Way Out West Adult Shop Pty Limited v Kraus

[2008] NSWSC 87

Reported Decision: 181 A Crim R 112

New South Wales

Supreme Court

CITATION:	Way Out West Adult Shop Pty Limited v Kraus [2008] NSWSC 87
HEARING DATE(S):	28 November 2007
JUDGMENT DATE :	15 February 2008
JUDGMENT OF:	Fullerton J
DECISION:	1. The relief sought by summons is refused. 2. The plaintiff is to pay the first defendant’s costs.
CATCHWORDS:	Search warrants - Validity - Description of premises - Reporting obligations
LEGISLATION CITED:	Classification (Publications, Films and Computer Games) Enforcement Act 1995 Film and Video Tape Classification Act 1984 Law Enforcement (Powers and Responsibilities) Act 2002 Search Warrants Act 1985
CASES CITED:	Carbone v National Crime Authority (1994) 52 FCR 516 Carroll v Mijovich (1991) 25 NSWLR 441 George v Rockett (1990) 170 CLR 104 Lollback v Skarchewski Court of Criminal Appeal, 15 July 1996, unreported New South Wales v Corbett [2007] HCA 32; (2007) 237 ALR 39 R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332 at 338 R v Gassy (No 3) [2005] SASC 496; (2005) 93 SASR 454
PARTIES:	Way Out West Adult Shop Pty Limited (Plaintiff) Senior Constable Philip Kraus (First defendant) Peter Shiels (Second defendant) Ian McRae LCM (Third defendant)
FILE NUMBER(S):	SC SC 2007/30028
COUNSEL:	R Beech-Jones SC (Plaintiff) G Craddock SC (First defendant)
SOLICITORS:	Malcolm McDonald and Co (Plaintiff) Crown Solicitor's Office (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

FULLERTON J

15 FEBRUARY 2008

2007/30028 WAY OUT WEST ADULT SHOP PTY LTD v SENIOR CONSTABLE PHILIP KRAUS & ORS

JUDGMENT

HER HONOUR:

1 By summons filed on 2 April 2007, the plaintiff, Way Out West Adult Shop Pty Ltd, seeks declaratory relief with respect to a search warrant executed on 20 July 2005 over commercial premises leased to it and situated at 438 High Street, Penrith. The particular premises to which the lease is referable are suites 3D and 3E at 438 High Street, Penrith.

2 From at least 1 August 2002, the plaintiff operated a business from the leased premises which included the sale and hire of adult sex products of various kinds including pornographic DVD and VHS films.

3 On 19 July 2005, Senior Constable David Owen and Senior Constable Kraus, the first defendant, applied for a search warrant pursuant to s 55 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (“the Classification Act”) to enter and search premises described in the application as “Way Out West 4/438 High Street Penrith” and to seize items reasonably believed to be connected with an offence under the Act. Section 55(3) of the Classification Act invoked the provisions of Part 3 of the Search Warrants Act 1985 (since repealed). The Law Enforcement (Powers and Responsibilities) Act 2002, which repealed the Search Warrants Act, has enacted similar provisions but did not come into operation until 1 December 2005. Part 3 of the Search Warrants Act provided a statutory scheme for the issue and execution of search warrants. While a search warrant under the Classification Act can only be issued where an officer has reasonable grounds for believing that an offence has been or is about to be committed “in or on any premises” and that there “is or on any premises” anything connected with an offence under the Act, the Search Warrants Act does not stipulate the means by which premises must be described so as to identify them for the purposes of the issue or execution of a warrant.

4 On 20 July 2005, many thousands of pornographic DVD and VHS films were seized under warrant from the plaintiff’s premises on the basis that they appeared to police to be offered for sale or kept for the purposes of sale contrary to various provisions within Part 2 of the Classification Act in that they either did not display any classification markings or were classified X18+ or RC (refused classification). Save only for six films that have been forfeited as a consequence of related criminal proceedings under Part 2 of the Classification Act against the directors of the plaintiff company, the balance of the material seized under warrant remains in the possession of police.

Relief sought

5 In summary, the plaintiff sought a declaration that the search warrant was invalid at the point of issue and an order that it be quashed or set aside on the basis that it failed to sufficiently or adequately describe the premises which were to be entered and searched and/or that it materially misdescribed the premises. In the alternative, the plaintiff sought a declaration that police had failed to comply with their statutory reporting obligations under Part 7 of the Classification Act in that they did not report the seizure to a Magistrate within the meaning of s 56(1)(b) of the Classification Act and it was therefore entitled to an order that the items seized (other than the six items the subject of charges brought under the Act as provided for in s 55(1)(a)) be returned as provided for in s 56(1).

