Mohamed Siddique v Michael Martin and Magistrates' Court of Victoria [No 2]
[2016] VSCA 310
•9 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0090
| MOHAMED SIDDIQUE | Appellant |
| v | |
| MICHAEL MARTIN | First Respondent |
| and | |
| MAGISTRATES’ COURT OF VICTORIA [NO 2] | Second Respondent |
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| JUDGES: | TATE, FERGUSON JJA and CAVANOUGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2016 |
| DATE OF JUDGMENT: | Determined on the papers |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 310 |
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COSTS – Appeal costs – Application for indemnity certificate by respondent police officer – Whether appeal against decision of Court ‘in a civil proceeding’ – Whether certificate would be ‘in favour of the Crown or any person representing the Crown’ – Application for indemnity certificate granted – Appeal Costs Act 1998, ss 3, 4, 5, 38.
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| APPEARANCES: | Counsel | Solicitors |
| No appearance for the Appellant | ||
| For the First Respondent | Ms R L Kaye | Victorian Government Solicitor’s Office |
| No appearance for the Second Respondent | ||
TATE JA:
Introduction and summary
On 18 November 2016 this Court granted the appellant, Mohamed Siddique (‘Siddique’), leave to appeal and allowed his appeal[1] against a decision of Bell J,[2] who had held that a magistrate was correct to find his powers under s 78(6) of the Magistrates’ Court Act 1989 did not extend to directing that items not listed in two warrants, but which had been seized in the course of executing those warrants, should be returned to Siddique. The warrants authorised the first respondent, Michael Martin (‘Martin’), a Detective Senior Sergeant of Victoria Police, and all members of the police force, to break, enter and search the place named in each warrant for any article, thing or material named in the warrant.[3]
[1]Siddique v Martin [2016] VSCA 274.
[2]Siddique v Martin [2015] VSC 423 (‘Bell J Reasons’).
[3]See Siddique v Martin [2016] VSCA 274 [6].
Following the delivery of judgment, this Court ordered that Martin pay Siddique’s costs of the application for leave to appeal and the appeal, including any reserved costs, as well as the costs of the proceeding in the Trial Division, again including any reserved costs.[4] The costs incurred in the Magistrates’ Court were reserved for determination by that Court on the rehearing and redetermination of the proceeding. Martin applied for an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act 1998 (‘the Act’). Section 4(1) of the Act provides:
[4]The second respondent, the Magistrates’ Court of Victoria, did not take an active role in the proceeding and indicated it would abide by the decision of this Court in accordance with the principles laid down in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
4 Application by respondent for indemnity certificate in respect of appeal
(1) If an appeal against a decision of a court in a civil proceeding—
(a) to the Trial Division of the Supreme Court; or
(b) to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or
(c) to the High Court of Australia from a decision of the Supreme Court —
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
Counsel submitted on Martin’s behalf that the appeal before this Court was a ‘civil proceeding’ for the purposes of s 4(1) of the Act. Counsel also submitted that Martin was not precluded from being granted such a certificate under s 38 of the Act because he was not ‘the Crown or any person representing the Crown’. Section 38 provides:
A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.
In my opinion, for the reasons set out below, I would grant a certificate.
Is the proceeding a civil proceeding?
To determine if a proceeding in this Court is civil or criminal in nature, for the purposes of the Act, it is necessary to consider the substance of the matter which is the underlying proceeding in which the relevant claims were made.
Kirsch v Dolman[5] was a proceeding for judicial review before Gillard J of an order of a magistrate requiring the plaintiff to undergo a compulsory procedure for the taking of a DNA sample pursuant to s 464T of the Crimes Act 1958. He held that the order was made in breach of natural justice and amounted to a jurisdictional error. He quashed the magistrate’s order. The plaintiff had not been informed of the making of the application under s 464T, which was a clear breach of that section, and the order was made in the plaintiff’s absence. Gillard J held that the member of Victoria Police who followed the incorrect procedure for applying under s 464T was not entitled to a certificate under s 4(1) of the Act. He found that the application for the compulsory sample and the order made were ‘part of a procedure which could lead to criminal charges being laid and heard. The statutory procedure is part of the weaponry available to members of the police force to investigate crime.’[6] And while judicial review is a jurisdiction which ‘is supervisory in nature to ensure that [inferior courts, tribunal and administrative] bodies exercise their powers and procedures in accordance with the law and within jurisdiction’,[7] he held that the case before him was criminal in nature and s 4(1) of the Act did not apply:
The court must consider the substance of the matter which is the underlying proceeding in respect of which judicial review is applied.
