Polley v Johnson & Anor

[2016] HCATrans 51

[2016] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S227 of 2015

B e t w e e n -

MICHELLE ELIZABETH POLLEY

Applicant

and

BELINDA JOHNSON

First Respondent

HOLLY WRAITH SMITH

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 10.07 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear with my learned friend, MR P.M. SKINNER, for the applicant.  (instructed by Legal Aid NSW)

MR T.A. GAME, SC:   I appear for the second respondent, with MS M.T. ENGLAND.  (instructed by Crown Solicitor for NSW)

FRENCH CJ:   There is a submitting appearance for the ‑ ‑ ‑

MR GAME:   First respondent.

FRENCH CJ:   ‑ ‑ ‑ first respondent, is it?  I think an extension of time is required?

MR ROBINSON:   Yes, your Honour, I think it is only a short time.

FRENCH CJ:   Mr Game, is that opposed?  All right, you have the extension.  Yes, Mr Robinson.

MR ROBINSON:   Thank you, your Honour.  Your Honours, we say this is an important case about the issue of search warrants in New South Wales which has implications throughout Australia, the Commonwealth and the States.  Could I hand up to your Honours a small legislation bundle which will hopefully make my last point good?  I will take your Honours to that momentarily.  I will take you through the New South Wales scheme first.

FRENCH CJ:   Well, I think we are reasonably familiar with the provisions; the reasonable grounds for believing that there are materials which would relate to a searchable offence ‑ ‑ ‑

MR ROBINSON:   That is correct.

FRENCH CJ:   ‑ ‑ ‑ and that operates at both the level of the officer applying and the eligible issuing officer.

MR ROBINSON:   That is correct, and there is a second limb to that which is – that is the first limb, your Honours.  The sections that are relevant are set out from page 99 in the application book.  But the second limb is here, your Honours; at section 62(3), and that appears at page 113 of the application book.

FRENCH CJ:   Yes.

MR ROBINSON:   Section 62(3):

An eligible issuing officer –

which of course in this case is the Deputy Registrar of the local court:

when determining whether there are reasonable grounds –

and that is the section 48(1) point your Honour mentioned:

to issue a warrant, is to consider (but is not limited to considering) the following matters:

(a)       the reliability of the information –

But the main one that we rely on here, your Honours, is:

(b)       if the warrant is required to search for a thing –

and they are looking for a Harley Davidson motorcycle and a set of keys in this case, your Honours, and some insignia:

whether there is sufficient connection between the thing sought and the offence.

And here is where we say the Court of Appeal went horribly wrong.

FRENCH CJ:   Well, is it central to your argument that the power is not enlivened where the grounds upon which the warrant is applied for and issued do not include or are not capable of constituting the offence which is said to be the searchable offence ‑ ‑ ‑

MR ROBINSON:   Precisely, your Honour.

FRENCH CJ:   ‑ ‑ ‑ because of the absence of some relevant element?

MR ROBINSON:   Precisely.

FRENCH CJ:   In this case you say there is no judicial proceeding in relation to the three?

MR ROBINSON:   Nor is there one in the immediate future, but section 62(3) needs to be read with section 48(1).  That is the reasonable grounds.  We say this consideration in 62(3) must be part of the reasonable grounds, and that is expressed in the Act as a condition precedent even though it says in section 48(1):

An eligible issuing officer . . . may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.

“May” is not discretionary there; “may” is used in a facilitative sense.  In other words, you may go on to issue a warrant if you have these reasonable grounds, and 62(3) is part of that, but you may not go on to issue the warrant if you do not.  So it is properly characterised as a condition precedent to the exercise of the power.

Your Honours can assume for the purposes of our case that the issue of search warrants is an important matter.  We have given a reference to something Lord Denning, the Master of the Rolls, said many years ago, but your Honours well know that these judicial pronouncements on provisions such as this go back many hundreds of years, and it may be the legal jurisprudential basis for a man or woman’s home is their castle, so to speak, and it cannot be invaded without proper lawful authority.  So, the condition precedent to that lawful authority is section 48(1) when read with 62(3).

