State of New South Wales v Corbett and Anor

[2006] HCATrans 674

[2006] HCATrans 674

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S240 of 2006

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

JAMES JOHN CORBETT

First Respondent

ROBYN JEAN CORBETT

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 9.58 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:   If it please the Court, I appear with my learned friend, MR P.R. STERNBERG, for the applicant.   (instructed by Crown Solicitor for New South Wales)

MR J.M. IRELAND, QC:  If your Honour pleases, I appear with my learned friend, MR S.G. MOFFET, on behalf of the respondents.   (instructed by Moloney Lawyers)

GLEESON CJ:   Yes, Mr Neil.

MR NEIL:   Your Honours, in our written submissions we said we would obtain instructions on the conditions suggested by my learned friend in his submissions at page 118 of the application book in paragraph 22.  My instructions are that in the event the Court were minded to grant leave we would consent to the conditions in the terms set out in subparagraphs (a) and (b).

GLEESON CJ:   Thank you.

MR NEIL:   Your Honours, in this case the judgment of Justice Giles at paragraph 65 at page 78 of the application book is to the effect that:

It was a necessary part of the belief asserted by Acting Inspector Jago that the offence lay under the 1989 Act.

If I can take your Honours back to page 67 of the application book, paragraph 32, there is the commencement of the form that was used and on the top of page 68 there is the phrase under the printed material “Possession of Firearm Firearms Act No 25/1989 Sect 5(a)”. Could I take your Honours to application book page 73 where in paragraphs 49 and 50 there are set out section 5 of the 1989 Act and section 7(1) of the 1996 Act which, in our submission, are for relevant purposes identical although the words are slightly reformatted in the 1996 Act. Could I take your Honours to application book page 80, paragraph 71, because in that paragraph, where his Honour is dealing with a separate but allied ground, his Honour says:

At times the submission included that the offence was contrived –

that was the submission of the present respondent -

I do not think that adds to the fact that suspension of the licence was seen as a prerequisite to execution of the warrant and care was taken to first suspend it.  There is no reason to doubt that Inspector Hines and Acting Inspector Jago were concerned that Mr Corbett had a firearm and, in his fraught mental health, might cause harm, including to himself.  That plainly warranted suspension of the licence, and suspension prior to any search of the property.  If there were reasonable grounds for the belief, they were not made unreasonable by the order of events; indeed, the police officers could have been criticised had they not taken account of the licence.

Now, your Honours, if one then returns to application book 68 and looks at the words used, in light of the sections that I referred your Honours to at application 73, it is our submission that once, under either regime, the 1996 regime or the 1989 regime - and Justice Giles points out that the 1996 regime is, if anything, stricter than the 1989 regime and, indeed, makes these type of shotguns a prohibited weapon, but once the licence had been suspended there was no question of having to look at whether or not the person had a licence or permit under either section 5 or section 7(1).

Thus, for their Honours to say that the police officers should have gone into the interstices of the regulations under either regime and is satisfied himself whether there was some kind of defence, is completely to miss the point.  In our submission, the words at the top of page 68, “Possession of Firearm” are perfectly adequate to describe an offence.

GLEESON CJ:   Mr Neil, I understand the importance of questions as to the effect of a mistake like this on an application for a search warrant, but there has been a change in the search warrant legislation, has there not, since the events with which we are concerned?

MR NEIL:   Yes, your Honour.

GLEESON CJ:   Is that material to the importance of this issue?

MR NEIL:   We would say, yes, and could I hand your Honours a copy of the form 1 as applied under the Search Warrants Act, which was what was used here, and a copy of the schedule which sets out the form to be used under the new provisions because, in our submission, relevantly there is no material difference, although there is more scope for error, we would submit, or mistake in the new system. 

GLEESON CJ:   But the principles applied by the Court of Appeal in this case would apply under this legislation equally, would they?

MR NEIL:   Yes, your Honour, because if one looks at the form 1 under the schedule under the Search Warrants Act, the phrase in paragraph (2) is:

I have reasonable grounds for believing that –

(a)the things are connected with the following indictable offence/firearms offence/narcotics offence within the meaning of the Search Warrants Act 1985 -

If one looks at schedule 1 form under the Law Enforcement (Powers & Responsibilities) Act, the application has to say, relevantly to that point, in 1 after referring to the reasonable grounds:

(b)the things are connected with the following indictable offence/firearms offence/prohibited weapons offence/narcotics offence/child pornography offence, within the meaning of section 47 of the Law Enforcement (Powers & Responsibilities) Act 2002: [Insert description of offence(s) -

which is what you would have done under the old form as well.

