Patryk Hurst (a pseudonym)[1] v Director of Public Prosecutions
[2018] VSCA 339
•12 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0179
| PATRYK HURST (A PSEUDONYM)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicants.
S APCR 2018 0180
| PAOLO ROCHA (A PSEUDONYM) | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2018 |
| DATE OF JUDGMENT: | 12 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 339 |
| JUDGMENT APPEALED FROM: | DPP v [Hurst (a pseudonym)] (Unreported, County Court of Victoria, Judge Wilmoth, 31 July 2018 (Ruling)) |
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CRIMINAL LAW — Interlocutory appeal — Evidence — Admissibility — Discretion to exclude improperly or illegally obtained evidence — Evidence obtained pursuant to search warrants — Whether search warrants were invalid — Form of warrant prescribed by Magistrates Court Criminal Procedure Rules 2009 — Magistrate failed to tick a box on the face of the warrants to indicate whether they authorised a search for evidence or a search for a person — Whether requirements provided for by s 146 of the Firearms Act 1996 were met — State of New South Wales v Corbett (2007) 230 CLR 606, applied — Failure to tick a box may have been a mistake or slip but did not detract from the clear identification of the requisite statutory elements — Leave to appeal refused – Firearms Act 1966, s 146 – Magistrate’s Court Act 1989, ss 75, 76, 77 and 78.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Hurst | Mr J Gullaci | Victoria Legal Aid |
| For the Applicant Rocha | Mr P J Smallwood | TT Law Group |
| For the Respondents | Ms F Dalziel with Ms A Kapitaniak | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
PRIEST JA
MACAULAY AJA:
Introduction
An indictment filed in the County Court charges both applicants, Hurst and Rocha, with possessing a traffickable quantity of unregistered firearms[2] and manufacturing firearms.[3] Rocha is also charged on the same indictment with trafficking in a drug of dependence (Cannabis L and Stanozolol),[4] and with other drugs, firearms and dishonesty offences.
[2]Firearms Act 1958, s 7C.
[3]Firearms Act 1958, s 59A(2).
[4]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).
Much of the prosecution evidence sought to be introduced at trial is the product of two search warrants under the Firearms Act 1958 executed by police on 17 August 2016 at premises owned and occupied by Rocha, during which police located and seized a number of firearms, ammunition, illicit drugs and prohibited weapons. As a result of their finding laboratory equipment at the factory, police made application for the issue of a third search warrant under the Drugs, Poisons and Controlled Substances Act 1981 (which permitted a magistrate to give lawful directions to the police concerning seizure of the material and equipment relating to illicit drugs).
In pre-trial argument before a judge of the County Court, the applicants contended that prosecution evidence as to the items located and seized (and their testing), and the applicants’ records of interview, should be excluded pursuant to s 138(1) of the Evidence Act 2008. The applicants contended that some of the impugned evidence was unlawfully obtained in contravention of ss 146 and 148 of the Firearms Act 1958 and ‘common law propriety rights’, and other evidence was obtained as a consequence of unlawful conduct by police.
On 31 July 2018, the judge refused the application to exclude the evidence obtained upon the execution of the three search warrants (‘the interlocutory decision’ or ‘the ruling’). Further, the judge certified that the exclusion of that evidence from the trial would eliminate or substantially weaken the prosecution case, thereby enabling the applicants to seek leave to appeal the interlocutory decision to this Court.[5]
[5]Section 295(3) of the Criminal Procedure Act 2009.
Each applicant sought leave to appeal against the ruling on the sole ground that:
The learned judge erred in her ruling dated 31 July 2018 by not concluding that:
(a)the search warrants that were the subject of the ruling were invalid;
(b)the requirements provided for by s 146 of the Firearms Act 1996 (Vic) had not been met; and
(c)evidence obtained following the execution of those search warrants was improperly or illegally obtained.
This Court may grant leave to appeal against an interlocutory decision if it is satisfied it is in the interests of justice to do so having regard to the factors set out in s 297 of the Criminal Procedure Act 2009. We are not so satisfied.
The application for leave to appeal was heard on 9 November 2018. At the conclusion of the hearing, we ordered that each application for leave to appeal be refused, and we indicated that we would publish our reasons in due course. These are our reasons.
The prosecution case
Rocha is the owner and occupier of a residence in a north-western suburb, and a factory in a western suburb, of Melbourne.
