State of New South Wales v Corbett [2007] HCA 32 1 August 2007 S2/2007
ORDER
1. Appeal allowed.
2.Set aside orders 2 to 5 of the Court of Appeal of the Supreme Court of New South Wales made on 13 June 2006 and, in their place, order that the appeal to that Court be dismissed.
3.The appellant to pay the respondents' costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
M G Sexton SC Solicitor-General for the State of New South Wales with M J Neil QC and P R Sternberg for the appellant (instructed by Crown Solicitor for New South Wales)
J M Ireland QC with S G Moffet and J S Cooke for the respondents (instructed by Moloney Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
State of New South Wales v Corbett
Police – Search warrants – Police conducted a search under apparent authority of a search warrant – Application for search warrant referred to offence under Firearms Act 1989 (NSW) when that Act had been repealed and replaced by Firearms Act1996 (NSW) – An offence of unauthorised possession of a firearm existed under both Acts – Definition of "firearms offence" under the Search Warrants Act 1985 (NSW) continued to be identified by reference to the repealed Firearms Act 1989 (NSW) – Whether offence sufficiently stated in application – Whether search warrant valid – Savings and transitional provisions in Sched 3 to the Firearms Act 1996 (NSW).
Police – Search warrants – Object of search and boundaries of search warrant unambiguous – Nature of offence critical – Whether transitional provisions require reference to repealed Act to be read as reference to corresponding provisions in the Firearms Act 1996 (NSW).
Police – Search warrants – Whether applicant had reasonable grounds for belief in existence on premises of "a thing connected with a particular firearms offence".
Statutory interpretation – Approach to interpretation of provisions regarding search warrants – Generally strict approach to interpretation of enabling provisions – Reasons for such strictness – Whether transitional provisions require reference to repealed Act to be read as reference to corresponding provisions in the Firearms Act 1996 (NSW).
Words and phrases – "a thing connected with a particular firearms offence", "instrument", "corresponding provisions".
Search Warrants Act 1985 (NSW), ss 4, 5(1)(b). Search Warrants Regulation 1994 (NSW), Form 1 in Sched 1. Firearms Act 1989 (NSW), s 5. Firearms Act 1996 (NSW), s 7(1), item 12 of Sched 3.
GLEESON CJ. The facts and issues are set out in the reasons of Callinan and Crennan JJ. I agree that the appeal should be allowed and consequential orders made as proposed in those reasons. I agree generally with the reasons of Callinan and Crennan…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
New South Wales v Corbett [2007] HCA 32
Case
[2007] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the State of New South Wales concerning the validity of a search warrant. The dispute arose when police, acting under a search warrant, searched the respondents' property. The application for the warrant referred to an offence under the repealed *Firearms Act 1989* (NSW), rather than the current *Firearms Act 1996* (NSW), although an offence of unauthorised firearm possession existed under both Acts. The respondents argued the search warrant was invalid due to this misreferencing.
The central legal issue before the High Court was whether the search warrant was valid, given that the application and the warrant itself referenced a repealed piece of legislation. This required the Court to consider the application of the rule of strictness in relation to search warrants and, crucially, the effect of the savings and transitional provisions within the *Firearms Act 1996* (NSW). The Court also had to determine if the offence was sufficiently stated in the application and if the applicant had reasonable grounds to believe a thing connected with a firearms offence would be found on the premises.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The Court reasoned that while a strict approach to search warrants is generally required to protect individual rights, this rule must yield to applicable statutory provisions. In this instance, item 12 of Schedule 3 to the *Firearms Act 1996* (NSW) provided that a reference in any instrument to a provision of the repealed *Firearms Act 1989* was to be read as a reference to the corresponding provision of the new Act. Consequently, the reference to the repealed section in the search warrant application was, by operation of law, to be read as a reference to the corresponding section of the *Firearms Act 1996* (NSW). Therefore, there was no actual error or material defect in the warrant, and it was valid.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2 to 5 of the Court of Appeal of the Supreme Court of New South Wales made on 13 June 2006 and, in their place, order that the appeal to that Court be dismissed.
3. The appellant to pay the respondents' costs of the appeal to this Court.
Background
Background to the litigation
The appellant now appeals to this Court on the issue of the validity of the search warrant. The respondents have filed a notice of contention alleging error in the Court of Appeal's finding that the Acting Inspector seeking the search warrant had reasonable grounds for believing that there would be firearms located on the respondents' property. Background Mr Corbett, a police officer with the New South Wales Police Service since 1976, was based at the relevant time in rural New South Wales. In the 1980s, through the course of his work with the Police Service, Mr Corbett attended various traumatic incidents, including the bombing of a Hilton hotel, the Granville rail disaster and a serious plane crash near Goulburn, involving a number of fatalities. In about 1990 Mr Corbett was involved in a serious motor vehicle accident in which he suffered significant injuries, including head injuries. Throughout the 1990s, Mr Corbett experienced mental health problems, and attempted to commit suicide three times: once in 1992 and twice in 1998. In about 1992 Mr Corbett had held a shotgun to the head of his wife, the second respondent, and pulled the trigger. The primary judge noted that it was "[d]ue to the remarkably good fortune of the safety catch being engaged [that] the firearm did not discharge"[39]. [39]Corbett v State of New South Wales, unreported, District Court of New South Wales, 22 October 2004. A number of psychological and psychiatric reports were received in evidence at the trial, which identified a range of symptoms experienced at various times by Mr Corbett, including depression, fear, anger and anxiety, as well as possible diagnoses, including post-traumatic stress disorder or other mood disorders. Mr Corbett acknowledged that during the mid‑1990s he had consumed alcohol to excess. The primary judge made a finding that Mr Corbett had experienced "a series of emotional and mental problems" and was "from time to time unstable", but that he was "no longer seriously ill". During the latter part of his career, Mr Corbett became involved with systems of police radio communication, and in particular he spent significant effort developing a rural radio network in the Goulburn area, which allowed police to have 24 hour radio contact. Previously, between certain hours late at night and early in the morning, police contact could only be made via telephones. A decision was taken in about 1997 to implement a new communications regime in which police radio systems would operate in conjunction with a mobile phone service provider. This development had the consequence that Mr Corbett would no longer have a position in the Goulburn area, and that the radio system he had established would no longer be used. The primary judge noted that Mr Corbett "became very concerned for police safety as a result of the proposed new communication system" and his Honour inferred that Mr Corbett "felt the system would fail police personnel and as a result the lives of police officers could be jeopardised".
