Polley v Johnson

[2014] NSWSC 1191

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Polley v Johnson and anor [2014] NSWSC 1191

Hearing dates:

13, 14 March 2014; 8 April 2014; 17 June 2014

Decision date:

29 August 2014

Before:

Bellew J

Decision:

1. The summons is dismissed.

2. The parties are to provide written submissions by 4.00pm on Friday 5 September 2014 as to the question of costs, such submissions not to exceed 2 pages in length.

Catchwords:

SEARCH WARRANTS - Validity - Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings - Whether judicial proceedings are required to be on foot in order for such offence to be made out - Whether search warrant invalid

SEARCH WARRANTS - Validity - Whether reasons stated in the application for a search warrant were truthful - Where Court was invited to conclude that the stated reasons were a "cover" for another undisclosed reason - Where no such proposition was put to the applicant for the search warrant when cross examined - Breach of the rule in Browne v Dunn - Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application

STATUTORY INTERPRETATION - general principles to be applied

Legislation Cited:

Crimes Act 1900
Criminal Legislation Amendment Act 1995 (Act No 23 of 1995)
Crimes (Public Justice) Amendment Act 1990 (No 51 of 1990)
Evidence Act 1995
Firearms Act 1996
Interpretation Act 1987
Law Enforcement (Powers and Responsibilities) Act 2002
Uniform Civil Procedure Rules 2005

Cases Cited:

Beckwith v R (1976) 135 CLR 569
Browne v Dunn (1893) 6 R 67
Carver v Clerk of the Court (unreported, Supreme Court of NSW, Black AJ, 13 March 1998
Douglas v Blackler [2001] NSWSC 901
Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63
R v Lansdell (CCA (NSW) 22 May 1995 unreported
R v Orcher (1999) 48 NSWLR 273
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Scalise v Bezzina [2003] NSWCA 362
Warner v Elder (unreported, Supreme Court of NSW, Temby AJ, 23 April 1997

Category:

Principal judgment

Parties:

Michelle Elizabeth Polley - Plaintiff
Belinda Johnson - First Defendant
Holly Wraith Smith - Second defendant

Representation:

Mr G Niven - Plaintiff (on 13 and 14 March 2014)
Mr P Skinner - Plaintiff (on 8 April and 17 June 2014)
Ms M England - First Defendant
Legal Aid New South Wales - Plaintiff
I V Knight - Crown Solicitor for New South Wales - First defendant

File Number(s):

2012 / 271413

Judgment

The principal proceedings

1. By a summons filed on 27 August 2012, the plaintiff seeks (inter alia) the following:

(1) an order pursuant to clause 11(4) of the Law Enforcement (Powers and Responsibilities) Regulation 2005 to allow the inspection of all or part of the Form 1 application for Search Warrant and eligible issuing officer's record of application for a search warrant (63/2011) completed by the first defendant, and submitted to the second defendant at Dubbo Local Court on 30 December 2011 in respect of the premises at 65 Nuerea Street, Mumbil, New South Wales;

(2)   a declaration that Search Warrant number 63/2011 issued on 30 December 2011 at the Local Court, Dubbo in respect of the premises at 65 Nuerea Street, Mumbil, New South Wales by the second defendant, upon the application of the first defendant, is invalid;

(3)   an order in the nature of certiorari quashing the decision of the second defendant to issue Search Warrant number 63/2011;

(4)   a declaration that the execution of the Search Warrant 63/2011 issued on 30 December 2011 by the second defendant at Dubbo Local Court in respect of premises at 65 Nuerea Street, Mumbil New South Wales, upon application by the first defendant, was unlawful;

1. As to the relief sought in prayer (1) of the summons, I note that on 15 May 2013 I made orders upholding a claim for public interest immunity which had been made on behalf of the Commissioner of the New South Wales Police in relation to parts of the relevant application (see Polley v Johnson; Gillard v Johnson; Ward v Higgs [2013] NSWSC 543).

1. The plaintiff relied upon the following evidence in support of the summons:

(i)   paragraphs (1) to (6), (127) to (142) and (178) of the affidavit of Michelle Polley of 12 December 2012;

(ii)   paragraphs (1),(2) and (38) of the affidavit of Michael Gillard of 12 December 2012;

(iii)   paragraphs (1),(2),(3) and (5) of the affidavit of Patrick Latham of 13 September 2012;

(iv)   the entirety of the affidavit of Patrick Latham of 14 December 2012; and

(v)   paragraphs (9) and (39) of the affidavit of Patrick Latham of 11 March 2014.

