went further than an instrument of a legislative or administrative character, it was a savings clause, continuing the operation of whatever instrument fell within it existing when the legislation was changed by substituting an appropriate reference to the 1996 Act. It did not correct the erroneous completion of a document after the 1996 Act came into force, and did not absolve incorrect reference to the 1989 Act in completing in 1998 a prescribed form under the Act. That can readily be appreciated in the case of the application. By his verification on oath, Acting Inspector Jago was asserting a belief in relation to s 5(a) of the 1989 Act. The savings clause could not change his asserted belief to a belief in relation to s 7(1) of the 1996 Act.

55 The State then relied on s 23 of the Act, submitting that because there was the materially identical offence under the 1996 Act the erroneous reference to the 1989 Act did not affect the substance of the warrant in a material particular. It relied in the alternative on s 80 of the Interpretation Act 1987, which relevantly provided -

“ 80 Compliance with forms

(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.
(3) … ”

56 Section 80(2) qualified substantial compliance within s 80(1); there had to be compliance in the specified manner or inclusion, attachment or furnishing of the specified information. The application under the Act had to be in the prescribed form, and had to include certain information (ss 11, 12A of the Act). Through the prescribed form, the information was relevantly a description of the offence with which the applicant had reasonable grounds for believing the things on the premises were connected. This was specified information within s 80(2).

57 Whether s 23 applies to a defect in an application for a search warrant, as distinct from the search warrant itself, has not been settled. In Carroll v Mijovich (1991) 25 NSWLR 441 Kirby P and Handley JA treated the defect of the authorised justice’s failure to make a record, s 13(1) of the Act, as capable of cure by s 23. In Cassaniti v Croucher at [9] Mason P, with whom Foster AJA relevantly agreed, reserved his position. Heydon JA, however, regarded a defect in an application as within s 23, saying at [60] -

“Even if all the preceding arguments for the validity of the Application fail, the ultimate issue is whether the search warrant is invalid. By reason of s 23 of the Search Warrants Act 1985, it is not invalidated by any defect (such as a defect in the Application) unless that defect affects the substance of the warrant in a material particular. A defect which only results in non-compliance with the Search Warrants Act because of a failure to comply with Form 1 by failing to provide information in paragraph (2) of the Application does not affect the substance of the warrant in a material particular if that information has been provided in a later part of the Application.”

58 Mason P at [9] considered that the information provided in para (4) of the prescribed form did not make out “substantial compliance” with it, perhaps eliding s 80(2) of the Interpretation Act with s 80(1). His Honour must have considered that, if s 23 of the Act extended to defects in an application, the failure to state an offence in para (2)(a) affected the substance of the search warrant. Foster AJA at [82] expressed agreement “that the defect is one of substance and not capable of being cured by the application of s 80 of the Interpretation Act 1987”. Heydon JA held at [59] that the completion of para (4) of the prescribed form provided the necessary information and that there was substantial compliance within s 80(1).

59 On the reasoning in the judgment of Mason P at [10] – [16], the defect or failure in compliance was that the applicant did not assert that he held the requisite belief and held it on reasonable grounds. That is, the requisite belief was that the things in para (1) were connected with an offence identified in para (2)(a), and if no offence was identified the requisite belief was not asserted. This was made explicit in the reasons of Foster AJA, who said at [81] -

“81 The prescribed form, therefore, requires that the applicant swear, or affirm, not only as to the existence of reasonable grounds but also to his belief , on those grounds, that the things in question are connected with the stipulated offence. I agree with the President that the mention of the posited offence in paragraph 3 cannot supply the deficiency in the application, which arises from the failure to swear or affirm the necessary belief. This requirement of the application is, in my view, one of the safeguards provided by the legislature in accordance with the policy referred to in Rockett . Its absence from the application, and consequently from the material required to be considered by the Magistrate pursuant to s12A(1)(f), makes the issue of the subject warrant unlawful and of no effect.”

60 Applying this reasoning, if s 23 applies to a defect in an application for a search warrant the erroneous reference to the 1989 Act was a defect which affected the substance of the warrant, and there was also failure to provide specified information. Acting Inspector Jago asserted that he held on reasonable grounds the belief that the unidentified firearms in para (1) were connected with the offence of possession of firearms found in s 5(a) of the 1989 Act. There may or may not have been reasonable grounds for the belief that the unidentified firearms were connected with the offence of possession of firearms found in s 7(1) of the 1996 Act. But that was not the belief asserted by Acting Inspector Jago. The existence of an offence under the 1996 Act corresponding to the offence under the 1989 Act did not convert Acting Inspector Jago’s belief into a belief concerning the offence under the 1996 Act; it was still a belief in a non-existent offence.

61 In R v Eid, which was decided prior to Cassaniti v Croucher and not cited in the later case, it was said at [14] that the search warrant was not authorised because it was sought to investigate activities which were not contrary to the law. Lawrence v NSW Police Service, in which Cassaniti v Croucher was not cited, was decided on the basis that there was not compliance with a precondition required by the Listening Devices Act, see at [43]-[47], with the observation at [36] that, where the offence was not known to the law, “the performance of the task of deciding whether the requisite belief exists is rendered impossible”. This is consistent with the reasoning in Cassaniti v Croucher.

