Majzoub v Kepreokis

[2009] NSWSC 314

Reported Decision: 195 A Crim R 63

New South Wales

Supreme Court

CITATION:	MAJZOUB v KEPREOKIS & ORS [2009] NSWSC 314
HEARING DATE(S):	Thursday 12 March 2009
JUDGMENT DATE :	24 April 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Amended summons dismissed
CATCHWORDS:	CRIMINAL LAW – search warrants – validity – whether the warrant was invalid on its face for failing to sufficiently recite an offence in accordance with the requirements of the Law Enforcement (Powers and Responsibilities) Act and Regulation – consideration of what constitutes adequate specification of an offence – where the warrant referred to the relevant provisions of a criminal statute and a short description of the offences – warrant valid – amended summons dismissed
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement (Powers and Responsibilities) Regulation 2005 Search Warrants Act 1985 Search Warrants Regulation 1999
CASES CITED:	ACS v Anderson [1975] 1 NSWLR 212 Anderson v Attorney General (NSW) [1987] 10 NSWLR 198 Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 Ballis v Randall [2007] NSWSC 422 Cain v Glass (No 2) [1985] 3 NSWLR 230 Carroll v Attorney General (NSW) (1993) 70 A Crim R 162 Chief Executive Officer of Customs v Jiang (2001) 183 ALR 604 Commissioner of Police v Atkinson [1991] 23 NSWLR 495 Conwell v Tapfield [1981] 1 NSWLR 595 at 601 Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 249 ALR 398 Love v Attorney-General (NSW) (1990) 169 CLR 307 Pressler v Holzberger (1989) 44 A Crim R 261 R v Elliott (1996) 185 CLR 250 R v Iorlano (1983) 151 CLR 678 Seymour v Attorney-General (Cth) (1984) 4 FCR 498 State of New South Wales v Corbett (2007) 230 CLR 606 Tye v Commissioner of Police (1995) 84 A Crim R 147 Wright v Queensland Police Service (2002) 2 Qd R 667 Wilkes v Wood (1763) Lofft 1 at [18] Entick v Carrington (1765) 2 Wils KB 275 Money v Leach (1765) 1 Black W 555) Lawrie v Muir [1950] SLT 37 Crowley v Murphy (1981) 52 FLR 123 R v Tillett; Ex parte Newton (1969) 14 FLR 101 George v Rockett (1990) 170 CLR 104 Parker v Churchill (1985) 9 FCR 316 at 319 Different Solutions Pty Limited v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 Optical Prescription Spectacle Makes Pty Ltd v Withers (1987) 13 FCR 594 Douglas v Blackler [2001] NSWSC 901 Wright v Queensland Police Service (2002) 2 Qd R 667 Warner v Elder (NSWSC, 23 April 1997, unreported); Carver v Clerk of the Court, Local Court at Blacktown (NSWSC, Black AJ 13 March 1998, unreported) Ryder v Morley (1986) 12 FCR 438 Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 Brewer v Castles (No 2) 1 FCR 55 Arno v Forsyth (1986) 9 FCR 576 New South Wales v Corbett (2007) 230 CLR 606 Parker v Churchill (1985) 9 FCR 316 at 320 Parker v Churchill (1986) 9 FCR 334 at 335 Bradrose v Commissioner of Police, ex parte Bradrose (1989) 2 Qd R 304 Williams v Keelty [2001] FCA 1301; (2001) 184 ALR 411
PARTIES:	Radwan MAJZOUB v Peter KEPREOKIS & ORS
FILE NUMBER(S):	SC No 13260/08
COUNSEL:	P: M A Robinson/J Korn 1D: L A Babb SC/C Mantziaris - submitting appearance 2-3D: L A Babb SC/C Mantziaris
SOLICITORS:	P: Randle Lawyers 1D: I V Knight 2-3D: I V Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 24 APRIL 2009

No 13260 of 2008

RADWAN MAJZOUB v PETER KEPREOTIS & ORS

JUDGMENT
(On validity of search warrant)

:

Introduction

1 The plaintiff, by an amended summons filed in court on 12 March 2009, claims relief in respect of a search warrant issued on 14 November 2008. The warrant was issued on the application of the second defendant, New South Wales police officer Constable Scott McKinley. The subject premises in Busby, were the residential premises of the plaintiff. The warrant was issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPR Act”).