6 Submitting appearances were filed by the second defendant, the authorised officer who issued the warrant, and the third defendant, the Magistrate to whom the seizure was reported purportedly in accordance with the procedure provided for under Part 7 of the Classification Act, and under whose authority the summons was issued to the plaintiff to show cause why the seized items should not be forfeited.

The proceedings in this court

7 The affidavit evidence relied upon by both parties was not the subject of any substantive objection. None of the deponents were required for cross-examination. The plaintiff’s evidence consisted of an affidavit of Brian Cyril Fowler, a shareholder and director of the plaintiff company, an affidavit of Stuart Gordon Ram, the manager of the business, and Malcolm McDonald, the plaintiff’s solicitor. The affidavit of Senior Constable Philip Kraus, the officer who applied for the warrant, and the affidavits of Senior Constables Phet Loven and David Robert Owen who assisted in executing the warrant, were relied upon by the defendant together with the affidavit of Julia Gahan, a deputy Registrar at the Penrith Local Court, the Court to which the report under s 56 of the Classification Act was sent for the attention of a Magistrate as provided for in s 55(1)(b) of the Classification Act, and the affidavit of Megan Foster, an officer from Telstra.

8 The application for the search warrant and the warrant as issued, together with various documents generated in the course of the warrant being executed, were exhibited to the affidavit evidence. The report prepared by Senior Constable Kraus and forwarded to Penrith Local Court as provided for in Part 7 of the Classification Act was also exhibited. From this material the following facts are established.

The warrant is applied for

9 On 30 June 2005, Senior Constable Philip Kraus went to premises at 438 High Street, Penrith in plain clothes. He described the premises as a long, large building with a number of shops at ground level, and a number of shops and professional/commercial suites on the first floor. He entered what he described as a shop at that street address (although not at street level) known as “Way Out West Adult Shop”. It was on the first floor of the building. At the entrance to the building on street level was a sign which read “Way Out West”. A large sign also reading “Way Out West” was also displayed across the top of the building. Halfway up the stairs leading from the entrance to the first floor was another sign reading “Way Out West” with an arrow pointing generally upstairs. At the top of the stairs to the left was a door displaying a sign which read “Way Out West Adult Bookshop”. The sign also nominated various opening hours and provided that persons under the age of 18 years of age would not be permitted on the premises. There was no suite number or suite letter and number on the door.

10 Upon opening the door Senior Constable Kraus observed pornographic VHS and DVD films displayed on shelves aligning the walls of each of the two rooms. There were also stands on the shop floor containing similar material. At that time Senior Constable Kraus estimated there were about 2700 films. He also observed that the films appeared to be for sale, hire or exchange. While a few films showed an official “X” or “X18+” sticker or other marking from the Office of Film and Literature Classification (OFLC), most did not have markings of that kind. Some films showed an unofficial “X” or “XXX”. He also observed an estimated 700 magazines also depicting sexual acts of various kinds which did not appear to have any markings from the OFLC such as would justify them being legally available for sale.

11 After returning to Penrith police station that day, Senior Constable Kraus obtained a telephone service record from Telstra for the telephone number associated with the Way Out West Adult Shop as advertised in the yellow pages. The service record he obtained nominated the address for premises associated with Way Out West Adult Shop Pty Ltd and utilising telephone number [phone] as building number 4 at 438 High Street, Penrith. (I note that the number 4 is also referred to in the evidence of Megan Foster as a suite number although nothing turns on whether the plaintiff’s retail premises are more properly described as a building or a suite or a shop). The evidence establishes that shop 4 at ground level is a hairdresser and suite 4 on the first floor is occupied by a psychologist. I also note that on 1 August 2002 when Mr Rams took over management of Way Out West Adult Shop Pty Ltd and telephoned Telstra to ensure he was recorded as the authorised officer in respect of the phone service to the company’s retail premises at 438 High Street, he did not refer to either a suite or building number. He gave evidence that the company at one time occupied suite 4 within the building but not at the time the warrant was issued or executed.

12 On 15 July 2005, Senior Constable Kraus returned to the premises. On that occasion he recorded the name of a DVD film on display and the name of a magazine on display which he later confirmed by reference to the online classification database maintained by the OFLC to be respectively unclassified and, in the case of the magazine, a restricted publication of a nominated category.