1. The first defendant relied upon the following affidavits:

(i)   Georgia Lewer of 20 August 2013;

(ii)   the first defendant, Belinda Johnson, of 23 August 2013; and

(iii)   Scott Baker of 26 August 2013.

1. The first defendant was cross-examined and I have referred to relevant parts of her evidence below. Mr Baker, a police officer who was present at the execution of the relevant search warrant, was also cross-examined. However, Mr Baker was cross-examined at a time when the plaintiff was seeking to argue that some aspect(s) of the execution of the warrant supported a conclusion that the warrant was invalid. That proposition was ultimately abandoned by the plaintiff. In these circumstances I need make no further reference to Mr Baker's evidence.

1. The second defendant filed an appearance in the proceedings submitting to the making of all orders, save as to costs.

The First Defendant's Notice of Motion

1. Part of the plaintiff's case as it was originally put was that the second defendant had failed to give proper consideration to whether reasonable grounds existed for the issue of the warrant: Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"). In circumstances where no affidavit evidence was filed by the second defendant, the plaintiff sought to draw inferences in support of this assertion from what was said to have occurred on other occasions on which the second defendant had issued search warrants.

1. Against this background, on 13 February 2014 the solicitor for the plaintiff issued a notice pursuant to s. 97 of the Evidence Act 1995, attached to which were numerous documents relating to search warrants previously issued by the second defendant. The plaintiff sought to infer from those documents that the second defendant had a particular tendency which was expressed in the notice in the following terms:

"...to take one minute to deal with the application, incorrectly complete forms, not initial alterations and deletions to the forms, not delete inapplicable sections on the forms (and) not sufficiently record relevant particulars of the grounds of issue".

1. The solicitor for the first defendant responded to the notice by asserting (inter alia) that the documents attached to it were not in an admissible form, and that their provenance had not been established. This resulted in the solicitor for the plaintiff requesting the Registrar of this Court to arrange an intercourt transfer of the documents (which were then in the custody of the Dubbo Local Court) pursuant to Part 33 Rule 13 of the Uniform Civil Procedure Rules 2005 ("the Rules"). The first defendant then filed a notice of motion, returnable on the first day of the hearing, seeking an order that the request for transfer be set aside and in the alternative, an order that there be no access to any of the documents set out in the notice.

1. I heard submissions in relation to the notice of motion prior to commencing the hearing. I concluded that the principal relief sought should be granted and I indicated to the parties that I would publish my reasons for coming to that view when giving judgment in the principal proceedings.

1. The subsequent abandonment of this part of the plaintiff's case renders the provision of lengthy reasons unnecessary. It is sufficient to note that I formed the view that none of the material which was sought pursuant to the intercourt transfer had significant probative value as required by s. 97(2) of the Evidence Act. The proceedings brought by the plaintiff are in the nature of judicial review. What may or may not have occurred in the course of applications for other warrants had little or no bearing upon the question of whether the warrant which is the subject of these proceedings was properly issued.

1. It was in these circumstances that I made an order pursuant to r. 33.13 of the Rules setting aside the plaintiff's request for the production of the documents.

THE FACTS

The application for the search warrant

1. The first defendant is a police officer. The second defendant is the Deputy Registrar of the Dubbo Local Court whose duties at the material time included issuing search warrants.

1. In 2011 Strikeforce Burrendong was established to investigate the death of Charles Avouris which was said to have occurred on or about 1 July 1996. On 30 December 2011 the first defendant made application pursuant to the provisions of LEPRA for the issue of a warrant authorising the search of premises at 65 Neurea Street, Mumbil, NSW. That application stated (inter alia) the following:

"1) I have reasonable grounds for believing that:

(a) there is, or within 72 hours will be, in or on the premises, the following things:

items relating to the Rebels Outlaw Motorcycle Gang including but not limited to clothing containing Rebels insignia, documentation, Harley Davidson motorcycle keys and a pistol.

(b) the things are connected with the following searchable offence(s) within the meaning of s. 46A(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002:

reprisals against Judges, witnesses, jurors etc - Crimes Act (1900) s. 326(2)

(c) a child prostitution offence within the meaning of s. 47 of the Law Enforcement (Powers and Responsibilities) Act 2002 has recently been committed, is being committed or, within 72 hours will be committed, on or with respect to the premises."

