Jeremiah v Lawrie

Case [2016] NTCA 6

Jeremiah v Lawrie & Anor [2016] NTCA 06

PARTIES:JEREMIAH, Wade Lee

v

LAWRIE, Delia Phoebe

and

CAREY, Deputy Chief Magistrate

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 6 of 2016 (21615168)

DELIVERED:  2 NOVEMBER 2016

HEARING DATES:  7 & 8 JULY 2016

JUDGMENT OF:  KELLY, HILEY and REEVES JJ

APPEAL FROM:  MILDREN AJ

CATCHWORDS:

SEARCH WARRANT – Validity – requirement for warrant to identify the nature of things authorised to be seized – Police Administration Act 1979 (NT) s 117(5) – whether warrant complied with requirement in s 117(5)(b) to include a description of the nature of the things to be seized – warrant described things authorised to be seized by reference to offence – warrant described things authorised to be seized as “electronic records [of the kind set out] related to … an offence [under] s 118 of [the Criminal Code]” – warrant in such form must provide sufficient particulars of offence for it to be ascertainable whether a thing seized is authorised to be seized by the warrant – trial judge correct to find that without particulars of who is said to have committed the offence, and where and when, it would be impossible to ascertain what electronic records of the kind described complied with the description in the warrant – appeal dismissed

Criminal Code 1983 (NT) s 118
Police Administration Act 1979 (NT) s 117
Crimes Act 1914 (Cth) s 10, s 70
Inquiries Act (NT)
Police Administration Act (NT) s 116, 117, 118A

Police Powers and Responsibilities Act 2000 (Qld) s 73

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) (2008) 190 A Crim R 265; [2008] FCA 1686; Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384; [2002] FCAFC 392; Ousley v The Queen (1997) 192 CLR 69; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32; The Queen v Tillett; Ex parte Newton (1969) 14 FLR 101; Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12, applied

Trimboli v Onley (No 3) (1981) 56 FLR 321; followed

Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145; Lawrie v Carey DCM [2016] NTSC 23; Lawrie v Lawler [2016] NTCA 03; Parker v Churchill (1986) 9 FCR 334; Wright v Queensland Police Service (2002) 2 Qd R 667, referred to

REPRESENTATION:

Counsel:

Appellant:A Moses SC with K Anderson

First Respondent:  P Davis SC with A Scott

Second Respondent:  C Retallick

Continue reading Jeremiah v Lawrie

Sign in free to access the full text

Details
AGLC
Jeremiah v Lawrie [2016] NTCA 6
Case
[2016] NTCA 6
Decision Date

CaseChat Overview and Summary

In the case of Jeremiah v Lawrie, the dispute involved the validity of search warrants issued under the Police Administration Act 1979 (NT). The central issue before the court was whether the warrants sufficiently identified the nature of the things authorised to be seized. Specifically, the warrants described the items to be seized as "electronic records of the kind set out" related to an offence under the Criminal Code. The court had to determine if the warrants provided sufficient particulars to ascertain whether the seized items were authorised by the warrants.

The legal issues revolved around the interpretation of section 117(5) of the Police Administration Act, which requires that a warrant must include a description of the nature of the things to be seized. The court was tasked with deciding if the warrants, which referred to an offence without specifying details such as the date, place, identity of the alleged offender, and circumstances of the offence, complied with this requirement. The primary judge had ruled that the warrants were invalid due to insufficient details, a decision that was challenged on appeal.

The court, in dismissing the appeal, held that the primary judge did not err in his interpretation of the legislation. The warrants, which referred to an offence without specifying critical details, did not provide sufficient particulars to determine whether the seized items were authorised. The court emphasised that the warrants must allow for the ascertainment of whether a thing seized is authorised by the warrant. Without details such as who committed the offence, where, and when, it was impossible to ascertain what electronic records complied with the description in the warrant. Therefore, the court upheld the primary judge's finding that the warrants were invalid.

