Majzoub v Kepreotis
[2009] NSWSC 1498
•24 April 2009
CITATION: MAJZOUB v KEPREOTIS [2009] NSWSC 1498 HEARING DATE(S): Thursday 12 March 2009
JUDGMENT DATE :
24 April 2009JURISDICTION: Common Law JUDGMENT OF: Hall J at 1 DECISION: The relief sought in the Amended Summons filed on 12 March 2009 is refused. LEGISLATION CITED: Crimes Act 1914 (Cth)
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997
Law Enforcement (Powers and Responsibilities) Act 2002
Search Warrants Act 1985CASES CITED: ACS v Anderson [1975] 1 NSWLR 212
Anderson v Attorney General (NSW) [1987] 10 NSWLR 198
Ballis v Randall [2007] NSWSC 422
Briginshaw v Briginshaw (1938) 60 CLR 336
Buck v Barone (1976) 135 CLR 110
Cain v Glass (No 2) [1985] 3 NSWLR 230
Carmody v MacKellar (1997) 148 ALR 210
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
Connell v Miller (NSWSC, Latham J, 12 February 2007, unreported)
Conwell v Tapfield [1981] 1 NSWLR 595
Craig v South Australia (1995) 184 CLR 163
Crewdson v Industrial Relations Commission of New South Wales [2007] NSWCA 178
Dunn v The Australian Crime Commission [2009] FCAFC 16
Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26
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
Gibbons v Evans [2008] NSWSC 495
Hallahan v Campbell; ex parte Campbell (No 2) [1964] Qd R 337
Holmswood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412
NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
R v Bolton; Ex parte Scally [1991] 2 WLR 239
R v Deland; Ex parte Willie (1996) 6 NTLR 72
R v Elliott (1996) 185 CLR 250
R v Iorlano (1983) 151 CLR 678
SBAP v Refugee Review Tribunal [2002] FCA 590
SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377
Seymour v Attorney-General (Cth) (1984) 4 FCR 498
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Vincent v Randall [1999] NSWSC 833
WAFV v Refugee Review Tribunal (2003) 125 FCR 351PARTIES: Radwan MAJZOUB v
Peter KEPREOTIS & ORSFILE NUMBER(S): SC 13260 of 2008 COUNSEL: P: M A Robinson/J Korn
1D: L A Babb SC/C Mantziaris - submitting appearance
2-3D: L A Babb SC/CMantziarisSOLICITORS: P: Randle Lawyers
1D: I V Knight
2-3D: I V Knight
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HALL JFRIDAY 24 APRIL 2009
No 13260 of 2008
JUDGMENTRADWAN MAJZOUB v PETER KEPREOTIS & ORS
(On bad faith/fraud issue)
HIS HONOUR:
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 an order in the nature of certiorari that the warrant be set aside or quashed, a declaration that the warrant is invalid 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 also 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. A similar order is 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. Mr L. Babb SC, Crown Advocate, 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 on 25 August 2008 and 18 September 2008 respectively, and an affidavit of Louise Coorey sworn 3 March 2009.
7 On behalf of the defendants, the affidavits of Benjamin McIntyre and Scott McKinley were sworn on 20 December 2008 and 24 December 2008 respectively.
8 I have made a non-publication order in respect of this judgment. The basis for the order is the need, in relation to the applications of the nature considered in the judgment, to ensure that ordinary fair trial principles continue to apply to the hearing of the charges against the applicant.
Grounds relied upon
9 The plaintiff’s application, in so far as it challenges the validity of the search warrant upon the grounds of claimed failure to specify the offence(s) to which the warrant applied, is the subject of a separate judgment. This judgment is confined to the ground of alleged bad faith/fraud.
10 In support of the contention that in applying to the authorised justice Constable McKinley acted in bad faith and/or with fraud, it was claimed that he provided incorrect, false and/or misleading information in a sworn or declared statement made by him dated 14 November 2007. It was alleged that Constable McKinley knew that the information he provided was of this nature and was therefore it was provided in circumstances of fraud and/or bad faith. The authorised justice, it was claimed, had relied upon the information provided by Constable McKinley in issuing the search warrant.
