R v Alqudsi

[2015] NSWSC 1615

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Alqudsi [2015] NSWSC 1615

Hearing dates:

28 October 2015

Decision date:

02 November 2015

Jurisdiction:

Common Law - Criminal

Before:

Adamson J

Decision:

(1) Direct the Crown to serve on the accused and provide to my Associate on or before 4pm 6 November 2015 a document setting out the evidence sought to be relied upon in the Crown case that was obtained by the execution of warrant 2372.

(2) Confirm 9 November 2015 at 9.15am as the next mention date, at which time a date for hearing of the voir dire in respect of the issue whether the evidence identified in (1) ought be admitted under s 138 of the Evidence Act 1995 (NSW) will be allocated and any further pre-trial directions will be made.

Catchwords:

CRIMINAL LAW – challenge to validity of indictment – whether consent of the Commonwealth Attorney-General valid pursuant to s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – “commitment for trial” synonymous with “committal”

 

CRIMINAL LAW – telecommunications service warrants – whether failure to sign first page of warrant rendered warrant unlawful – no such legislative requirement – whether description of offence in warrants sufficient to comply with legislation – provision of short particulars required to identify offence in conceptual sense –particulars identifying factual ingredients of offence not required

CRIMINAL LAW – search warrants – whether search warrants unlawful – failure of executing officer to “sign over” warrant in accordance with s 3E of Crimes Act 1914 (Cth) – warrant did not comply with legislation – illegal search and seizure

Legislation Cited:

Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3G, 3H, 3J
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss, 7, 10
Criminal Procedure Act 1986 (NSW), ss 47, 53, 55, 56
Evidence Act 1995 (NSW), s 138
Judiciary Act 1903 (Cth), s 68
Law Enforcement (Powers and Responsibilities) Act 2002, s 76
Succession Act 2006 (NSW), s 14
Telecommunications (Interception and Access) Act 1979 (Cth), s 5D, Div 4, ss 46, 49, 75

Cases Cited:

Bragshaw v Carter [2006] NSWCA 113
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
George v Rockett (1990) 170 CLR 104
King v The Queen [1969] 1 AC 304
R v Pettit [2015] TASSC 14
R v Solomon [2005] SASC 265
Taikato v The Queen (1996) 186 CLR 454
Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517

Category:

Principal judgment

Parties:

Regina
Hamdi Alqudsi (Accused)

Representation:

Counsel:
D Staehli SC/J Single (Crown)
I Barker QC/G Foster (Accused)

    Solicitors:
Director of Public Prosecutions (Crown)
Zali Burrows Lawyers (Accused)

File Number(s):

2013/363649

Judgment

Introduction

1. Hamdi Alqudsi’s trial on indictment for various offences contrary to s 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (now repealed) is listed for hearing with a jury commencing on 2 February 2016.

2. There are three issues for determination:

1. The validity of the indictment.

2. Whether certain search warrants and warrants for telephone interception were unlawful.

3. Whether evidence obtained as a result of any warrant found to be unlawful ought be admitted pursuant to s 138 of the Evidence Act 1995 (NSW).

3. The parties asked me to defer the third issue until after judgment has been delivered on the first two issues.

The facts

4. On 26 August 2013 Federal Judge Pascoe, on the application of the Australian Federal Police (AFP), issued a warrant pursuant to s 49 of the Telecommunications (Interception and Access) Act 1979 (Cth) which purported to authorise the interception of communications made to or from any telecommunications service that the accused was using or was likely to use. Judge Pascoe relevantly stated that he was satisfied, on the basis of information given to him by the AFP, that information obtained from the interception would be likely to assist in the AFP’s investigation of “the following serious offences in which the named person [the accused] is involved”.

5. Of present relevance, one of the offences that followed this preamble was described in the following terms:

“(iii) Preparations for incursions into foreign states for the purposes of engaging in hostile activities, contrary to section 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978.

The alleged offence is a serious offence for the purposes of the Telecommunications (Interception and Access) Act 1979, under section 5D(2)(a) in that it is an offence against section 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978, punishable by imprisonment for 7 years.”