62 Implicit in the State’s submissions was that the belief asserted by Acting Inspector Jago concerned the offence of possession of firearms, and that the attribution of the offence to the 1989 Act was some kind of surplusage which could be put aside; or at least, that the attribution to the 1989 Act was not a matter of substance and so the defect did not affect the substance of the warrant in a material particular. The State did voice a submission to the effect that the specified information was provided through the identification of the offence “Possession of Firearm”, the attribution of the offence to s 5(a) of the 1989 Act being of no moment because the same offence lay under s 7(1) of the 1996 Act and the offences were expressed in terms without substantial difference.

63 I do not think that Acting Inspector Jago’s belief as asserted can be partially discarded, and do not accept that the reference to the legislation under which the offence lay was of no moment. There were differences in the offences behind the similar terms of ss 5(a) and 7(1). First, the definition of “firearm” in the 1996 Act included, where the definition in the 1989 Act did not, a gun or other weapon that “at any time was” capable of propelling a projectile by means of an explosive. Secondly, the licensing and permit provisions in the two statutes were very different, and authorisation to possess a firearm could differ according to the statute under which the licence or permit was granted. Confining attention to licences, under the 1989 Act licences had to be available for each of a list of purposes (s 21(1), the classes of licences being left to the regulations (s 22(1)); the Firearms Regulation 1990 providing for different classes of licence (including a shooter licence). Under the 1996 Act there were specified categories of licence for different kinds of firearms, the authority conferred generally being “only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm” (s 8), and the Firearms (General) Regulation 1997 made detailed provision for the conditions on which licences could be issued. The licensing regime under the 1996 Act was, in general terms, much tighter than that under the 1989 Act, and unlawful possession of firearms was correspondingly of greater ambit.

64 These differences would necessarily affect the applicant’s belief in unlawful possession of a firearm, and in the connection between possession of any firearm found on the execution of a search warrant and the offence of unlawful possession of a firearm. Reasonable grounds for belief in possession of a firearm which was not capable of propelling a projectile by means of an explosive, but which at some other time was so capable, would suffice under the 1996 Act but not under the 1989 Act. A person could be authorised to possess a firearm by a licence under the 1989 Act where that person would not be authorised to possess it by a licence under the 1996 Act, and possibly vice-versa. For example, Mr Corbett’s pump-action shotgun was a prohibited weapon under the 1996 Act, and by the transitional provisions his shooter licence would not have authorised his possession of it as at June 1998. It may be that reasonable ground for belief in unlawful possession of a firearm, apart from the differing licensing regimes, would be made out under the 1996 Act by belief that the reason for possessing the firearm was not genuine, but not under the 1989 Act.

65 For a belief that unspecified firearms which were on the property were connected with an offence of possession of firearms, the range of firearms and the firearms licensing regime had to be considered. It was a necessary part of the belief asserted by Acting Inspector Jago that the offence lay under the 1989 Act.

66 In my opinion, the Corbetts’ submission (a) should be accepted. It is not necessary to consider their further submissions, but the importance of the points makes it appropriate to do so.

Submission (b): reasonable grounds for belief that there would be on the property firearms connected with the offence

67 The relevant offence, whether under the 1989 Act or the 1996 Act, was possession of a firearm. In both cases possession included a person knowingly having the firearm in or on any premises, whether or not belonging to or occupied by the person (s 3(3) of the 1989 Act, s 4(1) of the 1996 Act). In considering this submission, I assume that the warrant appropriately described an offence of possession of a firearm under one or other of the statutes with which the firearms to be searched for were connected. There had to be reasonable grounds for believing that there was on the property, or would within 72 hours be on the property, a firearm or firearms which Mr Corbett was not authorised to possess by a licence or permit.

68 Although the grounds inserted in para (4) of the application by Acting Inspector Jago referred to possession of “a number of firearms during the recent ‘amnesty’”, from the further information provided to the JP it may be that the belief became confined to the shotgun. Whether or not that be so, Acting Inspector Jago gave evidence that at the time -

“ … there was no restriction in regard to the category of firearms that could be possessed by a person if they held a shooter’s [sic] licence, which is why the shooter’s [sic] licence had to be suspended to create the offence of being an unlicensed person in possession of firearms.”

69 Under both the 1989 Act and the 1996 Act, ss 35(1) and 22(1) respectively, a licence could be suspended “by serving personally or by post on the licensee” a notice stating that the licence was suspended and the reasons for suspending it. Acting Inspector Jago understood at the time that “the suspension notice doesn’t take effect until it is served on the person”. This appears to have been a correct understanding.

70 The Corbetts’ submissions evolved to the following effect. In these circumstances, at the time he applied for the warrant Acting Inspector Jago could not have had reasonable grounds for a belief that there was on the property a firearm which Mr Corbett was not licensed to possess. At best, Acting Inspector Jago could have had reasonable grounds for a belief that, upon suspension of the licence, the situation would arise that there was on the property a firearm which Mr Corbett was not licensed to possess. But that would only be so if, after service of the suspension of the licence, Mr Corbett had a reasonable time to disposess himself of any firearm. Under s 25 of the 1996 Act, if a licence was suspended the person to whom it was issued “must immediately surrender to a police officer … any firearm in the person’s possession”, but there was no evidence that Mr Corbett was asked to surrender any firearm. Mr Corbett was in a psychiatric hospital at Port Kembla, distant from Goulburn. The group of police officers, led by Acting Inspector Jago, was waiting en route to the property for word that the suspension of the licence had been served. In the Corbetts’ submission, there was no question of an opportunity for Mr Corbett to dispossess himself of any firearm, and the grounds for Acting Inspector Jago’s belief did not include an opportunity for Mr Corbett to dispossess himself of any firearm on the property. He therefore could not have had reasonable grounds for a belief that any firearm which might have been on the property was connected with an offence to be committed of possessing it without a licence.

