Zeltner v Deputy Registrar of the Supreme Court of the Act
[2021] ACTSC 276
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Zeltner v Deputy Registrar of the Supreme Court of the ACT |
Citation: | [2021] ACTSC 276 |
Hearing Date: | 18 October 2021 |
DecisionDate: | 21 October 2021 |
Before: | Elkaim J |
Decision: | Originating application is dismissed |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Search warrants – judicial review – requirement to retain documents – requirement to give reasons |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6304 Drugs of Dependence Act 1987 (ACT) s 187 Human Rights Act 2004 (ACT) ss 12, 21, 22, 30 |
Cases Cited: | Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 Grollo v Palmer & Ors (1995) 184 CLR 348 Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480 |
Parties: | Carmen Zeltner ( Plaintiff) Deputy Registrar of the Supreme Court of the ACT ( First Defendant) Callum Jones ( Second Defendant) |
Representation: | Counsel J Masters ( Plaintiff) J Davidson ( Second Defendant) |
| Solicitors Marjason & Marjason ( Plaintiff) The Australian Government Solicitor ( Second Defendant) | |
File Number: | SC 264 of 2021 |
ELKAIM J:
The plaintiff has been charged, by summons, with being knowingly concerned in the commission of an offence by another person, Mr Daniel Brunner, who is alleged to have dealt in a trafficable quantity of cannabis.
The evidence against the plaintiff and Mr Brunner, was gathered following the issuing of four search warrants by the Deputy Registrar of the Supreme Court of the ACT (the first defendant) on the application of the informant in the police case (the second defendant).
The first defendant has filed a submitting appearance. The second defendant, who sought the warrants, opposes the relief sought. Mr Brunner was originally the third defendant, but he was removed by consent orders made on 13 October 2021.
The plaintiff says she is entitled to a judicial review of the first defendant’s issuing of the warrants. However her entitlement has been blunted because the first defendant “failed to record and keep a record of the application and his reasons for issuing the warrants”. Accordingly the plaintiff has been deprived of procedural fairness because this failure prevents her seeking a judicial review.
In the Originating Application, filed on 30 June 2021, the plaintiff seeks “an order in the nature of certiorari quashing the decision of the [first] Defendant made on 2nd April 2019 issuing warrants pursuant to s 187 Drugs of Dependence Act”.
The plaintiff gave notice to the Human Rights Commissioner of her action because it is part of her allegation that her human rights were interfered with by the issuing of the warrants. The Commissioner declined to intervene.
The Originating Application is supported by three affidavits of Mr Henry Longfield Magnus Marjason sworn on 6 July 2021, 31 August 2021 and 23 September 2021 respectively. Mr Marjason is the plaintiff’s solicitor.
The following history, about which there is no dispute, can be gleaned from the affidavits:
(a)The plaintiff and Mr Brunner lived together at a house in Calwell in the Australian Capital Territory.
(b)On 2 April 2019 the second defendant laid an ex parte information before the first defendant requesting the issuing of four search warrants pursuant to s 187 of the Drugs of Dependence Act 1989.
(c)The first defendant issued the warrants. Copies are attached to the July affidavit at Annexure HLMM 2. In the order in which they are attached, the warrants are, respectively, to search Mr Brunner, to search the plaintiff, to search a particular motor vehicle and to search the premises at Calwell.
(d)The warrants were served on the plaintiff in the afternoon of 2 April 2019. The warrants were executed and the “Police located and seized a number of items of interest”. In broad compass the items were either cannabis or objects associated with this drug.
(e)After execution of the warrants the plaintiff and Mr Brunner were charged.
(f)A brief of evidence was received by the plaintiff’s solicitors on 22 October 2020. The solicitors wrote to the DPP on 29 October 2020 requesting disclosure, inter-alia, of “the application and information provided to Deputy Registrar Kenneally regarding the particulars of how the search warrant was granted”.
(g)Mr Crocker, a prosecutor with the DPP, replied by email on 10 November 2020. He said that he did “not have a copy of the application or the supporting affidavit relating to the search warrant”. He said these documents were not disclosable and had not been provided to his office. He referred to Ousley v The Queen (1997) 192 CLR 69.