6. Warrants were also issued under the Telecommunications (Interception and Access) Act in respect of others: Wassim Fayad and Amin Mohamed. Relevantly the same descriptions of offences against s 7 of the Crimes (Foreign Incursions and Recruitment) Act were included in each warrant.

7. On 2 December 2013 Federal Agent (FA) Gategood went to the Downing Centre Local Court with FA Cole to apply for search warrants pursuant to s 3E of the Crimes Act in connection with an operation known as Operation Rathlin which was being conducted by the Joint Counter-Terrorist Team at the Sydney Office of the AFP.

8. The warrants issued on that day included four warrants issued by Stephen Lister, the issuing officer, to Steven Gategood, the executing officer, for the following premises or vehicles:

Number	Premises/ Vehicle
2371	4 Merrin Close, Helens Park
2372	19 Creswell Street, Revesby
2378	Silver Nissan Pulsar [registration number supplied]
2380	Red Ford Festiva [registration number supplied]

9. Later, on 2 December 2013, FA Gategood attended an operational briefing with respect to the proposed execution of the warrants the following day. On that occasion a decision was made as to which officer would be the executing officer for each warrant.

10. In respect of some of the warrants, FA Gategood followed his, and what he understood to be the, usual practice of: striking out his own name on the warrant; inserting the name of the officer who was to be the executing officer and; handing the endorsed warrant to the named executing officer. In accordance with this practice, FA Gategood endorsed warrant 2371 with the name of Michael Wallosceck before handing it to him.

11. However, of the three warrants he handed to FA Cole, FA Gategood had endorsed only one (2378) with FA Cole’s name; the other two (2372 and 2380) had not been endorsed. Thus, warrants 2372 and 2380 continued to show FA Gategood as the executing officer when FA Cole received them. When FA Cole, who understood that he was to be the executing officer in respect of warrants 2372 and 2380, saw that his name did not appear as executing officer on those warrants, he struck out FA Gategood ’s name and inserted his own.

12. At about 7.00am on 3 December 2013 FA Cole entered the premises at 19 Creswell Street, Revesby with nine other officers, including FA Gategood, to execute warrant 2372. As executing officer, FA Cole performed the role of “warrant holder”. He provided the accused with a copy of warrant 2372 and a document setting out the rights of an occupier.

13. FA Cole later handed the accused a copy of warrants 2378 (Silver Nissan Pulsar) and 2380 (Red Ford Festiva). He observed FA Gategood placing the accused under arrest.

14. It was common ground that no evidence was obtained from the Red Ford Festiva. Accordingly, warrant 2380 need not be considered further. Evidence that assists the Crown case was obtained pursuant to the other warrants referred to.

15. On 17 July 2014 George Brandis, Commonwealth Attorney-General, signed a document which is relevantly in the following form:

COMMONWEALTH OF AUSTRALIA

CRIMES (FOREIGN INCURSIONS AND RECRUITMENT) ACT 1978

CONSENT TO INSTITUTION OF COMMITTAL PROCEEDINGS

I, GEORGE BRANDIS QC, Attorney-General of the Commonwealth of Australia, hereby consent pursuant to subsection 10(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 to the institution of proceedings for the committal of Hamdi ALQUDSI for trial on indictment for offences against the Crimes (Foreign Incursions and Recruitment) Act 1978 particulars of which are set out below.

The challenge to the indictment

16. The accused contended that the Attorney-General’s consent was not valid because it was headed “Consent to the Institution of Committal Proceedings”.

17. Section 10(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 provided:

“10 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for trial on indictment for an offence against this Act, or for the summary trial of a person for an offence against this Act, shall not be instituted except with the consent in writing of the Attorney-General.

(2) Notwithstanding that a consent has not been given in relation to the offence in accordance with subsection (1):

(a) a person may be charged with an offence against this Act;

(b) a person may be arrested for an offence against this Act, and a warrant for such an arrest may be issued and executed; and

(c) a person so charged may be remanded in custody or on bail;

but no further step in proceedings referred to in subsection (1) shall be taken in relation to the offence until such a consent has been given.”