FRENCH CJ:   Well, I suppose the question is whether the notion of reasonable grounds encompasses what you might call contestable or questionable propositions of law as to the nature of the offence which is suspected.

MR ROBINSON:   That is how the Court of Appeal put it, yes, your Honour, and it cannot be looked at in just that fashion because in almost all questions of law when applying the Crimes Act there are arguments about the scope of the elements of the offence.  Indeed, it is an achievement to get clarity and perfection on the question of what are the elements of the offence here, and it is a matter where minds may differ in many cases.  This is an extreme example where there is no authority on the meaning of the relevant provision of the Crimes Act that we are looking at, which is section 136 ‑ ‑ ‑

BELL J:   Section 326(2), is it not?

MR ROBINSON:   Yes, 326(2).

BELL J:   And I think there is some conflict in the authorities concerning it, is that so?

MR ROBINSON:   Well, your Honour, there was no authority directly on the issue and our case, as your Honours have seen from the written submissions, is that it is just tough luck for the issuing officer.  They have to perform their statutory duty, whether or not it is difficult, whether or not there is conflict in the authorities – and there is not here; there is just no authority on the issue of what 326(2) of the Crimes Act means.  They have to do their and perform their statutory duty and make a call.

Now, the Court of Appeal says at one point, for example, that is not their job, they do not have to do that, how can they do that, they are only officers, they are not judges, for example.  In my submission, statutory decision‑makers do that all the time.  The AAT does it.  NCAT does it in its administrative powers.  Statutory decision‑makers across the land must make a determination on how they see their construction of the law, their ascertainment of the facts and then their reasonable belief.

BELL J:   Mr Robinson, am I right in understanding that the issuing officer had regard to the evidence of Constable Johnson whose account was of having a reasonable belief of the commission of the section 326(2) offence?

MR ROBINSON:   Yes, he had it, yes.

BELL J:   And it would seem that the eligible issuing officer accepted Constable Johnson’s belief in that respect, as being a ‑ ‑ ‑

MR ROBINSON:   It was a she, I am sorry, your Honour.  She accepted her recitation of that, correct.  That is only part of the requirements of the legislation.  The legislation requires the issuing officer to come to her own view.

BELL J:   Undoubtedly, and that also requires a consideration of a sufficient connection or nexus between the thing the subject of the proposed search and the offence.

MR ROBINSON:   Yes, correct.

BELL J:   But here the eligible issuing officer had the material from the investigating officer respecting the basis for the investigating officer’s belief that the offence had been committed, and the connection between the things itemised in the application for the warrant, and the commission of that offence, was evident.

MR ROBINSON:   And the fact that the offence could possibly be made out on any view is also a necessary element of that determination.  That is where we are coming from, your Honour, and that was wholly absent here and we say that it could not possibly have been made out and that the issuing officer, irrespective of whether there is authority on it, irrespective of whether there is conflicting authority, irrespective of whether it is a straightforward easy decision; we say they have to turn their mind to it.  The statute requires it, and the Court of Appeal in this case has given issuing officers around the State – and we say it leads into reasonable grounds in all the other jurisdictions that I have handed to your Honour – a way out.

In other words, they do not need to consider it, they do not need to determine it, and we say that is directly contrary to the two provisions in the LEPRA, as it is known, that is, the Law Enforcement (Powers and Responsibilities) Act 2002. That is essence of why we are here, your Honours.

BELL J:   So the essence of why you are here is paragraph 47, application book 42 in the reasons of Justice Simpson, is it, where her Honour says that it is not:

the role of the eligible issuing officer to engage in the construction of the legislation in question –

and she is referring here to the offence provision.

MR ROBINSON:   Correct.  And she says in 45, with which the other two justices agreed:

it is not the role of the eligible issuing officer to determine whether the information contained in the warrant is sufficient to provide the foundation for a conviction –

She says in the next paragraph, 46:

But it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence –

These things are, in our respectful submission, plainly wrong and are contrary to the legislation.  She says at the end of 47 ‑ ‑ ‑

BELL J:   The inconsistency with the legislation, how do you say the conclusion that “it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction”?