As a result of an investigation by a police taskforce, on 17 August 2016 at about 7.00 am, police simultaneously executed two search warrants issued under the Firearms Act 1958 at Rocha’s residence and his factory. At his residence, police found firearms (including shotguns, rifles and a -22 calibre hand-gun with silencer), ammunition, prohibited weapons (including Tasers, a knuckleduster, knives and pepper spray) and drugs. Later examination and analysis showed the drugs to include Cannabis L (including eight plants 2.73 kilograms), Testosterone, Trenbolone, Stanozolol and Cocaine. At the factory, police located equipment consistent with the operation of a clandestine laboratory. Police also found a quantity of firearms and firearms manufacturing materials and equipment, and drugs. Later analysis revealed vials found in a fridge at the factory to contain Boldenone.
The interlocutory decision
As we have said, both applicants are to be tried for firearms charges, including manufacturing firearms, and, in respect of Rocha, drug offences, the disputed evidence having been obtained upon the execution of two search warrants issued under s 146 of the Firearms Act 1986 (‘the firearm warrants’) and a third search warrant, issued under s 81 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the drugs warrant’).
Each applicant argued that the firearm warrants were invalidly issued because the magistrate failed to tick a box on the face of the warrants to indicate whether they authorised a search for evidence or a search for a person.
The judge rejected the applicants’ contentions that the firearm warrants were invalidly issued; that the evidence obtained from their execution was therefore improperly or illegally obtained; and that further evidence obtained from the execution of the drugs warrant, issued due to information obtained from the execution of the firearm warrants, was also illegally obtained. Finding that the firearm warrants were validly issued, there was no need for the judge to deal with the question whether the evidence should be admitted despite having been improperly or illegally obtained, by reference to the balancing exercise called for under s 138 of the Evidence Act.
Relevant legislation
Section 75 of the Magistrates Court Act 1989 (‘MCA’) provides that a search warrant may be issued as authorised by any Act other than that Act and that an application for a search warrant must be supported by evidence on oath or by affidavit. In other words, the MCA provision empowers a magistrate to issue a search warrant which other legislation authorises.
Sections 76, 77 and 78 of the MCA are additional general provisions that apply to any search warrant issued by a magistrate. Relevantly for this application, s 78 defines the scope of the authority conferred by a search warrant upon the person to whom it is directed, depending upon whether the warrant authorises the search for a person or a thing. If a search warrant authorises a search for a thing, the scope of the authority is to break, enter and search an identified place or vehicle for the thing described, to bring that thing to court and to arrest any person apparently having possession, custody or control of the thing.
Section 146 of the Firearms Act authorises the issue of a search warrant in these terms:
146 Warrants to search premises
(1)A police officer may apply to a magistrate for the issue of a search warrant in relation to particular premises (including any vehicle on or in those premises) or a particular vehicle located in a public place, if the police officer believes on reasonable grounds that an offence against this Act is being or is about to be committed.
(2)If the magistrate is satisfied by the evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that an offence against this Act is being or is about to be committed, the magistrate may issue a search warrant authorising the police officer named in the warrant and any assistants the police officer considers necessary—
(a)to enter the premises named or described in the warrant or the vehicle named or described in the warrant that is located in a public place; and
(b)to search for and seize any evidence of the offence named or described in the warrant.
(3)In addition to any other requirement, a search warrant issued under this section must state—
(a)the offence suspected; and
(b)the premises or vehicle located in a public place to be searched; and
(c)a description of the evidence to be searched for; and
(d)any conditions to which the warrant is subject; and
(e)whether entry is authorised to be at any time or during stated hours; and
(f)a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(4)A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the prescribed form under that Act.
(5)The rules to be observed with respect to search warrants set out by or under the Magistrates' Court Act 1989 extend and apply to warrants under this section.
(6)Nothing in this section or section 147 or 148 limits the power of a police officer under section 149.
It can be seen that the necessary conditions for the issue of a search warrant under s 146 are that a police officer must apply to a magistrate and satisfy that magistrate, by evidence on oath, that he or she holds a belief that an offence against the Firearms Act is being or is about to be committed and that reasonable grounds exist for that belief. In those circumstances the magistrate may issue a search warrant authorising a named police officer to enter named premises or an identified vehicle to search for and seize any evidence of the offence named or described in the warrant.