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
GUMMOW J
KIRBY J
(dissent)
CALLINAN AND CRENNAN JJ
Reasons for strictness: What are the reasons that lie behind this rule of strictness? They include: (1) The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people; (2) The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures; (3) The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures; (4) The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and (5) The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.The Court of Appeal's decision In the present case, the Court of Appeal concluded that the application of the rule of strictness to the established facts required rejection of the lawfulness of the application for the search warrant and the resulting warrant pursuant to which the police search of the respondents' premises took place. In effect, the Court held that the strict rule applied because the police officer who applied for the search warrant relied on a specifically identified legal offence which did not then exist[20]. For the same reason, the Justice issuing the warrant could not, in law, have had "reasonable grounds" for acting as he did. Their grounds for so acting were, in both cases, not "reasonable" not because of any malice or evil intent on their respective parts. It was simply because, on the face of the application and therefore the resulting warrant, they each had respectively in contemplation an irrelevant, repealed and hence inapplicable legal foundation for acting as they each did. [20]The reference to s 5(a) of the Firearms Act 1989 (NSW) rather than to s 7(1) of the Firearms Act 1996 (NSW). See reasons of Callinan and Crennan JJ at [70]. For the respondents, this limb of their argument was not based on a moral disapprobation, as such, of what the police officer and Justice had respectively done. Their submission simply required application to the uncontested facts of the rule of strictness expressed in the authority of this Court. The reference to the repealed statutory provision might have had no significant conscious effect on the decision of the two officials in question: the applicant police officer and the issuing Justice. Each of them might well have made the same decision if the correct statutory provision had been nominated. Indeed, each might well have done so if no specific statutory provision had been identified. The respondents' argument was thus a technical one. At base, it represented no more than the insistence of the application to the facts of this case of the rule of strictness in the law governing search warrants as long applicable in this country.The operation of the transitional provision
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW J,
CALLINAN AND CRENNAN JJ
The reference to the repealed statutory provision might have had no significant conscious effect on the decision of the two officials in question: the applicant police officer and the issuing Justice. Each of them might well have made the same decision if the correct statutory provision had been nominated. Indeed, each might well have done so if no specific statutory provision had been identified. The respondents' argument was thus a technical one. At base, it represented no more than the insistence of the application to the facts of this case of the rule of strictness in the law governing search warrants as long applicable in this country.The operation of the transitional provision In these reasons I would not wish to cast any doubt on the rule of strictness nor to water it down by any thought that it is subject to exceptions based on considerations such as convenience or overall fairness and justice. That is not the way in which I would resolve this appeal. Obviously, because the rule of strictness is one of judicial approach, it must adjust to any applicable statutory provisions designed, in effect, to excuse or render inoperative, established, but immaterial, errors appearing on the face of a search warrant or ancillary documents. Similarly, it must adjust to cases where, by operation of law, the propounded error that, on a strict reading, might invalidate the application and resulting search warrant is revealed, on analysis, as no error at all. The appellant proffered each of these reasons to counter the respondents' appeal to the rule of strictness. In my opinion, it is the latter argument that carries the day for the appellant. It saves the subject application and ensuing search warrant from invalidation for the presence of a legal defect. My reasons follow those of Gummow J[21]. They rely on the transitional provision contained in item 12 of Sched 3 to the Firearms Act 1996 (NSW) ("the 1996 Act"). That item states:"Except as provided by the regulations, a reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act 1989, or the Firearms Regulation 1990, is to be read as a reference to the corresponding provision of this Act, or the regulations made under this Act, respectively."[21]Reasons of Gummow J at [6]-[13]. The reference in the application for the search warrant to the "Firearms Act No 25/1989 Sect 5(a)" was, by force of the transitional provision, to be read as a reference to the "corresponding provision" of the 1996 Act. Thus, by express statutory enactment, that item had the effect of replacing in the "instrument" (the application form and resulting search warrant) the reference to s 5(a) of the Firearms Act 1989 (NSW) ("the 1989 Act") with a reference to s 7 of the 1996 Act. In cases to which the transitional provision applied (such as this), it follows that there was no error, misdescription or material defect in the applicable search warrant or the resulting warrant issued pursuant to that application. By force of law, the supposedly incorrect reference to the 1989 Act was to be read as containing a correct reference to the "corresponding provision" by then in force, namely s 7 of the 1996 Act.The transitional provision and the respondents' arguments