71 At times the submission included that the offence was contrived; more emotive words were also used. I do not think that adds to the fact that suspension of the licence was seen as a prerequisite to execution of the warrant and care was taken to first suspend it. There is no reason to doubt that Inspector Hines and Acting Inspector Jago were concerned that Mr Corbett had a firearm and, in his fraught mental health, might cause harm, including to himself. That plainly warranted suspension of the licence, and suspension prior to any search of the property. If there were reasonable grounds for the belief, they were not made unreasonable by the order of events; indeed, the police officers could have been criticised had they not taken account of the licence. In any event, the submission in this respect could not readily stand with the observations by Mason CJ and Deane and Dawson JJ in Ridgeway v The Queen (1995) 184 CLR 19 at 37, in relation to the discretion to exclude evidence -

“The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.”

72 The Corbetts’ submissions to the evolved effect described above did not challenge that Acting Inspector Jago had reasonable grounds for believing that firearms were on the property. They focussed on an offence in connection with which they were on the property. The State responded in two ways.

73 First, the State submitted that the courts would not “get into the exercise of examining the degree of reasonableness”, and that it had to be shown “that … there were nothing upon which the police officer could act or which he could then convey to the Justice who could reasonably act”. It said that the JP’s finding that there was reasonable grounds for issuing the warrant showed that there was something upon which Acting Inspector Jago could have had reasonable grounds for the requisite belief, citing from the advice of the Privy Council in Attorney-General of Jamaica v Williams (1998) AC 351. In that case one question was whether the justice had before him information upon which he could be satisfied that a customs officer had reasonable cause to suspect a customs offence. There was no evidence of what passed between the customs officer and the justice. Their Lordships said at 361 -

“In the absence of any direct evidence of the information actually provided to the justice, the courts have to do the best they can with such inferences as can be drawn from the terms of the warrant itself and such other evidence as is available. In this case, each warrant recited upon its face that the justice was satisfied that ‘there is good reason to believe that in a certain place to wit [the premises to be searched] is kept or concealed uncustomed goods … or books, documents or instruments relating thereto’. Prima facie, this statement must be accepted and their Lordships agree with both lower courts that if the justice was satisfied that there was ‘good reason to believe’ that uncustomed goods etc were on the premises it must follow that he was satisfied that the officer had reasonable cause to suspect this to be the case.”

74 In the present case there was evidence of what passed between Acting Inspector Jago and the JP, and of the circumstances in which Acting Inspector Jago applied for the warrant. It is not necessary to infer from the JP’s satisfaction that Acting Inspector Jago had reasonable grounds for believing that any firearms on the property were connected with an offence of possession of firearms. (The JP’s satisfaction was in fact that there were reasonable grounds for issuing the warrant, which is not the same as Acting Inspector Jago having reasonable grounds for a belief including as to the commission of an offence.) The reasonable grounds for Acting Inspector Jago’s belief could be directly considered.

75 It was not clear whether the State’s submission included that, once the JP found that there were reasonable grounds for issuing the warrant, whether Acting Inspector Jago had reasonable grounds for believing that any firearms on the property were connected with an offence of possession of firearms did not matter; that the validity of the warrant turned only on the JP’s satisfaction, part of which was his satisfaction that Acting Inspector Jago did have the reasonable grounds. If that was within the submission, I do not accept it.

76 To return to George v Rockett, and having in mind the importance of “the protection of the privacy of individuals against the arbitrary use of the great power of entry and search” (per Kirby P in Carroll v Mijovich at 451), under the Act the conditions governing the issue of search warrants began with s 5(1). A police officer could apply for a search warrant if the officer had reasonable grounds for a particular belief; as Mason P said in Cassaniti v Croucher at [9], that included holding the belief. By s 12A and through the prescribed form, the particular belief had to be expressed in the application. The authorised justice provided independent scrutiny, but that important role was preceded by the condition of a belief on reasonable grounds and its expression in the application. The authorised justice addressed a different question, whether there were reasonable grounds for issuing the search warrant, see s 6 of the Act. In doing so the authorised justice had to consider the matters in s 12A(2), but that did not detract from the initial condition of the police officer having reasonable grounds for a belief within s 5(1).

77 In concept the issue of a search warrant could be conditioned only on the issuing justice being satisfied of something on reasonable grounds, with whether the justice could have been satisfied open to consideration (as in George v Rockett). The Act’s conditions were not confined to the authorised justice’s satisfaction that there were reasonable grounds for issuing the search warrant; if they had been, in cases such as Cassaniti v Croucher (the condition of expression of the particular belief in the application) and Carroll v Mijovich (the condition of the authorised justice making a record) the search warrant would not have been held invalid. Whether Acting Inspector Jago had reasonable grounds for believing that any firearms on the property were connected with an offence of possession of firearms did matter.

78 Secondly, the State submitted that s 25 of the 1996 Act required immediate surrender of any weapon in Mr Corbett’s possession, and that “there is no scope for some concept of a reasonable time”; that the police officers did not have to wait at the gate of the property for a reasonable time to elapse. The State accepted that Mr Corbett would not be immediately surrendering any weapon on the property, because he was in Port Kembla. But it said that that did not matter; alternatively that a belief that within 72 hours there would be on the property a weapon connected with the offence of possession of firearms was sufficient, and thus a belief involving non-surrender within the reasonable time of 72 hours was sufficient.