It is important for this application to note that a warrant issued under s 146 can only authorise police to enter premises to search for evidence (i.e. a thing or things). It does not authorise the search for a person. As already mentioned, s 78 of the MCA defines the scope of the authority conferred by a warrant to search for a thing.
Incidentally, another provision of the Firearms Act, s 149, empowers a police officer, without warrant, to search a person (not for a person) if that officer has reasonable grounds for suspicion that a person is committing or is about to commit an offence against the Firearms Act and has possession of a firearm or other item named in that section.
A search warrant issued under s 146 of the Firearms Act must state the details described in the six paragraphs appearing in sub-s (3). Subsection (4) requires that the form of the search warrant must be as prescribed under the MCA. Rule 33 of the Magistrates Court Criminal Procedure Rules 2009 provides that any warrant issued under s 75 of the MCA must be in ‘Form 20’, a form prescribed in those rules.[6]
[6]Which are rules made, relevantly, pursuant to the power provided under s 16 of the MCA.
Form 20
Form 20 is a form that is prescribed for use in relation to search warrants that may be issued by a magistrate under s 75 of the MCA as authorised under powers conferred in a variety of Acts, not only those issued under s 146 of the Firearms Act. So much is made clear from the penultimate sentence in the form, namely, ‘This warrant is authorised by section of theAct’. Unlike s 146, provisions of other Acts may confer authority for the issue of a warrant to search for a person, or to search for a person and for things.[7] It is evident that Form 20 was designed to cater for the different types of search warrants.
[7]Compare, for example: s 470 of the Crimes Act 1958, pursuant to which a magistrate may issue a warrant to search a place for any woman or girl unlawfully detained for immoral purposes (ie, a search for a person), and s 92 of the Crimes Act 1958, under which a magistrate may issue a warrant to search a place for stolen goods (ie, a search for articles, things or evidence). Both are search warrants within the scope of s 75 of the Magistrates’ Court Act 1989, which must, pursuant to r 33 of the Magistrates’ Court Criminal Procedure Rules 2009, be in Form 20. Other search warrants, issued under different legislation, may utilise other forms to Form 20. For example, the form of a search warrant under s 237 of the Children, Youth & Families Act 2005 — which authorises police to search a premises for and apprehend a child to enable the Secretary to exercise powers under a temporary assessment order — is prescribed in Form 12 of Schedule 4 to the Children Youth and Families Regulations 2007, even though the rules which apply to search warrants under the Magistrates’ Court Act 1989 extend and apply to search warrants under that section unless otherwise provided.
Among other things, Form 20 specifies that the warrant must include the following information:
This Warrant authorises
[Name, Rank, No, Agency and Address]
or all members of the police force:
Search for a person
to break, enter and search any place where the person named or described in this warrant is suspected to be;
and
to arrest the person named or described in this warrant.
Search for any article, thing or material of any kind
to break, enter and search any *place/*specified vehicle located in a public place named or described in this warrant for any article, thing or material of any kind described in this warrant;
and
to bring the article, thing or material before the Court so that the matter may be dealt with according to law;
and
to arrest any person apparently having possession, custody or control of the article, thing or material.
Although the form itself contains no notation to this effect, it would seem from the existence of the boxes beside the words which describe the two different types of search that it is expected that the issuing magistrate would tick (or otherwise mark) the box adjacent to words designating the search intended to be authorised.
Further down the form boxes also appear against two different means for dealing with bail for any person who is arrested on the execution of the warrant. The two means correspond with the alternatives that are mandated by s 78(2) of the MCA. On the form, the alternative means are separated by the word ‘or’ and the form seemingly envisages that the issuing magistrate would exercise a choice by marking the appropriate box.
At the foot of the form there is an instruction, ‘*Delete if not applicable’, a reference back to that part of the form that provides that a search for a thing might occur at a place and/or in a specified vehicle.
The printed stationary used for the two firearm warrants in this particular case contained some provisions not stipulated by Form 20 itself. It included a sentence allowing for the provision of additional conditions, consistently with s 146(3)(d) of the Firearms Act. Immediately below that sentence was a part providing for a choice to be made whether entry to the place to be searched was authorised at any time of the day or night or only between particular hours to be written in spaces provided. Specification of such a time was required by s 146(3)(e). Again, that choice was to be made by marking the box against the words describing the option so chosen.