2 The plaintiff claims a declaration that the warrant is invalid, an order in the nature of certiorari that it be set aside or quashed, and a declaration that the execution of the warrant was contrary to law.

3 A further order is sought in the nature of prohibition preventing the defendants from relying on the validity of the warrant.

4 The plaintiff additionally claims an order in the nature of mandamus or an injunction against the defendants, their servants or agents, requiring them to deliver up to the plaintiff any property seized and any audio, video, digital or computer recordings and/or transcripts or copies or notes made from the recordings. An order is also sought for the destruction or disposal of property identified in specified Exhibit Books.

5 Mr M Robinson, of counsel, appeared on behalf of the plaintiff. The Crown Advocate, Mr L Babb SC, appeared of behalf of the second and third defendants. A submitting appearance was entered on behalf of the authorised justice, the first defendant.

6 The plaintiff, in support of the amended summons, relied upon two affidavits of Lesly Deborah Randle, sworn respectively on 25 August 2008 and 18 September 2008 respectively, and an affidavit of Louise Coorey sworn 3 March 2009.

7 The second and third defendants relied upon the affidavits of Benjamin McIntyre and Scott McKinley sworn on 20 December 2008 and 24 December 2008.

Grounds relied upon

8 The plaintiff relied upon three matters in support of the relief claimed in the amended summons. The first raised the validity of the warrant. The second the validity of the occupier’s notice. The third that the application for the warrant by the second defendant was made in bad faith and/or affected by fraud.

9 This last mentioned ground is the subject of a separate judgment in respect of which a non-publication order has been made. That order has been made in the interests of ensuring fair trial principles are maintained until the final disposition of the charges against the plaintiff.

10 A central contention in the plaintiff’s case considered in this judgment is to the effect that the warrant is invalid on its face as it failed to recite, or sufficiently recite, an offence in accordance with the requirements prescribed by the LEPR Act and Law Enforcement (Powers and Responsibilities) Regulation 2005 (“LEPR Regulation”). In support it was claimed that the warrant failed to provide reasonable particularity of any alleged offence, including a failure to specify the date/s of the alleged offence. As a result, it was contended the occupier’s notice suffered from the same deficiencies.

11 Accordingly it was argued, the warrant is invalid and its execution unlawful and the relief claimed should be granted.

Background to the charges

12 The immediate facts giving rise to the application for the warrant occurred on 14 November 2007. It was on that date that it was alleged that police observed the plaintiff and searched his vehicle. The plaintiff was then arrested. Chamber Magistrate Kepreotis, the first defendant, issued the warrant on 14 November 2007. It was executed on the same date.

13 On 2 June 2008, the committal proceedings were commenced before Magistrate Walquist at Liverpool Local Court. On 3 June 2008, those proceedings were adjourned for the purpose of allowing the plaintiff to commence proceedings in this court in respect of the validity of the search warrant. On 7 July 2008, the original summons was filed in this court.

The search warrant

14 The authority purportedly conferred by the warrant was in the following terms:-

“ 2 To search those premises for any of the following things:-
Drugs in the form of (ice) Crystal Methamphetamine, (speed) Amphetamine. Money associated with the sale of prohibited drugs. Drug ledgers and things connected with the sale of prohibited drugs.
The police officer has reasonable grounds for believing that those things:-
(a) are connected with the offence(s) of:-
Supply Prohibited Drug Section 25 Drug Misuse and Trafficking Act 1985
Possess Prohibited Drug Section 10 Drug Misuse and Trafficking Act 1985.”

Plaintiff’s submissions

15 It is submitted on behalf of the plaintiff that as a matter of statutory interpretation, the LEPR Act and Regulation mandate that “particular” and “relevant” offences must be “specified” on the face of the warrant.

16 The contention was that the legislative regime instituted by the LEPR Act and the LEPR Regulation require a particularity by way of a more detailed statement of “offences” than was previously required by the Search Warrants Act 1985 and the statutory scheme the subject of the High Court’s consideration in State of New South Wales v Corbett (2007) 230 CLR 606. Particular attention was drawn to the terms of s 66 of the LEPR Act, which states, “A warrant is to be in the form prescribed by the regulations”. Whereas, section 14 of the Search Warrants Act 1985 provided that “a search warrant shall be in or to the effect of the prescribed form”. It was submitted that the different wording in the LEPR Act imposed a mandatory legislative requirement.