1. The affidavit sworn by the first defendant in support of the application for the warrant, included the following:

"Strikeforce Burrendong was established in 2011 to investigate the suspicious death of Charles Avouris at his residence at "Railway Cottage" Mumbil, New South Wales. Avouris was shot in the head on or around 1 July 1996. On 29 December 2011, police approached a witness, Tammy Howard, who resided in Mumbil at the time of Avouris' death. Police have provided statements linking Rebels Outlaw Motorcycle Gang members to the murder of Avouris. [redaction]

Tammy Howard and Michael Gillard were in a domestic relationship until about 18 months ago. About four or five days ago, Gillard approached Howard (sic) Mumbil Tavern, formerly known as The Burrendong Hotel.

Gillard and Howard had a conversation. Gillard was wearing a jacket with "Rebels" Outlaw Motorcycle Gang insignia on it and standing beside his Harley Davidson Motorcycle. Gillard questioned Howard as to whether she had been interviewed about the death of Avouris and asked her about the "Rebels" parties she had previously been at. Gillard said to Howard that he hopes that people are not talking to the Detectives about Charles Avouris, because if they do, bad things would happen to them. Howard believed this to be a direct threat towards her that if she spoke to police that the "Rebels" would bash her. This incident was witnesses by other members of the general public.

[Redaction]

Gillard is currently in a domestic relationship with Michelle Poley (sic) who resides at 65 Neurea Street Mumbil. Poley (sic) informed police that she is pregnant with Gillard's child. Poley (sic) also informed police that Gillard resides between her house and his residence at 1 (Lot 20) Alexander Street, Stuart Town.

Police believe the threat to both Howard [redaction] is a likely threat and believe that items relating to this threat, including "Rebel's Outlaw Motorcycle Gang" clothing, firearms and other items used in the (sic) connection with the offence could be located at the primary residence of Gillard in Stuart Town or the secondary residence of Gillard being the premises of Poley (sic) in Mumbil. Gillard was approached by police on Thursday 22 December 2011 about any information he may have relating to the investigation. A media release took place about the death of Avouris on Friday 23 December identifying possible links to the "Rebels Outlaw Motorcycle Gang" and the threat to Howard is believed to have occurred on Saturday 24 December 2011 according to further information." Due to the ongoing investigation of the death of Avouris police require the search warrant application to be suppressed. This application is being made now as it is intended to execute the warrant prior to the opening of the court on 30 December 2011."

1. The first defendant was cross-examined (at T37 L9 and following) about the application for the warrant:

"Q. Avouris was shot in the head on or around 1 July 1996. On 29 December 2011 police approached a witness Tammy Howard who resided in Mumbil at the time of Avouris' death". Did you prepare this application?

A. I did.

Q. What did you mean by a reference to Tammy Howard as a witness?

A. A person we'd spoken to.

Q. A person you'd spoken to?

A. Not me specifically, a person, we as a strict (sic) force collectively."

1. She was then asked (commencing at T37 L47):

"Q. You've called Tammy Howard a witness?

A. Yes.

Q. You've called her a person that you've spoken to or someone from your strike force has spoken to previously in relation to something?

A. Yes.

Q. I'm asking you the question is it in relation to the murder that occurred in July 1996 or to some other event?

A. It was the incident that this search warrant was based around.

Q. Is that in relation to the murder on 1 July 1996 or something else?

A. It's relating to this specific search warrant application and that's the threats towards her. "

1. When asked to outline the facts to which she had regard when making the application, the first defendant said (commencing at T40 L13):

"A. So we had Tammy Howard had been spoken to as a part of our investigations surrounding the strike force and the death of Charles Avouris and the application was made from an incident on 29 December where there were threats made to her and as a result from our investigations a search warrant was applied for."

1. The first defendant was then asked about the specific items which were referred to in the application for the search warrant (commencing at T40 L32):

"Q. In relation to the charge that you have identified in subparagraph 1(b), how do you say that items relating to the Rebels outlaw motorcycle gang relate to that charge and their discovery by you in the search warrant, in the execution of a search warrant?

A. Yes, because we believed that he was those items of clothing and other items relating to the Rebels outlaw motorcycle gang were used in the commission of that offence.