The court's decision was based on the necessity for warrants to provide clear and sufficient particulars to ensure that only authorised items are seized, thereby protecting against unlawful searches. The appeal was dismissed, and the invalidity of the warrants was confirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is not in dispute that, despite there being a full stop after “1 April 2015”, the words contained in the following four lines were clearly intended to confine the “electronic records subject to the warrant” to emails of that description.[33]Relevant background The factual background to this appeal is succinctly recorded in the primary judge’s reasons as follows:[3]On the 3rd of August 2012 the then Minister of Lands and Planning made a decision pursuant to a Cabinet decision made on the 10th of July 2012 to grant a Crown lease of a site located in Darwin to a Union. The decision was made without calling for expressions of interest or public tender.[4]Ultimately, there was a change of government and the new government withdrew the offer for the grant of the lease.[5]On the 5th of December 2013, the Legislative Assembly of the Northern Territory decided that an enquiry into the decision to grant the lease was necessary as a consequence of which the Administrator appointed Mr. John Lawler as a Commissioner to conduct an Inquiry pursuant to s 4A of the Inquiries Act (NT). One of the purposes of the Inquiry was to review the antecedent issues leading to the former government’s decision to grant a Crown Lease to the Union and to assess the involvement of “relevant persons” in that decision, including the plaintiff who was then a Minister in the former government.[6]On the 20th of December 2013, the plaintiff engaged Ms. Spurr to represent her and the former Minister of Lands and Housing, Mr. Gerry McCarthy for the purposes of the Inquiry. The letter of engagement dated that day indicates the terms of the costs agreement between the parties which includes details of how the work and disbursements will be charged and paid for. It is asserted that the solicitor engaged the barrister to act as counsel on the same date on a pro bono basis. [7]The Inquiry commenced on the 6th of January 2014, during the course of which Mr. McCarthy and the plaintiff gave evidence. Mr. Wyvill SC was granted leave to represent them during the enquiry. Subsequently for various reasons which it is not necessary to go into at this stage, Ms. Spurr advised the Commissioner by letter dated 14 April 2014 that she and Mr. Wyvill SC “will no longer be representing Ms. Lawrie and Mr. McCarthy in this matter” because “our clients have exhausted their ability to access pro bono legal assistance.”[8]The Inquiry concluded on the 26th of May 2014 when the Commissioner’s Report was handed to the Administrator. That report contained a number of criticisms of the plaintiff’s conduct (the adverse findings).[9]On the 30th of July 2014 the plaintiff filed an Originating Motion in this Court in which the Commissioner was the defendant claiming that the adverse findings and associated recommendations damaged her reputation and seeking a declaration that, in reporting adversely to the plaintiff, the Commissioner had failed to observe the requirements of procedural fairness, and for an order in the nature of certiorari to quash the report. At this stage the plaintiff was represented by Ms. Spurr and Mr. Wyvill SC. Subsequently, in late 2014 Ms. Spurr and Mr. Wyvill SC filed affidavits in that action in which they asserted that they were not expecting to receive any adverse findings against the plaintiff. An affidavit by Ms. Lawrie to similar effect was also sworn or affirmed on the 14th of November 2014. It is alleged that each of these deponents made false statements which they knew to be untrue. At some stage Mr. Wyvill SC withdrew from those proceedings and other legal representation was obtained before the matter went to hearing in late January 2015. I note that according to the reasons published by Southwood J, the affidavits of the plaintiff, Spurr and Wyvill were not read, they were not called to give evidence, and allegations set out in paragraphs 6-12 of the Statement of Facts and Issues referred to in his Honour’s Judgment at para [222], although filed in court, were abandoned. [10]On the 1st of April 2015, Southwood J delivered judgment. His Honour dismissed the application and made a number of findings which were relied upon by the second defendant in his sworn information in support of the warrants which were ultimately issued by the first defendant. It is not necessary to refer to them as no challenge is made along the lines that the material placed before the learned magistrate was insufficient to justify the issue of the warrants.[11]On the 2nd of April 2015, a letter was sent to Mr. Wyvill SC from Southwood J’s associate indicating that his Honour had determined that his conduct during the Inquiry and his representation of the plaintiff, including whether he had sworn a false affidavit, should be referred to the Law Society for investigation, and that the Law Society would be asked to consider whether there are any matters which should be referred to the Director of Public Prosecutions. On the 7th of April 2015 a referral was made to the NT Police by the Attorney-General.[34]Relevant legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ms Lawrie submitted that the primary judge was clearly aware of the differences between the PAA and the Police Powers and Responsibilities Act 2000 (Qld) and had not erred by relying on the decision in Wright to conclude that the purposes of the two pieces of legislation was similar. Further, she submitted that a warrant issued under the PAA must comply with “the general law requirement that the object of the search must be identified on the face of the warrant”. She submitted that, while a warrant may be valid if it does not identify the offence concerned, if it does identify the object of the search by reference to an offence, that offence must be properly defined. She therefore submitted that the primary judge correctly found that the warrant was defective because it did not properly define the offence concerned. In particular, she submitted it did not identify the date and place of the alleged offence, the identity of the alleged offender and the circumstances in which the alleged offending had occurred.Consideration In my view, Detective Jeremiah’s contentions should be accepted and Ms Lawrie’s rejected. That is so because, in his conclusions at [26] of his reasons, I consider the primary judge erred in at least two respects. First, his Honour erred in equating the purpose of the PAA to that of the Police Powers and Responsibilities Act 2000 (Qld). Secondly, and relatedly, his Honour erred by holding the warrant to be invalid because it did not define the offence concerned with sufficient clarity. My reasons for reaching these conclusions are as follows. It is convenient to begin by stating what may be thought to be the obvious. The determination of this appeal essentially involves an exercise in statutory construction. In this context, Gummow J described the inquiry that has to be conducted in Ousley[40] in the following terms:Lord Wilberforce pointed out in Inland Revenue Commissioners v Rossminster Ltd that any inquiry into the form of search warrants at common law is of limited assistance where the form of the warrants in question is prescribed by statute. The matter is one of statutory interpretation,221 giving proper weight to the precept that a legislative intention to interfere with fundamental rights by the commission of what otherwise would be tortious or criminal acts “must be clearly manifested by unmistakable and unambiguous language”. [Footnotes omitted] This statement was reinforced in footnote 221 (appearing near the middle of the quotation above), as follows:221 See Cooper v Booth (1785) 3 Esp 135 at 144 [170 ER 564 at 567] where Lord Mansfield described as depending entirely upon the statute under which the warrant in question had been granted, the issues arising on an action in trespass against those who had executed the warrant. In the same matter, Gaudron J (dissenting, but not on this aspect) expressed similar views as follows:[41]The warrants involved in this appeal derive their force entirely from statute. Necessarily, the question whether they are valid only if they recite the matters upon which their validity depends is a question of statutory construction. More precisely, it is a question whether an inference should be drawn that recital of those matters is or is not necessary, the Act making no provision one way or the other in that regard. And in ascertaining which of those two inferences should be drawn, it is appropriate to have regard not only to the provisions of the Act but to the position with respect to warrants under the general law and, also, the nature of the warrants for which the Act provides.