13 On 19 July 2005, Senior Constable Kraus prepared an application for a search warrant, a draft search warrant and an occupier’s notice in respect of what he understood, from his enquires, to be the nominated or designated address of the plaintiff’s premises, namely 4/438 High Street Penrith. Later that day, together with Senior Constable Owen, he attended the registry of the Penrith Local Court where an application for the issue of a search warrant was made in accordance with Part 3 of the Search Warrants Act and in the form provided for in the Search Warrants Regulations. The application recited the fact that he had attended the plaintiff’s premises on both 30 June and 15 July and the observations he made on those occasions. He sought power under warrant to enter and search premises “known as Way Out West 4/438 High Street Penrith in the State of New South Wales being a retail premises ‘Adult/Sex’ type shop, the upper part of a larger building with entry to shop by stairs leading up at the front” and to seize from the premises and retain any films in any format that appeared to be classified X18+, RC or unclassified (and their packaging), or submittable publications which appeared to be classified Category 1 restricted or Category 2 restricted that are not marked, whether the films or magazines were exhibited on display or appeared to be kept for the purposes of sale on stands behind the counter or in any other storage area, receptacle or room on the premises.

The warrant is granted

14 The warrant was granted in the terms sought in the application. In particular, so far as the plaintiff’s case is concerned, it specifically authorised nominated police officers to enter the premises known as Way Out West 4/438 High Street Penrith which were fully described and particularised in the same terms as used by Senior Constable Kraus in the application.

The warrant is executed

15 The warrant was executed on 20 July 2005. The occupier’s notice was served on Mr Rams who was present inside the retail premises when police entered at 9:45 am. He identified himself as a co-owner. The items seized were numerous as reflected in the more than 100 pages comprising the ‘New South Wales Police Property Seizure/Exhibit Form’.

The seizure is notified

16 On 20 July 2005, Senior Constable Kraus prepared a report for Registrar Shiels pursuant to his obligations under s 21 of the Search WarrantsAct. In that report he detailed the fact that:

“Thousands of VHS and DVD films seized ( see attached receipt forms ), all of which seem to breach the mentioned (sic) legislation, being either Rated X 18+, or Unclassified, many of which would be Refused Classification. (He went on to advise the Registrar that) films are being classified prior to summons being laid and … the Adult Industry Copyright Organisation are also to view the material for possible breaches of copyright.” (emphasis added)

17 On 18 October 2005, Senior Constable Kraus contacted Ms Gahan at the Penrith Local Court and advised her that he was forwarding a “report for those classification matters” by facsimile transmission and that it should be brought to the attention of Magistrate McRae. He advised her of the importance of the matter receiving the Magistrate’s attention as “today is the cut off”. Upon receipt of the faxed documents, Ms Gahan affixed a date-stamp and placed the documents in the Magistrate’s in-tray together with a copy of s 56 of the Classification Act.

18 The document notifying the Magistrate of the seizure from the plaintiff’s premises is addressed to Magistrate McRae and is headed “Report of seizure of Property from Search Warrant 05/78, executed 20 July, 2005 at Way Out West, 4/438 High St, Penrith”. It is further identified as being drawn in accordance with s 56(1)(b) of the Classification Act, that a summons (to show cause) is requested in accordance with s 56(2) of the Act and that police will ultimately seek an order for forfeiture of the items seized in accordance with s 56(3) and s 56(4). It recites the fact that police executed a warrant at the nominated premises in relation to suspected breaches of the Classification Act and that “thousands of films (DVD, VHS and CD format) and their covers were seized together with restricted magazines”. It also directs the Magistrate to what is described as a “Report to Magistrate (attached) of the Search Warrant for a full listing of the property”. It would appear likely that this was in fact a reference to the report made to Registrar Shiels at Penrith local Court on 20 July 2005 pursuant to s 21 of the Search Warrants Act in his capacity as the authorised justice who issued the search warrant. There being no evidence to the contrary I accept that the reference to “attached receipt forms” in the report was a reference to the property seizure exhibit forms prepared as part of the execution process. While the report to the Registrar was in evidence before me, it did not form part of the documents sent by fax on 18 October 2005 and so did not in that sense form part of the report under s 56.

19 The report bears the Magistrate’s handwritten notation:

“I direct that a summons be issued pursuant to s 56(2) to show cause
signature 26/10/05.”

