O'Donoghue v Kordick; ex parte

[1994] QCA 41

THE COURT OF APPEAL	[1994] QCA 041
SUPREME COURT OF QUEENSLAND

Appeal No. 216 of 1993

Brisbane

Before McPherson J.A.
Davies J.A.
Thomas J.

[O'Donoghue v. Kordick & Jessie]

BETWEEN

MAVIS DAWN O'DONOGHUE

v.

DEREK JOHN KORDICK and PETER JESSIE

Ex parte: MAVIS DAWN O'DONOGHUE

JOINT REASONS FOR JUDGMENT - McPHERSON & DAVIES JJ.A.

Judgment delivered the Fifteenth day of March 1994

This is an order nisi obtained by the applicant Mavis Dawn O'Donoghue to review the decision of a justice of the peace issuing a search warrant in respect of premises at 1 Collinson Street, Cairns, and another such warrant for premises at 77B Lake Street, Cairns. The two warrants are in practically the same terms, and it is sufficient to refer only to the latter. It commands the police officers to whom it is addressed to enter buildings on the land and to seize property described in the warrant. The command to enter and seize follows three recitals, which are : (1) that there are reasonable grounds to suspect that certain property exists and is in the building of the applicant at 77B Lake Street; (2) that, as to it, there are reasonable grounds for believing it will afford evidence as to the commission of a particular offence; and (3) that it appears to the justice that there are reasonable grounds for so suspecting and believing.

Stated briefly, the offence is that between 16 and 20 August 1993 the applicant knowingly participated directly in the provision of prostitution of another person or persons at the premises, namely La Body Language at 77B Lake Street, Cairns. The property to be searched for and seized is described in the warrant as follows:

"Documents and records relating to the business operation of 'La Body Language' situated at 77B Lake Street, Cairns, including staff rosters, banking details, Merchant names and business names, credit card impress machines, advertising accounts with Newspapers and magazines, telephone accounts, general accounts bills and receipts in relation to the operations of the business and premises, client records and any other documentation relating to the premises. Any electronic equipment and telephones used for the operation of the business. Any documentation and or records showing a connection between 'La Body Language' and premises at 1 Collinson Street, Cairns, 77B Lake Street, Cairns or other premises operated by Mavis O'Donoghue."

Two grounds of appeal are given in the order nisi to review. The first is that the justice of the peace was wrong in deciding to issue the two search warrants when the complaint grounding the warrant on which he acted did not disclose that the applicant participated directly in the provision of prostitution at 77B Lake Street. The second ground is that the terms of the warrants are too wide, with the consequence that they are invalid and the decision to issue them was wrong.

We are satisfied that the first ground is not made out.
The function of the complaint in a matter like this is not
to prove the offence, but to show the justice who is asked
to issue the warrant that there are reasonable grounds for
the suspicion and belief recited in the search warrants. A
suspicion that some person or persons were providing
prostitution at the Lake Street premises during the time
alleged is amply justified by the matters disclosed in the
complaint. In addition to the name "La Body Language", the
complaint refers to an entry published in the personal
column of the Cairns Post advertising an "upmarket massage
salon". When the accompanying telephone number 313261 was
called, a woman answered the telephone; she quoted a price
of $40 and gave the address as 77 Lake Street, saying that a
customer who attended there could discuss anything further
with the girls. On 18 August 1993 an undercover police
officer who went to 77B Lake Street paid $40 for a "lingerie
massage" provided by a woman clad in lingerie. He was told
that for $80 he could have a "sensual massage" with
"relief".

Another telephone call to that number on the same day elicited that there were three women available to service customers, with the prospect of a fourth if needed. The woman who answered the call would not discuss details of the higher priced service over the telephone. Next day another police officer went to 77B Lake Street and spoke to two women there. One of them led him to a private massage room; for $80 he was offered a full nude sensual massage with body slide which it was claimed would provide relief. The service was declined by the police officer, who when leaving the premises saw two other men waiting there. On the same day groups of men were observed entering the Collinson Street premises, and leaving again after an hour or more.

Plainly in all this there were sound reasons for supposing that the stimulation provided at La Body Language was bodily not linguistic. The applicant's direct association with the premises at 1 Collinson Street appears in several different ways. In her affidavit to support the application she says she and her husband have leased the Collinson Street premises to Westcourt Business Club Inc.; and she gives her address as 1 Collinson Street describing herself as Business Manager. Of course, the justice who issued the warrant did not have that affidavit; but the material in the complaint before him showed the applicant to be director and secretary of Westcourt Enterprises, which is a name that appears on a sign on the side of the building at 1 Collinson Street; and she and her husband have a merchant account in that name with ANZ Bank. The applicant is the subscriber with Telecom for telephone service no. 315893, which is connected with 1 Collinson Street.

Westcourt Enterprises is also the name in which credit card facilities are available at La Body Language at 77 Lake Street. Again, the applicant is the subscriber for telephone service no. 313261 which is connected to those premises, to which address the telephone accounts are sent.

It is the telephone number in the Cairns Post advertisement that was dialled by police officers in the course of the inquiries on 18 August 1993.