GLEESON CJ:   In the days when it was permissible to use Latin, this would have been described as a falsa demonstratio.

MR NEIL:   Thank you, your Honour.

GLEESON CJ:   Probably nowadays a slip.

MR NEIL:   Thank you, your Honour, yes.  Now, there is more scope for slips under the new system because there are references to further ‑ ‑ ‑

GUMMOW J:   Wait a minute, what is going to be slip?  There has to be some line here.

MR NEIL:   It is where, your Honour ‑ ‑ ‑

GUMMOW J:   This looks truly a case of a slip but what is not going to be a slip?

MR NEIL: Well, your Honour, it is not a slip to specify the substance of an offence, firearms offence. Here what the problem would be, as soon as there is an amendment, for example, even to a section, let alone an Act, if someone for some reason gets the section or the subsection or the Act wrong ‑ ‑ ‑

GUMMOW J:   We are looking at some distinction between form and substance, are we?  What is the criterion going to be?  You want to get this case decided in your favour, I understand that, but what is the sequel going to be?

MR NEIL:   We would say, your Honour, that a mere misdescription of a section or an Act by way of a mistake or a slip is not a matter of substance providing you set out in the form, for example, “Did defraud the Commonwealth or ‑ ‑ ‑

GUMMOW J:   What about misspelling the first name of the party?

MR NEIL:   That would not be what one would find as part of an offence.  An offence would be that such and such a thing has been done that contravenes the law. 

GLEESON CJ:   But what is the standard?  Is there some legislative provision or some principle of law that enables you to distinguish between mistakes that matter and mistakes that do not matter.  You might have read a fairly recent decision of this Court in relation to bankruptcy notices.  There there is in the Bankruptcy Act itself a provision that you apply, even though it is not necessarily automatically self‑executing in all cases, but you apply in order to decide whether or not a mistake produces the result that the bankruptcy notice is effective or ineffective with all the consequences that has in terms of the status of an individual.  Is there any similar legislation or any legal principle that enables you to determine what kind of a mistake in an application for a search warrant matters?

MR NEIL:   Well, your Honour, there is not a legislation.  We would say the principle is somewhat to the approach from the other direction in that if there is identified an offence currently known to the law, such as possess firearm, then a mistake by some misdescription adding to that is not material and does not invalidate the description of the offence.  In the Cassaniti Case there was no offence set out in the column at all.  Here we say an offence has been set out, namely, possess firearm.

GLEESON CJ:   A test that has been applied in the bankruptcy area is to ask whether or not the recipient of the notice could have been misled about, for example, what he or she was required to do in order to comply with the notice.

MR NEIL:   Well, your Honour, this is a search warrant where some notice is given to the occupier upon attendance by the police, but there could be no mistake, we would submit, of any relevant type in the mind of the ordinary individual who is shown the document that describes possession of firearm as the offence.

GLEESON CJ:   An approach to it might be to say the way you work out what kind of mistake matters is to ask what is the purpose of giving the information in the first place.

MR NEIL: We would have thought, your Honour, that there would have been no difficulty at all if the extra words describing the Act and this section had not been put in. Our point is that if you simply had stopped at “possession of firearm”, that would have been adequate to describe an offence under the law. But what is said is, because the mistake was made to add on the old Act, that that vitiates or makes invalid the description of the offence. We submit, once you validly describe an offence, a mistake cannot make it invalid. Thus, the principle of law is, if you have described an offence known to the law, even if it was not accompanied by a description of the current Act, the principle is satisfied.

GUMMOW J: What is the significance of section 23 set out on page 67 of the application book:

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

MR NEIL:   That, your Honour, is the provision that relates to the warrant.  Now, paradoxically, as the Court of Appeal held here, there is no offence even described on the warrant.  If the form is followed, you do not have to put any offence on it.  There is not a similar section that covers a defect in the application.  We say the principle of properly describing an offence and common sense means you adopt the same approach, but a mistake that is not substantial cannot invalidate the description of the offence.

You have the paradoxical situation here whereby you do not have to put any offence at all on the warrant, but if, according to the Court of Appeal, you describe an offence but put the wrong Act in, it is invalid and there is no legislation that will rectify it.  We argued that it should be treated as surplusage those extra words “And thus, you have described an offence and thus it is valid”.