17 On the latter point, I do not consider that there is any substantive difference in the effect of sections 66 and 14 of the last mentioned Act. They both impose mandatory requirements.

18 It was argued that the warrant in this case does not satisfy this requirement in the LEPR Act and Regulation in that the warrant:-

(a) merely refers to sections of the Drug Misuse and Trafficking Act 1985;

(b) does not include dates or ranges of dates of the offences alleged;

(c) does not refer to any alleged importation; and,

(d) does not particularise the alleged offences.

19 As a result the warrant, and the resulting occupiers’ notice, were said to be invalid. Accordingly, the plaintiff’s case is that the warrant , as issued, was not authorised under the LEPR Act and an order in the nature of certiorari should issue.

20 In support of the order sought for the delivery up of the material listed in the amended summons, reliance was placed on Pressler v Holzberger (1989) 44 A Crim R 261 and Love v Attorney-General (NSW) (1990) 169 CLR 307 for the availability of a delivery up order where items had been seized in contravention of law.

Defendants’ submissions

21 The second and third defendants submitted that the court should not exercise its jurisdiction on the basis that the fragmentation of the criminal process is to be actively discouraged. In relation to the first issue raised in the amended summons, the validity of the warrant, it is contended that the Local Court is fully capable of determining that matter, and that should this court make a determination, the Local Court may in any event need to reconsider the same facts in deciding whether to exclude the evidence under s.138 of the Evidence Act 1995. In relation to the second issue, it was submitted that the fraud or bad faith allegation, was quite unmeritorious.

22 Mr Babb SC submitted that in any event the plaintiff’s case as to the validity of the warrant should be rejected as the warrant specifies the relevant offences by describing them in words and by identifying by specific provisions of the Drug Misuse and Trafficking Act.

23 The defendants submitted that this case was quite unlike the position in Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 where the structure of the particular section was such as to create a number of different offences. Mr Babb SC also submitted that the question of sufficient particularity in this case should be resolved by looking at the warrant as a whole. In that respect, the specificity of the items to be searched for as stated in the warrant was instructive as to the objects of the authorised search.

24 On the question of the order sought for delivery up of items seized, Mr Babb SC submitted that the Court has a discretion as to whether to return seized items under an invalid warrant. Where criminal proceedings are on foot, he submitted that discretion will normally be refused. Reference was made to the decisions of Tye v Commissioner of Police (1995) 84 A Crim R 147 and Wright v Queensland Police Service (2002) 2 Qd R 667. In the circumstances, it was submitted no delivery up orders should be made.

Jurisdictional Considerations

25 As noted above, in the present case, the plaintiff has been charged and committal proceedings have commenced. I have considered whether, as a discretionary matter, this Court should assume jurisdiction or whether the issues as to the validity of the warrants and/or the lawfulness of their execution should be left for determination by the trial court.

26 In former times it was not uncommon for persons facing criminal charges to institute applications for judicial review in order to challenge decisions which were vulnerable to “collateral attack”. Applications for judicial review generally resulted in delays, some of which were quite lengthy.

27 The dangers of fragmentation of the criminal justice process, and the need for caution on the part of civil courts in undertaking judicial review of decisions made in the course of that process have been clearly recognised and been the subject of consideration: see Chief Executive Officer of Customs v Jiang (2001) 183 ALR 604 at [7]; ACS v Anderson [1975] 1 NSWLR 212 at 215-217; Conwell v Tapfield [1981] 1 NSWLR 595 at 601, 603-605; Cain v Glass (No 2) [1985] 3 NSWLR 230 at 244-245, 253; Anderson v Attorney General (NSW) [1987] 10 NSWLR 198 at 200-202; and Carroll v Attorney General (NSW) (1993) 70 A Crim R 162.

28 Discontinuity, disruption and delay should be avoided in the public interest of the expeditious resolution of allegations of criminal offences: Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at [501]; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 187–8.