(h)The plaintiff’s solicitor also sought access to the court file which was granted by email from the Acting Registrar of the Magistrates Court on 22 December 2020.
(i)The plaintiff’s solicitor inspected the file and found that it did not contain any documents “in relation to warrant applications”. This was pointed out to the DPP, by letter dated 12 February 2021, and a request made for the relevant police officer to be contacted to obtain the information. It was stated that the information was required in order to assess the merits of the plaintiff challenging the issue of the search warrants by judicial review.
(j)Nothing much then seems to have happened until 1 April 2021 when the plaintiff’s solicitor wrote to the second defendant seeking the material that had been lodged with the court in support of the application for the search warrants. Also on 1 April 2021 a copy of the request was sent to the ACT Chief Police Officer, and the ACT Government Solicitor.
(k)On 3 June 2021 the plaintiff’s solicitor wrote to the DPP saying that no documents had been produced by the second defendant and wondering if they had been sent to the DPP. Mr Crocker replied swiftly and said that his office had not received the documents.
(l)Still on 3 June 2021, the plaintiff’s solicitor wrote to the ACT Chief Police Officer saying that unless an appropriate response was received by 7 June 2021, proceedings would be commenced for judicial review together with a Notice to Produce.
(m)Mr James Belotti, “Lawyer, Chief Legal Counsel Portfolio”, responded on behalf of the AFP on 7 June 2021. He said that he agreed with the DPP’s assertion that the documents were not disclosable. He said:
[T]here is ample authority which establishes that a warrant is not susceptible to ‘collateral attack’ where it is asserted the material before the issuing authority was inadequate or insufficient, including where the presumption of validity has not been displaced.
Mr Belotti also referred to Ousley and added Murphy v R (1989) 167 CLR 94 in further support of his position.
(n)As stated above, the Originating Application, was then filed on 6 July 2021.
(o)The plaintiff’s trial has been set down to commence in the Magistrates Court on 17 January 2022.
Mr Marjason’s second affidavit annexes “The prosecution policy of the Australian Capital Territory”. Clause 4 (Disclosure) was said to be relevant. His third affidavit simply says that a “Notice of Human Rights” had been served on the Australian Government Solicitor in error.
Section 187 of the above Act is as follows:
187Search warrants
(1)In this section:
issuing officer means—
(a)a judge, the associate judge, the registrar or a deputy registrar of the Supreme Court; or
(b)a magistrate; or
(c)the registrar, or a deputy registrar, of the Magistrates Court authorised, in writing, by the Chief Magistrate to be an issuing officer for this section.
private place does not include a place ordinarily private that is for the time being—
(a)used for a public purpose; or
(b)a place of common resort; or
(c)open to the public, on the payment of money or otherwise.
(2)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be a thing or things of a particular kind connected with a particular offence on, or in the clothing that is being worn by, or in any property in the apparent control of, a particular person and the information sets outthose grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable—
(a)to enter any place the police officer believes on reasonable grounds to be occupied by the person; and
(b)to search the person, or the clothing that is being worn by, or property in the apparent control of, the person; and
(c)to seize any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence.
(3)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to—
(a)enter any place named or described in the warrant; and
(b)search the place for things of that kind; and
(c)if the place is a private place—to search any person found at or in the place, or any person whom he or she reasonably believes to be about to enter or to have recently left the place, and the clothing that the person is wearing, or property in the apparent control of the person, if the police officer believes there are reasonable grounds for suspecting that things of that kind may be on the person or in the clothing that the person is wearing or in property in the apparent control of the person; and
(d)to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.
(4)An issuing officer shall not issue a warrant under this section unless—
(a)the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and
(b)the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
(5)An issuing officer may issue a warrant under subsection (2) or (3) subject to conditions limiting the powers set out in the relevant subsection.
(6)A warrant issued under this section shall state or set out—
(a)the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised; and
(b)whether the entry or search is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c)a description of the kind of things authorised to be seized; and
(d)any conditions to which the warrant is subject; and
(e)if the warrant is issued under subsection (2)—a way of identifying each person specified in the warrant by—
(i) name; or
(ii) description; or
(iii) a photograph of the person attached to the warrant; and
(f)a date, not later than 28 days after the date of issue of the warrant, when the warrant will cease to have effect.