The problem that the court has set up in terms of law enforcement officials is under this decision they have to go into the law of the regulations, the background.  They have to virtually find whether there is a defence or not which is quite unreasonable, it makes them lawyers, rather than they know enough information to swear before the Justice that they reasonably believe there is a thing, namely a weapon, connected with an offence of unlawful possession of firearm or possess firearm, particularly where, in this case, they, as approved by the Court of Appeal and no misleading of the Justice - he knew exactly what was happening - they said, no doubt for caution, “This licence will be, by tomorrow and by the time we execute the warrant, suspended or revoked, therefore, there is no need to look into defences”. 

If there is a need to do that, it is far beyond what, for example, a police officer would have to do in drawing up a charge of a person.  It is not the responsibility - subject to the law of acting reasonably and fairly – of an officer when he frames a charge to charge or arrest somebody if he sees there is enough material to dig around to find out if there is a defence or not. 

GLEESON CJ:   What use is made of an application for a search warrant?  I mean, who gets to see it and use it?

MR NEIL:   Only the Justice.  It is not used later at the door.  What is used later at the door is the warrant or a notice of the warrant because at that level the inquiry is, should the warrant have enough specificity of the things to be looked for or the scope of the search, not the offences.

GLEESON CJ:   Where do we find the search warrant here?

MR NEIL:   It was not available, your Honour.  It was never found.  The assumption has been that it must have been in the courts of the ordinary forms.

GLEESON CJ:   But did it contain the legislation?

MR NEIL:   It did not contain any reference to the particular offence and nor was it required to.

GLEESON CJ:   So he did not repeat the mistake that was in the application for a search warrant?

MR NEIL:   No, so no one can be misled at the property.

GLEESON CJ:   So the person who would have been misled, if anybody was misled, by the error was the Justice who issued the search warrant?

MR NEIL:   Yes, but he was told and he approved of the plan, as has the Court of Appeal, to cancel the licence, thus, there is no defence.

GUMMOW J:   What is the piece of legislation which sets up the Justice as the issuing authority and requires the application to the Justice and what material must the Justice be presented with?

MR NEIL: It is section 5.

GUMMOW J:   Where do we find that?

MR NEIL:   Application book 64:

The warrant was issued under provisions of the Search Warrants Act 1985 (“the Act”) and the Search Warrant Regulation 1994 . . . 

Section 5 of the Act provided ‑ ‑ ‑

GUMMOW J:   The question then is, could the magistrate have been satisfied that there were reasonable grounds, have been satisfied on the production to the magistrate of this material?

MR NEIL:   We submit he could have and the Court of Appeal rejected an argument that there was not enough for him to be satisfied.  The courts found in this case that he actually had enough, but on the point of the word of that section being misdescribed has held that the application to him was invalid.

GUMMOW J:   It comes down really to construing section 6, I think.  I am not saying that is against you.

MR NEIL:   It may well, your Honour, but, as we say, as long as you describe ‑ ‑ ‑

GUMMOW J:   And section 11.

MR NEIL:   Yes.  As long as you describe an offence, then there can be no one misled in this case at all and ‑ ‑ ‑

GUMMOW J:   Do we have the text of section 11?  We do not, do we?

MR NEIL: If it is not in the book, your Honour, I think we can probably hand it up. I can hand up the Act to your Honours.

GLEESON CJ:   Is it one of your submissions that the error in this case, or the mistake that was made in the application form in this case was not of such a kind as could have produced any material error on anybody’s part?

MR NEIL:   Yes, your Honour, and such of a kind that could not have invalidated the description of an offence.  Now, I do not think I was asked that particular question in the Court of Appeal, but that is the way we would put the matter, and the Justice was fully apprised of what was to be done.

GLEESON CJ:   Section 11 seems to suggest that this application is for the purpose of giving information to the Justice of the Peace.

MR NEIL:   It is, your Honour, yes.

GLEESON CJ:   So a possible point of view is that if there is a mistake in the application, the test is, does that in any material way affect the information that has been given to the Justice of the Peace?