Applying that test, it is my opinion that the judicial review was in respect of a matter which was criminal in nature, and that this was the underlying proceeding which was the subject of the exercise of the judicial review jurisdiction of this Court. Hence, the exercise of the common law jurisdiction of this Court was in respect of a matter which was a criminal matter.
It follows that s 4(1) of the Appeal Costs Act does not apply to this judicial review and accordingly, Mr Dolman is not entitled to an indemnity certificate under that subsection.[8]
[5](2001) 123 A Crim R 331.
[6]Ibid 334 [30].
[7]Ibid 334 [28].
[8]Ibid 336 [38]–[40].
In my view, Kirsch v Dolman is distinguishable because the substance of the matter in the underlying proceeding here is civil in nature.
The underlying proceeding before the Magistrate was an application by Siddique for the recovery of private property belonging to him. While it was brought pursuant to statute, s 78(6) of the Magistrates’ Court Act,[9] in substance it bore the same character as a proceeding in tort for the recovery of private property for conversion or detinue. Indeed, in Martin’s submissions before Bell J in the Supreme Court Martin characterised the proceeding as having that character:
So by these proceedings the Plaintiff is seeking an order for the return of chattels which are alleged to be wrongfully in the possession of the First Defendant. It is in essence, an action for detinue.
[9]This provides: ‘The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice’.
The property the subject of the contested application before the magistrate included paintings by Howard Arkley, Charles Blackman and Arthur Streeton. They were seized in the execution of warrants which authorised the seizure of paints, frames, solvents etc relating to ‘fraudulent [Brett] WHITELEY paintings’. As was observed in the reasons of this Court on the appeal:
Amongst the items seized that were not named or described in the warrant were several paintings attributed to renowned Australian artists other than Brett Whiteley, including Charles Blackman and Howard Arkley.[10]
[10]Siddique v Martin [2016] VSCA 274 [8].
The property which Siddique sought to recover was property which was not named or described in the warrants (‘the non-Whiteley property’).[11] As explained in the reasons of the Court of Appeal, this did not render the seizure of the non-Whiteley property necessarily unlawful because, at common law, it is recognised that police officers, in the execution of a search warrant, may seize other items which they believe on reasonable grounds to be implicated in some other criminal offence.[12] Moreover, as further explained in the Court of Appeal’s reasons, this did not deprive the Magistrate of the power to return the non-Whiteley property because s 78(6) confers a power to direct the return to its owner of property ‘seized under a warrant’ and, in the relevant statutory context, ‘seized under a warrant’ includes property seized, lawfully, in the execution of a warrant pursuant to the common law extension. Indeed, the broad reading of the words ‘under a warrant’, in its statutory context, was supported by the recognition that this serves to give effect to the purpose of s 78(6), namely to facilitate the recovery of a person’s private property and to lessen the interference by the State.[13]
[11]As recorded in Bell J Reasons [1]. This is apparent from Siddique’s Outline of Argument in the Magistrates’ Court where what is sought is ‘the return of property seized pursuant to a warrant which was not within the scope of the power conferred by the warrant’. The early documentation is not entirely consistent but it is clear that, by the time submissions were filed with the Magistrates’ Court, what Siddique sought was the return of the non‑Whiteley property (some of which had already been returned by consent).
[12]Siddique v Martin [2016] VSCA 274 [26].
[13]Ibid [20].
However, the fact that the non-Whiteley property was seized in the execution of a warrant does not deprive the application for its recovery of the normal civil incidents attached to an application for the return to its owner of property removed from that owner.
Indeed, the character of the substance of the matter underlying the proceeding is apparent from the alternative civil proceeding in tort which Siddique commenced in the Supreme Court for the return of the non-Whiteley property. The alternative Supreme Court proceeding was brought for trespass to property in which Siddique sought damages, including aggravated or exemplary damages, as well as delivery up of the non-Whiteley property.[14]
[14]Proceeding S CI 2014 03084 Siddique v Sloggett. The Amended Statement of Claim alleges (at [17(b)]) that the plaintiff has suffered loss and damage by reason of ‘the unlawful seizure of those artworks beyond the scope of the search warrant’. In [16] it is alleged that in the Magistrates’ Court proceeding the plaintiff sought ‘the return of items that had been wrongfully seized outside the scope of the search warrant’.