(7)If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.
In essence, compliance with s 187 is firstly a ‘tick the box’ exercise allowing the issuing officer to issue a warrant if the terms of the relevant subsection are complied with, and then, secondly the issuing officer must be “satisfied that there are reasonable grounds for issuing the warrant”.
There is no obligation in the section for the issuing officer to provide reasons for issuing the warrant. Typically the application will be made ex parte with the issuing officer being provided with the supporting material and being asked to proceed under the section.
The plaintiff’s claim is put this way:
(a)The four warrants were served on the plaintiff as part of the prosecution brief. This was in accordance with the obligation of the prosecution under clause 4.1 of the DPP’s prosecution policy.
(b)This disclosure did not include the information and any affidavits that had been relied upon, as required by s 187.
(c)There being no suggestion of a public interest immunity, the failure to disclose the documents was a breach of the obligation under clause 4.1.
(d)It was also an obligation imposed under common law.
(e)In addition, the Human Rights Act 2004 (ACT) (the HRA), at s 21, says that everyone has a right to a fair trial. Sections 12, 22 and 30 were also relevant.
(f)Having a fair trial means having access to all relevant information.
(g)The right to privacy, of both person and property, is so fundamental that any breach is effectively a trespass.
(h)There will be a trespass unless the breach of privacy is lawful. The issuing of a warrant provides a lawful basis for the invasion of privacy, but in so doing must give rise to a right of review of the decision to issue the warrant. This is also consistent with an action which, without more, would amount to a breach of a person’s human rights.
(i)Where the application is made on an ex parte basis, the lawfulness of the issuing of the warrant is susceptible to judicial review. How else could the legality of the issuing of the warrant be tested?
(j)Copies of the relevant documents had not been retained by the Court.
(k)Because the issuing officer’s decision was susceptible to judicial review the officer was obliged to give reasons for the decision.
(l)There was a further obligation to retain a copy of the decision, whether retained by the issuing officer or by the informing police officer.
The plaintiff’s claim, as I have explained it in the preceding paragraph, does not entirely accord with the claim as put in the Originating Application. As described by the second defendant the Originating Application should be viewed as an assertion of the following two propositions:
(a)There was an obligation on either, or both, the issuing officer and the informant, to retain a copy of the documents relevant to the making of the decision to issue the warrant.
(b)There was an obligation on the issuing officer to provide reasons for deciding to issue a warrant.
The plaintiff and the second defendant agreed that the decision of the issuing officer was administrative in nature. They also agreed that such a decision could be the subject of judicial review.
Returning to the manner in which the case was put in the Originating Application, the second defendant emphasised that no actual breach that might give rise to a successful judicial review application was alleged. For example there was no assertion of a denial of procedural fairness or that the issuing officer had not had access to the documents required by s 187, or perhaps even, that such documents had never existed.
The HRA can be dealt with quickly and simply. The plaintiff did not suggest it gave her a separate right to an otherwise non-existing right of judicial review. Rather she said it reinforced her case that the HRA protected the privacy of her home (s 12(a)), gave her the right to a fair trial (s 21(1)) and entitled her to be given “minimum guarantees” about the nature of the charges being faced (s 22(2)).
While I accept that the HRA provides the fundamental rights referred to, I do not see that it has any impact on this case where the right to a judicial review of the issuing officer’s decision was accepted.
I also do not see any influence in this matter from s 30 of the HRA. Section 187 does not need any assistance in its interpretation. It is a straightforward instruction on the pathway to obtaining a search warrant. Its terms are not offensive to the HRA. If anything, it is a reflection of the protections to persons and property embedded in the HRA.
It is convenient to deal with the asserted obligation to give reasons first. The plaintiff submitted that if there was a right to judicial review then there must be something to review. This implied a necessity to give reasons, so as to provide a basis upon which the judicial review might be conducted.
