Thaller & Gee No. DCCRM-98-304 Judgment No. D14

R v THALLER & GEE
[1999] SADC 14

Judge Anderson
Criminal

The two Accused, jointly or separately, face 9 counts alleging breaches of Sections 24D and 5 of the Crimes Act 1914.
In the course of an earlier voir dire argument, each Accused filed an amended Rule 9 Notice. They are identical.
I have already dealt with the application insofar as paragraph 1(a)(i) is concerned. That aspect of the application was refused in reasons delivered on 11 January 1999. Paragraph 1(a)(ii) alleging a basis upon which a search may be found to be illegal and thus give rise to the discretion to exclude from evidence the fruits of the search remains to be resolved in respect of each Accused.
Paragraph 1(b) of each application is in these terms:
“(b).. The search or premises situated at 7 Frederick Street Cowandilla (sic) on 1 February 1996 by Detective Sergeant Colin Cunningham by the execution of a General Search Warrant (s67 SOA) was illegal;
(i)..... The Deputy Commissioner of Police had no power to issue a general search warrant and as a consequence the warrant held by Det Sgt Cunningham on 1 February was invalid.
(ii)... The Deputy Commissioner of Police did not avert his mind to the criteria for the issuing of a general search warrant in accordance with s67 SOA and Police General Order 2740.”
For present purposes it is agreed as a fact that on Thursday, 1 February 1996, Detective Cunningham, in the company of other police officers attached to the National Crime Authority (“NCA”) and members of the South Australian Police Force, attended at premises at 7 Frederick Street, Cavan, at about 7.00am. Detective Cunningham there executed his South Australian general search warrant.
This warrant was purportedly issued by Deputy Commissioner Hurley (as he then was) and was dated 1 January 1996.
The documents seized in that search are documents which are the foundation of the charges mentioned.
It is also agreed that at the time when the general search warrant was signed by Deputy Commissioner Hurley, he did so in his capacity as Deputy Commissioner of Police. There is no suggestion that at that time the Commissioner of Police was absent or otherwise out of office.
The power to issue a general search warrant is contained in Section 67 of the Summary Offences Act 1953. That section is in these terms:
“(1).. Notwithstanding any law or custom to the contrary, the Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit.
(2).... Every such warrant must be in the form in the schedule, or in a form to the same effect, and must be signed by the Commissioner.
(3).... Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4).... The member of the police force named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a).... the member may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that-

(i)..... an offence has been recently committed, or is about to be committed; or

(ii).... there are stolen goods; or

(iii).. there is anything that may afford evidence as to the commission of an offence; or

(iv)... there is anything that may be intended to be used for the purpose of committing an offence;

(b).... the member may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that-

(i)..... there are stolen goods; or

(ii).... there is anything that may afford evidence as to the commission of an offence; or

(iii).. there is anything that may be intended to be used for the purpose of committing an offence;

(c).... the member may seize any such goods or things to be dealt with according to law.”