HIS HONOUR

Q. When you say that offence

A. Of the threats.

Q. Just let me finish?

A. Sorry.

Q. In the commission of the offence you have nominated under s 326(2), is that right?

A. That's correct. "

1. When asked how the items in paragraph 1(b) of the application related to the suggested "searchable offence" under s. 326(2) of the Crimes Act 1900 ("the Act"), the first defendant said (T40 L36-38):

"Yes, because we believed that he was - those items of clothing and other items relating to the Rebels outlaw motorcycle gang were used in the commission of that offence".

1. The first defendant went on to explain the connection between the clothing and the offence under s. 326(2) (commencing at T41 L8):

"Q. Well, I am asking you. What connection do you say clothing containing Rebels insignia and documentation had to the commission of this offence, what connection?

A. By wearing those, that clothing it's in a threatening nature and coincided with the threats made along with the insignia of noticeable signs saying Rebels.

Q. So there was an issue about the identification of Mr Gillard as being the person of interest for the purposes of your investigation of an offence against reprisals against judges, witnesses and jurors?

A. There was not an issue in regards to identifying Mr Gillard, no.

Q. So how did you see that this Rebels insignia would in some way support a prosecution for reprisals against judges, witnesses, juries, et cetera?

HIS HONOUR: Well, it is clothing containing a Rebels insignia.

NIVEN: Yes.

A. Sorry, could you repeat it again?

NIVEN

Q. What connection do you say that the obtaining of the items of clothing containing Rebels insignia had, how was that connected to the offence that you were seeking to charge Mr Gillard with or you then charged Mr Gillard with?

ENGLAND: I object to that. It is repetitious. She has just been asked that and just answered that.

HIS HONOUR: I will allow it. Go on, Mr Niven, put it again.

WITNESS: It's another assistance for us in regards to identification of Mr Gillard.

NIVEN

Q. But you just told me, didn't you, a minute ago that there was no issue about the identification of Mr Gillard at the time that this alleged offence took place?

A. I believe that there's many forms of identification of witnesses, victims, offenders, everything, not just surrounding the physical appearance of a person. It includes clothing at the time of the offence."

1. The first defendant also told the court that the assertion in the application that an offence had been committed contrary to s. 326(2) of the Act was based upon information in her possession at the relevant time (T49 L34).

The issue of the search warrant

1. On 30 December 2011 the first defendant attended the Registry of the Local Court at Dubbo where she provided the following documents to the second defendant:

(i)   the application for the search warrant;

(ii)   the search warrant;

(iii)   an occupier's notice; and

(iv)   a report to the eligible issuing officer.

1. The first defendant signed the application, and swore the affidavit in support of it, in the presence of the second defendant.

1. Part 2 of the application was headed "Eligible issuing officer's record of application for a search warrant". To the extent which is relevant for present purposes that document reads as follows:

"On 30 December 2011 at 9:20am I, the undersigned eligible issuing officer, received this application for a search warrant.

(1) the application was made by P/C Belinda Johnson and I was satisfied that the warrant was required urgently and it was practicable for the application to be made in person.

(2)...

(3) On considering the application I found that there were reasonable grounds for issuing the warrant.

(4) The relevant particulars of the grounds on which I relied to justify the issue of the warrant are as follows:

As per application and over.

(5)...

(6) The search warrant was issued at 9:20am on 30 December 2011."

1. The words "and over" as they appear in paragraph (4) referred to a handwritten notation appearing under paragraph (6) which was in the following terms:

"Satisfied on reasonable grounds the information is reliable and recent (sic) to believe the items being searched for are in connection with an offence and likely to be on the premises."

1. The application, and the handwritten notation, were both signed by the second defendant who then issued the warrant. Under the heading "Issue details" on the warrant the following appeared:

"The search warrant was granted by an eligible issuing officer under the Law Enforcement (Powers and Responsibilities) Act 2002 on 30 December 2011 at 9:20am.

The warrant was issued on the application of Belinda Johnson Plain Clothes Constable of Dubbo Police Station, 143 Brisbane Street Dubbo."

1. Under the heading "Basis for the issue of the warrant" the following appeared:

"The warrant was granted on the basis that the eligible issuing officer found that there were reasonable grounds for the issue of the warrant and, in particular, that the applicant had reasonable grounds to believe that:

(a) there were on the premises the things listed above which were:

(i) things connected with the offence of reprisals against Judges, witnesses, jurors etc - Crimes Act (1900) s. 326(2)

(b) a child prostitution offence has been, or is being, or will be committed on or with respect to the premises."