29 Accordingly, the power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 249 ALR 398 at [23]. This principle is not limited to declaratory relief, but has been held to apply to claims for prerogative relief: R v Iorlano (1983) 151 CLR 678; R v Elliott (1996) 185 CLR 250.

30 However, this Court may as a matter of discretion exercise its jurisdiction where criminal proceedings are pending if considered appropriate to do so in the circumstances: see Commissioner of Police v Atkinson [1991] 23 NSWLR 495.

31 I reproduce a statement of the general propositions derived from the relevant case law I formulated in Ballis v Randall [2007] NSWSC 422 at [73]:-

“(a) There ought to be sound justification in point of practical utility in a Court intervening by way of granting declaratory relief in criminal proceedings. Otherwise, discretionary considerations will point against the grant of such relief (see Conwell (supra) at 601 per Street CJ).
(b) Where an application for declaratory and ancillary relief raises important questions both of statute law and of evidentiary principle, the resolution of which may have a substantial bearing upon criminal litigation, then this Court may exercise its jurisdiction where such relief is sought (see Conwell ( supra ) at 601).
(c) There is a distinction between proceedings in which a declaration is sought as to the construction of a statute which provides for the issue of search and seizure warrants from those in which in criminal proceedings a declaration is sought on a question of evidence or procedure. In the case of the latter, the circumstances must be exceptional to warrant the grant of relief: Sankey v Whitlam (1978) 142 CLR 1 at 25 per Gibbs ACJ. See also ACS v Anderson ( supra ) at 216 per Hutley JA; Cain ( supra ) at 253 per McHugh JA; Anderson ( supra ) at 200-201 per Kirby P and Carroll ( supra ) at 168.
(d) An application for declaratory and other relief which involves evident unmeritorious delaying tactics ought not be permitted to fragment the criminal justice process .”

32 In Ballis v Randall (supra), the construction and application of the Search Warrants Act 1985 in relation to occupiers’ rights required resolution. Similarly in Gedeon (supra), the High Court found there was a considerable public interest in the observance of due process by law enforcement authorities by putting beyond doubt important questions concerning the construction of the Law Enforcement (Controlled Operations) Act 1997. The present proceedings raise an issue concerning the construction of the LEPR Act upon which there has apparently been no judicial consideration. Two important questions arise out of the proceedings. First, the question as to what constitutes sufficient specification of the offence in a search warrant under the particular terms of the Act and the LEPR Regulation. Second, the question as to the requirements upon applicants to disclose information when applying for the issue of a search warrant. (The latter concerns the challenge on the basis of bad faith to which I have earlier referred).

33 I note that significant delay has occurred between the filing of the summons on 1 July 2008 and the hearing of the matter in March 2009. It is not relevant that Magistrate Wahlquist was reluctant to “go behind the warrant itself” (transcript of proceedings, 2 June 2008, p. 2) and that the prosecutor did not oppose the committal proceedings being adjourned to permit this challenge. The learned magistrate did have power to determine the validity of the warrant.

34 However, be that as it may, I consider that for reasons identified above, the issues raised by the present proceedings do warrant the exercise of this Court’s jurisdiction. A determination of the issues by this Court of such issues will not, of course, be finally determinative of issues concerning the admissibility of evidence obtained under the warrant in question. That will be a matter for the trial judge to consider in the exercise of the discretion under s 138 of the Evidence Act.

35 Accordingly, having examined and determined the particular circumstances in this case, I consider that there is proper basis upon which this Court should assume jurisdiction.

The relevant provisions of the Act

36 Section 47 of the LEPR Act (cf Search Warrants Act, s 5) provides for the power to apply for a warrant:-

“ (1) A police officer may apply to an authorised officer for a search warrant if the police officer believes on reasonable grounds that there is or, within 72 hours will be, in or on any premises:
(a) a thing connected with a particular indictable offence, or
(b) a thing connected with a particular firearms offence, or
(c) a thing connected with a particular prohibited weapons offence, or
(d) a thing connected with a particular narcotics offence, or
(e) a thing connected with a particular child pornography offence, or
(f) a thing stolen or otherwise unlawfully obtained.”

37 Section 48 of the LEPR Act (cf Search Warrants Act, s 6) contains the power to issue a warrant:

“ An authorised officer to whom an application for a search warrant is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any police officer:
(a) to enter the premises, and
(b) to search the premises for things of a kind referred to in section 47 (1).”