Background to the charges
11 The immediate facts giving rise to the application for the warrant occurred on 14 November 2007. It was on this date that it was alleged that police observed the plaintiff and searched his vehicle. A quantity of amphetamine was allegedly found in the vehicle and the plaintiff was arrested. Chamber Magistrate Kepreotis, the second defendant, issued the warrant on 14 November 2007. It was executed on the same date.
12 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.
Submissions
13 The plaintiff contends that a comparison between the substance of Constable McKinley’s application for the warrant and the facts as have emerged from affidavit evidence, police statements and oral evidence given at the plaintiff’s committal proceedings demonstrate that the information provided by Constable McKinley in the application was false and/or misleading. It was submitted in the Plaintiff’s Summary Submissions dated 5 March 2009 (at para 39) that the application for the warrant was “a gross exaggeration and/or an embellishment of the true facts.”
14 It was submitted by the plaintiff that the authorised justice relied upon the factual matters provided by Constable McKinley in his written reasons for issuing the warrant. A number of these “factual” matters are said to be false or misleading. It was contended by the plaintiff that had the authorised justice been correctly informed, he would have had serious doubts about the reliability and credibility of the information and may have refused to issue the warrant.
15 Reliance was placed upon the decision of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, in which bad faith in a public law context was addressed. It was submitted that on the basis of SZFDE, fraud or bad faith could be substantiated by a finding that incorrect and/or misleading information was deliberately provided to the authorised justice in the application for the warrant. It was argued that the use of the word “observed” suggested that the exchange took place in Constable McKinley’s “direct line of sight”, and that such unequivocal language demonstrated that Constable McKinley deliberately misled the authorised justice.
16 In the Plaintiff’s Supplementary Reply Submissions dated 13 March 2009, Mr Robinson addressed the possibility that Constable McKinley, being a relatively young and inexperienced police officer, simply may have formed the view that a drug exchange had taken place and mistakenly included this view in his written warrant application. Such a finding, Mr Robinson argued, was not open to the court as this was not the evidence given by Constable McKinley. However, Mr Robinson argued that even if this second construction of the event was to be adopted by the court, the requirements of bad faith and fraud can still be satisfied by reference to the “recklessness” test articulated in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361.
17 The Crown Advocate, Mr Babb SC, on behalf of the defendants, submitted that the element of deliberate dishonesty that was required to ground fraud or bad faith on the part of Constable McKinley had not been established. In relation to the alternate claim of recklessness, Mr Babb SC submitted that it was not proved that Constable McKinley possessed foresight of the possibility that he may have been misleading the authorised officer. Even if a finding was made that the application for the warrant contained a factual inaccuracy or misleading information that, it was submitted, did not of itself vitiate the warrant.
Jurisdictional Considerations
18 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.
19 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.
20 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.
21 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.
22 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.
23 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.
24 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 .”
25 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).
26 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.
27 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 1995 (NSW).
28 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.
Relevant provisions of the LEPR Act and Regulation
29 Section 47 of the LEPR Act (cf Search Warrants Act 1985, 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
(f) a thing stolen or otherwise unlawfully obtained.”(e) a thing connected with a particular child pornography offence, or
30 Section 62 of the LEPR Act (cf Search Warrants Act 1985, s 12A) stipulates what information on an application for a warrant should comprise. The section provides:-
“ (1) An authorised officer must not issue a warrant unless the application for the warrant includes the following information:
(2) An authorised officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters:
(a) details of the authority of the applicant to make the application for the 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,
(f) any other information required by the regulations.(e) if a previous application for the same warrant was refused—details of the refusal and any additional information required by section 64,
(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.”(a) the reliability of the information on which the application is based, including the nature of the source of the information,
31 In relation to false or misleading information in warrant applications, s 63 of the LEPR Act (cf Search Warrants Act 1985, s 12B) provides that “a person must not, in or in connection with an application for a warrant, give information to an authorised officer that the person knows to be false or misleading in a material particular”. Contravention is an offence for which the maximum penalty is 100 penalty units or imprisonment for 2 years, or both.