18. Section 68 of the Judiciary Act 1903 (Cth) makes applicable those State laws and procedures, including for the examination and commitment for trial on indictment of persons charged with offences, that apply generally in the State. Thus, a Magistrate has power to conduct criminal proceedings for Federal offences: Bagshaw v Carter [2006] NSWCA 113. The Criminal Procedure Act 1986 (NSW) relevantly applied to the accused’s commitment for trial, which took place in New South Wales. Section 47 of the Criminal Procedure Act provides that “committal proceedings” are to be commenced by the issue and filing of a court attendance notice. Such proceedings are taken to have commenced on the date of such filing: s 53. Committal proceedings are to be conducted by a Magistrate (s 55) and heard in open court (s 56). If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial: s 65. The trial for which the accused is committed is trial on indictment.

19. The accused submitted that the consent given by the Attorney-General did not comply with s 10(1) of the Crimes (Foreign Incursions and Recruitment) Act because it referred to “committal proceedings” in the heading rather than “the commitment of a person for trial on indictment”. The flaw in the accused’s argument is that, in this context, “committal” and “commitment” are one and the same. The slight difference in language derives from the circumstance that the Crimes (Foreign Incursions and Recruitment) Act refers to “commitment” for trial and the Criminal Procedure Act, while it uses the verb “commit”, uses the noun “committal” rather than “commitment”. The accused’s argument must be rejected having regard to the terms of s 68 of the Judiciary Act.

20. For these reasons, the accused’s challenge to the validity of the consent has not been made out.

The challenges to the warrants

The warrants under Division 4 of the Telecommunications (Interception and Access) Act 1979

21. The accused challenged the warrants for telephone interception on two bases:

1. the first page of the warrant in respect of the accused was not signed and it was therefore invalid under s 49(1) of the Telecommunications (Interception and Access) Act; and

2. the description of the offence under s 7 of the Crimes (Foreign Incursions and Recruitment) Act in each of the warrants did not comply with s 49(7) as there are eight separate offences covered by s 7.

22. The Telecommunications (Interception and Access) Act relevantly provides:

“46   Issue of telecommunications service warrant

(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

. . .

(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which:

(i) the particular person is involved; or

(ii) another person is involved with whom the particular person is likely to communicate using the service; and

. . .

the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.

. . .

49   Form and content of warrant

(1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge or nominated AAT member who issues it.

. . .

(7) A warrant shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:

. . .

(b) otherwise—paragraph 46(1)(d) or 46A(1)(d), as the case requires.”

23. An offence is a “serious offence” if its maximum penalty is at least seven years: s 5D(2)(a) of the Telecommunications (Interception and Access) Act.

24. The Telecommunications (Interception and Access) Regulations 1987 prescribe forms for warrants under the Telecommunications (Interception and Access) Act. It was not suggested that there was any non-compliance with the relevant forms prescribed.

25. The accused could not point to any requirement of either the Act or the Regulations that required each page of the warrant to be signed. It is not for a court to impose any additional formal requirement on such a document. Accordingly, this challenge has not been made out.

26. The second challenge raises the question whether the description of the offence in the warrants is sufficient to comply with the requirement for “short particulars of each serious offence” in s 49(7).

27. The authorities referred to by the Crown establish that what is required is that the offence be identified in a “conceptual sense” and, further, that it be sufficiently identified to enable the determination to be made whether the offence is a “serious offence” as required by s 49: R v Solomon [2005] SASC 265 at [26]-[27] per Doyle CJ (Duggan and Sulan JJ agreeing); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 197 (Beaumont, Ryan and Lindgren JJ). Particulars such as would inform the person concerned of the factual ingredients of the offence are not required. Search warrants are important tools to be used in the investigation of suspected criminal conduct. Operational realities are to be taken into account: Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392 at [68] per French, Sackville and Nicholson JJ. To require more particularity than is necessary to identify the offence in a conceptual way and to qualify it as a “serious offence” would be to substantially undermine the purpose and utility of search warrants.