Kirsch v Dolman is distinguishable because there the judicial review proceeding was for the review of the application for the obtaining of the sample and the order made by the magistrate granting that application which were part of ‘a procedure which could lead to criminal charges being laid and heard’.[15] The application for judicial review brought here (which came before Bell J and from which the appeal was brought) was not for the review of the application for a search warrant by a police officer ‘as part of the weaponry available to members of the police force’, or a review of its grant. It was for the review of a decision by a magistrate of an absence of power to return private property to its owner.
[15](2001) 123 A Crim R 331, 334 [30].
Furthermore, there was no criminal charge brought with respect to the non‑Whiteley property, and no indictable offence alleged to found a criminal proceeding based upon the non-Whiteley property. The only relevant indictable offence with which Siddique was charged, and convicted, related to property that was named or described in the warrant. The connection with any criminal charge is, in my view, too remote in the circumstances to deprive the proceeding of its civil character for the purposes of s 4(1) of the Act. This stands in contrast to the circumstances in Kirsch v Dolman where the sample that had been obtained in breach of natural justice was to be part of the investigation into the plaintiff’s commission of an offence. Gillard J observed: ‘The sample may be used as evidence in the hearing of a charge that may be laid against the plaintiff.’[16]
[16]Ibid 334 [29].
Does s 38 preclude the grant of a certificate?
Given my conclusion that the proceeding was civil, within the meaning of s 4(1) of the Act, I turn to consider whether s 38 precludes the grant of a certificate.
On the approach urged by counsel for Martin, this Court should follow the majority decision in Kirkland-Veenstra v Stuart [No 2][17] and grant a certificate. In Kirkland an application was made for an indemnity certificate when the Court of Appeal allowed an appeal from the County Court and held that two police officers who, during routine patrol, had come upon a man in an isolated location in which he appeared to be (or to have been) contemplating suicide, owed a duty of care to him and to his wife.[18] The police officers did not exercise their powers of apprehension under the Mental Health Act 1986 and the man later took his life. Nettle JA (with whom Warren CJ agreed) held that the police officers, in determining not to exercise their powers of apprehension under the Mental Health Act, were not ‘representing the Crown’ for the purposes of s 38 of the Act. Nettle JA relied upon principles enunciated in Enever v The King[19] (confirmed in Jarratt v Commissioner of Police (NSW))[20] and in Attorney-General (NSW) v Perpetual Trustee Co (Ltd),[21] and said:
[W]here a power is vested by common law or statute in a police officer as such, and is exercisable by him or her regardless of government direction, the police officer cannot be said to be acting on behalf of the Crown in the exercise of that power. It is rather his or her own act done in the exercise of a duty as a police officer.
As it appears to me, s 10 of the Mental Health Act is in terms such that it vests the power of apprehension to which it refers in a police officer as such and not in the Crown. If so, it is not to be exercised on behalf of the Crown. As with other powers of arrest and apprehension, a police officer is in the first instance responsible to the public for the proper exercise of the power vested in him or her by Parliament, and if the Crown were to interfere with the police officer in the exercise of the power, it would be no answer to a prosecution by a member of the public for neglect of duty that the police officer had been commanded by the Crown to abstain from exercise of the power.[22]
[17](2008) 23 VR 36 (‘Kirkland’).
[18]Kirkland-Veenstra v Stuart (2008) 23 VR 1. This was reversed by the High Court: Stuart v Kirkland-Veenstra (2009) 237 CLR 215.
[19](1906) 3 CLR 969, 977 (Griffiths CJ) (‘Enever’).
[20](2005) 224 CLR 44, 65–6 [70] (McHugh, Gummow and Hayne JJ), 81 [119] (Callinan J) (‘Jarratt’).
[21](1955) 92 CLR 113, 129 (Privy Council) (‘Perpetual Trustee’).
[22]Kirkland (2008) 23 VR 36, 44 [32]–[33].
Maxwell P, in dissent, considered that the principles enunciated in Enever and in Perpetual Trustee were inapplicable, since those cases were concerned with the question of vicarious liability, which was not relevant in Kirkland. He referred to the statement made about the relationship between police officers and the Crown in Applicants A1 & A2 v Brouwer [No 2]:[23]
[23][2007] VSCA 269 (‘A1 & A2’).