38 Under s 76 of the LEPR Act (cf Search Warrants Act, s 23), “a warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular”.

39 As noted earlier, s 66 of the LEPR Act provides that “a warrant is to be in the form prescribed by the regulations,” in contrast to the former s 14 of the Search Warrants Act which required that “a search warrant shall be in or to the effect of the prescribed form.”

40 Regulation 6(1)(a) of the LEPR Regulation states “Form 9 is the form for a Part 5 search warrant.” Accordingly, for the purposes of s 66, the terms of Form 9 forms part of the statutory prescription. (Under the previous Search Warrants Regulation 1999, regulation 5 specified Form 3 as the form for a Part 2 search warrant.)

41 Form 9 in the LEPR Regulation contains the following:-

“2* To search those premises for any of the following things: [List and describe the things to be searched for with particularity. If space is insufficient, continue overleaf or attach a separate sheet.]

The police officer has reasonable grounds for believing that those things:

(a)* are connected with the offence(s) of: [Specify relevant offences.]
(b)* are stolen or unlawfully obtained.” (emphasis added)

42 The instruction “Specify relevant offences” is of significance.

43 Form 3 in the Search Warrant Regulation 1999 contained the following:

“ 2. there to search those premises for any of the following things:
............................................................
............................................................
............................................................

being things that the police officer has reasonable grounds for believing:

(a) are connected with the offence(s) of:
............................................................
(b) are stolen or unlawfully obtained.”

44 There was no instruction as to specifying the offence.

Analysis

(1) Public and private interests

45 The inviolability of a person’s home has been recognised in English law since the 18th century. The grant of search warrants in respect of stolen goods was the first exception to this principle. General warrants, which did not particularise the person affected or the object of the search, were struck down by the common law courts in the mid-18th century for being “totally subversive of the liberty of the subject” (Wilkes v Wood (1763) Lofft 1 at [18]; see also Entick v Carrington (1765) 2 Wils KB 275 and Money v Leach (1765) 1 Black W 555). Consequently, the House of Commons condemned general warrants.

46 The law of entry, search and seizure in Australia is of course, now governed by statute. However, the notion of the sanctity of a citizen’s home, free from unlawful interference, remains a fundamental concept which is inherent in the protections afforded by the LEPR Act. Whilst the issue of search warrants is properly to be considered to be a means for securing the public interest in preventing and prosecuting crime, the execution of a search warrant nonetheless necessarily results in interference with individual rights. The law accordingly strives to balance public and individual interests so that whilst the State may obtain evidence relating to the commission of crime in the administration of justice, citizens are also protected from illegal or improper invasions of their civil rights by law enforcement authorities: Lawrie v Muir [1950] SLT 37; Crowley v Murphy (1981) 52 FLR 123.

(2) The need to specify an offence with particularity

47 Before dealing with the requirements under the LEPR Act and LEPR Regulation as they operate in the present case, I will record below general matters from the case law concerning the requirements for specificity of offences. In this context, to safeguard the individual’s rights, it has been held that a warrant should “refer to a particular offence and authorize seizure by reference to that offence” (R v Tillett; Ex parte Newton (1969) 14 FLR 101 at [113]). See also Crowley v Murphy (supra).

48 One test which has been formulated in this regard is whether the description of the offence in the warrant is “sufficiently clear to enable the person where premises are being searched to know the exact object of the search”: R v Tillett; Ex parte Newton (supra) at 113; Australian Broadcasting Corporation and Masters v Cloran (supra).

49 However, as the High Court explained in George v Rockett (1990) 170 CLR 104, “the description of the object of the search is a reference point for delimiting the scope of the warrant” at 118. Particulars of an offence(s) establishes a “nucleus for the search” by which both the citizen whose premises are subject to the warrant and the officer executing the warrant: Parker v Churchill (1985) 9 FCR 316 at 319.

50 In light of the legislature’s concern to protect individual interests, strict compliance with statutory conditions governing the issue of search warrants is necessary: George v Rockett (supra) at 110-111. However, that said, a warrant should, like other documents, be read fairly and not perversely: Different Solutions Pty Limited v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 at [108].