Finally, the stationary also contained a printed sentence stipulating when the warrant ceased to have effect with a space provided for the date to be filled in, conforming to the requirement in s 146(3)(f).
From this, it can be seen that the printed form used by the magistrate to issue the two firearm warrants was a form that contained the information as required by Form 20, generic to all search warrants issued under s 75 of the MCA, but it also included information only required by s 146(3) of the Firearms Act. Although the form as printed modified Form 20, by addition, for the purpose of its use as a search warrant to be issued under s 146 of the Firearms Act, it also preserved the words relating to a search for a person which were inapt for a warrant issued under that section. Although those words are superfluous in that context, presumably they were included on the printed form in obedience to the command in s 146(4) that the warrant be issued in the form prescribed under the MCA.
The Firearms Act warrants issued in this case
At this point it is convenient to specify the matters which were not in dispute either before the judge below or in this Court. It is not disputed that:
(a) a police officer applied to a magistrate, in accordance with s 146(1) of the Firearms Act, deposing to the belief required in that section, and the magistrate was satisfied by evidence on oath as to the reasonable grounds for the police officer’s belief or suspicion;
(b) the search warrants as issued stated, in compliance with s 146(3) of the Firearms Act, the offence that was suspected, the premises to be searched, a description of the evidence to be searched for, any conditions to which the warrant was subject (there were none), the time when entry was authorised, and the day, not later than seven days after the issue of the warrant, on which the warrant would cease to have effect;
(c) the contents of Form 20 were incorporated in each warrant;
(d) under the words ‘This warrant authorises’ was the name, rank and registration number of a particular police officer together with the details of his station and address;
(e) below the heading ‘Search Warrant’ on each warrant were references to the relevant provisions of the MCA and to ‘Firearms Act S.146’;
(f) each warrant was properly signed and dated by the magistrate; and
(g) above the magistrate’s signature was a statement, ‘This warrant is authorised by Section 146 of the Firearms Act 1996’.
It is also important to highlight the information that was included in the firearm warrants, in compliance with s 146(3)(a) and (c), about the suspected offence and the evidence to be searched for. In each warrant, under the heading, ‘Reason given for the search or description of suspected offence’ were the words ‘To obtain evidence supporting charges relating to manufacture\traffic illegal firearms’ and under the heading ‘Name and/or description of person or article, thing or material’ was the following list:
1. Semi-automatic handguns – complete\manufactured.
2. 3D printer and associated hardware\software\materials.
3. Articles and materials used to manufacture firearms.
4.Electronic communications devices used to communicate with prospective buyers of illegally manufactured firearms.
5. Firearm components and packaging imported from overseas.
6.Receipts for materials purchased\used in the manufacture of illegal firearms.
Significantly, no person’s name appeared under that heading.
Against that background, we come to what was said to be deficient about the two firearm warrants.
In this case, on each of the two firearm warrants, the magistrate did not tick either of the boxes beside the words ‘search for a person’ or ‘search for any article, thing or material of any kind’. By contrast, the magistrate did tick a box choosing an option for the time of day when the search was authorised to take place (that is, nominating ‘at any time of the day or night’ rather than specifying particular hours). The magistrate also wrote in a date by which the warrant ceased to have effect. Although, as noted above, a warrant authorising a search for a thing carried with it an arrest power, no selection was made (i.e. by ticking one of the boxes) to designate the means of dealing with bail if a person was arrested.
The argument in the County Court
It was submitted to the primary judge that the two firearm warrants issued by the magistrate did not authorise anything to be done by the police. It was submitted that the magistrate’s authorisation or approval for the application for search warrants was meaningless without a box beside either of the two kinds of search having been marked. The applicants relied upon statements of principle to the effect that there must be strict compliance with the legislative conditions for the issue of a search warrant because such a warrant authorises the invasion of premises which, without the consent of those in lawful possession or occupation, would otherwise constitute an unlawful trespass.[8]
[8]George v Rockett (1990) 170 CLR 104, 110–111; DPP v Marijancevic (2011) 33 VR 440, 456 [57].