28. Accordingly, the second challenge has not been made out.

The warrants under 3E of the Crimes Act

29. Section 3E of the Crimes Act makes provision for the issue of search warrants where there are reasonable grounds to suspect there will be evidence on premises. Section 3E(5) relevantly provides:

“(5) If an issuing officer issues a warrant, the officer is to state in the warrant:

(a) the offence to which the warrant relates; and

. . .

(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

. . .”

30. Section 3C of the Crimes Act contains the following definitions.

“constable assisting, in relation to a warrant, means:

(a) a person who is a constable and who is assisting in executing the warrant; or

(b) a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.

. . .

executing officer, in relation to a warrant, means:

(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or

(b) if that constable does not intend to be present at the execution of the warrant—another constable whose name has been written in the warrant by the constable so named; or

(c) another constable whose name has been written in the warrant by the constable last named in the warrant.

. . .

issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:

(a) a magistrate; or

(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.

premises includes a place and a conveyance.

. . .

serious offence means an offence:

(a) that is punishable by imprisonment for 2 years or more; and

(b) that is one of the following:

(i) a Commonwealth offence;

(ii) an offence against a law of a State that has a federal aspect;

(iii) an offence against a law of a Territory; and

(c) that is not a serious terrorism offence.”

31. The Crimes Act also relevantly provides:

“3F The things that are authorised by a search warrant

(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:

(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and

(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and

(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and

(d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

(i) evidential material in relation to an offence to which the warrant relates; or

(ii) evidential material in relation to another offence that is an indictable offence; or

(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

(e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and

(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

. . . .

3G Availability of assistance and use of force in executing a warrant

In executing a warrant:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and

(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

3H Details of warrant to be given to occupier etc.

(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.

(2) If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.

(3) If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.

(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.

(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.”

32. Section 3J of the Crimes Act confers additional powers on constables executing the warrant. These powers are conferred alike on the executing officer and a constable assisting.

Warrant 2371: 4 Merrin Close, Helens Park

33. The accused challenges this warrant on four grounds:

1. It does not bear the signature of FA Gategood.

2. It was assigned from FA Gategood to FA Wallosceck without FA Gategood’s signature having been endorsed on the change.

3. It did not comply with s 3E(5)(d) of the Crimes Act.

4. The issuing officer did not nominate FA Wallosceck as executing officer. The warrant required the signature of FA Gategood to validate the change to FA Wallosceck as executing officer.

34. The evidence established that FA Gategood, who was the original executing officer, struck though his own name and inserted that of FA Wallosceck. Accordingly, FA Wallosceck became the executing officer for the warrant and, as such, the constable responsible for executing the warrant: s3E(5) of the Crimes Act.

35. There is no requirement in the Crimes Act for the original, or any subsequent, executing officer, to sign the warrant or the endorsement of the change. It is not for a court to impose any additional formal requirement on such a document.

36. No allegation of illegality or impropriety has been made out in respect of warrant 2371.

Warrant 2378: silver Nissan Pulsar

37. Challenges were made to this warrant along the same lines as were made to warrant 2371.

38. The evidence established that FA Gategood, who was the original executing officer, struck though his own name and inserted that of FA Cole. Accordingly, FA Cole became the executing officer for the warrant and, as such, the constable responsible for executing the warrant: s3E(5) of the Crimes Act.

39. For the reasons given in respect of warrant 2371, no allegation of illegality or impropriety has been made out in respect of warrant 2378.

Warrant 2372: 19 Creswell Street, Revesby

40. Challenges along the lines of those made about warrants 2371 and 2378 were made in respect of warrant 2372. For the reasons given above, those challenges have, with the exception addressed below, not been made out.

41. The evidence established that FA Gategood, who was the original executing officer, handed the warrant in its original form to FA Cole. FA Cole, when he noticed that FA Gategood’s name was still on the warrant, struck through “Steven Gategood” and inserted his own name. Accordingly, the process for appointing a new executing officer pursuant to s 3E(5)(d) of the Crimes Act was not complied with. The accused argued that the warrant was, accordingly, invalid as there was no validly appointed executing officer and the original name (FA Gategood) had been deleted.