20 Due to administrative error, in March 2006 an application for an order disposing of the seized goods under the Search Warrants Act was forwarded to the plaintiff instead of summons to show cause under s 56 of the Classification Act. The application under the Search Warrants Act was dismissed in Local Court proceedings.

21 In October 2006, a summons under s 56 of the Classification Act was issued by the registry of the Penrith Local Court and forwarded to the plaintiff. Those proceedings have been adjourned pending the outcome of the proceedings before me.

Was the warrant validly issued?

22 The plaintiff’s challenge to the validity of the warrant is dependent upon me being satisfied that the plaintiff’s premises were not simply erroneously or ambiguously described in the warrant as building/suite/shop 4 at 438 High Street Penrith, as distinct from being properly described as suites 3D and 3E at 438 High Street Penrith, but that the misdescription was a defect of such a kind that it invalidated the warrant at the point of issue since it did not authorise a search of the plaintiff’s premises.

23 The necessity that a search warrant comply strictly with the statutory preconditions governing its issue is well established: George v Rockett (1990) 170 CLR 104 at 111. It is both a reflection and an endorsement of the protection that the common law affords the citizen against unwarranted invasions of privacy or property and operates in recognition of what has been described as the “great power of entry and search” (see Carroll v Mijovich (1991) 25 NSWLR 441 at 451).

24 Consistent with the fundamental principles underpinning the statutory power to enter and search, and the strictness with which that power is to be exercised, principles reviewed by Kirby J in New South Wales v Corbett [2007] HCA 32; (2007) 237 ALR 39, I note the views of Hill J in Carbone v National Crime Authority (1994) 52 FCR 516 at 521:

“In my opinion … a warrant must be strictly construed. If the NCA, albeit inadvertently and through typing error, describes documents in a way which is ambiguous in the sense that the person to whom the warrant is addressed could read it either in one way or another, then if the warrant is capable of being read in a way adverse to the NCA, the NCA must bear the consequences.”

25 While his Honour was referring to ambiguity in the description given to documents to which a search warrant might be directed, the same consequences will obtain where ambiguity or imprecision in the description of the premises to be entered and searched, and from which property might be seized, is of such a kind that the person to whom the warrant is directed either cannot resolve the ambiguity at all, or cannot do so without recourse to his or her subjective or esoteric knowledge of the investigation, the person suspected of having committed the offence to which the warrant refers or to other circumstances surrounding the issue of the warrant.

26 This was the approach taken in R v Gassy (No 3) [2005] SASC 496; (2005) 93 SASR 454. In that case however Debelle J emphasised, correctly in my view, that it will often be a question of fact and degree whether or not premises have been sufficiently described such that they can be identified with reasonable certainty by the authorised officer asked to issue the warrant and the police executing it, and additionally, identified with reasonable certainty so that the occupier may know that it is entry and search of his or her premises which is authorised by the warrant (par [99] and par [100]). It is for this reason that minor errors in the description or nomination of premises will not invalidate a warrant (see also R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332 at 338).

27 In Gassy police sought authority under warrant to search the residential premises of Mr Gassy, a person suspected of being involved in a murder. Mr Gassy lived at 23 Georges River Crescent, Oyster Bay New South Wales, premises known to police by their physical appearance and location to be the home of the suspect. The premises were however wrongly nominated in the search warrant as being 23 St Georges Crescent, Oyster Bay. These premises were in fact non-existent. The Court held that while the police may have intended to obtain a warrant permitting them to search Mr Gassy’s premises, the warrant that issued did not have this effect. What was fatal to the validity of the warrant was that those premises could not be reasonably ascertained from the face of the warrant in circumstances where premises at another address altogether were nominated. While it is sufficient if the warrant is capable of enabling police to identify with reasonable certainty the premises to be searched, the Court made it plain that this is not to import discretion or choice in the selection of the subject premises such that a warrant could be executed at an address similar to that nominated in the warrant at which police believed rightly or wrongly a person to reside. It was held to be irrelevant that police who executed the warrant knew that Mr Gassy in fact lived at 23 Georges River Crescent, Oyster Bay.