In her reasons for declining to rule the evidence inadmissible, the judge said she was satisfied that the validity of the search warrants did not depend upon whether boxes on the form were completed or not. Rather, she held, it depended upon whether the mandatory information required by s 146 was included and whether the intended purpose of the search warrant was clear and unambiguous to persons whose property was to be searched.[9] In her Honour’s view, each of those requirements were satisfied.
[9]DPP v [Hurst (a pseudonym)] (Unreported, County Court of Victoria, Judge Wilmoth, 31 July 2018 (Ruling)), [31].
Arguments on the application
In this application for leave to appeal the applicants relied essentially upon the same arguments that were put to the primary judge. They may be stated succinctly: first, that properly construed the warrants were meaningless and were ineffective to authorise the relevant police officer to conduct any search at all; secondly, that the warrants were, on their face, ambiguous and confusing and incapable of informing the person whose premises were being entered what it was that the police were authorised to do.
Both arguments were manifestations of the same alleged legal defect, namely that by not nominating the type of search that was authorised the magistrate had not issued the warrants ‘in the prescribed form’ as the legislature required. Thus, it was argued, because the law requires strict compliance with legislative conditions for search warrants to be valid, the judge should have held them to be invalid.
Each applicant relied upon the following passage in George v Rockett:
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.
…
Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
The applicants also relied upon this Court’s decision in DPP v Marijancevic[10] where it was said:
A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights.[11]
[10](2011) 33 VR 440.
[11]Ibid 456 [57].
We will deal with each of the two arguments in turn.
Did the warrant authorise anything?
The applicants argued that strict compliance with the legislative conditions for the lawful issue of a search warrant under s 146 of the Firearms Act, which included the use of Form 20, required that a choice be made whether the search was for a thing or a person. That choice was to made by ticking or marking the box appropriate to the type of search the magistrate intended to authorise. Here, no choice was made therefore the warrants simply failed to confer any authority upon police to enter the named premises to do either.
The Crown argued that there has been strict compliance with the legislative preconditions for the issue of a warrant under s 146 of the Firearms Act because that provision only permits authorisation for the search of a thing and nothing in the section requires a magistrate to choose between two species of searches. The applicants reply, in effect, was that the Crown’s submission confined the legislative preconditions with which there needs to be strict compliance too narrowly. Taking the correct view, they submitted, those conditions include the mandate that Form 20 must be used and Form 20 itself implicitly requires a selection to be made as to the nature of the search to be authorised.
In our view this debate is resolved, primarily, by answering the question: how are the warrants as issued to be properly construed? As in any exercise of construction one must read the whole of the document. It has to be read in context which, in this case, includes reading it against the context of the provision authorising its purported issue. And it is to be construed objectively.
Looking, then, at the whole of the document, it is clear that the firearm warrants in this case were each headed as a ‘Search Warrant’ and were directed at particular, identified premises. Six quite specific categories of items were listed as the objects of the search. The reason for the search was given. A named police officer of a named police station was identified as the officer authorised to carry out the search. The time of day during which the search was authorised was specified. The warrants were each signed and dated by a named magistrate. The statutory provisions relied upon for the issue of the warrants were explicitly stated — in the case of the Firearms Act provision, both in the heading of the document and again in a clear statement as to the statutory basis for the issuing of the warrant immediately above the magistrate’s signature.
So, although a question may remain whether the object of the search was to be a thing or a person or both, it could scarcely be said upon a reading of the whole of the warrants that they authorised no search at all. If on a proper construction the warrants purport to authorise both a search for a thing and a person, the question would arise whether the warrants could be saved notwithstanding an apparent excess of jurisdiction. But that is not what is argued here. It is argued that the warrants authorised nothing at all. In our view, of the available choices that one is the least persuasive construction of these documents.
The more persuasive alternative constructions are that the warrants authorised the named police officer to search the named premises for things, or for a person, or for both. But, upon a reading of the whole document it is amply clear that the only object of the authorised search is the group of things listed on the warrant in the space under the heading ‘Name and/or description of person or article, thing or material’, reproduced at [29] above. Due to the absence of any person’s name in that space it is equally clear that the object of the search was not a person.
Logic then dictates that the words under and applicable to ‘search for a thing’ are the operative words and that the reference to ‘search for a person’ on the warrants is superfluous and has no legal effect. Those words neither add to nor subtract from the operative authority which is to search for the articles, things or materials listed in the warrant that may constitute evidence of the offence described. Put another way, given the surrounding words on the document it was not necessary to mark or tick the box against the words ‘search for a thing’ for the warrant to be objectively construed as authorising (and only authorising) a search of the named premises for the things listed.