The application for warrant
32 The “Application for Part 5 search warrant/record of application” completed by Constable Scott McKinley on 14 November 2007 contains the following statement as to the grounds in support of the application:-
“2 I rely on the following grounds in support of this application:-
During the months of October through to November 2007 Green Valley plain clothed police have been conducting static surveillance on the premises known as 36 Green Valley Road Busby and it’s occupants Radwan MAJZOUB. These observations were conducted due to intelligence reports relating to the sale of prohibited drugs from this location .
During this surveillance police have noted a large amount of pedestrian traffic attending the premises for short periods of time.
About 1234pm on Wednesday the 14th November 2007 police have been performing static surveillance upon the location of 36 Green Valley Road Busby . Police observed Radwan MAJZOUB enter motor vehicle ZR01AQ and drive to the suburb of Miller. Police observed Radwan MAJZOUB drive into Shropshire Street Miller and speak with a male person known to police for drug possession.
Police observed an exchange between the two parties with the male person leaving quickly and into the rear yard of a house. Police stopped Radwan MAJZOUB and conducted a search of his Vehicle and person. Police located 10 x clear resealable plastics bags within a larger plastic bag with each small bag containing Amphetamine (SPEED). Police believe the cash to be a result of the drug exchange .
Police arrested Radwan MAJZOUB and conveyed him to Green Valley Police Station.
The total weight of Amphetamine seized by police was 4.3 grams with a street value of about $1000.00.
Police also seized a ledger relating to the sale of prohibited drugs.
Radwan MAJZOUB is known to police and has extensive Intelligence relating to drug supply, drug location and links to OMCG (Comanchero) which is well known for the supply of prohibited drugs .
Police have seized and downloaded the three sim cards which were with Radwan MAJZOUB which reveals messages relating to the sale of prohibited drugs.
Attached are a summary of intelligence reports relating to 36 Green Valley Busby and Radwan MAJZOUB.
Also attached is a police profile relating to Radwan MAJZOUB.
Plain Clothed police are currently conducted Surveillance upon 36 Green Valley Road Busby .” (emphasis added)Radwan MAJZOUB has not had the opportunity to make contact with associates at 36 Green Valley Road Busby and police strongly believe further prohibited drugs and things associated with the sale and supply of prohibited drugs are with the said location.
The authorised justice’s decision to issue the search warrant
33 In the “Authorised Justice’s Record of Application for a Search Warrant” (annexure B to the affidavit of Lesly Randle sworn 18 September 2008), it is stated that the “relevant particulars of the grounds” on which the authorised justice “relied to justify the issue of the warrant” included the following factual matters:
“(a) the applicant notes that, over time, a reports [sic] have been received from a number of sources, all indicating that a person named Radwan Majzoub is directly involved in the possession and supply of illegal drugs such as amphetamines;
(b) through the months of October and November this year, police officers have conducted static surveillance of the premises at which Radwan Majzoub lives, namely 36 Green Valley Road, Busby;
(c) the applicant reports that activity at those premises is highly consistent with the same of illegal drugs in that people visit that residence frequently, stay for a short time and then leave;
(d) earlier today, Radwan Majzoub was seen by police officers to get into motor vehicle number ZR-01-AQ. He drove off and was followed by police officers . Mr Majzoub was seen to drive to Shropshire Street in Miller where he stopped and had a conversation with a man;
(e) police officers observed an exchange taking place between Mr Majzoub and this other man;
(f) the other man was recognized by police as being a person who has a record for the possession of illegal drugs. The man left the area quickly once the exchange had taken place ;
(g) the applicant further reports that Radwan Majzoub was stopped by police after witnessing the exchange ;
(h) Mr Majzoub and his vehicle were searched and as a result, 10 clear plastic bags, each containing what is believed to be amphetamines, were located;
(j) the applicant adds that police have seized three SIM cards that had been in Mr Majzoub’s possession. A download of the information discloses messages relating to the sale of illegal drugs;” (emphasis added)(i) in addition, cash and a ledger with details relating to the sale of prohibited drugs were also located during that search
The issue of bad faith and fraud
34 The particulars of the allegedly incorrect, false and/or misleading information referred to in the amended summons are as follows:
(a) As at the time of the applicant’s arrest on the day, the plaintiff was not known to the second defendant
35 The first contention is that the plaintiff was not known to police as was stated in the application for warrant. According to Constable McKinley’s oral evidence, he did not know the plaintiff until arrest (transcript, 2 June 2008, at p. 37).
