Televantos v The Commonwealth of Australia

[1993] FCA 264

Re: NICHOLAS TELEVANTOS
And: THE COMMONWEALTH OF AUSTRALIA and BRIAN McDONALD
No. ACT61 of 1992
FED No. 264
Number of pages - 6
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Miles(1), Gummow(1) and Foster(1) JJ

CATCHWORDS

Criminal Law - search warrants - construction thereof - principles applicable.

Poisons and Narcotic Drugs Act 1978 (ACT.)

George v Rockett (1990) 170 CLR 104,

Beneficial Finance Corporation Limited v Commissioner of Australian Federal Police (1991) 31 FCR 523, applied.

HEARING

CANBERRA, 6 April 1993 #DATE 28:4:1993

The appellant appeared in person

Counsel and solicitors Mr C. Erskine instructed by
for the Respondents: the Australian Government Solicitor.

ORDER

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

MILES, GUMMOW AND FOSTER JJ The principal point on this appeal concern s the construction of sub-ss. (1) and (2) of s. 50 of the Poisons and Narcotic Drugs Act 1978 (ACT.) ("the Act"). Section 50 provides for the granting of search warrants authorising a member of the police force of the Australian Capital Territory ("the Territory") to enter and search certain premises or places and to seize "any prescribed substance" found thereon or upon any person on the premises or place.

1. Since the occurrence of the events giving rise to this litigation, s. 50 largely has been superseded by s. 187 of the Drugs of Dependence Act 1989 (ACT.). Section 187 deals with the issue of warrants with greater particularity than s. 50, but nothing turns upon the recent legislation for the purposes of the present appeal.

2. Sub-sections (1) and (2) of s. 50 are in the following terms:-
   

"50. (1) In this section, 'prescribed substance' means a Schedule 8 or Schedule 12 substance in relation to which there are reasonable grounds for suspecting that an offence has been committed against a provision of Part II.

(2) If a magistrate is satisfied by information on oath that there is reasonable ground for suspecting that there is on any premises or at any place a prescribed substance, he may grant a search warrant authorizing a member of the Police Force of the Territory named in the warrant, with such assistance as he thinks necessary, to enter, if need be by force, at any time or times within the period of 28 days from and including the date of the warrant, upon the premises or place, to search the premises or place and any person found on the premises or place and to seize any prescribed substance found on the premises or place or upon any person upon the premises or place." (Emphasis supplied).

1. Part II is headed "Addictive Substances". It creates various offences in relation to unauthorised use possession and supply of substances identified in Schedule 8 and Schedule 12.

2. At all material times the appellant was the sub-lessee of premises in the Territory upon which there was conducted what was known as "Troubadour Nightclub". On the night of 9 May 1987, when the night club was in operation, police officers entered the premises and executed a warrant apparently issued under s.50 of the Act. In an action commenced in the Supreme Court of the Territory the appellant alleged that the entry and occupation of the premises was "unlawful" and a trespass. In particular, it was said that the entry and occupation of the premises was made pursuant to an invalid warrant. The issues fought out at the trial included issues concerning the terms of the warrant, but not as to the decision of the magistrate to grant it. The primary Judge (Gallop J) decided all issues favourably to the respondents and dismissed the action. The primary challenge by the appellant is to the holding of the primary Judge as to the adequacy of the terms of the warrant.

3. The common law does not recognise the general power to issue search warrants, but only a power to issue warrants to search identified premises for stolen goods thought to be there; all other forms of search warrant are, accordingly, the creature of statute: Trimboli v Onley (No. 1) (1981) 56 FLR 304 at 314 per Powell J, affd. 317. Historically, the common law based its position upon a concern for rights of private property, but in modern times the justification has increasingly has shifted to the protection of privacy: George v Rockett (1990) 170 CLR 104 at 110, a joint judgment of all members of the Court.

4. There is, as Pincus J put it in Beneficial Finance Corporation Limited v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 525, "a presumption against general warrants" and it is a "reasonable implication" that unless the contrary appears the particular statute complies with that presumption. A warrant will not be a general warrant if the statutory conditions for the exercise of the power to issue it require the warrant to identify, so as to limit, the area of search and seizure by reference to the nature of the things the object of the search. The warrant may be issued for use in an investigation which may be incomplete: George v Rockett (supra at 119). At the stage of the investigation when the warrant is granted, it may not be known what particular offences have been committed: Coward v Allen (1984) 52 ALR 320 at 332. It is not necessary that sufficient detail be given to the person whose premises are being searched to know the "exact object" of the search: Beneficial Finance (supra at 534-543 per Burchett J).

5. But, as is emphasised in Inland Revenue Commissioners v Rossminster Limited (1980) AC 952, the issues that arise in these cases concern the interpretation of the particular statute pursuant to which the warrant was issued.

6. Whilst the courts may look critically at legislation which impairs the integrity and privacy of the houses and places of business of citizens, and any doubt in interpretation should be resolved in their favour, it is no part of the duty of the courts or within their power, to restrict or impede what, upon its proper construction, is the operation of the legislation: Inland Revenue Commissioners v Rossminster Limited (supra at 998 per Lord Wilberforce). Different considerations apply in jurisdictions with constitutionally entrenched bills of rights.