In that case, the court (Maxwell P, Neave and Redlich JJA) held that:
• ‘The Crown’ in s 38 means the executive branch of government.
• Victoria Police is an agency of the executive government. Its members perform important governmental functions.
• Police officers are servants of the executive government and hence — by definition — servants of the Crown.
I would add that, when carrying out duties as a member of the police force, each police officer is bound by the oath taken in accordance with s 13(1) of the Police Regulation Act — that he/she ‘will well and truly serve our Sovereign Lady the Queen as a member of the Police Force of Victoria’. In other words, when acting as a member of Victoria Police, the officer is serving the Crown.
Viewed in this way, a police officer while on duty is as much a public servant — a representative of the Crown — as is any other officer of the executive government when discharging the functions of his/her office. That is presumably the basis on which the actions of police officers are treated as amenable to judicial review.[24]
[24]Kirkland (2008) 23 VR 36, 41 [21]–[22] (citations and footnotes omitted).
However, A1 & A2 was concerned directly with the conduct of a delegate of the Chief Commissioner and a distinction was drawn between the accountability of the Chief Commissioner to the Minister for Police and the day-to-day activities of police officers who are not subject to ministerial control:
The Victoria Police is an agency of the executive government. Its members perform important governmental functions. Although the day-to-day activities of police are not subject to ministerial control or direction, the Chief Commissioner — like her civilian counterpart, the Secretary of the Department of Justice — is accountable to the Minister for Police (and, through the Minister, to the Cabinet) for the discharge by Victoria Police of the policing function and for the proper expenditure of the public funds allocated to that task. Funding for the operations of Victoria Police is provided by way of annual appropriations out of consolidated revenue, in the same way as it is provided to all other departments of the executive government.[25]
[25]A1 & A2 [2007] VSCA 269 [5] (emphasis added) (citations omitted).
A1 & A2 expressly left open the question whether an ordinary member of Victoria Police represented the Crown for the purposes of s 38.
Here, Martin was performing no more than the day-to-day activities of a police officer.
More generally, I do not consider that the reasoning in A1 & A2 can outweigh the principles of law, as they currently stand, that the powers of a police officer ‘are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself’.[26] Powers conferred on police officers as such are not subject to government direction. There has long been a recognition that, with respect to police officers, their authority is original and not delegated; a police officer does not exercise his or her powers in any representative capacity.[27] Indeed, in Kirsch v Dolman[28] Gillard J held that, if the respondent had been entitled to seek a certificate under s 4(1) of the Act, s 38 would not have precluded him from doing so. He observed that:
a member of the force who is investigating a crime, is not acting in any capacity as the Crown or representing the Crown. It is not until the filing of a presentment that the Crown becomes involved in any prosecution.
…
It is clear law that when a police officer lays a charge, he is not acting for or on behalf of the Crown but acting purely and simply on his own decision. In my view, a member of the force, when investigating a crime and applying for a statutory order that a suspect provide a sample, is not acting as the Crown or representing the Crown.
In my opinion, s 38 has no application to the present matter and would not have precluded the grant of a certificate.[29]
[26]Enever (1906) 3 CLR 969, 977, Jarratt (2005) 224 CLR 44, 65–6 [70], 81 [119]. It was recognised in Kirkland that there may be some functions in which a police officer may be the servant of government and subject to the direction and control of the Crown but not the type of functions considered here: (2008) 23 VR 36, 43–4 [32].
[27]Perpetual Trustee (1955) 92 CLR 113, 129.
[28](2001) 123 A Crim R 331.
[29]Ibid 337 [50], [52]–[53].
In my view, Martin was not representing the Crown in his execution of the search warrants here and he is entitled to an indemnity certificate under s 4(1) of the Act.
FERGUSON JA:
I agree with Tate JA for the reasons her Honour gives that the first respondent (Michael Martin) should be granted an indemnity certificate under s 4(1) of the Appeal Costs Act 1998.
CAVANOUGH AJA:
The first respondent, Detective Senior Sergeant Michael Martin, applies for a certificate under s 4(1) of the Appeal Costs Act 1998 (‘the Act’) in relation to the costs of the appeal determined by this Court on 18 November 2016.[30]
[30]Siddique v Martin [2016] VSCA 274.