36 However, the words used in the warrant application make no statement of personal belief, they stated that the plaintiff “is known to Police”. Attached to the application for the warrant was a New South Wales Police profile of Radwan Majzoub (annexure A to affidavit of Lesly Randle sworn 18 September 2008). The profile contained a summary of the plaintiff’s criminal and intelligence histories. The summary of the plaintiff’s intelligence history includes “Information Reports (17) Drugs Amphetamines Supply Street Level, Drugs Other, Drugs Courier, Gangs OMCG, Organised Crime, Street Crime, Security Industry Act, Customs, and Public Order.” Constable McIntyre stated in his oral evidence that he knew the plaintiff since November 2007, and that police had intelligence on 36 Green Valley Road since 2006 (transcript 2 June 2008, p. 19, 22, 27, 28). Accordingly, a substantial body of material existed at the time of the application that established that the plaintiff was known to New South Wales police.
(b) There was no evidence capable of supporting the contention made that reports received by police “all indicated that” the plaintiff had been “directly involved” in the possession and supply of illegal drugs such as amphetamines.
37 In relation to his exercise of the power to search the red Mazda, Constable McKinley stated in his oral evidence (transcript 2 June 2008, p. 34) that the fact that the vehicle pulled up in front of Mr Layt’s house, known within the Green Valley Command as being connected with drug supply, caused him to reasonably suspect that prohibited drugs were in the vehicle. Constable McKinley then used the police radio and conducted a vehicle enquiry on the registration plate observed on the red Mazda (ZR01AQ) (Statement of Police, 19 February 2008). The transcript of the radio broadcast (annexure A to the affidavit of Benjamin McIntyre on 14 November 2008 at 12:36) reads as follows:
“ RADIO – ‘ Green Valley 140 is known, has intel there’s nothing currently outstanding ,’
GV140 ‘ Yeah Green Valley 140 copy that what was the intel for’
GV140 – ‘ Yeah copy that’.”RADIO – ‘ Ah Gangs OMCG, security industry, drugs, street crime ’
38 According to the plaintiff, this suggested that there was no intelligence then currently outstanding, no current investigation on foot and no current surveillance.
39 However, Constable McKinley alluded to intelligence reports as a source of evidence in relation to the plaintiff’s drug related activities in the application for the warrant. Furthermore, the police profile attached to the application for the warrant supported the position that police had received reports or intelligence about the plaintiff in relation to drug offences. Constable McKinley confirmed this in his affidavit where he stated that his “knowledge that the plaintiff was involved in drug related activities” came from intelligence reports on the police information system (COPS) and from speaking with fellow officers (para 12). Similarly, Constable McIntyre stated in his affidavit sworn 20 December 2008 that he had read a number of intelligence reports on the police information system (COPS) which “indicated that the plaintiff was involved in the possession and supply of prohibited and prescribed drugs” (para 13(a)) and had consequently conducted surveillance of his residence from 16 May 2007 until 14 November 2007 (para 13(b)).