All these matters appear from the complaint and provide reasonable grounds for the suspicion and belief needed for the warrant to issue. It was nevertheless urged on appeal that the description in the warrants of the property to be searched for and seized went beyond what was justified having regard to the material disclosed in the complaint.

This is the subject of the second ground of appeal in the order nisi. With one qualification, we consider that all of the items comprising the categories of property referred to in the description may reasonably be suspected of being on the premises and may reasonably be believed to afford evidence of the commission of the offence charged. The exception is the reference in the final part of the description to "other premises operated by" the applicant.

There is nothing in the complaint to suggest that there are any such premises apart from 77B Lake Street and 1 Collinson Street. In that respect the warrants are too widely expressed.

The question is whether as a result each of the

warrants is so affected as to invalidate the whole of it.
In Canada it has been held that there is no power to amend a
defective search warrant by redrawing or rewriting its terms
: Re Dobney Holdings v. The Queen (1985) 18 C.C.C. 3rd 238;
but the judgment in that case distinguished without
questioning the correctness of earlier decisions of the same
court holding that a distinct part of a warrant may be
severed if excessive : see Re Regina and Johnson & Franklin
Wholesale Distributors Ltd. (1971) 3 C.C.C. 2d 484
(B.C.C.A.); and Laborde v. The Queen (1972) 7 C.C.C. 2d 86.

The first of these decisions, which has since been followed in R. v. J.E.B. (1989) 52 C.C.C. 3d 225, 231-232 (N.S. App.Div.), considered and applied R. v. Green (1851) 20 L.J.M.C. 168 confirming that there is a power to sever the good from the bad part of an order made by justices of the peace. The Canadian decisions allowing severance of parts of search warrants that are excessive in terms have been followed in the Federal Court of Australia. See Parker v. Churchill (1985) 9 F.C.R. 316, 321; affd. (1986) 9 F.C.R. 334; Beneficial Finance Corporation Ltd. v. Commissioner of Australian Federal Police (1991) 103 A.L.R. 167, 170, 189.

In Canada the question whether amendment or severance is permissible has arisen on applications for certiorari, where the powers of the court are admittedly limited. In Queensland the present procedure by order to review has been substituted in terms of which the powers of this Court are very much wider. Under s.213(1)(ii) of the Justices Act 1886 they now include a discretion to confirm, vary, amend, rescind, set aside or quash an order or a warrant. Having regard to the limited extent of the excess here, we consider the present case to be one in which it is proper to exercise the discretion conferred by s.213(1)(ii) to vary the warrants by deleting the offending words from each of them.

We do not think that by taking that course here we would be disregarding what was said by the High Court in George v. Rockett (1990) 170 C.L.R. 104, 111, 115. In other respects the warrants in this case complied with the statutory conditions regulating their issue.

Subject to the qualification mentioned, the decision to issue the warrants is not shown to have been wrong. In these circumstances we consider that the proper course on the application before us is to order that the warrants issued on 19 August 1993 should be varied by omitting from each of them the words "or other premises operated by Mavis O'Donoghue". In the circumstances the order nisi to review should be discharged with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 216 of 1993

Brisbane
[O'Donoghue v. Kordick & Jessie]

BETWEEN

MAVIS DAWN O'DONOGHUE

v.

DEREK JOHN KORDICK and PETER JESSIE

Ex parte: MAVIS DAWN O'DONOGHUE

McPherson J.A.
Davies J.A.

Thomas J.

Judgment delivered 15/03/94

Joint reasons for judgment of McPherson & Davies JJ.A.
Separate concurring reasons of Thomas J.

DISCHARGE WITH COSTS THE ORDER NISI TO REVIEW. VARY WARRANTS ISSUED ON 19 AUGUST 1993 BY OMITTING FROM EACH OF THEM THE WORDS "OR OTHER PREMISES OPERATED BY MAVIS O'DONOGHUE".

CATCHWORDS	CRIMINAL LAW - SEARCH WARRANTS - Validity - Severance - Whether reasonable grounds for suspicion of prostitution - Whether description of property to be searched beyond that justified by complaint - Whether distinct part of warrant severable if excessive - Application of s.213(1)(ii) Justices Act 1886.
Counsel:	M.E. Pope for the appellant M. Bryne Q.C. for the respondent

Solicitors: McInnes, Wilson & Jensen, t/a for Bruce K.

Gillan, Innisfail, for the appellant

Director of Prosecutions for the respondent

Hearing Date: 23 February 1994

IN THE COURT OF APPEAL

SUPREME COURT OF

QUEENSLAND

BRISBANE	Appeal No. 216 of 1993
BETWEEN:

MAVIS DAWN O'DONOGHUE

v.

DEREK JOHN KORDICK and PETER JESSIE

Ex parte: MAVIS DAWN O'DONOGHUE

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 15/03/1994

I agree with the joint reasons which are published by McPherson and Davies JJ.A. My only reservation is in relation to the orders to be made in the present circumstances. I would have ordered that the warrants be varied as stated and that the order nisi to review be otherwise discharged with no order as to costs.