42. The Crown submitted that, given that the original executing officer, FA Gategood, did not endorse the warrant to FA Cole, the endorsement was invalid. Accordingly, it contended that FA Gategood remained the executing officer. It argued that, as FA Gategood was present throughout the execution, there was no illegality or invalidity associated either with the warrant or its execution. Moreover, the Crown relied on the apparent lack of distinction between “executing officer” and “constable assisting” in terms of the actions the respective officers were authorised to undertake. The Crown further submitted that, even if the warrant was not strictly in accordance with the Crimes Act, the deficiency was not such as to render the warrant either improper or illegal for the purposes of s 138 of the Evidence Act.

43. I note for completeness that the Crown eschewed the argument that FA Cole could be regarded as FA Gategood’s agent for the purposes of endorsing the warrant when he struck out FA Gategood’s name and inserted his own.

R v Pettit

44. The most closely analogous case to the present to which I was referred was R v Pettit [2015] TASSC 14. Of present relevance, in R v Pettit, warrants were issued under s 3E of the Crimes Act which named Pallot as the executing officer. However, on the day on which they were to be executed, Pallot was indisposed. Poly, another officer, signed over the warrants to Hall. The warrants were executed. Pallot was not present at their execution.

45. Justice Tennent said:

“[36] When the AFP officers arrived at 42 Anfield Street, Hall’s name appeared on the face of the warrant purportedly as the executing officer. He could not fulfil that position because the warrant had not been lawfully signed over to him by Pallot. To all intents and purposes, when the AFP officers arrived at 42 Anfield Street, Pallot remained the executing officer even though he was not there. . . .

[41] In the present case, the executing officer in respect of the warrant in relation to 42 Anfield Street was Pallot. He was not present at the search, and he did not sign the warrant issued to him over to any other constable. He therefore remained the executing officer. What Poly did in purporting to substitute Hall for Pallot as the executing officer was not authorised by the Act and could have no lawful effect. There was, in the circumstances, no executing officer present at the search.

[42] It is accepted that there is no provision in the Act which requires in plain terms that an executing officer in respect of a warrant should be present at any search conducted pursuant to that warrant. However, the fact that there are alternative meanings for the term “executing officer“ which deal with a situation where the executing officer named in the warrant is not going to be present at the search, when combined with the ordinary meaning of the words “responsible for executing the search“, can lead to only one conclusion, namely that the intention behind the Act is that the executing officer, whether he or she be that originally named in a warrant or one substituted for that officer, must be present at a search and responsible for the execution of the warrant. If any other interpretation were to be contended for, one would have to ask rhetorically, why have an executing officer for the purpose of a warrant in the first place unless that person has a specific role, that is, to be present at and responsible for the execution of the warrant. The phrase, being responsible for the execution of the warrant, clearly connotes taking an active role in overseeing the execution.”

[Emphasis added.]

46. Pettit argued that the consequences of Poly’s unauthorised act and the absence of an executing officer when the search was conducted were that the search was unlawful and the evidence unlawfully obtained.

47. The Crown accepted that Pallot remained the executing officer under the warrant. However, the Crown argued that the search was lawful as the powers of an executing officer and constables assisting could operate independently of each other and that, even though Pallot was not present at the search, any person who came within the definition of constable assisting who was present could carry out all powers of search and seizure under the Crimes Act, having regard to s 3F. It submitted further that the officers who were present were assisting Pallot. Accordingly, it submitted that, although Pallot was not present, the warrant and the consequential search were nonetheless valid. There were several other issues raised with the validity of the warrants and the lawfulness of their execution which are not relevant for present purposes.

48. Justice Tennent rejected the Crown’s submissions and decided that the search of the premises and the seizure of material were unlawful as the search had been conducted in circumstances where there was no executing officer, or constable assisting that officer, present.