40 Whether all the intelligence received about the plaintiff related to drug supply and possession and indicated his direct involvement is unclear. It is apparent from the police profile that some of the intelligence reports related to other matters. It is unknown on the evidence as to the level of involvement by the plaintiff indicated by the reports. However, it cannot be said that there was no evidence of intelligence reports available to police relating to the plaintiff’s involvement in the supply and possession of drugs.
(c) The plaintiff was not followed from his home at Busby to Miller on the subject day. The second and third defendants were simply driving around the relevant suburbs and had observed things happen at the time
41 In his affidavit sworn 24 December 2008, Constable McKinley gave the following account. He states that on 14 November 2007 at around 12.05pm,
15. Constable McIntyre and I stopped and observed the location for a short time. During that observation I saw the plaintiff. The plaintiff entered the driver’s side door of the red Mazda and left the location.”“ 14. … We were patrolling various suburbs within the Green Valley Command. Our car travelled up Green Valley Road, Green Valley and passed the house number 26 Green Valley Road, Green Valley. At this house was a parked red Mazda 3…
42 About half an hour latter, Constables McKinley and McIntyre were patrolling the suburb of Miller. While driving down Shropshire Street, Constable McKinley “observed a male person I know now to be Mark Layt (Layt) on the front lawn of a house 36 Shropshire Street, Miller speaking on his mobile phone” (affidavit of Scott McKinley sworn 24 December 2008 at para 17). It was only at this point that Constable McKinley recalled seeing a “red Mazda 3 motor vehicle bearing New South Wales registration ZR01AQ travelling west along Shropshire Street towards Layt” (affidavit of Scott McKinley sworn 24 December 2008 at para 18). As the police vehicle continued eastwards along Shropshire Street, Constable McKinley saw the red Mazda stop in front of the house at 36 Shropshire Street (affidavit of Scott McKinley sworn 24 December 2008 at para 21).
43 On the evidence, there were two inaccuracies in the description of the course of events in the application for the warrant and in the authorised justice’s reasons. Firstly, Constable McKinley did not “follow” the plaintiff from his home at 26 Green Valley Road to Mr Layt’s house at 36 Shropshire Street. Rather, the red Mazda driven by the plaintiff was seen in Green Valley Road and then was seen again in Shropshire Street. Although Constable McKinley did not use the word “follow” in the application for warrant, the same effect could be inferred from the words used in the application. However, in his affidavit (paras 16-19, 43) and statement of 19 February 2008, Constable McKinley gave the same explanation as to this expression in the application for warrant, namely, that it was a contraction of the police observations of the plaintiff leaving his home at 12:05pm and observing him later in Miller at 12:35pm.
44 Secondly, Constable McKinley was not performing “static surveillance” on the plaintiff’s home but was observing the house as part of patrolling the Green Valley Command (Statement of Police, 19 February 2008; transcript 2 June 2008, p. 38).
45 I do not consider that these inaccuracies could be characterised as significant. The fundamental fact is that Constable McKinley did see the plaintiff meet with Mr Layt and he made observations of the two men entering into discussions at a relevant point in time.
(d) Significantly, the second defendant did not observe any drug “exchange” between two men (the plaintiff and Mr Layt).
46 In his affidavit sworn 24 December 2008, Constable McKinley states:
“ 22. I then observed Layt enter the red Mazda and sit in the front passenger seat. I could see the plaintiff and Layt seated in the red Mazda, but I could not hear what they were saying, and I could not see their hands .”
47 Similarly, the cross-examination of Constable McKinley, transcript of proceedings on 2 June 2008 (p. 43) contains the following:
“ Q. This may sound like a really silly question, but I have to ask you. You didn’t hear any conversation they had while they were in the car?
A. No.Q. Because they were sitting in the car you couldn’t see what they were doing in the car?
A. No.Q. All right, so you were unable to see what they were doing, if they were doing anything in the car?
A. No.Q. So for example, if they were saying, ‘Here’s 50 bucks and here’s your marijuana’ you wouldn’t have had a clue because you couldn’t see in the car?Q. If they were doing something in the car you wouldn’t have seen it?