51 There is a degree of variance in the authorities as to the degree of particularity required in a search warrant: Optical Prescription Spectacle Makes Pty Ltd v Withers (1987) 13 FCR 594 at 596. This may be attributed, at least to some extent, to differently expressed statutory requirements and the particular wording of the warrant in those cases. However, a commonality of approach can be discerned in relation to the continuing concern of the legislature and common law courts to strictly confine the exception to the inviolability of an individual’s right to property and privacy arising from a validly issued search warrant.

52 The following principles may be distilled from the cases:

(a) The requirement to identify the offence in a search warrant has been held to apply regardless of whether the legislation states a specific requirement to do so: Douglas v Blackler [2001] NSWSC 901 at [12].

(b) The question of whether a warrant meets the statutory requirements must be viewed objectively by reference to its contents: Wright v Queensland Police Service (2002) 2 Qd R 667 at [32].

(c) Where the warrant fails to specify any offence, such a failure will invalidate the warrant: Warner v Elder (NSWSC, 23 April 1997, unreported); Carver v Clerk of the Court, Local Court at Blacktown (NSWSC, as per Black AJ 13 March 1998, unreported).

(d) The question whether there is sufficient particularity is a question to be resolved by looking at the warrant in its entirety: Ryder v Morley (1986) 12 FCR 438 at 444. This includes the items to be searched for: Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 525.

(e) In Brewer v Castles (No 2) 1 FCR 55; 52 ALR 577, it was held to be sufficient to specify the offences quite generally, one being “ s 86(1)(e) of the Crimes Act, to wit, conspiracy and defraud the Commonwealth ”. Despite the generality of such a description, Beaumont J found that it was sufficiently definite to indicate the nature of the documents to be seized.

(f) The practical application of the test may vary from instance to instance: Arno v Forsyth (1986) 9 FCR 576 at 595.

In Arno v Forsyth (supra), the warrant authorised the seizure of an extremely wide range of documents over a period of six years. The Federal Court rejected the argument that the statement of the offences reduced the generality of the warrant. The warrant referred to specified sections in various enactments with a short description. The first three groups of offences simply referred to conspiracies to defraud the Commonwealth, whilst the group of fourth and fifth offences provided no detail which indicated the nature of the acts alleged. The description in relation to the conspiracy charges did not identify the persons, times, places or manner of the offences committed. In looking at the warrant as a whole, the Federal Court found that in the circumstances, the warrant was bad for generality.
There is some difficulty in reconciling the outcome in Brewer v Castles (No 2) (supra) with Arno v Forsyth (supra), at least in so far as the conspiracy offences are concerned. In this respect, however, to be noted is that the warrant in Arno v Forsyth covered a very wide period (six years) in relation to a complex matter said to involve tax avoidance schemes. It was said in this context that the warrant failed to identify relevant persons and it was the combination of circumstances that were held to be relevant, Lockhart J stating at 591 as follows:-
“ …These are all matters which must be considered in deciding whether a warrant is bad for generality. Of course, the existence of any of those matters taken in isolation, does not necessarily lead to the conclusion that the warrant is defective. In each case the warrant must be looked at as a whole and all of its provisions taken into account .”

(g) The “ nature of the offence ” has to be stated sufficiently: New South Wales v Corbett (2007) 230 CLR 606 at [106] as per Callinan and Crennan JJ. Their Honours there indicated that the nature of the offence had to be identified so as to enable the issuing justice to understand the objects of the search to appreciate the boundaries of the authorisation to enter, search and seize. See also Gleeson CJ at [1] and Gummow J at [3].

Corbett (supra) concerned an application for warrant made pursuant to s 5(1)(b) of the Search Warrants Act (now repealed), which required an applicant for a search warrant to have reasonable ground for a belief in respect of “ a thing connected with a particular firearms offence .”

The application for the warrant in Corbett did contain a reference to a section in the Firearms Act No 25/1989 Sect 5(a). However, that legislation had been repealed and replaced by the Firearms Act 1996. The provision in question appears in s 7(1) of the latter Act in materially identical terms.