79 Neither the Corbetts nor the State went further into whether a person whose licence to possess a firearm was suspended was at once guilty of unlawful possession of a firearm. Acting Inspector Jago had to have a belief on reasonable grounds, which is not tested by an absolute answer to that question. Regard to the question is nonetheless appropriate.

80 Under the 1989 Act, s 35(2) provided that “[a] suspended licence does not authorise the possession or use of firearms during the period (not exceeding 28 days) specified in the notice suspending it”. By s 36, a licence or permit could also be revoked as distinct from suspended. By s 38, the holder of the suspended or revoked licence or permit had to “immediately surrender it to the Commissioner of Police”, and it was an offence if that was not done. There was no provision for consequential surrender or seizure of any firearms.

81 Under the 1996 Act, s 22(3) similarly provided that a suspended licence did not authorise possession or use, and there was automatic suspension or revocation in certain circumstances (for example, an apprehended violence order). Section 25 provided -

“ 25 Surrender and seizure of firearms when licence suspended or revoked

If a licence is suspended or revoked, the person to whom it was issued must immediately surrender to a police officer:

(a) any firearm in the person’s possession, and

(b) the licence.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
A police officer is authorised to seize any firearm in the possession of a person if that person’s licence is suspended or revoked.”

82 There was a sound basis for the person whose licence to possess a firearm was suspended at once being guilty of unlawful possession of a firearm. Sections 35(2) and 22(3) appeared to stipulate in terms absence of authority, therefore the person was not authorised to possess a firearm for the purposes of ss 5(a) and 7(1) of the respective statutes, from the moment the period of suspension began. The obligations to surrender the licence and (under the 1996 Act) any firearm in the person’s possession founded their own offences, separate from any offence of (continued) possession of a firearm; “immediately” for the purpose of those offences could permit some delay and would be a matter of fact and degree (see Preece v Boyd (2003) 38 MVR 540 at [19]-[26]), but the entitlement to seize any firearm in the person’s possession suggested that the possession was at once unauthorised.

83 Acting Inspector Jago gave evidence that he believed that the suspension of the licence “created what [he] believed to be an offence”, and believed that the material in the application was a proper foundation for the issue of the warrant. It was not put to him that his belief in the creation of an offence was not held, or was wrong or unreasonable because an opportunity to surrender any weapon had not been afforded. Whether or not his belief in this respect was wrong, in my opinion it must be accepted that he held it and thought that he had reasonable grounds for believing that there were on the property firearms which, once the licence had been suspended, were connected with the offence of possession of a firearm. It may be noted that the JP was made aware that action was being taken to suspend the licence, and does not appear to have been troubled by the timing.

84 Acting Inspector Jago did not have to be correct in his beliefs, including his belief that suspension of the licence would mean that there would be the offence of possession of a firearm. In George v Rockett reasonable grounds for belief was explained as more than reasonable grounds for suspicion -

“ … 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.”

85 Their Honours went on to discuss reasonable grounds for belief that something will “afford evidence as to the commission of an offence” in s 679(b) of The Criminal Code, akin to reasonable grounds for belief that a thing is connected with a particular firearms offence in s 5(1) of the Act, saying (at 119-20) -

“The power to issue a search warrant is in aid of criminal investigation as well as in aid of proof at the trial, though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to. An object will answer the description in par (b) if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters.”

86 I have inferred that the facts were very different from the facts in the present case. Acting Inspector Jago had to have reasonable grounds for a belief which included that, once the licence had been suspended, any firearms on the property were connected with the offence of possession of a firearm. The Corbetts placed some reliance on Detective Sergeant Godden’s reference to failure to comply with an order to recover the firearms, suggesting that the advice relayed to Inspector Hines and Acting Inspector Jago included a reasonable time to surrender any firearms, but from her other references to suspension and seizure I do not think that can be accepted. I see no reason to conclude that Inspector Hines and Acting Inspector Jago acted contrary to the advice, and thus consider that the advice endorsed search of the property promptly after service of the suspension of the licence. Possession of firearms revealed on search of the property would directly assist in disclosing that the offence of possession of firearms had been committed if Mr Corbett was not authorised to possess them, and in my opinion Acting Inspector Jago had reasonable grounds for his belief so far as it included that once the licence had been suspended, any firearms on the property were connected with that offence.

87 In my opinion, the Corbetts’ submission (b) should not be accepted.

Submission (c) statement of an offence in the warrant

88 I have inferred that the warrant did not state any offence with which the unspecified firearms to be searched for were connected, or otherwise in relation to which the entry on the Corbetts’ property was authorised. The Corbetts’ submission that it was therefore invalid was founded on the decision of Temby AJ in Warner v Elder (23 April 1997, unreported), said to have been relevantly approved on appeal in MacGibbon v Warner (CA, 27 November 1997, unreported). It is not clear that this submission was made to Charteris DCJ. The State accepted that it involved a matter of law which would not have been met by further evidence, and did not object to the Corbetts relying on it on appeal.

89 In Warner v Elder search warrants issued under the Royal Commission (Police Service) Act 1994 (“the RC Act”) in connection with an inquiry authorised the entry on premises to search for things, but did not state any offence in connection with which the search was authorised. The effect of s 23(1) of the RC Act was that s 14 of the Act applied to the search warrants, that is, that they were to be in the prescribed form.

90 Temby AJ held that the search warrants were bad on their face on two grounds. The first ground was that they were “impermissibly broad”. The second ground was that they did not show that statutory conditions precedent to their issue had been met, because they said nothing as to the grounds for their issue, the connection between the things sought and the matter the subject of the Commissioner’s inquiry or how the matter the subject of the Commissioner’s inquiry might involve conduct of a possible criminal nature.