A. No that’s correct.
A. No .”
48 After doing a u-turn in Shropshire Street, Constable McKinley saw the red Mazda drive up the driveway quickly.
49 It is conceded by the defendants that neither Constable McKinley nor Constable McIntyre observed drugs or any item pass between the plaintiff and Mr Layt. Constable McKinley said that he formed the conclusion that a drug exchange had occurred based on his observations of the behaviour of Mr Layt and the plaintiff, as well as the surrounding circumstances. In particular, Constable McKinley noted the following observations in his affidavit sworn 24 December 2008 (para 27):
(a) Mr Layt received a phone call immediately prior to the red Mazda arriving;
(b) Mr Layt and the plaintiff subsequently entering the car together;
(d) The finding of small bags of white powder (later confirmed to be methylamphetamine) when the red Mazda was searched.(c) The fact that the car remained stationary; and,
50 Constable McKinley also knew that criminal intelligence had been received by police about Mr Layt and the plaintiff in relation to drugs, and had some knowledge as to how drug deals take place.
51 Constable McKinley provided an explanation in his affidavit as to why the word “exchange” was used in the application for warrant. He stated (at para 28) that he “intended” the words “the exchange” to mean the interaction between Layt and the plaintiff described above. The plaintiff submitted that irrespective of what Constable McKinley intended to convey to the authorised justice, the effect of what was communicated was that Constable McKinley and other “police officers” had observed an “exchange” (of drugs).
52 Reading both the application for warrant, the facts were capable of supporting at least a provisional inference to be drawn that a drug exchange had taken place. An applicant for a warrant does not, of course, have to establish that a criminal offence has in fact occurred. The evidence in support of an application may identify matters from which inferences may be drawn to support a reasonably held suspicion. The material in this case, in my opinion, well supported such a suspicion. Accordingly, although Constable McKinley’s choice of words was not accurate, it was not such as to distort or falsify information which otherwise existed and which itself supported a reasonable suspicion.
The principles of bad faith and fraud in the public law context
53 Certiorari is an available remedy where there has been a failure to ensure a fair trial attributable to the irregular conduct of a decision-maker or party: NASBv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [52]-[53]. Examples in relation to the conduct of a party are fraud, perjury and collusion, but they may not be exhaustive; see R v Bolton; Ex parte Scally [1991] 2 WLR 239.
54 The “red blooded” species of fraud which engages the common law has not been a focus in the context of public law: SZFDE v Minister for Immigration (2007) 232 CLR 189 at [13]. In SZFDE, persons seeking asylum had acted on the advice of a migration agent and not attended the hearing of their appeal. The court found that the advice was not only a fraud on the asylum seekers in the public law sense, but also a fraud “on” the tribunal.
55 “Fraud” may be used in a broader sense which encompasses bad faith: Craig v South Australia (1995) 184 CLR 163 at [176]. However, the words “bad faith” do not impute “moral obliquity”: SZFDE (supra) at [13].
56 A number of principles can be discerned from the cases in relation to what constitutes fraud and bad faith in the context of administrative decision-makers. The position of a decision-maker is, of course, different in a number of respects from that of a person who makes application for the exercise of a statutory power. However, with that in mind, nonetheless such principles provide guidance in relation to the issue pressed in this case. They were summarised by the Full Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]-[48] and included in part the following:-
1. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.
2. The allegation is not to be lightly made and must be clearly alleged and proved.
3. There are many ways in which bad faith can occur and it is not possible to give a comprehensive definition.
4. The presence or absence of honesty will often be crucial; see SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
5. Mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [107] by Black CJ.
7. It is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ").6. Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
57 In SCAZ (supra), Von Doussa J held that to establish an attempted exercise of power was not bona fide, it may be unnecessary for the applicant to go so far as to show that the decision-maker actually knew the exercise of power was wrong. An exercise of power that was reckless as to whether it was in a manner required by law may not be a bona fide exercise.