1. The reference in (b) to a "child prostitution offence" repeated the error which was contained in paragraph 1(c) of the application (see [14] above). There was no allegation by police that any such offence was being, or had been, committed on or with respect to the premises. Although the plaintiff originally relied upon such error as evidence going to the invalidity of the warrant, that proposition was ultimately abandoned.

The execution of the warrant

1. The warrant was executed by police on 30 December 2011.

1. On 3 January 2012 the first defendant provided a report to the second defendant, paragraph (5) of which stated as follows:

"The result of the execution of the warrant (including a description of the things seized) is briefly as follows:

"Laptop, "Rebel OMCG" clothing, photographs."

The arrest and prosecution of Michael Gillard

1. At about 1:00pm on 30 December 2011 Michael Gillard ("Gillard") was arrested by police and charged with:

(i) an offence contrary to s. 315A of the Crimes Act 1900, alleging that he threatened to cause a detriment to Tammy Howard intending to influence Tammy Howard not to bring material information about the murder of Avouris to the attention of a police officer; and

(ii)   an offence contrary to s. 315(1)(a) of the same Act alleging that he threatened and intimidated a witness, namely Tammy Howard, intending to hinder the investigation of a serious offence committed by another person.

1. Both of those offences were alleged to have occurred on 24 December 2011 at Mumbil, and arose out of the alleged approach made by Gillard to Tammy Howard to which reference was made in the affidavit in support of the warrant (at [15] above).

1. The hearing of the charges against Gillard came before Dubbo Local Court on 27 April 2012. Tammy Howard, upon whose evidence the prosecution principally relied, was called as a witness. Part way through the hearing, the prosecutor conceded to the presiding Magistrate that Ms Howard's evidence was insufficient to establish a prima facie case against Gillard in respect of either of the charges which had been brought against him. The prosecutor withdrew both charges, and they were dismissed.

THE RELEVANT STATUTORY PROVISIONS

1. Section 311 of the Act contains the following relevant definitions:

311 Definitions

(1) In this Part:

...

"judicial officer" means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner.

"judicial proceeding" means a proceeding in or before a judicial tribunal in which evidence may be taken on oath.

...."

1. Section 326 of the Act is in the following terms:

326 Reprisals against judges, witnesses, jurors etc

(1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person:

(a) as a witness or juror in any judicial proceeding, or

(b) as a judicial officer, or

(c) as a public justice official in or in connection with any judicial proceeding,

is liable to imprisonment for 10 years.

(2) A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to imprisonment for 10 years.

(3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2).

1. Section 48 of LEPRA governs the issue of search warrants and is in the following terms:

48 Issue of search warrants

(cf Search Warrants Act 1985 , s 6, Crimes Act 1900 , s 357EA, former LEPRA, s 48)

(1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.

Note : See section 62 (3) in relation to matters to be considered by an eligible issuing officer in determining whether there are reasonable grounds to issue a warrant.

(2) An eligible issuing officer to whom an application is made for a covert search warrant who is not satisfied that there are reasonable grounds for issuing the covert search warrant may, at the request of the eligible applicant (if the eligible applicant is a police officer), instead issue a search warrant that may not be executed covertly, but only if satisfied that there are reasonable grounds to do so.

1. Section 76 of LEPRA is in the following terms:

76 Defects in warrants

(cf Search Warrants Act 1985 , s 23)

A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.

THE SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

1. Many of the propositions which were originally foreshadowed as forming part of the plaintiff's case were abandoned. Following the close of the evidence Mr Skinner of counsel, who had only been retained to appear on behalf of the plaintiff after the evidence had closed, submitted that the warrant was invalid for two reasons.

1. Firstly, he relied on the fact that the warrant authorised the seizure of "things" connected with the commission of an offence contrary to s. 326(2) of the Act. He submitted that on a proper construction of that section, no such offence could have been committed by Gillard and that accordingly the warrant was invalid.

1. In advancing this submission Mr Skinner submitted that on a proper construction of s. 326(2) no offence could have been committed by Gillard because no judicial proceedings were on foot at the time the threat was allegedly made to Ms Howard. Counsel submitted that the existence of such proceedings was, in effect, an element of the offence.