MR ROBINSON:   That is the sufficient nexus in 62(3), your Honour.  It is quintessentially material that can go to identifying or establishing whether there is a sufficient co‑nexus.  The Court of Appeal ‑ ‑ ‑

BELL J:   There needs to be a nexus between the thing and the offence.

MR ROBINSON:   Yes, your Honour.

BELL J:   One does not need to be satisfied of “the sufficiency of the supporting material to found a conviction”.

MR ROBINSON:   Paragraph 45 says it plainly, in 46 there is an element of it, and the court says in 47 it is not the role of the officer “to engage in the construction of the legislation”, and we have taken issue with that.  That is precisely the role of an administrative decision‑maker, whether they are making a decision under the Customs Act or the Migration Act, as a delegate or issuing a search warrant.  We say, moreover, if a search warrant is to be issued, given the 500 years of law that I mentioned earlier, they need to be focused on it and, if there is controversy, they need to determine it for themselves.

FRENCH CJ:   What they must construe correctly, of course, is the empowering statute, namely, the conditions of their own power.

MR ROBINSON:   Indeed.

FRENCH CJ:   This is something which you say ‑ this is a second order construction question.  I am not relegating it to unimportance part of reference by the use of that term, but this is a second order construction question.  You say it is a requirement of the condition on the power ‑ reasonable grounds, et cetera ‑ that they get the law right in relation to the elements of a searchable offence.

MR ROBINSON:   Or at least, your Honour, that they identify it.  They cannot just assume that the police have got it right.  They have to turn their mind to it and identify that this provision of the Crimes Act is capable of being fulfilled.  Otherwise, your Honour, if you play it out, the police can set out anything, any crime in the warrant, and the issuing officers will say, particularly reliant on this decision, “That’s okay”, without turning their mind to it, and that is expressly contrary to the Act.  The Act says there must be a sufficient connection, and then we say that is part of reasonable grounds anyway.  So, the Act is not going to be complied with, and that is our concern with this decision.

FRENCH CJ:   The form of words used by the decision‑maker in this case I think they have set out at page 81 in handwriting, and I think it is also set out in the judgment at page 34:

“Satisfied on reasonable grounds the information is reliable and –

reason, there is a typo there or a mistake, reason:

to believe the items being searched for are in connection with an offence and likely to be on the premises.”

Well, there can only be the one offence.  That is the one referred to in the application, is that not right?

MR ROBINSON:   Correct, and that is the intimidation of a witness ‑ ‑ ‑

FRENCH CJ:   Yes.

MR ROBINSON:   ‑ ‑ ‑ in respect of a judicial proceeding where there ‑ there is no issue between the parties.  There was no judicial proceeding ‑ ‑ ‑

FRENCH CJ:   We understand that, yes.

MR ROBINSON:   ‑ ‑ ‑ and there was none contemplated.  That is significant as well, your Honour.  So that is an offence alleged in a vacuum without any particularity and in circumstances where the Registrar, we say, could not and should not have been satisfied that there was an offence in the circumstances.  Now, the Court of Appeal decided it in such a way that it has expanded the powers of issuing officers, and that includes judges when they exercise the same powers under search warrant legislation, and it goes through to the Commonwealth and the States.  Could I briefly take you to the bundle that I have given you?

FRENCH CJ:   Look, I think you can take it that the verbal formula is a pretty familiar one.

MR ROBINSON:   Indeed.

FRENCH CJ:   So I do not think you need to worry about demonstrating its use around the place.

MR ROBINSON:   Well, your Honours have it.  The exact words of sufficient connection are not reproduced in the other States or the Commonwealth or the Territories, but the reasonable ground, as your Honour says, appears everywhere, and every statute ‑ ‑ ‑

FRENCH CJ:   There are many powers conditioned on reasonable ground to believe, reasonable ground to suspect, et cetera.