MR NEIL:   We would submit it could not where the offence is properly described, possession of firearm, and certainly in this case where the Justice, who is a knowledgeable person and the evidence was he was given extra information about what was happening, about the problem of the weapon, about the man’s condition, and that his licence was going to be withdrawn, thus, under any regime, the earlier or the later Act, the Justice could not have possibly been misled, we would say, about the need, as he saw it, to issue a warrant.

GUMMOW J:   What is the significance of section 12A which seems to impose some imperative requirements on them?  It is directed to the Justice not to do something unless ‑ ‑ ‑

MR NEIL:   Well, we would submit all that would have been ‑ ‑ ‑

GUMMOW J:   If all Acts are complied with?

MR NEIL:   I am sorry, your Honour.

GUMMOW J:   Were the matters in section 12A complied with?

MR NEIL:   We would say, yes.  We understand the only challenge made against us is the addition of the misdescription.

GUMMOW J:   I mean it is a matter of statutory construction.  The fact that there are imperatives in 12A must throw some light upon what is or is not requisite in the other provisions.

MR NEIL:   Indeed, your Honour.  I know of no ‑ ‑ ‑

GUMMOW J:   The significance of what is or is not elsewhere provided.

MR NEIL:   We understand no challenge to any matter other than the very small point about the misdescription.

GLEESON CJ:   Presumably this information would go to 12A(1)(b)?

MR NEIL:   Yes.

GLEESON CJ:   That is the relevance of it.

MR NEIL:   Yes, your Honour, that there are things connected with an offence of possession of firearms.

GLEESON CJ:   But it is relevant to the grounds on which the warrant is being sought?  The description of the suspected offence is relevant to the ground on which the warrant is being sought?

MR NEIL:   Yes, but it is for the officer to have the belief and if he puts forward a belief of possession of firearm, we submit he has done what he is required to do.

GLEESON CJ:   Suppose that as a result of a slip – I am looking at 12A(1)(c) – there is a misdescription of the premises?  Suppose that as a result of the slip the premises are said to be on the fourth floor of a building that only has three floors?

MR NEIL:   Well, that would be a different situation.  No doubt when someone arrives and finds the place is not there, then they cannot go ahead.  It is not as if that is, with respect, far removed from anything that could occur in this context.

GLEESON CJ:   All right.  Thank you, Mr Neil.

MR NEIL:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr Ireland.

MR IRELAND: Your Honour, in the repealed legislation with which this case is concerned and in the current legislation, the scheme is basically the same. On the one hand you have the police officer who has to satisfy himself by a process of thought and intelligence of the existence of what is called a particular firearms offence, not just generally that crime has been committed, but there is a particular offence and that is what, reproduced at page 64 of the book, one sees section 5(1)(b). It was the failure to carry out an intelligent process with respect to legislation that was on the statute books that brought undone this application. The section of the Act which fixes up defects, which is section ‑ ‑ ‑

GLEESON CJ:   We see barristers having the same problem with the corporations law time and time again.

MR IRELAND: Yes. Section 23 of the Act which was concerned to excuse defects in the warrants was not part of the relevant analysis of the Court of Appeal. There is this two-stage process. First of all, the police officer makes up his mind on reasonable grounds that there is a thing connected with a particular offence. He then goes to the issuing Justice and presents his case, as it were, on that. The issuing Justice has then, by section 12A that your Honour has looked at, reproduced at page 65, to not only satisfy himself in a general sense of the logic of what is put forward, but he has also given certain imperatives by the statute which prohibits the issue of the warrant itself unless the grounds, including the existence of a particular offence, are there.

GLEESON CJ:   Is it common ground that if he had simply omitted any reference at all to the legislation and so avoided the misdescription, the application would have been in order for the Justice to ‑ ‑ ‑

MR IRELAND:   No, your Honour, we went further in the Court of Appeal and said that one had to identify an offence and especially in this case.  This case was terribly special on its facts, because at the time the search warrant was applied for there was a plan to revoke a shooter’s licence.  At the time it was applied for my client is in a hospital bed in Port Kembla, the premises to be searched are hundreds of kilometres away occupied by his wife at Goulburn.  The police plan is, we know he has a shooter’s licence, we intend to revoke that. 

That will, they think, then constitute two possible offences.  One would be failure to hand back the licence when demanded.  That would be a future offence in that contemplation.  But critically, continuing to possess the shotgun that they thought was there, but of course was not there – if it had been handed in they would have found that out if they had looked at the records – continuing unlawfully to possess that shotgun which, at the moment of application to the Justice, is lawfully possessed.  So it is a structure that has been put together about a future offence.