1. It was further submitted that on its proper construction, s. 326 was intended by the Parliament to protect the integrity of the administration of justice once judicial proceedings had commenced, but not before. In support of these submissions counsel relied upon the decision of the Court of Criminal Appeal in R v Orcher (1999) 48 NSWLR 273 which, he submitted, supported such interpretation.

1. Secondly, Mr Skinner submitted that I should infer from the whole of the evidence that the real purpose of the issue of the warrant was not that which was stated in the application, but was in fact to enable the police to search for evidence relating to the murder of Avouris. In advancing that submission, Mr Skinner acknowledged that counsel who originally appeared for the plaintiff had not directly put such a proposition to the first defendant in the course of cross-examination.

1. Notwithstanding that failure, counsel nevertheless submitted that the stated basis of the application was really nothing more than a "cover", and that I would be satisfied that the real purpose of the issue of the warrant was to attempt to obtain material to further the investigation into the murder of Avouris.

Submissions of the first defendant

1. Counsel for the first defendant submitted that the existence of judicial proceedings was not a pre-requisite to the commission of an offence against s. 326(2). Counsel submitted, in particular, that the phrase "will or may be ... called as a witness" expressed what might be described as a temporal range. It was submitted that the inclusion, within that range, of a reference to a person being called in proceedings in the future was inconsistent with the construction advanced on behalf of the plaintiff.

1. Counsel for the first defendant also submitted that the plain words of the section were at odds with the plaintiff's suggested construction. Counsel pointed, in particular, to the requirement that the defendant have the specific belief referred to in the section. Counsel submitted that there was nothing in the words of the section which imported a requirement that judicial proceedings be on foot at the time of the offending.

1. Counsel for the first defendant also submitted that the failure to put to the first defendant that the warrant was sought for some purpose other than that stated in the application was fatal to the acceptance, or perhaps even the making, of the submission which had been advanced as the second basis for invalidity of the warrant. Further, and in any event, counsel submitted that the evidence which was given by the first defendant, along with contents of the application for the warrant itself, tended completely against the conclusion urged on behalf of the plaintiff.

THE RELEVANT LEGISLATIVE HISTORY

1. Section 326 was inserted into the Act by Schedule 1 of the Crimes (Public Justice) Amendment Act 1990 (Act No 51 of 1990) which commenced on 25 November 1990 ("the amending Act"). As inserted, the section was in the following terms:

Reprisals against Judges witness, jurors etc

326 A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account on anything lawfully done by a person:

a) as a witness or juror in any judicial proceeding; or

b) as a judicial officer; or

c) as a public justice official in or in connection with any judicial proceeding, is liable to penal servitude for 10 years.

1. Section 311, which contained the definition of (inter alia) "judicial proceedings" was also inserted by the amending Act.

1. Section 326 was then amended by the Criminal Legislation Amendment Act 1995 (Act No 23 of 1995) which commenced on 1 July 1995, clause [1.2] of Schedule 1(10) of which inserted new sub-sections (2) and (3) into s. 326 which were in the following terms:

"(2) A person who threatens to do or cause, or does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding, is liable to penal servitude for 10 years.

(3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2)".

1. As a consequence of these amendments, s. 326 in its original form became s. 326(1).

CONSIDERATION

The construction of s. 326(2) of the Crimes Act 1900

1. Before giving consideration to the submissions of the parties, it is appropriate to set out some general principles relevant to the issue of search warrants to which I was taken by counsel for the plaintiff in the course of submissions. Many of those principles are conveniently collected in the judgment of Hall J in Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63 commencing at [47]; 72.

1. Firstly, there must be specificity in the identification of the relevant offence(s) in a search warrant: Douglas v Blackler [2001] NSWSC 901 at [12]. In my view, that requirement has clearly been met in the present case.

1. Secondly, the warrant should authorise seizure by reference to the offence which is specified: R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113. In my view, that requirement has also been met.

1. Thirdly, where a warrant fails to specify any offence such failure will invalidate the warrant: Warner v Elder (unreported, Supreme Court of NSW, Temby AJ, 23 April 1997); Carver v Clerk of the Court (unreported, Supreme Court of NSW, Black AJ, 13 March 1998). That is consistent with the provisions of s. 62(1)(b) of LEPRA which require that the particulars of the grounds on which the application is based must include the nature of the "searchable offence" or other offence involved.