91 His Honour’s reasons included as to the second ground -

“In relation to common search warrants, for example issued under s 5 of the Search Warrants Act enabling seizure of things with a view to proving offences, the Courts have required that the warrants demonstrate on their face that conditions precedent to their issue have been met, and also the possible offences with respect to which search and seizure have been sanctioned. This is seen as desirable both so that the occupier of the premises in question is well appraised of the circumstances, and also that the executing officers have as much proper information available to them as is practicable.

That is not the case here. Neither the persons executing the warrants, nor the occupier, know from warrants what is to be searched for, in relation to what matter. Purpose is therefore unclear. The defendants say it does not matter because the warrants comply with the requirement in s 14 of the Search Warrants Act, that is to say they are in or to the effect of the prescribed form. Another reason that might be urged is that the purpose of providing information to occupiers is now met by the occupier’s notice. …

I am satisfied that the law as to what a warrant must contain has not been changed by the combination of s 14, s 15 and s 16 of the [RC] Act, cl 5 and cl 6 and Forms 5 and 6. I say that because the source of authority for entry search and seizure is the warrant itself, all involved will be or at least should be aware of its terms and just what it authorises, and in the nature of things any lack of information will not be supplied by the occupier’s notice simply because not all need be aware of what it contains. The present cases are very much in point. A large number of officers were authorised to assist in the execution of the warrants. If a particular warrant was executed by two or more individuals, each of them must be told by it and accordingly know what he or she can do. The warrant must provide that information. One only person is needed to effect service of the occupier’s notice. It is easy to visualise a briefing session before execution in which the terms of the warrants were made known but not the terms of the occupier’s notices.

In my opinion it is essential under the legislation being considered that the warrant on its face provide full information to those executing it as to purpose, that is to say what they are seeking in relation to what matter of inquiry. That is manifestly lacking here. In my opinion these warrants are bad for that reason also.”

92 In MacGibbon v Warner Priestley JA, with whom Handley and Powell JJA agreed, upheld the invalidity of the search warrants because of their width. His Honour noted that it was accepted that at common law the search warrants would be invalid because of their width, and declined to accept a submission to the effect that their width was permitted by the terms of the RC Act.

93 Priestley JA said, after describing this submission -

“This was the primary submission for the appellants in the appeal. They appear to have relied on other arguments before Temby AJ. These were formally relied on again in the appeal, but virtually the whole argument in this Court was devoted to what I have called the primary submission. It also appears to me to have been the strongest submission available to the appellants.”

94 His Honour concluded his reasons -

“These considerations are sufficient to satisfy me that this court should not accept the primary submission for the appellants. It was elaborated with considerable skill by counsel for the appellants and many more provisions of Pt 4 of the Police Commission Act were the subject of careful scrutiny than I have discussed. However, the detailed argument seems to me to be substantially answered by what I have already said. To the extent that further arguments were relied on, they were those put before Temby AJ who dealt with them in a way which in my opinion was correct. In view of the way the argument went in this Court it is unnecessary to say anything further about those arguments.”

95 In Carver v Clerk of Bankstown Local Court [1998] NSWSC 358 the search warrant appears to have been issued under the Act, and it was agreed that it did not disclose any offence on its face. Black AJ noted that “at common law” a search warrant was bad if it did not disclose the offence in relation to which the seizure was authorised, citing Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153 and Ex Parte Bradrose Pty Ltd; re Albezia Pty Ltd (1989) 41 A Crim R 274, and the submission that the Act had over-ridden “the common law requirements”. He considered that Temby AJ had held to the contrary, and that “the decision of Temby AJ on this point has been expressly upheld by the Court of Appeal and is therefore binding upon me”. He held that the search warrant was invalid.

96 In Dover v Ridge (Dunford J, 3 July 1998, unreported) the search warrant again did not specify an offence. After referring to Warner v Elder, MacGibbon v Warner and Carver v Clerk of Bankstown Local Court, Dunford J said that he had -

Proctor v Jetway Aviation Pty Ltd

MacGibbon v Warner

It may be that it would be appropriate if and when occasion arose that this specific point be reconsidered by the Court of Appeal, although I express no further opinion thereon. Alternatively, representation should, in my view, be made to the appropriate authorities to have the prescribed Form 3 changed. In the meantime, it would be desirable for authorised Justices issuing warrants to add at the end of para 2, being a specification of the goods to be taken, the words, ‘connected with the following offence of.”

97 Finally in the cases, in Douglas v Blackler [2001] NSWSC 901 Taylor AJ held, referring to the cases I have mentioned above, that a search warrant issued in 1997 following the prescribed form was invalid because it did not specify an offence. His Honour said at [12] that he did so “notwithstanding the difficulty with the propositions that a warrant which complies precisely and completely with the prescribed form authorised by statute is invalid”.

98 The State submitted that Dunford J’s invitation should be taken up in the present case, and that on a proper understanding MacGibbon v Warner did not stand as appellate authority for invalidity if a search warrant did not state the offence in relation to which the search was authorised; and that if it did, leave should be granted to re-argue it.