Callinan and Crennan JJ found that the application stated an “ intelligible offence ”, namely possession of a firearm (at [106]). It was the nature of the offence which was crucial, not the reference to repealed legislation. The reference did not detract from the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Therefore, the application and warrant were not invalid.

(h) The description of the offence in a search warrant need not be made with the precision of an indictment: Beneficial Finance Corporation v Commissioner of Australian Federal Police (supra) at 533. In determining whether a warrant describes an offence with sufficient particularity, it is, of course, to be appreciated that at the time the warrant is issued, the matter is at an investigatory stage and there often will not be evidence capable of satisfying a court at trial: Arno v Forsyth (supra) at 590. It is the function of the warrant to obtain such evidence.

(i) This is particularly evident in complex crimes, such as taxation frauds, which often involve numerous persons and entities, and therefore difficulties associated with the gathering of documentary evidence to support the laying of charges: Arno v Forsyth (supra) at 491 per Lockhart J.

(j) Where a section in a criminal statute provides for the commission of a somewhat indeterminate number of offences, the mere reference in a warrant to the section may be held to one which fails to describe the particular offences in relation to which the seizure is authorised: Australian Broadcasting Corporation and Masters v Cloran (supra) per Lockhart J at 153-154.

In Cloran (supra), the warrant was issued pursuant to s 10 of the Crimes Act 1914 (Cth). The recital of the warrant referred to “ commission of offences against s 70 of the Crimes Act ”. However, the operative part of the warrant was silent as to the particular offence and did not refer to the description given in the recital. The warrant, accordingly, was held to be bad for failing to describe the particular offences.

Lockhart J held that even if the operative part of the warrant did incorporate the description of the offence in the recital, it would still be invalid for failing to specify the offence. This was based on the nature and structure of the provisions of s 70 of the Crimes Act , which provides for the “ commission of a somewhat indeterminate number of offences ” (as per Lockhart J at 154). Accordingly, it was observed in that case that it would be impossible to know what the offences alleged to be committed against s 70 were with any degree of particularity or precision.

(k) Where warrant legislation requires that a search warrant state “ brief particulars of the offence ”, it has been held that the bare specification of the offence is insufficient: Wright v Queensland Police Service (supra) at [32]).

In Wright v Queensland Police Service (supra), it was contended that a warrant issued under the Police Powers and Responsibilities Act 2000 (Qld) was defective. The warrant stated the offence as follows, “ Section 123 Criminal Code – Perjury ”. Section 73 of the Police Powers and Responsibilities Act 2000 sets out the matters which a search warrant must specify, including at s 73(1)(b)(i), “ brief particulars of the offence for which the warrant is issued”.

Holmes J held that although it would be unwise to formulate what brief particulars should comprise, merely naming the offence could not constitute “ particulars ” for the purposes of the section (at [32]). However, at a minimum, his Honour observed that the warrant should state the name of the alleged offender, and where the identity of the offender is unknown, some details of the offence (at [39]).

(l) A wrong citation of a section of legislation does not invalidate a warrant which clearly sets out in terms the substance of the offence: Parker v Churchill (1985) 9 FCR 316 at 320. That decision was approved on appeal: Parker v Churchill (1986) 9 FCR 334 at 335.

Jackson J said that such an error would only invalidate the warrant if it had the result that the warrant did not specify the offence or made the warrant ambiguous so that it was not possible to tell what offence was referred to: Parker v Churchill (supra) at 340.

The warrants in Parker v Churchill (supra) were made pursuant to s 10 of the Crimes Act 1914 (Cth). They referred to a section of the Taxation Administration Act rather than a section of the Sales Tax Assessment Act . However, the description in the warrant stated in otherwise intelligible terms an existing offence and the warrant was accordingly held not to be invalid on this basis.

The warrants also alleged that certain named individuals were in breach of s 231 of the Income Tax Assessment Act 1936 in that they “ at various times” over a period of six years evaded payment of income tax. Jackson J held that this description of the offence was “ in the broadest terms ” and therefore the warrant failed to state the offence with sufficient particularity: Parker v Churchill (1986) 9 FCR 334 at 249.

(m) Where the warrant describes an offence which does not exist, or which is not known as the words used, it has been held that the description is not adequate: Bradrose v Commissioner of Police, ex parte Bradrose (1989) 2 Qd R 304.