28 The plaintiff in the instant proceedings submitted that a strict construction of the warrant on its face would only permit the objective reader to conclude that the premises to be searched were those at 4/438 High Street and, that since the plaintiff’s premises were at another suite or building at that street address altogether, the warrant was invalidly issued. Were the warrant to have identified the premises only by reference to a suite/building number at the street address, it may be that by parity of reasoning with the decision in Gassy, the error in nomination of the suite/building would have been fatal. In this case, however, the warrant did not describe the premises merely by that limited means. Consistent with the fact that the Search Warrants Act provided no formula by which the premises to be searched must be described, (save only for the prescribed form making provision for an address being a description of the premises) the plaintiffs’ premises were further described as ‘retail premises’ by the name of the retail business, namely, ‘Way Out West an ‘Adult/Sex’ type shop’; and by the location of the premises in the complex at 438 High Street namely ‘the upper part of a larger building with entry to shop by stairs leading up at the front’. I am satisfied that when read in combination, these additional details more than sufficiently describe the premises to be searched and resolve what the plaintiff contends is an internal inconsistency in the address of the premises. I am also satisfied that the description was capable of enabling the authorised officer to validly issue the warrant and for police to validly execute it and that this is so irrespective of the error in nomination of the suite/building number and without the need for recourse to Senior Constable Kraus’s own knowledge of the premises and their location.

29 For these reasons the plaintiff’s claim as to invalidity must fail.

Was the notification of seizure sent to the Magistrate on 18 October 2005 in accordance with s 56 of the Classification Act?

30 Where Part 2 of the Classification Act provides criminal sanctions for the sale, delivery or public exhibition of a film classified RC or X18+ or unclassified films, Part 7 of the Act provides a procedure for the forfeiture of items seized under warrant in circumstances where no criminal charges are laid but where the person from whom the items were seized fails to satisfy the Local Court that the item is not in any way connected with an offence under the Act.

31 Section 56 provides as follows:

56 Forfeiture following seizure
(1) A thing that has been seized pursuant to a search warrant issued under section 55 must be returned to the premises in or on which it was seized unless, not later than 90 days after the seizure:
(a) proceedings are brought against a person for an offence under this Act in connection with the thing, or
(b) a police officer reports the seizure to a Magistrate.

(2) If such a report is made, the Magistrate is to issue a summons calling on the person who, at the time of the seizure of the thing, was occupying or using the premises entered under the authority of the search warrant to appear before a Local Court to show cause why the thing or other things seized should not be forfeited to the Crown.

(3) If the person summoned (or some other person) claims any of the things to which the summons relates, the person must, in order for the thing to be returned to the person, satisfy the Local Court that the thing is not in any way connected with an offence under this Act.

(4) The Local Court before which the summons is returned may order that there be forfeited to the Crown:
(a) such of the things to which the summons relates as are not claimed by the person summoned or by some other person, or
(b) such of the things as, in the opinion of the Court, should be so forfeited.

(5) A Local Court is to order the return of a thing seized pursuant to a search warrant issued under section 55:
(a) if the Court dismisses the proceedings for an offence under this Act with respect to the thing, or
(b) if, on the return before it of a summons issued under this section with respect to the thing, it does not form the opinion referred to in subsection (4)(b).

32 It is clear that the jurisdiction to both issue the summons and to order forfeiture of the seized items is dependent upon a police officer reporting the seizure to a Magistrate within the statutory period. Since the Act does not prescribe the form or content of any such report, it is necessary to consider whether the document forwarded by fax to Magistrate McRae on 18 October 2005 is a “report” for the purposes of s 56(2) by reference to the relevant principles of statutory construction in the context of the statutory purposes to which the making of a report are directed.

33 In Lollback v Skarchewski (Court of Criminal Appeal, 15 July 1996, unreported) a similar question presented for determination by way of a case stated. The legislation under analysis in that case was the statutory predecessor to s 56 of the Classification Act, namely s 41 of the Film and Video Tape Classification Act 1984 (since repealed). Save for the requirement that the report under the Classification Act must be made to a Magistrate and not a justice (as was the case with the Film and Video Tape Classification Act, a distinction which I am satisfied has no material bearing on the operation of the section), the two provisions are identical. In Lollback’s case, the report under s 41 of the Film and Video Tape Classification Act was furnished in the form then provided for in the Search Warrant Regulations for a report under s 21 of the Search Warrants Act. The report was in the following terms:

“Warrant executed on 11 May 1994, 750 videos confiscated from the premises at 303 Beamish Street, Campsie and the upstairs unit. Offenders to be summonsed.”