99 In my opinion, in MacGibbon v Warner Priestley JA did not endorse Temby AJ’s decision so far as Temby AJ held that, notwithstanding compliance with s 14 of the Act through being in or to the effect of the prescribed form, a search warrant was invalid because it did not specify the possible offences with respect to which search and seizure have been sanctioned. Priestley JA was considering Temby AJ’s decision on the first ground that the warrants were impermissibly broad. Having noted the appellant’s primary submission, in saying that the appellants appeared to have relied on other arguments his Honour was referring to other arguments concerned with invalidity because the search warrants were impermissibly broad. In the conclusion of his reasons he was again referring to the arguments concerned with invalidity because the search warrants were impermissibly broad, and not to arguments concerned with Temby AJ’s second ground. This understanding of MacGibbon v Warner seems to me to be supported by his Honour’s description of the primary submission as the strongest submission available to the appellants.

100 For the reasons which follow, in my opinion the decision of Temby AJ in the respect presently under consideration was incorrect.

101 At common law a search warrant could be granted authorising search for stolen goods, but not in the case of other suspected offences: Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299 at 308-9; George v Rockett, above. All other search warrants had a statutory basis. Section 23 of the Act abolished the common law power to issue a search warrant, and all search warrants now have a statutory basis. While common law principles material to the validity of search warrants may continue to apply, the requirements for validity ultimately turn upon the statute. Insistence on strict compliance with the statutory conditions governing the issue of search warrants, as described in George v Rockett, does not mean imposing conditions at odds with the statutory conditions, and the common law principles must give way to the statute if the statute says what is sufficient for validity.

102 Temby AJ exemplified search warrants issued under s 5 of the Act as search warrants in relation to which the courts have required that they demonstrate on their face the possible offences with respect to which search and seizure have been sanctioned. The courts had so required, but so far as counsel’s and my own researches go none to that time where the warrant was issued under s 5 of the Act and obeyed the prescribed form.

103 There is a line of authority, of which Australian Broadcasting Corporation v Cloran and Ex Parte Bradrose Pty Ltd; re Albezia Pty Ltd, to which Taylor AJ referred are part, holding that search warrants were invalid because they failed to describe the offences in relation to which the searches were authorised. The search warrants in the two named cases were issued under s 10 of the Crimes Act 1914 (C’th) and s 679 of The Criminal Code (Qld) respectively, and as to neither was there an equivalent to s 14 of the Act.

104 In The Queen v Tillett (1969) 14 FLR 101 a search warrant issued under s 10 of the Crimes Act recited commission of “an offence against the Commonwealth Crimes Act” and authorised entry to seize “such books, papers, documents or other things which you may find in and at the … premises”. The search warrant was held to be invalid because it could not “authorise the seizure of things in general or things which are related to offences in general”, and “should refer to a particular offence and authorise seizure by reference to that offence” (at 112-3). Fox J said at 113 -

“I have not so far referred to authority in connexion with the need to refer to an offence. No decision under s. 10 has been cited to me, nor have I found any. The section follows closely s. 679 of the Queensland Criminal Code of 1899, and is closely similar to what was s. 629 of the Canadian Criminal Code of 1909, and is now s. 429 of the Code of 1954. No cases relevant to the present point have been decided under the Queensland Code, and while there are many Canadian cases on the topic, they are to a greater or less extent affected by statutory provisions dealing with the form and content of search warrants. They decide, inter alia, that the information must relate to a particular offence, that the description of the offence in the warrant must be sufficiently clear to enable the person where premises are being searched to know the exact object of the search, and that there must be in the warrant a sufficient description of the documents or things (R. v. Solloway Mills & Co. [1930] 3 D.L.R. 293; R. v. Solloway & Mills [1930] 3 D.L.R. 770; Imperial Tobacco Sales Co. v. Attorney-General for Alberta [1941] 2 D.L.R. 673; and see Re Worrall [1965] 2 Can. Crim. Cas. 1; 48 D.L.R. (2d) 673).

Each reported case must of course be examined in the light of the relevant statutory provisions, but they frequently accept almost as axiomatic that some offence must be shown (see, for example, Seven Seas Publishing Pty. Ltd. v. Sullivan [1968] N.Z.L.R. 663, at p. 671), and I have not found any case based on legislation in any way comparable with s. 10 where it is said or suggested that there is no need to refer to an offence. So far as I can see, forms of search warrant, whether or not prescribed by statute, but subject always to a contrary statutory intention, have always, since the famous debates and decisions of the eighteenth century in relation to general warrants (an account whereof is to be found in Holdsworth, History of English Law, vol. 10, pp. 659, 660, 667-672), disclosed the nature of the particular offence relied upon (see, for example, Burn's Justice of the Peace, 1836 ed., vol. 3, p. 799).”

105 The line of authority to that time was summarised by Jackson J in Arno v Forsyth (1986) 9 FCR 576 at 594-5 -

“As the observations of McCarthy P in Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 at 733 and of Fox J in R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113-114 show, it is clear that provisions such as s 10 of the Crimes Act 1914 are not to be construed as authorising something akin to the ‘general warrant’ condemned by the House of Commons in consequence of Entick v Carrington (1765) 2 Wils 275 (see XVI Hansard's, Parliamentary History of England, at 207) and specifically prohibited in the United States by the Fourth Amendment to the Constitution: see the discussion in Stanford v Texas (1965) 379 US 476. More specifically, the requirement that the warrant:

‘describe the particular offences in relation to which the seizure is authorised so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search’

(per Lockhart J in Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153) has been insisted upon: see R v Tillett; Ex parte Newton (supra) at 163; Crowley v Murphy (1981) 52 FLR 123 at 143; Brewer v Castles (1984) 1 FCR 55 at 60-61 and Australian Broadcasting Corporation v Cloran (supra) at 153-154. Similar views have been taken in New Zealand: see Auckland Medical Aid Trust v Taylor (supra) at 737, 743, 744-745; Rosenberg v Jaine [1983] NZLR 1 at 5 and (in Canada) Alder v Attorney-General of Alberta (1977) 5 WWR 132 at 146-147.”