1. The present is not a case in which the warrant failed to specify an offence. However, if the plaintiff's argument was accepted, it would be a case in which the offence, although specified, could not have been committed by the alleged offender. In my view, from the point of view of considering the validity of the warrant, such a situation would not be relevantly distinguishable from a case in which the offence was not specified at all. It would follow, in those circumstances, that the warrant would be invalid.

1. Counsel for the plaintiff also relied upon the well established principle which applies to the construction of legislation which creates criminal offences, namely that ambiguities and doubts are to be resolved in favour of a defendant by refusing to extend the category of criminal cases to which a particular provision might be said to apply: Beckwith v R (1976) 135 CLR 569. However, it is important to bear in mind that such a principle becomes operative only in the event that the conclusion is reached that the provision in question is ambiguous. In that sense, the principle has been described as one of last resort: Beckwith (supra) at 576.

1. In my view, the clear terms of s. 326(2) tend positively against the conclusion that in order for the offence to be made out the relevant judicial proceedings must be on foot at the time of the offending. Viewed in the context of the present case, the conduct to which the section is directed is the alleged threat of Gillard to do or cause injury or detriment to Ms Howard. Under the section, and again viewed in the context of the present case, that conduct would become unlawful only if it could be established that Gillard believed that Ms Howard would or may be called as a witness in any judicial proceedings. It is not the fact that Ms Howard would or may be called as a witness in judicial proceedings which is pivotal to the operation of the section. Rather it is Gillard's belief in that respect. Construing the provision in this way gives effect to the plain meaning of its terms. There is nothing in those terms which supports the proposition that the Parliament intended that an offence would be committed only if the judicial proceedings were already on foot.

1. That construction is confirmed by the terms of the second reading speech to the Amending Act delivered on 1 June 1995, in which the then Attorney-General for NSW, the Hon. J W Shaw QC, said (inter alia) the following:

"Clause 1.2 will also amend sections 325 and 326 of the Crimes Act so that it is an offence to take reprisals against a person who had a reasonable expectation of serving as a juror or witness in any judicial proceeding even if he or she did not eventually serve in that capacity.

Section 326, if strictly interpreted, relates only to persons who are witnesses or jurors as opposed to potential witnesses or jurors. The Court of Criminal Appeal has recently passed comment on related provisions in the case of Regina v Lansdell. Those comments were to the effect that a person need not be a witness or be called as one to come within the provisions. The essential feature of the offence turns on the belief of the accused that the person will or may be called as a witness. The amendment reflects that reasoning and will ensure that sections 325 and 326 extend to prospective witnesses and jurors who do not eventually perform that function" (emphasis added).

1. The decision of the Court of Criminal Appeal in R v Lansdell (CCA (NSW) 22 May 1995 unreported) to which the Attorney-General referred was a case in which the Court considered the provisions of s. 323(a) of the Act which was in the following terms:

"A person who does any act:

intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena

...

is liable to imprisonment for seven years."

1. The argument before the Court of Criminal Appeal centred around the meaning of the words "any person called or to be called as a witness" as they appear in s. 323(a). It was argued that the commission of an offence contrary to the section required that the "person" in question must have the status of a witness, or prospective witness, at the time the relevant act was done. In relation to that issue Simpson J reached the following conclusion:

"It is quite wrong to say that the offence is not committed unless the person has been designated as (a person to be called as a witness). The section is broad enough to include a person who, absent the very act constituting the offence with which the person is charged, is not a person called or to be called as a witness, but who, by reason of that act, becomes such a person, or is intended, by the act, to become such a person".

1. Gleeson CJ, who agreed with Simpson J, added the following:

"The meaning of the expression (to be called as a witness) is to be found in the legislative purpose of the section. The offence is aimed at preventing the corruption or improper influencing of witnesses, and the critical element is the intention with which the alleged offender has acted. ... Where it is objectively likely that a person, because of her involvement in the relevant events, will be a witness in future legal proceedings, and that likelihood is known to (and, a fortiori, intended by) someone who thereupon sets out to influence her evidence, or her conduct, in one of the ways described in the section, then the requirements of the provision are satisfied".

1. Whilst the Court in Landsdell was considering a different provision, the broad approach which was taken to the construction of that provision is instructive. Like s. 323(a), s. 326(2) is directed towards the prevention of threats and reprisals to (amongst others) witnesses. Also like s. 323(a), s. 326 has a pivotal element, namely the belief of the defendant. In my view, a similarly broad approach should be taken to the construction of s. 326(2).