34 The first instance judge took the view that being a report under the Search Warrants Act it was not, and was not capable of being, a report that fulfilled the requirements of the Film and Video Tape Classification Act since the Acts are intended to achieve two distinct and separate purposes each requiring separate compliance if the process to which they refer is to be carried out. The Court of Criminal Appeal came to a different view. Grove J, with whom McInerney J agreed, was satisfied that there was no information required by s 41 of the Film and Video Tape Classification Act that the report in its furnished terms did not provide, and further that the report manifestly fulfilled the requirements of that section, namely a report to a justice of the seizure of things pursuant to a search warrant. His Honour was satisfied that there was a sufficient congruity of purpose between the two statutes that in the absence of a prescribed form for a report under the Film and Video Tape Classification Act, and provided the document contained all the requisite information, there was no reason why a report in the form provided for in the Search Warrants Act might not comply with requirements under the related Act. Hulme J, who agreed with the answers to the case stated and the orders proposed, expressed the view that because of the multiplicity of legislation in New South Wales, and the obligation imposed on the justice to whom the report is made under s 41 of the Act, namely to issue a summons to show cause (the identical obligation imposed on a Magistrate under s 56(2) of the Classification Act), the report must be in terms or furnished in circumstances calculated to direct the justice’s mind to either the duty cast upon him or at least the statutory regime which imposes that duty.

35 Both the plaintiff and the defendant sought to rely on the decision.

36 It was not in dispute that the statutory purpose in requiring a report to be furnished was part of the regime provided for in s 56 of the Classification Act whereby the Local Court exercises the jurisdiction to deal with items seized under warrant in one of two ways, either as evidence in a criminal proceeding or as the subject of a summons to show cause why the thing (or other things) seized should not be forfeited to the Crown.

37 The plaintiff submitted that the report to Magistrate McRae was deficient because it described the things seized under warrant in terms of such generality, namely “thousands of films (DVD, VHS and CD format) and their covers together with restricted magazines” that the Magistrate was unable to discharge the obligation to issue a summons to show cause why the items seized under warrant should not be forfeited. It was submitted that unless the items seized are able to be identified in the report with a reasonable degree of certainty, the Magistrate cannot determine whether the things referred to in s 56(1) should be returned and which things seized are intended to be the subject of a summons issued under s 56(2). While the plaintiff offered no suggestion of what would have sufficed for a valid report, since it was conceded that the reference to 750 videos in Lollback’s case was a sufficient description for the same statutory purposes as obtain here, I have assumed that it is the failure on the part of police to enumerate the various VHS, CD or DVD films and magazines that is said to be fatal.

38 The defendant submitted that since the report in Lollback’s case was found to be adequate, and that this was so irrespective of whether the police intended to furnish a report under the Film and Video Tape Classification Act or not, then the report furnished to Magistrate McRae in the present case was more than adequate. In this regard, attention was drawn to the fact that the report was specified as being furnished as a report under s 56 of the Classification Act, that it stated that a warrant had been granted with respect to nominated sections of the Act, that it was executed on a named date and items seized and that, by observation and enquiry, police were of the view that possession of the seized items breached the statute. A summons pursuant to s 56(2) of the Act was requested and forfeiture of the items seized under warrant was sought. In short it is the defendant’s case that the report in its terms contained all the information necessary in order for the Magistrate to exercise his statutory obligation to issue a summons under s 56(2). What was emphasised, correctly in my view, is that it forms no part of the Magistrate’s function to satisfy himself or herself as to the precise identification of the items seized (whether in this case that be by title or otherwise) since the obligation under s 56(2) to issue a summons is enlivened if what is reported is that things of a particular kind or class have been seized from a nominated address under the authority of a warrant issued under the Act.

39 In my view, and confining my remarks to the facts of this case, the description of things seized as “thousands of films (DVD, VHS and CD format) and their covers together with restricted magazines”, in the context of the balance of the information contained in the report, meets the statutory requirements for a report under s 56(2). It might be an entirely different matter as to whether the summons disclosed with particularity the things the subject of a claim for forfeiture, but that is not a question that arises in these proceedings since I am satisfied that the jurisdiction to issue the summons was properly invoked.

40 Without derogating from my findings on the construction of s 56, I do note that the report furnished to the Magistrate under s 56(2) refers expressly to what I am satisfied was the report to the issuing justice under s 21 of the Search Warrants Act and that a full Property Seizure Record was attached to that report. Were the Magistrate to have seen the need to refer to the specific items seized for any reason before directing that a summons issue, the full listing of the property would, in every probability, have been available to him through the registry. On the other hand, were the Property Seizure Records attached to the report as furnished there could be no question but that the report identified with absolute accuracy the items seized.

41 Accordingly, the orders I make are as follows:

1. The relief sought by summons is refused.

2. The plaintiff is to pay the first defendant’s costs.