106 In Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 103 ALR 167 Burchett J comprehensively considered these and like cases on the need to make known “the exact object of the search” and the part played by description of an offence. His Honour favoured a “broad approach towards the requirement that a warrant contain a sufficient indication of the offence by reference to which it authorises seizure of the things described in it” (at 187); on the broad approach, the warrant “should disclose the nature of the offence so as to indicate the area of search” (at 188). Sheppard J agreed with Burchett J; Pincus J accepted that the object of a search may be able to be stated precisely enough in many instances where only an indication of the categories of offences can be given (at 170).

107 A reading of all the cases shows either that the legislation required, through a prescribed form, statement of the offence in respect of which search was to be made (for example, R v Solloway Mills & Co and Auckland Medical AidTrust v Taylor), or that so far as appears the legislation was silent in that respect on the form of the search warrant (sometimes the application for search warrant). Some of the cases were concerned not with statement of an offence but more generally with description of the things to be searched for. It is difficult to speak exhaustively, but having gone to a great many cases I have not found any in which a search warrant in a required form, which form did not call for statement of an offence in relation to which search was authorised, was held bad for failure to state an offence.

108 What appears from the cases is that the description of an offence is part of defining what may be searched for, in the language in the passages set out above the object of the search. The object of the search may satisfactorily appear even if no offence is stated, and this can not in principle be an essential element of a search warrant. Further, so far as there has been appeal to the common law condemnation of general warrants, that is, warrants which did not state who was to be arrested or what premises were to be searched, in Rv Inland Revenue Commissioners (1980) AC 952 it was held that a search warrant which complied with the legislation under which it was issued was valid although it did not state the particular offence or offences suspected, and that it was not of assistance to appeal to the early cases on general warrants: see per Lord Wilberforce at 997-8, Viscount Dilhorne at 1005-6; Lord Diplock at 1008-9. Lord Wilberforce said -

“The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens’ right to privacy. But they must do this in the context of the times, ie of increasing Parliamentary intervention, and of the modern power of judicial review. In my respectful opinion appeals to 18th century precedents of arbitrary action by Secretaries of State and references to general warrants do nothing to throw light on the issue. Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advice the democratic process.”

109 To repeat, the requirement for validity ultimately turns upon the statute. In Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 search warrants were issued under s 71 of the Proceeds of Crime Act 1987 (C’th), s 71(7) of which provided that “[t]here shall be stated in a search warrant issued under this section … ” and listed a number of matters. The search warrants were challenged on the ground, amongst others, that they did not disclose on their face that the issuing justice was satisfied as to preconditions in s 71(5) and s 71(6)(b). The Court said (at 488-9) -

“There is in the present case a short answer to the appellants' submission. Section 71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s 71(5) or 71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. While as has been often said, that rule is to be applied with caution cf: Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 at 343; Rylands Bros (Aust) Ltd v Morgan [1927] 27 SR (NSW) 161 at 168-169 and other cases referred to in D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed, 1988), pp 79-82, par 4.22, it seems to us that the legislative intention in s 71(7) was to provide a code of the matters that were required to be stated in a search warrant to the exclusion of matters that would otherwise be required by the application of common law principles.”

110 In Ousley v The Queen (1997) 192 CLR 69 a majority of the High Court held that provisions of the Listening Devices Act 1969 (Vic) fully stated the matters to be specified in a warrant, and that it was not necessary for the warrant to disclose on its face the grounds relied on for its issue; see per Toohey J at 83, McHugh J at 111 (although regarding his conclusion as “reinforced” by the listening device warrant being “of a very different kind from that considered in cases of arrest and the search of premises”) and Gummow J at 128. The approach in Karina Fisheries Pty Ltd v Mitson was approved.

111 The primacy of what the statute says is sufficient for validity applies in the present case. Under the Act, the prescribed form provided for statement of the things for which search might be made, and did so by requiring their description with particularity. The object of the search was to be found in the particularity of the description of the things, not in a description of an offence with which the things were believed to be connected (which would be a much less satisfactory way of indicating the object of the search). Section 14 of the Act required that the warrant be in or to the effect of the prescribed form. It was, and no complaint was made that “unspecified firearms” lacked particularity. Description of an offence was material to the reasonable grounds for Acting Inspector Jago’s belief (s 5(1)) and to the JP’s satisfaction that there were reasonable grounds for issuing a search warrant (s 6), particularly the satisfaction as to the connection between the thing sought and the offence (s 12A(2)(b)), but according to the statutory requirement the description of the offence did not have to reappear on the face of the warrant. The warrant could speak only in or to the effect of the prescribed form, and it was valid if it did so.

112 In my opinion, the Corbetts’ submission (c) should not be accepted.

Leave to appeal

113 On the basis of the Corbetts’ submission (a), the warrant was invalid and the police officers were therefore trespassers. The law gives great importance to protection of an individual against invasions of privacy and property, not least where the infringement of the individual’s rights is by an arm of government, here officers of the police force. As will next appear, the assessment of the Corbetts’ damages is to have a new trial. Whether the damages be less or greater than the damages assessed by Charteris DCJ, I consider that leave to appeal should be granted so that the Corbetts’ entitlement to redress is recognised and given effect by an award of what damages may be held to be appropriate.