In Bradrose (supra), the warrant under consideration referred to “ the offence of false pretences ” as opposed to “ Obtaining property by false pretences; Cheating ”. Although often identified by a shorthand description, it was held that it was not an offence described under the Criminal Code (Qld). Such a description of the offence, it was observed, would prevent the persons affected by the warrant from knowing the exact object of the search.

(n) A warrant may be sufficiently particular if it specifies the substance of the offences in question, even if the name of the Act by which the offence is created is not disclosed: Williams v Keelty [2001] FCA 1301; (2001) 184 ALR 411 at [143].

In Williams v Keelty (supra), the warrants were issued pursuant to s 3E of the Crimes Act 1914 (Cth). The warrants recorded the section numbers of the offences without reference to the relevant Act, the Corporations Act . However, the warrant did specify the substance of the offence.

(3) The search warrant in the present case

53 The requirement “specify relevant offences” in the form prescribed by the LEPR Regulation is a more limited one than a requirement to provide “brief particulars of the offence”, the latter being the requirement under the legislation considered in Wright (supra). “Particulars” of an offence when specially required go beyond identifying or naming an offence and require information about an offence, such as where and when an offence had been committed. See the discussion in Wright (supra) at [32].

54 A requirement to specify a relevant offence carries the meaning of a requirement to name or identify an offence.

55 For that purpose, subject to the specific terms of a statutory provision, an offence may be named or identified by a reference to the provisions of an Act that creates a particular offence. In the present case, reference was made to sections 10 and 25 of the Drug Misuse and Trafficking Act accompanied by a short description of “possess prohibited drug” and “supply prohibited drug” respectively.

56 No argument has been raised in these proceedings that those particulars in the warrant were ambiguous, vague or obscure.

57 The offence stated in s 10 of the Drug Misuse and Trafficking Act is that “a person who has a prohibited drug in his or her possession is guilty of an offence”. Possession of a prohibited drug is the only offence created by that provision.

58 Section 25 of the Drug Misuse and Trafficking Act provides for variations of the offence of “supply of prohibited drugs”. The primary offence can be found in subsection (1), “a person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.” The remaining subsections of the provision deal with offences of supply of a prohibited drug according to the age of the person supplying the drug, the age of the person to whom it is supplied and the quantity of the drug supplied. Sections 32, 33 and 33A of the Drug Misuse and Trafficking Act stipulate the penalties for these offences. The Crown Advocate submitted that the effect of s 25 is to create one offence, “supply of prohibited drug”, with aggravating features rather than several discrete or separate offences. This is to be contrasted with the provisions considered in Cloran (supra), which contained a “somewhat indeterminate number of offences” (at 154). Not only did each subsection give rise to four separate offences based on the words “publish” and “communicate”, there also existed numerous possible combinations of people involved in the offence. In the present case, it was possible to know with a high degree of accuracy that the offence referred to in the warrant concerned or involved the “supply of prohibited drug”, even though the offence may have been aggravated by the presence of more specified features.

59 As noted above, the issue of specifying the offence with sufficient particularity must be considered by looking at the warrant as a whole: Ryder v Morley (supra). This includes the specified items to be searched for. The warrant in this case identified the things to be searched for with a high degree of particularity, including the type of drug (“(ice) Crystal Methamphetamine” and “(speed) Amphetamine”), money associated with the sale of prohibited drugs, drug ledgers and things connected with the sale of prohibited drugs.

60 Having regard to the LEPR Act, the short description of the offences, together with the references to the relevant provisions of the Drug Misuse and Trafficking Act, leads to the conclusion that the particulars furnished satisfied the statutory requirement to “specify relevant offences”, and were free of any ambiguity or uncertainty.

61 The issues pursued in the amended summons with respect to the alleged unlawful execution of the warrant and delivery up orders do not arise for decision. Those claims are contingent on a finding that the warrant was invalid for the failure to sufficiently specify the offences.

Conclusions

62 For the reasons discussed above, I am of the opinion that the warrant was valid.

63 Accordingly, on that basis and having regard to the fact that the ground of bad faith/fraud considered in the judgment in respect of which I have made a non-publication order has been rejected, the amended summons should be dismissed and I so order.

64 I will hear the parties as to costs.

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