49. The passage I have highlighted in the extract from Tennent J’s judgment in R v Pettit set out above would, thus, seem to provide some support for the Crown’s argument that FA Gategood was, and remained, the executing officer, as no valid endorsement had been made to the warrant. However, in R v Pettit, his Honour was not required to determine whether Pallot remained the executing officer since both parties accepted that he did. Moreover, in R v Pettit, there was what might be regarded as a more substantial illegality than in the present case in that Pallot had not only not endorsed the warrant to Hall or been privy to its assignment to Hall (for which Poly had been responsible) but he had also not been present for its execution. Accordingly, the correctness of the parties’ acceptance that Pallot was the executing officer, as no other executing officer had been validly appointed, did not need to be considered.

Telstra Corporation Ltd v Seven Cable Television Pty Ltd

50. The Crown also relied on Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 in support of its submission that FA Cole’s endorsement of his name on the warrant was invalid as it was not in accordance with s 3E(5)(d) of the Crimes Act and should therefore be disregarded ab initio. The Crown referred, in particular, to what the Court (Beaumont, Moore and Gyles JJ) said at [97]:

“While there may be a question as to whether an administrative act is void or voidable, and as to the significance and effect of such an act pending a declaration of invalidity by a court (for example, being able to appeal: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 ; 2 ALD 1; Calvin v Carr [1980] AC 574 at 590), it is fundamental that the purported exercise of a statutory power which does not accord with the statute is of no effect and may be disregarded — it does not impose duties or create rights. For certain (interlocutory) purposes, an administrative act may be presumed regular until set aside: F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 365; R v Wilks [1998] AC 92 at 115G. Once a court has declared the invalidity, then it follows that the act is voided ab initio (Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 ; 25 ALR 1 at CLR 277 per Aickin J), like a statute which is declared invalid if it is beyond power: South Australia v Commonwealth (1942) 65 CLR 373 per Latham CJ at 408. A possible exception to this principle is the so-called de facto officers doctrine, which has no relevance here: G J Coles & Co Ltd v Retail Trade Industry Tribunal (1986) 7 NSWLR 503 at 519–20, 525–7; Re Governor Goulburn Correctional Centre; Ex parte Eastman (1999) 165 ALR 171 ; 73 ALJR 1324 at 1357.”

51. Telstra Corporation Ltd v Seven Cable Television Pty Ltd concerned the validity of a declaration made by the Australian Competition and Consumer Commission in purported exercise of a power to declare that a specified eligible service is a “declared service”. There was no power to make the declaration without revoking or varying a deeming statement, for which statutory provision was made. However, as the deeming statement was invalid ab initio, it presented no impediment to the validity of the declaration.

The principles relating to search warrants

52. In my view, the principal difficulty with the Crown’s submission in the present case (that FA Gategood was, and remained the executing officer) is that it does not take sufficient account of the nature and importance of search warrants.

53. In George v Rockett (1990) 170 CLR 104 the High Court outlined the relevant principles in the following passage at 110-111:

“A search warrant thus authorises 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 s679, 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. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol.10, (1938), 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (1765) 19 State Tr.1001; Entick v Carrington (1765) 19 State Tr.1029. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick, at 1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure, (1986), 1-2.

State and Commonwealth statutes have made many exceptions to the common law position, and s679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. 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.”

Consideration

54. By s 3E of the Crimes Act, the Commonwealth Parliament has conferred a substantial power on the executive to invade the privacy of individuals and to intrude on their property rights. The accused, as the occupier of the premises, was entitled to know the name of the executing officer of the warrant at the time of its execution. Section 3E requires the issuing officer to name the executing officer. The executing officer is the only person who can appoint a substitute. This must be done under the hand of the executing officer. The warrant showed that FA Cole was the executing officer since he was named as such. He had not been validly appointed. FA Gategood’s name had been deleted; accordingly, he was no longer shown as the executing officer. Proper compliance with the requirements of s 3E(5)(d) is all the more significant when, as here, the person whose rights are affected by the warrant is in no position to know whether any endorsement was made by the original executing officer and, accordingly, whether the named executing officer was validly appointed.