The definition of Commissioner is contained in Section 4(1) of that Act in these terms:
“’the Commissioner’ means the Commissioner of Police or the person for the time being acting in the office of Commissioner of Police”
The submissions of Mr Edwardson of counsel for the Accused, Thaller, were adopted by Mr Lister of counsel for the Accused Gee, without further comment. Mr Griffin of counsel appeared for the Director of Public Prosecutions.
Mr Edwardson submitted that because of the wording used both in the definition and in Section 67 sub sections (1) and (2), the power granted to issue general search warrants was a power granted only to the person occupying the office of Commissioner and, as such, could not be delegated.
There is no doubt, from the evidence given by Mr Hurley - who has now retired from his position as Deputy Commissioner of Police - that when he re‑issued the general search warrant, dated 1 January 1996, to Detective Cunningham, he was acting pursuant to a delegation given to him prior to that time by the Commissioner. He said that the delegation is contained within the Police Delegation Manual. It was purportedly made pursuant to the provisions of Section 53 of the Police Act 1952. That section is in these terms:
“(1).. The Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this or any other Act-
(a) to a particular person; or
(b).... to the person for the time being occupying a particular position.
(2).... A power or function delegated under this section may, if the instrument of delegation so provides, be sub‑delegated.
(3).... A delegation or sub‑delegation under this section-
(a).... may be absolute or conditional; and
(b).... does not derogate from the power of the delegator to act personally in any matter; and
(c).... is revocable at will by the delegator.
(4)A copy of every instrument of delegation issued by the Commissioner under this section must be retained as part of the records of the police force.”
Mr Edwardson commenced his submissions by drawing attention to the special status of a general search warrant vis-a-vis the rights of the members of the community. He submitted that because such warrants are a creation of statute the provisions relating to their creation should be strictly construed in favour of the common law rights of the individual.
He relied upon what was said by the High Court in George v Rockett (1990) 170 CLR 104 as to the necessity of strict compliance with such provisions as they relate to the manner and procedure for the issue of such a warrant.
Prior to that decision by the High Court that situation was well recognised in South Australia. In R v Trotter & Ors (1992) 58 SASR 224 @ 230 Perry J said:
“I accept that the use of a general search warrant has the potential to infringe the liberty of the subject and that compliance with the statutory requirements as to the issue of such a warrant must be approached strictly. I accept the observations in this respect of Jacobs J in Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 at 369:
‘The issue and execution of a warrant to enter, or to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from statute: the court will construe such statutes strictly, resolving any ambiguity in favour of the subject, and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised (R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1980] AC 952; Crowley v Murphy (1981) 52 FLR 123, per Lockhart J at 141-142).’
It seems also clearly to have been established by a long line of authority that where a warrant issues for cause, such as the satisfaction by the authority issuing the warrant of certain matters, subject to any specific statutory provisions to the contrary, the warrant must on its face state expressly that the issuing authority has been satisfied strictly in terms of the statutory provisions authorising its issue.”

and later at p231:

“But search warrants issued pursuant to s67 of the Summary Offences Act are not issued for cause. The statutory formalities are satisfied when a warrant in the form provided is signed by a person authorised to do so. In that situation, I see no reason why the presumption of regularity cannot be of application to operate as proof in the absence of evidence to the contrary that the person signing does so with whatever authority is required in law for him or her to perform that function.”