This construction is reinforced and made even plainer having regard to the empowering provision under which the warrants were explicitly issued — namely, s 146 of the Firearms Act. As noted, that provision only empowers a magistrate to issue a warrant to search for a thing, not a person.
We therefore reject the applicants argument that the warrants are meaningless and are ineffective to authorise any search at all. They plainly authorise entry into the named premises for the search of the things listed on the face of the warrant subject to the limitations and conditions stated.
No different result is reached by considering whether there has been proper compliance with the legislative conditions for the issue of a search warrant under s 146 of the Firearms Act. Unquestionably, strict compliance with the preconditions for the issue of the warrant authorising forced entry into premises is demanded to give effect to the purpose of the authorising legislation. However, the requirement of strict compliance with the legislative conditions does not exclude the application of common sense. As explained by Kirby J in Ousley v The Queen[12]:
Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into property and privacy of those subject to them. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected.
[12](1997) 192 CLR 69, 144.
A principled method by which to apply that practical approach is found, by analogy, in the approach of the High Court in State of New South Wales v Corbett.[13] There, the defect in the issue of a warrant was that a police officer, when applying for it, referred to a legislative provision that had been repealed, whereas the true source of power (in materially identical terms) was to be found in the Act replacing the repealed Act.
[13](2007) 230 CLR 606 (‘Corbett’).
The relevant statutory provision required the applicant police officer to have reasonable grounds for believing that a thing connected with a particular firearms offence was present at a premises. Callinan and Crennan JJ (Gleeson CJ and Gummow J agreeing) found that the purpose of the statutory requirements was to identify the object of a search by reference to a particular offence thereby limiting the scope of the search authorised by the search warrant. This, they said, was to ensure —
… that the issuing justice knows the specific object of the search warrant and accordingly limits its scope. Strict compliance, in the sense described in Rockett,[14] is achieved when that purpose is fulfilled. To invalidate the warrant here because of the incorrect reference in the application would not serve that purpose.[15]
[14](1990) 170 CLR 104 at 111 (see above, at [30]).
[15]Corbett [105] (Callinan and Crennan JJ), [1] (Gleeson CJ), [3] (Gummow J).
Applying that approach, their Honours concluded that in the circumstances of that case there could be no mistake about the object of the search or the boundaries of the search warrant, and that the reference to the repealed Act was mere surplusage that did not detract from the statement about the nature of the offence or make the object of the search unintelligible or ambiguous. Despite error, the court held the applicant had complied with the legislative requirements and that the warrant was not invalidated.
Clearly the nature of the alleged defect here is not precisely the same as the one before the High Court in Corbett. But the same analytical approach can be applied.
The evident purpose of the statutory requirements for the issue of a search warrant under s 146 of the Firearms Act, limited by definition to a search for evidence (i.e. articles, things or materials), was to ensure that the issuing magistrate confined the scope of the search to items relevant to an identified offence, at or in an identified premises or vehicle, within identified hours of a day and in a timeframe not exceeding seven days from the date of issue.
The prescription of Form 20 ensured that core elements were properly addressed in issuing the warrant and that those elements would be evident on its face to any person to whom the warrant was shown. As seen above at [27], Form 20 was modified on the stationary used for the two firearm warrants by the inclusion of other elements pertinent only to a warrant issued under s 146 of the Firearms Act.
Addressing all of those elements when completing Form 20, as so modified, meant that the statutory conditions for issuing the search warrants were strictly complied with. The failure to implicitly de-select an irrelevant option, by failing to select the only relevant option, may have been a mistake or slip but it did not detract from the clear identification of the elements that the statute required to be addressed.
What we have said so far addresses the ground that the firearm warrants were invalid for failing to authorise anything at all. For completeness, although not argued, it is appropriate to briefly consider the alternative argument that the warrants were invalid for purporting to authorise a search that was beyond the power of the magistrate to authorise. If, contrary to the conclusion reached above, the warrants should be construed as purporting to authorise both a search for a person and for a thing, in our view it would be appropriate to sever the words applicable to a search for a person from the warrants to save them being in excess of power.