If a certificate were able to be granted, and were granted, then, by virtue of s 5(1)(a)(iii) and s 5(1)(b)(iii) of the Act, the certificate would extend to cover, also, the costs payable by the respondent in respect of the proceeding from which the appeal to this Court was brought, namely the proceeding by way of judicial review
determined by the Honourable Justice Bell on 17 August 2015.[31] Thus, that proceeding by way of judicial review would be treated as an ‘appeal’ in a ‘sequence of appeals’ for the purposes of s 5(1)(a)(iii) and s 5(1)(b)(iii) of the Act.
[31]Siddique v Martin [2015] VSC 423.
It is well established that, for the purposes of ss 4 and 5 of the Act, an application for judicial review may qualify as an ‘appeal’ within the meaning of that word as extended by s 3(1) of the Act.[32]
[32]R v Marshall: Ex parte Baronor Nominees Pty Ltd [1984] VR 211, 227–8; Kirsch v Dolman (2001) 123 A Crim R 331, 336 [45]; Dawson v Bethonga Whole Foods Pty Ltd [2009] VSC 172 [19]–[29]; Gatto v Felstead [2012] VSCA 14 [32].
Nevertheless, I would refuse to grant a certificate.
Section 4(1) appears in Part II of the Act, which is headed ‘Entitlement to Payment in Civil Matters’. That heading may be contrasted with the heading to Part III, namely ‘Entitlement to Payment in Criminal Matters’. So far as relevant, s 4(1) provides:
4 Application by respondent for indemnity certificate in respect of appeal
(1) If an appeal against a decision of a court in a civil proceeding —
(a)to the Trial Division of the Supreme Court; or
(b)to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; …
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
In my opinion, the appeal to this Court was not an appeal against a decision of a court ‘in a civil proceeding’ within the meaning of s 4(1) of the Act because, in substance, the decision of Bell J was a decision in a criminal matter.
The proceeding before Bell J was an application by the plaintiff, Mr Siddique, under Order 56 of the Supreme Court (General Civil Procedure) Rules for orders in the nature of certiorari and mandamus.[33] It is true that O 56 appears in Chapter I of the Rules, and that Chapter 1 is principally applicable to civil proceedings. And it is true, also, that the proceeding before Bell J was treated as a civil proceeding insofar as it was allocated to the Common Law Division and was heard and determined as part of the Civil List of the Trial Division of the Court. Likewise, the appeal to this Court was treated administratively as a civil appeal as distinct from a criminal appeal. Nevertheless, for the purpose of considering the applicability of s 4 of the Act, regard must be had to the substance of the matter which underlay both the application for judicial review and, in turn, the appeal to this Court.[34]
[33]The procedure under Order 56 replaced the procedures formerly applicable to applications for the prerogative writs.
[34]See Kirsch v Dolman (2001) 123 A Crim R 331, 334–6 [23]–[40], esp at [38], and see further below.
The underlying matter in the present case was, in substance, a criminal matter. It had its origin in applications made by Detective Senior Sergeant Martin for search warrants under s 465 of the Crimes Act 1958. So far as relevant, s 465 provided that an application could only be granted if a magistrate was satisfied by the evidence on oath or by affidavit of a member of the police force[35] of or above the rank of senior sergeant that there was reasonable ground for believing that there was, or would be within 72 hours, in a specified place —
(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; … .[36]
[35]Now, a ‘police officer’: see Victoria Police Amendment (Consequential and Other Matters) Act 2014, s 10 (Schedule item 36.42), which took effect on 1 July 2014.
[36]See s 465(1) of the Crimes Act 1958. Emphasis added.
As indicated in this Court’s reasons for judgment on the appeal, search warrants as sought by Detective Senior Sergeant Martin were granted and executed. In accordance with the tenor of the warrants (and in accordance with s 465(1) of the Crimes Act 1958 and s 78(1)(b)(ii) of the Magistrates’ Court Act 1989), Detective Senior Sergeant Martin carried the property seized before the Magistrates’ Court to be dealt with ‘according to law’.[37] The relevant law, in that regard, was affected (albeit not fundamentally altered) by s 78(6) of the Magistrates’ Court Act 1989. Section 78(6) empowered the Magistrates’ Court to direct the return of property seized under a search warrant if, in the opinion of the Court, the property could be returned ‘consistently with the interests of justice’. The reference to ‘the interests of justice’ was, principally at least, a reference to the interests of criminal justice.