55. Although there are provisions in other statutes that authorise warrants to be issued other than to named persons, s 3E is not one of them. It would have been open to Parliament to include in the Crimes Act a section permitting irregularities to be overlooked or forgiven. The Crown did not identify any such section. Provisions of that nature are to be found in other statutes, such as s 75 of the Telecommunications (Interception and Access) Act or s 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the latter of which provides:

“Defects in warrants

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

56. Nor is there any provision in the Crimes Act that regulates the consequences of alterations or deletions in a warrant, such as, for example, s 14(1) of the Succession Act 2006 (NSW), which provides that an alteration to a will after it has been executed is not effective unless the alteration is executed in the manner in which a will is required to be executed.

57. The Crown’s submission that FA Cole’s endorsement can be simply disregarded appears to be based on the assumption that a warrant ought to be treated in a similar way to other legal documents, such as a will or a deed where an amendment, if irregular, is, in some circumstances, simply treated as of no effect, leaving intact the original document. For the reasons given above, although R v Pettit appears to support that proposition, it only arose per incuriam.

58. I do not regard such an approach as appropriate in the context of a warrant. Concepts which apply to the construction of other legal documents ought not be assumed to apply to warrants: see King v The Queen [1969] 1 AC 304 at 312 per Lord Hodson. The Crown’s argument, if correct, would subvert the requirement of certainty. As was said in Taikato v The Queen (1996) 186 CLR 454 at 466 (Brennan CJ, Toohey, McHugh and Gummow JJ):

“The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule.”

Conclusion

59. I reject the Crown’s submission that, notwithstanding that FA Cole had not been validly appointed as an executing officer, the warrant was nonetheless legal. The authority to enter the accused’s premises, conduct a search there and seize items located there derived from the warrant. A warrant that does not comply with the law is an illegal warrant. As was said in George v Rockett at 110:

“The validity of such a warrant is necessarily dependent upon the fulfillment of conditions governing its issue.”

60. For the reasons given above, warrant 2372 did not comply with s 3E of the Crimes Act and its execution was, accordingly, illegal. It did not authorise the search and seizure at 19 Creswell Street, Revesby. Accordingly, the evidence obtained as a result of its execution was unlawfully obtained and s 138 of the Evidence Act applies.

61. It could reasonably be said that the breach was a purely technical one, which resulted from ignorance rather than disregard for the law; did not have any particular effect; and gave the APF no advantage in obtaining evidence as both FA Cole and Gategood were present throughout. However, these matters relate, not to the question of legality, but to the question whether the evidence obtained as a result of the search and seizure pursuant to that warrant ought be admitted under s 138 of the Evidence Act.

62. The accused was not in a position to address me on s 138. Moreover, the Crown had neither tendered, nor otherwise described, the evidence obtained through the execution of warrant 2372. Accordingly, I cannot make the judgment required by s 138 since the probative value and importance of the evidence are mandatory relevant considerations in the decision whether to admit the evidence (s 138(3)(a) and (b)). Thus, it is necessary to address that question at a further pre-trial hearing. Although the evidence of the three federal agents called in this hearing (FA Gategood, FA Cole and FA Gill) was also relevant to matters germane to those listed in s 138(3), I propose to defer making findings on such matters until after the further pre-trial hearing when I have heard submissions from the parties on all relevant matters.

Orders

63. I make the following directions:

1. Direct the Crown to serve on the accused and provide to my Associate on or before 4pm 6 November 2015 a document setting out the evidence sought to be relied upon in the Crown case that was obtained by the execution of warrant 2372.

1. Confirm 9 November 2015 at 9.15am as the next mention date, at which time a date for hearing of the voir dire in respect of the issue whether the evidence identified in (1) ought be admitted under s 138 of the Evidence Act 1995 (NSW) will be allocated and any further pre-trial directions will be made.

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Amendments

17 May 2023 - Publication restriction removed – judgment republished

Decision last updated: 17 May 2023