A detailed discussion of the power to sever parts of a warrant to save it from invalidity is found in this Court’s decision in R v Ng.[16]In some jurisdictions there is, in substance, a statutory severance power that has been held to apply to statutory instruments of an administrative nature, including warrants issued pursuant to a statutory power.[17] It is unlikely the equivalent power found in s 22 of the Interpretation of Legislation Act 1984 (Vic), however, would extend to search warrants of the kind in issue in this proceeding. That is because a ‘subordinate instrument’ to which the s 22 power applies must be a statutory rule, or contain regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes, or be of a legislative character.[18]
[16]R v NG (2002) 5 VR 257 (Winneke P, Batt and Eames JJA).
[17]For example, s 46 Acts Interpretation Act 1901 (Cth), see R v Ng [56]; s 32 Interpretation Act 1987 (NSW), see Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 1988 CLR 501, 507 (Gummow J) and Peters v Attorney-General (NSW) (1988) 16 NSWLR 24, 41 (‘Peters’).
[18]Definition of ‘subordinate instrument’ in s 38 of the Interpretation of Legislation Act 1984 (Vic).
It is enough to say that apart from a statutory power, in R v Ng this Court recognised the existence of a common law power to sever an invalid portion of a search warrant issued pursuant to a statutory power so as to leave the rest of the warrant valid[19] There is, however, a clear limitation on that power, so that it is not possible to sever part of a warrant where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended.[20]
[19]R v Ng [57], [58] and [59].
[20]Peters, 41; Bank of New South Wales v The Commonwealth (1948) 76 CLR 1, 371 (Dixon J).
That said, the common law power to sever is not confined to a power simply to strike out words — that is, the ‘blue pencil’ method — but extends to ‘treating the text as so modified so as to achieve severance’.[21] Such a step may only be taken where to do so would not produce any change to the substantial purpose and effect of the impugned provision and, in particular, not leave in place a substantially different law as to the subject matter dealt with from what it would otherwise be.
[21]R v Ng [58].
In this case, the part of the warrants which goes beyond the power of a magistrate to authorise under s 146 of the Firearms Act is introduced by the words ‘search for a person’ and the box adjacent to them. Those words, and the associated words relating to a search for a person, do not form part of an inseparable context because, clearly, they only represent an option.
Further, striking those words out would not cause the warrant to operate differently from the way it was intended to operate. It would leave in place the very words that were intended to operate, namely ‘search for any article, thing or material of any kind’ and the other words associated with a search of that kind.
If it is not appropriate to strike out the words relating to a search for a person — because to do so would offend the legislative condition that Form 20 must be used — then the same result could be achieved by ‘treating the text as modified’ by the insertion of a tick in the box against the words applicable to the search for things.
In short, if it were necessary to sever the words relating to a search for a person (or treat the text as modified to achieve such severance) to save the firearm warrants from invalidity, we would have done so. But, on the analysis we have adopted there is no such invalidity.
Are the warrants ambiguous and confusing?
We turn briefly to the applicants’ second argument, namely that the firearm warrants were, on their face, ambiguous and confusing and incapable of informing the person whose premises were being entered what it was that the police were authorised to do. In view of what we have said so far, especially on the question of the construction of the warrants, there is little further that need be added.
On the assumption that the recipient of one of the firearm warrants actually read it — the premise for any argument that it may confuse the reader — the salient aspects of the document make it tolerably clear that the warrant empowers named police to enter named premises, at any time of the day or night up to a certain date, to search for specified items as evidence of offences relating to the manufacture or trafficking of illegal firearms. If any momentary doubt could arise whether the warrant empowered the search for a person, that doubt is quickly dispelled by noticing that no person’s name is listed as being the object of the search.
Conclusion
We see no arguable error in the decision made by the judge below declining to rule that the evidence obtained pursuant to the firearm warrants and, derivatively, the drugs warrant had been improperly or illegally obtained and, so, ruling the evidence to be admissible. None of the submissions made in support of the ground of appeal could be upheld and, for that reason, leave to appeal was refused.
One final observation should be made. The facts of this case expose the dangers of prescribing generic forms for use in a variety of potential applications, particularly in a field in which the precise contents of the document must be carefully adapted for the case in hand. Even more so where the consequences of the issue of the document in question may have a profound impact on the rights and obligations of citizens, as in the case of search warrants.
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