MR ROBINSON:   Indeed, and helpfully they are all named differently.

FRENCH CJ:   Yes.

MR ROBINSON:   So one cannot just do – if one does a search on “reasonable grounds” in this search warrant context, one gets 10,000 hits, I am told.  So that is the nub of what we say is wrong.  However, the Court of Appeal did ask the right question at two points.  The second point is at paragraph 51 which is at application book page 43.  We do not cavil with the first sentence of paragraph 51.

BELL J:   What you do cavil with is the suggestion that it was necessary:

for Ms Smith to engage in a fine dissection of what would suffice to support a conviction –

under the provision.

MR ROBINSON:   Indeed, but this judgment goes further than that.  From the passages between 43 and 51 ‑ the passages that were put in the submissions and the draft notice of appeal and in this book show that they went further than that because this is a unanimous decision, as it were.  Two justices accepted it and the message sent strongly is that, whilst that may be the case ‑ that is, section 48(1) and section 63(3) ‑ you do not have to really touch it and that is, in my submission, not the message of the Act itself.  As this Court has been telling us for at least 15 years repeatedly, “It is the Act, stupid” – I will not say “stupid” – “It is the Act”.  You have been making us put the Act above all.

FRENCH CJ:   Well, we say statutes are important when they are in play.

MR ROBINSON:   Indeed.  And one cannot, in my respectful submission, gloss it or constrain it, and this judgment constrains it.  One thing is that the Court of Appeal between passages 43 and 49, or 50, do not use the word “consider” in circumstances of considering the statutory nexus part of it.  It has used the word “determine”, but in the context that it is used, in my submission, “determine” can be fairly read as the word “consider”.  For example, look at paragraph 43 at the bottom of page 41.  This is where her Honour has set out the issues, which we agree with, and then she says:

I have come to the conclusion that the question of the validity of the issue of the search warrant is to be resolved, not by –

construing the Crimes Act provision:

but by reference to s 48 –

And this is the start of the court’s wrong principles:

In the view that I have taken, it is unnecessary for this Court to determine whether, for conviction of an offence –

under the Crimes Act provision:

that a current judicial proceeding is in existence is an essential element, or whether . . . the alleged offender believes that a judicial proceeding is contemplated is sufficient.

And that was the view of the primary trial judge, Justice Bellew:

Nowhere in the LEPR Act is there any provision which requires an eligible issuing officer to determine whether the information contained in the application as the basis for the application is capable of “sustaining” –

a charge under the Crimes Act.  So the word “determining” – and it is used in nearly every paragraph after that – is plainly, in my submission, meant to convey “consider”, or at least have an element of “consider”, so that if this judgment, for example, were written up as bullet point instructions for eligible officers across the State, it would lead them into error, in my submission.

Your Honours have already identified where the search warrant is and where the application is.  The application for the search warrant is at page 77 and your Honours can see they are after a Harley Davidson and insignia of “Rebels Outlaw Motorcycle Gang” and keys and a pistol, and remember that the charge relates to something someone said to another person.

FRENCH CJ:   Well, if you talk to the police, yes ‑ ‑ ‑

MR ROBINSON:   If you talk to the police, they will come and take your Harley Davidson.  In any event, your Honours, the explanation is over the page at page 78.  It is all a little bit curious, but those aspects were not explored; just the power issues were explored in the Court of Appeal.  The decision of the eligible officer is at page 80.  She started the matter at 9.20, at the top of the page at about line 15.  Then your Honours see over the page at 81 she determined the matter at 9.20.  So she managed to do it in under 60 seconds and she wrote her satisfaction there on the page.

FRENCH CJ:   I think your time is up, Mr Robinson.

MR ROBINSON:   Thank you, your Honours.

FRENCH CJ:   We will not need to trouble you, Mr Game.

The Court is of the view that the decision of the Court of Appeal is attended by insufficient doubt to warrant the grant of special leave.  Special leave will be refused.

The Court now adjourns to reconstitute.

AT 10.29 AM THE MATTER WAS CONCLUDED