The Court of Appeal emphasises that because of the particular circumstances of the case, in judging the genuineness of the policeman’s view, one has to take into account the scheme of the relevant Act as to possession.  In other words, at the moment of the application for the warrant he is lawfully in possession because the shotgun licence is there, even on all the assumptions made by the policeman.

The Court of Appeal simply says unless you look at the scheme of possession and what constitutes unlawful possession under the relevant Act, you cannot make an intelligent statement or a requisite statement for the purposes of section 5. You cannot designate a particular offence if you are concerning yourself with repealed law and that is the essence of what the Court of Appeal has found. So that on the special facts of this case the defect in the application was critical and the Court of Appeal is right on that point. This is not a matter of general application. The particular legislation is repealed.

My learned friend wants to carry forward the notions about the role of the Justice into every case, but as your Honours have rightly remarked in the course of this argument, the slip may be of many kinds.  This is a case on its facts.  Those are our respectful submissions.

GLEESON CJ:   Thank you, Mr Ireland.  Yes, Mr Neil.

MR NEIL: Your Honours, at application book 67 at line 48 one sees the provision that if there are “reasonable grounds for believing that there is, or within 72 hours there will be”. The Court of Appeal found that it was quite appropriate, there was nothing wrong with cancelling the licence, thus an offence would arise providing it arose within 72 hours. When one goes back to application book 73, section 5, for the relevant purposes simply says:

A person shall not –

(a)      possess a firearm . . . 

unless authorised –

Section 7 said:

A person must not possess or use a firearm unless the person is authorised -

Once the authority is gone, there is absolutely no distinction, we would submit.  It is possession of firearm, as was set out at the top of application book 68 in the form.

GLEESON CJ:   Mr Ireland puts an argument that this case is an unsuitable vehicle for dealing with the general question of principle about mistakes in applications of this kind because he says this was a rather unusual case in which there was no offence being committed at the time, but there was an anticipated offence contingent upon withdrawal of a licence and that made it important, perhaps unusually important in this case to specify accurately the legislation.

MR NEIL:   Your Honour, the purpose of the 72 hours was to cover numerous factual situations.  For example, information may be that some drugs are going to arrive on a premises in the next 72 hours, but they are not there yet.  So it can work.  This decision of the Court of Appeal could affect and invalidate in circumstances much wider than this instant case, we would put.  If there is an amendment at some stage and the computer does not catch up for a few days, the argument will be the officer got it wrong because he did not know the amendment had come through that day, even

though he has properly described an offence.  So we would submit this is by no means a case confined to its facts.

GUMMOW J:   What does not seem to be there in the draft notice of appeal at the moment is what seems to me the first step, which is to explain how it is that this alleged inadequacy in information supplied to the issuing Justice invalidated the warrant, that is to say, that section 6 carried forward in some way because the authorised Justice could not be satisfied and that that invalidated the issue of the warrant.

MR NEIL:   Well, your Honour, if the Court were minded to grant leave ‑ ‑ ‑

GUMMOW J:   Am I right in thinking that did not receive attention in the Court of Appeal because it was not asked to give it attention?

MR NEIL:   Well, I do not know that in those precise terms it was dealt with, your Honour, but the matter is ‑ ‑ ‑

GUMMOW J:   Anyhow, it does seem to me if one is going to get into this one has to start with sections 6, 11 and 12A.

MR NEIL:   Well, your Honour, we would, if the Court were minded to grant leave, seek leave to amend the notice of appeal.  If it please the Court.

MR IRELAND:   Could I just add this, I should have said we have foreshadowed the contention which revives the two other points argued about the requirement for the offence to be on the face of the warrant.  That is in our written submissions, so I would just ask your Honours to bear that in mind.  It would be something we would – that is statutory again.  It does not depend on ‑ ‑ ‑

GLEESON CJ:   In this matter there will be a grant of special leave to appeal subject to the following conditions:  that the applicant undertakes – and we note the undertaking – not to seek to disturb the order for costs in favour of the respondents in the Court of Appeal and that the applicant pay the respondents’ costs of the appeal to this Court in any event.  We note it will be necessary for you to perhaps amplify the proposed notice of appeal in the matter that has been foreshadowed.  Mr Ireland, we know that you are going to rely on some contentions.

AT 10.31 AM THE MATTER WAS CONCLUDED