There is no doubt that Section 53 gives to the Commissioner power to delegate his functions. There was no suggestion to the contrary. The essence of this application was that the provisions of the Summary Offences Act gave the power in relation to general search warrants to the office of Commissioner and not to the incumbent. In support of this submission, Mr Edwardson relied upon the words of the definition and of Section 67 (1) and (2) and the nature of the prescribed form, having regard to the special position of such warrants as relating to established common law rights. He submitted that the nature of the Section 67 power was not able to be delegated.
The question of whether a given power was able to be delegated attracted comment from Gibbs CJ in O’Reilly v State Bank of Victoria Commissioners (1982-83) 153 CLR 1 where, when discussing the exercise of statutory powers, he said at p11:
“The answer to the question whether the statute requires the power to be exercised personally by the person designated depends upon the nature of the power and all the other circumstances of the case: cf. Re Reference under Ombudsman Act, s.11 (1979) 2 ALD 86 @ 93..”
This case related to a power delegated by the Commissioner of Taxation from himself to his Deputy Commissioner pursuant to enabling legislation and its subsequent exercise by authorised officers.
I am unable to find any support for the strict construction of the Summary Offences Act contended for by Mr Edwardson from the words of Section 67. Had Parliament intended, in light of the special position general search warrants hold vis-a-vis established and recognised common law rights, to restrict the ability of the Commissioner to make use of his pre‑existing power pursuant to Section 53 of the Police Act 1952, then it would have been very easy to say so when enacting Section 67 subsequent to that date. There is no obvious conflict between the words of the two sections so as to require the strict reading down of Section 53 to enable Section 67 to do its work.
I am unable to accept that because Section 67 was amended, at least in part, subsequent to Section 53 of the Police Act being enacted, there is in some way an implied repeal of the plain words of Section 53. Not only would plain words of limitation be called for, but Parliament has, in 1998, passed the Police Act (No 55 of 1998) which received the Royal Assent on 5 September 1998 and awaits proclamation. By its preamble, that Act notes the repeal of the Police Act 1952. Section 19 of the 1998 Act is in exactly the same terms as Section 53 of the 1952 Act. There is no weight in the submission that Section 67 somehow evidences an intention in Parliament at variance with the contents of Section 53.
The nature of the power to issue general search warrants is of the type which I have mentioned, i.e. a power which is to be exercised in accordance with any legislative limitations. Coupled with that is the necessity to comply with the procedural form required pursuant to Police General Orders. No doubt it is incumbent upon the Commissioner to comply with his own General Orders as it is so incumbent upon members of the Police Service generally.
Mr Edwardson would have the Commissioner of Police alone, on the day each six monthly general search warrant is issued or re‑issued exercise his discretion in relation to each such issue or re‑issue. From the evidence of Mr Hurley we know that there are about 1,000 such warrants held in South Australia. The nature of the power and practical circumstances makes the proposition contended for impractical in the absence of a clear direction from Parliament. There is no such clear direction in the legislation. The weight of administrative requirement does not support such an interpretation in the absence of clear words. The presumption is therefore that what has been done, has been done regularly.
In my opinion, the first submission in support of the application fails.
I turn then to consider the exercise of discretion by Mr Hurley when he re‑issued the general search warrant, dated 1 January 1996, to Detective Cunningham. In this regard I am conscious of the remarks of White J in R v Romeo (1982) 30 SASR 243 referred to by Mr Edwardson at paragraph 36 of his written submissions. At page 246 White J said:
“The General Warrant provisions constituted a radical innovation at the time and contained a number of safeguards against abuse of the new power. The safeguards included a limitation of six months, a limitation on the person’s privilege to hold this special warrant, and the requirement that a fresh discretion be exercised each six months to re‑issue another search warrant to the same officer.”
The evidence of Mr Hurley was the only evidence called on the voir dire. He was cross examined as to the initial issue of the general search warrant to Detective Cunningham and particularly as to the re‑issue of the general search warrant, dated 1 January 1996.
Mr Hurley said that Detective Cunningham was known to him from when he served as a detective whilst Mr Hurley was head of the CIB division of the Police Service. He said that he also knew him from mutual involvement in Police football and cricket circles over some years. He was aware when Detective Cunningham was posted to the National Crime Authority.
In late 1995, when it became necessary to consider the re‑issue of the general search warrant for the period commencing on 1 January 1996, Mr Hurley said he had before him the general search warrant in unsigned form. That told him the name of the officer, which he recognised, and his posting.
From his position as Deputy Commissioner, Mr Hurley said that he had a familiarity with the general nature of the work undertaken by the NCA. He was aware of this from briefings which the Senior Executive Group of the Police Force, of which he was a member, had received from senior representatives of the NCA. He also knew that Detective Cunningham was posted to the NCA as an investigator. Mr Hurley did not have detailed knowledge of the day to day work of Detective Cunningham, but was aware that there were references to the NCA which were to be investigated. In addition, he said that, in his opinion, there was no point in a person seconded as an investigator to the NCA not having a general search warrant having regard to the general nature of investigative work. Mr Hurley viewed a general search warrant as an essential investigative tool for an investigator. It was his opinion that the duties to be performed by Detective Cunningham evidenced a genuine need that he possess a general search warrant.
In such circumstances he exercised his discretion to re‑issue the general search warrant to Detective Cunningham.
There is no support for the submission that the discretion was either not exercised at all and that there was a “rubber stamp” approach to re‑issue - or that the discretion exercised was incorrectly exercised. I find, accepting the evidence of Mr Hurley, that he exercised his discretion to re‑issue the general search warrant, dated 1 January 1996, to Detective Cunningham independently and freshly in the light of then existing circumstances. That he did so some few days prior to 1 January 1996 is nothing to the point.
Accordingly, the application to set aside the agreed search and its sequelae as illegal as sought in paragraph 1(b) of each Rule 9 Notice is refused.

[1999] SADC 14

1 February 1999