[37]See Allitt v Sullivan [1988] VR 621, esp at 638–9 (Brooking J).
In Mr Siddique’s application in the Magistrates’ Court under s 78(6) filed on 16 May 2014, he claimed the return of ‘all’ of the items that had been seized on 5 March 2014.[38] It seems that, subsequently, by no later than June 2014, he modified his claim under s 78(6) so as to exclude items of a kind that had been specifically named or described in the warrants (ie, the Whiteley material). Mr Siddique’s collateral proceeding in the Supreme Court, which was commenced on 20 June 2014, was always restricted in that way.
[38]Siddique v Martin [2016] VSCA 274 [14]. See application to Magistrates’ Court at AB C54. See also amended agreed summary of facts dated 18 November 2015 [7].
When Mr Siddique’s modified application under s 78(6) came on for hearing on 27 August 2014, it was opposed by Senior Sergeant Martin. Had the magistrate not been under the misapprehension that he had no jurisdiction or power to consider and determine the application, he would no doubt have proceeded to consider whether the interests of criminal justice permitted the return of the property sought, bearing in mind that the search warrants had been obtained by reference to a belief or suspicion on the part of a senior police officer that an indictable offence had been committed or was about to be committed by Mr Siddique; that Mr Siddique no longer sought the return of the Whiteley material (at least for the time being); that the seized material the return of which Mr Siddique did seek was material of a not dissimilar kind; and that (on the assumptions and determinations of law made by this Court)[39] the non-Whiteley material was adventitiously found in the course of searching for material of the kind named or described in the warrant and was material which was believed on reasonable grounds to show Mr Siddique to be implicated in some serious criminal offence and was, thus, material seized ‘under a search warrant’. Hence, even in its modified form, the application made by Mr Siddique under s 78(6) of the Magistrates Court Act 1989 and the determination of that application were, in my opinion, part and parcel of the search warrant process.[40]
[39]Siddique v Martin [2016] VSCA 274 [3], [21]–[23], [26]–[27], [38].
[40]See, again, Allitt v Sullivan [1988] VR 621, esp at 638–9 (Brooking J). Although Allitt v Sullivan was decided before s 78(6) of the Magistrates Court Act 1989 was enacted, that provision did not fundamentally alter the pre-existing law. Hence the observations made by Brooking J in relation to the duty of the magistrate, upon the return of a search warrant, to deal with the seized goods ‘according to law’ remain instructive.
In Kirsch v Dolman[41] Gillard J was required to determine whether a certificate of indemnity could be issued to a police officer who was the unsuccessful respondent to an application for judicial review of an order made by a magistrate requiring the plaintiff to undergo a compulsory procedure pursuant to s 464T of the Crimes Act 1958. As his Honour observed, a compulsory procedure is the taking of an intimate or non-intimate sample from a person suspected of a crime, or the conduct of a physical examination of such a person. As his Honour further observed, s 464T is found in a subdivision of the Act concerned with custody and investigation. Here, the relevant section (s 465) is found in the very next subdivision, which is entitled ‘Search warrants for and seizure of things’. In both cases, the procedures are compulsory and they precede the formal commencement of a prosecution.[42]
[41](2001) 123 A Crim R 331, 334–6 [23]–[40].
[42]Section 5 of the Criminal Procedure Act 2009 provides for the manner in which a criminal proceeding is commenced.
Gillard J considered whether the order made by the magistrate amounted to a decision ‘in a civil proceeding’ for the purposes of s 4(1) of the Appeal Costs Act 1998. His Honour observed that there was clearly no provision in the Act which would entitle the respondent police officer to a certificate if the proceeding were a criminal matter. His Honour referred to two earlier cases in which the issue had been whether there was a right of appeal from the decision of a court on an application for a prerogative writ. His Honour noted that, in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government,[43] the question was whether the relevant application for a writ of habeas corpus was ‘a criminal cause or matter’. Viscount Simon LC had said:[44]
It is the nature and character of the proceeding in which habeas corpus is sought which provides the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.