7. A number of authorities bearing upon challenges to warrants issued under s.10 of the Crimes Act 1914 recently was considered by the Full Court in Beneficial Finance (supra). Burchett J, with whom the members of the Court agreed, after reviewing many authorities, including George v Rockett (supra) and Rossminster (supra), stated (at 546) that although a warrant must comply strictly with the statutory conditions of its issue it should, like other documents "be read fairly, and not perversely". Earlier (at 543) his Honour referred to the "principle" that a warrant should disclose the nature of the offence so as to indicate the area of search. He continued:
   

"The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals . . ."

1. In sub-s. 50 (2) of the Act, the expression "prescribed substance" appears twice. It first occurs as "a prescribed substance" in identifying that of which the magistrate must be satisfied by information on oath. In order, within the sense of this limb of sub-s. (2), for the magistrate to be so satisfied, the prescribed substance must, within the meaning of sub-s. (1), be a Schedule 8 or Schedule 12 substance "in relation to which there are reasonable grounds for suspecting that an offence has been committed against a provision of Part II." The reasonable grounds there referred to, in relation to the granting of the search warrant must, in our view, be grounds reasonably held by the magistrate; see Beneficial Finance at 531-2.

2. However the warrant which then is granted is to authorise entry, search, and seizure not merely of the prescribed substance identified in the first limb of the sub-section, but "any prescribed substance found on the premises or place or upon any person on the premises or place."

3. Of course, the phrase "any prescribed substance" also necessarily refers back to sub-s. (1), and therefore to the existence of reasonable grounds for suspecting that an offence has been committed against a provision of Part II. However, we accept the submission of counsel for the respondents that the existence of those grounds is a matter of objective assessment.

4. In the present case the terms of the warrant executed on 9 May 1987 were as follows, with emphasis to the significant passages:
   

"AUSTRALIAN CAPITAL TERRITORY

POISONS AND NARCOTIC DRUGS ORDINANCE 1978 SEARCH WARRANT

Brian Samuel McDONALD, Albertus Leonardus KUIJPERS, Stephen William PROTHERO a member (sic) of the Australian Federal Police Force, stationed at City Police Station, Canberra, in the Australian Capital Territory.

WHEREAS I, Ronald John CAHILL a Magistrate, within the meaning of Section 50(2) of the Poisons and Narcotic Drugs Ordinance 1978, of the Australian Capital Territory, being satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there is on the premises or place situated at Block 7, Section 30, Phillip, in the Australian Capital Territory and known as The Troubadour Nightclub, 29 Colbee Court, Phillip, in the said Capital Territory prescribed substances pursuant for the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory, namely cocaine, amphetamine and cannabis.

YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter the said premises or place situated at Block 7, Section 30, Phillip, in the Australian Capital Territory and known as The Troubadour Nightclub, 29 Colbee Court, Phillip, in the said Territory, if need be, by force at any time or times within the period of TWENTY-EIGHT DAYS from and including the date of this Warrant, and to search the said premises or place and any person found on the said premises or place and to seize any prescribed substance found on the premises or place or upon any person on the premises or place and for so doing this shall be your sufficient Warrant.

GIVEN under my hand at Canberra in the said Territory this 16th day of April in the year 1987.

MAGISTRATE."

1. The appellant, who appeared in person, emphasised that in the recital the apprehended offence or class of offences is not spelled out. It is, for example, not stated that cocaine, amphetamine and cannabis are Schedule 8 or Schedule 12 substances in relation to which there were reasonable grounds for suspecting that an offence had been committed against a provision of Part II of the Act. Further, he points out that no further content is given directly to the expression, as it later appears in the warrant, "to seize any prescribed substance found on the premises . . ."

2. Sub-s. 50 (2) does not specify that the warrant should contain any recital as to the satisfaction reached by the magistrate who issued the warrant. But no doubt, and the contrary was not suggested, the warrant would scarcely be treated as bad for containing the recital in question here. The scheme of the section is that if the magistrate is satisfied, in accordance with the legislation, as to the existence on the premises or at the place in question of "a prescribed substance", the warrant which is then granted may authorise seizure of "any prescribed substance". The warrant is, as Burchett J pointed out in the second passage from Beneficial Finance (supra) to which we referred, to be read as a whole and taking into account any recitals.

3. If that be done in the present case, then it will be apparent that the "prescribed substances", any of which may be seized, under the warrant are cocaine, amphetamine, cannabis and other drugs, being substances of a like character, and that they may be seized if found upon the premises or if found upon any person there. On the proper construction of s. 50, it was unnecessary for the warrant to specify which offences it was apprehended or suspected had been committed against a provision of the Act. What was required of the warrant, in accordance with the presumption against general warrants, and with the terms of the legislation itself, was that the scope of the search and seizure be limited by reference to the nature of the substances the object of the search. The warrant in question met that condition.

4. Accordingly, the principal point taken on the appeal fails.

5. The second issue, which was not at the forefront of the appellant's argument, is a challenge to the finding of the primary Judge that the entry and occupation of the premises was not in excess of that permitted by the warrant. After carefully considering the evidence the primary Judge held that he was not persuaded that the police went beyond what was authorised by the warrant. We agree.

6. The appeal should be dismissed with costs.