Damages

114 In their draft notice of appeal the Corbetts proposed remission to the District Court “for further assessment of damages”. They submitted that, while Charteris DCJ had assessed damages in case he was incorrect in holding that there was no trespass, his assessment must have been affected by his conclusion that the warrant was valid; in particular, that it did not appear whether his Honour’s assessment on the assumption that the warrant was invalid was founded on what could be regarded as formal error, or on what could be regarded as transgression of substance going to the reasonable grounds for belief required by s 5(1) of the Act.

115 The State made no submission to the contrary. A new trial as to damages is most unfortunate; the parties may be able by agreement to confine it, but it has the potential to re-canvass most of the evidence led before Charteris DCJ. In the circumstances, including the State’s quiescence, however, I accept that there should be a new trial as to damages. I make it clear that in doing so I express no view upon whether aggravated or exemplary damages should be awarded, or as to the adequacy or inadequacy (with or without aggravated or exemplary damages) of the assessments made by Charteris DCJ.

Orders

116 I propose the orders -

1. Grant leave to appeal and direct the filing of a notice of appeal within seven days.

2. Appeal allowed.

3. Set aside the verdict and judgment for the defendant and the order for costs and in lieu thereof verdict and judgment for the plaintiffs for damages to be assessed.

4. Remit the proceedings to the District Court for a new trial as to damages.

5. Costs of the proceedings in the District Court thus far to be in the discretion of the judge hearing the new trial.
6. Respondent to pay the appellants’ costs of the application for leave to appeal and the appeal.

117 McCOLL JA: I agree with Giles JA.

118 GZELL J: I agree with Giles JA.

**********

30/04/2007 - typo - Paragraph(s) coversheet

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Citations

Corbett v State of New South Wales [2006] NSWCA 138

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CITATION:	Corbett & Anor v State of New South Wales [2006] NSWCA 138 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 May 2006
JUDGMENT DATE:	13 June 2006
JUDGMENT OF:	Giles JA at 1; McColl JA at 117; Gzell J at 118
DECISION:	(1) Grant leave to appeal and direct the filing of a notice of appeal within seven days; (2) Appeal allowed; (3) Set aside the verdict and judgment for the defendant and the order for costs and in lieu thereof verdict and judgment for the plaintiffs for damages to be assessed; (4) Remit the proceedings to the District Court for a new trial as to damages; (5) Costs of the proceedings in the District Court thus far to be in the discretion of the judge hearing the new trial; (6) Respondent to pay the appellants’ costs of the application for leave to appeal and the appeal.
CATCHWORDS:	Police search under authority of search warrant - claimed trespass because warrant invalid - submitted invalid because application for warrant did not describe a particular offence with which the firearms to be searched for were connected - described offence under Firearms Act 1989 - repealed and replaced by Firearms Act 1996 - similar offence under each statute - whether within savings clause in 1996 Act - whether substantial compliance with prescribed form - whether affected substance of warrant in a material particular - held went to belief of reasonable grounds asserted by applicant and warrant invalid - submitted invalid because appellant did not have reasonable grounds for asserted belief - held had reasonable grounds - submitted invalid because warrant failed to state offence in relation to which search was authorised - required to be in prescribed form - form did not require statement of offence - single judge decisions that nonetheless invalid - decisions incorrect - held not invalid.
LEGISLATION CITED:	Firearms Act 1989 Firearms Act 1996 Firearms (General) Regulation 1997 Search Warrants Act 1985 Search Warrants Regulation 1994
CASES CITED:	Arno v Forsyth (1986) 9 FCR 576; Attorney General of Jamaica v Williams (1998) AC 351; Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Australian Capital Equity Ltd v Beale (1993) 114 ALR 50; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 103 ALR 167; Ex parte Bradrose Pty Ltd; re Albezia Pty Ltd (1989) 41 A Crim R 274; Carroll v Mijovich (1991) 25 NSWLR 441; Carver v Clerk of Bankstown Local Court [1998] NSWSC 358; Cassaniti v Croucher (1999) 48 NSWLR 623; Chapmans Ltd v Australian Stock Exchange Ltd (1994) 51 FCR 501; Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299; Chittick v Ackland (1984) 1 FCR 254; Douglas v Blackler [2001] NSWSC 901; George v Rockett (1990) 170 CLR 104; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473; Lawrence v NSW Police Service (2004) 144 A Crim R 396; MacGibbon v Warner (CA, 27 November 1997, unreported); Ousley v The Queen (1997) 192 CLR 69; Preece v Boyd (2003) 38 MVR 540; The Queen v Tillett (1969) 14 FLR 101; R v Eid (1999) 46 NSWLR 116; R v Inland Revenue Commissioners (1980) AC 952; R v Solloway Mills & Co [1930] 3 DLR 293; Ridgeway v The Queen (1995) 184 CLR 19 Warner v Elder (Temby AJ, 23 April 1997, unreported).
PARTIES:	James John Corbett - First Claimant Robyn Jean Corbett - Second Claimant State of New South Wales - Opponent
FILE NUMBER(S):	CA 41010/04
COUNSEL:	J M Ireland QC & S Moffet - Appellant M J Neil QC & P R Sternberg - Respondent
SOLICITORS:	Maloney Lawyers, Potts Point - Appellant Crown Solicitor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5459/01
LOWER COURT JUDICIAL OFFICER:	Charteris DCJ
LOWER COURT DATE OF DECISION:	22 October 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	(Charteris DCJ, 22 October 2004, unreported)