Gillard J noted that the same approach had been taken by the Full Court of the Supreme Court of Victoria in R v Watt; Ex parte Slade.[45] Applying that same approach, Gillard J held that the application for judicial review in the case before his Honour was in respect of a matter which was criminal in nature and hence that the exercise of the common law jurisdiction of the Supreme Court to grant judicial review was in respect of a criminal matter. It followed, his Honour held, that s 4(1) of the Act did not apply and that, accordingly, the respondent was not entitled to an indemnity certificate.
[43](1943) AC 147.
[44]Ibid 156.
[45][1912] VLR 225, 241 (Cussen J).
In my view, Kirsch v Dolman was correctly decided in this respect, and the present case is not relevantly distinguishable. The ‘direct outcome’ of the search warrant process initiated by the respondent could have been the trial of Mr Siddique and his possible punishment for an indictable offence or a range of indictable offences. As it happens, history records that, subsequently, Mr Siddique was charged in this Court with indictable offences in relation to the Whiteley paintings referred to in the warrants in question, and was convicted after a trial by jury.[46]
[46]See R v Gant & Siddique [2016] VSC 662. The convictions are the subject of a pending appeal to this Court.
It follows that, in my view, it is not open to this Court to grant an indemnity certificate to the respondent.
A further possible bar to the grant of a certificate in this case is s 38 of the Act, which appears in Part VI of the Act (‘Miscellaneous, transitional and repeal’) and which provides:
38 Crown cannot be granted an indemnity certificate
A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.
The respondent denies that s 38 applies in this case. He denies that the grant to him of an indemnity certificate would amount to a grant ‘in favour of the Crown or any person representing the Crown’.
The respondent relies principally on the decision of this Court in Kirkland-Veenstra v Stuart.[47] In that case, the majority (Warren CJ and Nettle JA) held that two police officer respondents were entitled to appeal costs certification in circumstances where an action had been brought against them in tort for failing to apprehend, using their powers under the Mental Health Act, an individual who later committed suicide. Nettle JA, with whom the Chief Justice agreed, referred to the principle stated in Enever v The King[48] that police officers exercising functions such as apprehending offenders are not representing the Crown, as their powers are exercised as a matter of original authority and not on behalf of the Crown.[49]
[47](2008) 23 VR 36 (‘Kirkland-Veenstra’).
[48](1906) 3 CLR 969.
[49]Kirkland-Veenstra (2008) 23 VR 36, 42 [27]–[28].
President Maxwell dissented in Kirkland-Veenstra. His Honour discerned a policy underlying s 38 to the effect that the appeal costs fund should not be available to government respondents, such as police officers sued in their official capacity. In addition, Maxwell P referred to the decision of this Court in Applicants A1 & A2 v Brouwer (No 2).[50] In that case, this Court held that s 38 precluded the grant of a certificate in favour of the Chief Commissioner of Police as respondent to an appeal concerning an application for judicial review of a decision of a delegate of the Commissioner to terminate protection and assistance being provided to a person under the Witness Protection Act 1991.[51]
[50][2007] VSCA 269 (‘Applicants A1 & A2’).
[51]In Dal Pont, Law of Costs (3rd ed, 2013, LexisNexis) [21.60], the learned author expresses a preference for the judgment of Maxwell P over that of the majority.
Given my view that s 4(1) of the Act is inapplicable in this case in any event, I do not propose to express any concluded view as to whether s 38 would apply as well. There would be difficult questions to consider as to whether the majority judgment in Kirkland-Veenstra is distinguishable. One possible view is that Kirkland-Veenstra should be confined to cases where the police officer has been sued in tort. By contrast, the present case, like Applicants A1 & A2, arises from an application for judicial review. Further, the present case relates to the execution of search warrants, a matter which has been described, at least for certain purposes, as ‘the execution of the King’s process’.[52] In addition, the suspected offences to which the search warrants related were indictable offences, not summary offences. In Munday v Gill,[53] Dixon J said:
There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject.
Further, even in relation to tort claims against police officers, there have been statutory changes since Kirkland-Veenstra was decided.[54]
[52]Plenty v Dillon (1991) 171 CLR 635, 640–1 and the cases there cited.
[53](1930) 44 CLR 38, 86. See also Lenthall v Hillson [1933] SASR 31.
[54]See now Division 8 of the Victoria Police Act 2013. In addition, Victoria Police has since been included as a ‘special body’ under the Public Administration Act 2004: see Victoria Police Act 2013, s 6.
In my view, the application for an indemnity certificate should be refused.
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