58 A number of cases concerning administrative decision-makers have equated a want of good faith with arbitrariness, recklessness or capriciousness: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 276; Buck v Barone (1976) 135 CLR 110 at 118–119; WAFV v Refugee Review Tribunal (2003) 125 FCR 351 at [52]; Hallahan v Campbell; ex parte Campbell (No 2) [1964] Qd R 337; R v Deland; Ex parte Willie (1996) 6 NTLR 72.
59 In Holmswood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129, after analysing both the narrow and broad views, Brereton J held that the broader concept of good faith should apply, and in particular that recklessness or capriciousness on the part of an arbitrator in the performance of his or her adjudicative function falling “short of a wilful and deliberate failure” can amount to a want of good faith (at [110]).
60 The Full Federal Court, however, has cautioned against using recklessness as an objective standard of bad faith: NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412. What is required to show a want of good faith is that the administrative decision-maker was “recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him” (at [24]).
61 In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [7] – [8] Heerey and Kiefel JJ added a qualification to the last of the propositions which I have reproduced at paragraph 56. While reckless indifference may be a substitute for intent, their Honours observed that the inquiry is directed to the “actual state of mind” of the decision-maker. Bad faith will not be established merely where “illogical factual findings” or “procedural blunders” have occurred (at [8]). The qualification was endorsed by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [21].
The application of the principles governing bad faith and fraud to search warrants
62 The plaintiff’s primary position in the present proceedings is that Constable McKinley deliberately provided the authorised justice with false and misleading information by describing in the application for warrant that “police observed an exchange”. This is said to be a false statement of the facts or a conclusion posited by Constable McKinley.
63 Alternatively, the plaintiff argues that Constable McKinley was aware of the consequences of making the statement in the application for warrant that he had observed an “exchange”, the consequences being that the authorised justice would be mislead or deceived.
64 The burden of proof rests upon the plaintiff. While the civil standard of proof on the balance of probabilities applies, it has been recognised that clear or cogent proof is necessary where so serious a matter as fraud or bad faith is alleged: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]; Crewdson v Industrial Relations Commission of New South Wales [2007] NSWCA 178 at [36].
65 There is a positive obligation of disclosure of certain information contained in the LEPR Act. Section 62(1) of the LEPR Act dictates what information should be disclosed in a search warrant application. This includes the details of the authority of the applicant to make the application for the warrant, the grounds on which the warrant is being sought, the address of the premises, a full description of the thing to be searched for, details of any refusal of the same warrant, and any other information required by the regulations. It should also be noted that although not framed as a positive requirement not to make false and misleading statements in an application for warrant, s 63 of the Act does make it an offence to do so.
66 It is not expressly alleged in the present proceedings that the requirements of disclosure in s.62(1) were not satisfied. Rather, it is submitted that s.62(2), which is concerned with the matters the authorised officer should consider when determining whether there are reasonable grounds to issue a warrant, makes reliability of the information a touchstone of the application. The authorised officer is to consider the reliability of the information on which the application is based, including the nature of the source of the information, and, whether there is sufficient connection between the thing sought and the offence. However, this does not create of itself a positive obligation on the applicant for a warrant to ensure that the information is reliable. The relevant state of mind of the authorised justice is a matter of primary importance.
67 For the purposes of a police officer applying to an authorised justice pursuant to s.47 of the LEPR Act, the relevant state of mind is the belief on reasonable grounds that there is, or will be, on any premises a thing connected with a particular indictable, firearms, prohibited weapons, narcotics, or child pornography offence, or a thing stolen or otherwise unlawfully obtained.
68 While an applicant for a warrant is not under a general duty of disclosure at common law, in an exceptional case, a warrant may be vitiated by fraud or misrepresentation: Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555. A statement that is a half-truth, and therefore misleading, may be treated as a misrepresentation: Lego at 555, 564 and 570; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400. The word “misrepresentation” has been held to mean “fraudulent misrepresentation” and “fraud” to mean “dishonesty of a more general kind, so that only conduct of that kind will vitiate a decision and allow the power to be exercised afresh" (Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26 at [44]).