1. In addition, the terms of the section are such as to clearly contemplate witnesses being called to give evidence at some time in the future. So much is evident from the use of the words "will or may be ... called". The use of the word "will", in particular, tends against the restricted interpretation urged on behalf of the plaintiff.

1. Further in my view, the decision of Spigelman CJ in Orcher (supra) does not assist the plaintiff. In that case, the appellant had been arrested for a breach of bail conditions and, whilst in custody, had made threats against the arresting police officer. He was charged with an offence contrary to s. 326(1)(c) of the Act. The second of two questions posed for consideration by the Court of Criminal Appeal was whether the conduct of the police officer in arresting the appellant and taking him to the police station was an act done in, or in connection with, a judicial proceeding.

1. Spigelman CJ, with whom Grove and Sully JJ agreed, concluded that the question should be answered in the negative. In particular, his Honour said (at 280):

"The scope and purpose of the statute requires a close connection with the conduct of a judicial proceeding. It requires some form of possible impingement on the conduct of a public justice official with respect to the proper conduct of a judicial proceeding.

In my opinion, threats to an arresting officer do not have the potential to detrimentally affect the conduct of a judicial proceeding. No doubt an arrest ensures that it is possible to commence such a proceeding, but the arresting officer does not, as such, have a role in the proceedings. The arrest is a necessary preliminary step. However, it is not part of the conduct of a judicial proceeding. The conduct in question here may have affected the course of justice by deterring the commencement of judicial proceedings. In my opinion that is not within the scope of the words 'in connection with" such proceedings".

1. In reaching those conclusions, his Honour was considering the terms of a different statutory provision which required that the relevant act be done "on account of anything lawfully done by a person ... as a public justice official in, or in connection with, any judicial proceeding". His Honour's reasons must necessarily be viewed in that context. The necessity for there to be a close connection between the thing lawfully done by the public justice official and relevant judicial proceedings stemmed from the inclusion of the term "in or in connection with any judicial proceeding" which was expressly incorporated in the provision. It was that phrase which was the focus of the Court's attention. No equivalent words appear in s. 326(2).

The reason for the issue of the Warrant

1. The proposition that the warrant was sought for a purpose other than that stated in the application was never squarely put to the first defendant in cross-examination. The closest that counsel then appearing for the plaintiff came to putting the proposition was in the passage of cross-examination set out at [17] above where two similar, open ended questions were put to the witness. On each occasion, the answer given by the first defendant made it clear that the purpose of seeking the issue of the warrant was to investigate the threat to Ms Howard, not the murder of Avouris.

1. If it was the plaintiff's case that the purpose for which the warrant was sought was not that stated in the application then in my view, that specific proposition should have been squarely put. The failure to do so amounted to a breach of the rule in Browne v Dunn (1893) 6 R 67. That rule is not a preclusive rule of evidence. However if the rule is offended, a trial judge has the power to exercise his or her discretion in a way which will remedy any unfairness which has arisen. The exercise of that discretion may include preventing the party in question from relying upon a particular subject upon which the relevant witness was not cross examined: Scalise v Bezzina [2003] NSWCA 362 at [96] per Mason P.

1. For the reasons I have stated, there was a fundamental necessity to put the relevant proposition to the witness. In circumstances where there was a failure to do so, the plaintiff should not now be permitted to make a submission that I should find that the warrant was issued for some purpose other than that which was stated in the application

1. In any event, and even if I had reached the view that the rule in Browne v Dunn was not breached, it remains the case that the evidence simply does not support the submission which was put on behalf of the plaintiff. The purpose for which the warrant was sought was set out in the application. The first defendant stated in cross-examination, more than once, that the purpose was related to the threat made to Ms Howard, and was unrelated to the investigation of the murder of Avouris. That evidence was clear and unequivocal. There is no reason, in my view, to reject it as being untruthful or unreliable. I am satisfied on the evidence that the purpose for the issue of the warrant was that stated by the first defendant in the application. I reject the submission that it was in fact a "cover" for something else.

ORDERS

1. In view of the foregoing I make the following orders:

(1)   The summons is dismissed.

(2)   The parties are to provide written submissions by 4.00pm on Friday 5 September 2014 as to the question of costs, such submissions not to exceed 2 pages in length.

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Amendments

29 August 2014 - The word 'plaintiff' in the last sentence was replaced with the 'first defendant'

Amended paragraphs: 9

Decision last updated: 29 August 2014