69 Beaumont and Whitlam JJ observed in Lego (supra) at 555 that in the absence of an abstract duty of disclosure, the question ultimately is whether the information in the application for warrant is sufficient to satisfy the statutory requirements, in that case, s 10 of the Crimes Act 1914 (Cth). Any duty of disclosure depends for its existence upon the legislative scheme of the relevant statute: Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149; see also Carmody v MacKellar (1997) 148 ALR 210; Dunn v The Australian Crime Commission [2009] FCAFC 16.
70 Vincent v Randall [1999] NSWSC 833 was concerned with false information provided to an authorised justice in an application for a search warrant under the Search Warrants Act 1985. However, the plaintiff did not claim that the police officer in question had intentionally misled the authorised justice, but rather that there was not sufficient information to satisfy the authorised justice that there were reasonable grounds to issue a warrant (see Search Warrants Act, s 6, now LEPR Act, s 48). In that case, the police officer had included in the application for warrant the incorrect belief that the plaintiff had convictions for possession of cannabis. It was accepted by Hidden J at [16] that the police officer had made a “genuine mistake”. Although his Honour noted that it was “unfortunate” that the justice was supplied with false information, in light of the other information presented in the application, Hidden J found the material was sufficient to provide reasonable grounds for the issue of the warrant.
71 Similarly, in Connell v Miller (NSWSC, Latham J, 12 February 2007, unreported), the application for warrant contained a number of misrepresentations, namely that police had witnessed the plaintiff load containers into the rear of a vehicle when no such observation was made. The containers were said to contain certain chemicals used to manufacture methamphetamine. Latham J found there was nothing deliberately dishonest about any of the misrepresentations made by the police officer in the application for the warrant. As the conduct fell short of deliberate dishonesty, the provision of misleading information in that case was found not to vitiate the warrant.
72 In Gibbons v Evans [2008] NSWSC 495, the plaintiff’s girlfriend told police that she had discovered a link to a child pornography site on the plaintiff’s computer. In the application for a search warrant, the police officer stated that the plaintiff’s girlfriend had discovered files containing child pornography saved on the plaintiff’s computer. Adams J found that although the belief that images saved on the plaintiff’s computer were of child pornography was “carelessly arrived” at, there was no wilful or intentional misleading of the authorised justice (at [9]). It was accepted by Adams J that the officer was not conscious of this carelessness and had not been deliberately negligent or indifferent to her duty. She simply did not understand the distinction between accessing a link and accessing images saved on a computer. In those circumstances, his Honour found that there was no basis for quashing the warrant.
73 By including in his application that he observed an “exchange”, Constable McKinley did not refer to or state the primary facts to support the observation. He expressed a conclusion which he had arrived at on the basis of the whole of the circumstances which he had witnessed and had knowledge of. The plaintiff submits that the language used in terms of direct observation discloses a deliberate intention to persuade the authorised justice to issue the search warrant. However, I do not believe that the evidence demonstrates to the requisite degree that Constable McKinley deliberately or wilfully set out to mislead the authorised justice. This would require proof of dishonesty and impropriety, which has not been made out.
74 The alternative argument raised by the plaintiff is that Constable McKinley’s conduct satisfies the last mentioned proposition in SBBS (supra) set out above, that is, he acted recklessly. In the context of the application for the search warrant, in the absence of evidence that demonstrates Constable McKinley was aware of the risk that the language used in the application for the warrant would convey the impression that he had observed a drug exchange take place, bad faith has not, in my opinion, been established.
75 Accordingly, the grounds of bad faith/fraud have not been made out.
76 The relief sought on these grounds accordingly is refused.
77 The order dismissing the Amended Summons has been made in the judgment delivered this day in relation to the other grounds relied upon.
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