The plaintiff submitted that the issuing officer’s obligation was akin to a judge conducting a ‘judge alone’ trial. A judge finding an accused person guilty or not guilty must give reasons for doing so. The judge in a judge alone trial however is obviously exercising a judicial power and not making an administrative decision. Further the legislation enabling the conducting of such a trial specifically says reasons must be given (s 68C(2) Supreme Court Act 1933 (ACT)).
Section 187 makes no provision for the giving of reasons. The High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, at [43] said this:
The starting point for considering the standard required of a written statement of reasons under s 68(2) of the Act is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision. The duty of a Medical Panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) itself. The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.
(footnotes omitted)
Section 187 dictates the material to be put before the issuing officer. It states the manner in which the material is to be provided. Finally it requires the issuing officer to be “satisfied that there are reasonable grounds for issuing the warrant”. The satisfaction does not rely on any material outside of the material placed before the issuing officer. The decision is effectively one of being satisfied that the requirements of the section have been met. The issuing officer does not need to refer to any facts outside of those provided pursuant to the section and does not need to examine any legal principles referable to the granting of a warrant.
The standard required of the issuing officer is to be satisfied of the matters stipulated by s 187. Thus, the issuing officer, by issuing the warrant complies with the section. Nothing outside of the section is required to achieve this purpose. In my view there is nothing in s 187, either specifically or by implication, that creates a basis for the issuing officer to give reasons. In Grollo v Palmer & Ors (1995) 184 CLR 348 at 360 this was said:
In Love v Attorney-General (NSW), this Court held that the power conferred by a State law on the Supreme Court of New South Wales to issue a warrant authorising the use of a listening device was an administrative not a judicial power, though it was a power to be exercised judicially.
The plaintiff submitted that if no reasons were given then what could be the subject of judicial review, noting this was a remedy accepted by the second defendant to exist. The answer is that there are many aspects to the application of s 187 which might be relevant. For example the requirements of there being an affidavit might not have been met, or, the affidavit may not have contained an allegation that there were “reasonable grounds” for suspecting the matters contained in s 187(2).
The structure of s 187 in my view is such that the issuing of the warrant is, by implication, a satisfaction of compliance with the section. The only reasons that could be envisaged, in exercising the power to issue a warrant, would be no more than, for example “I am satisfied that the requirements of the section have been satisfied”. As stated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, at [13]:
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
I am therefore satisfied that there is no obligation upon the issuing officer to give reasons for his compliance with s 187.
It is notable here that the plaintiff has not put forward any reason to suggest, or even remotely suspect, that the issuing officer made any mistake in dealing with the warrants. Bromwich J said this, concerning going behind the issue of a warrant, in SMEC Holdings v Commissioner of the Australian Federal Police [2018] FCA 609, at 25]:
It must generally be shown that there is a real live issue, the proof of which would be assisted by discovery. The asserted issue must go beyond speculation, and the discovery sought cannot be, in truth, a classic fishing expedition designed to ascertain whether any case in truth exists at all, rather than being directed to improving the evidence in support of such a claim.
The plaintiff requested the material placed before the defendants on a number of occasions. The first defendant did not have a copy and the second defendant declined to provide the material. I asked Mr Masters, who appeared on behalf of the plaintiff, why the plaintiff had not subpoenaed or issued a notice to produce the material in these proceedings. He said it was not for the plaintiff to do so. Rather, he submitted, if the second defendant wished to assert that there was no reason to doubt the propriety of the warrants being issued, then the second defendant should have placed the material before the court. I disagree.
I think the plaintiff’s submission is contrary to what was said by Bromwich J in SMEC Holdings and contrary to the plaintiff’s overall assertion that it was being denied access to the documents. The plaintiff has a concession that judicial review is available. If she wished to take advantage of that procedure she should have placed the documents before the court, or at least attempted to compel the second defendant to make the documents available.
The plaintiff submitted that the second defendant could not be heard to criticise the plaintiff for not issuing a subpoena at the same time as resisting the request to produce the documents. The apparent logic of this submission is defeated by the history behind the proceedings. The plaintiff says she wants the documents. Having now started proceedings there is no reason why she could not have attempted to compel their production. The documents would be at the centre of her allegations of any defect in the warrants.
The next question is whether either of the defendants should have retained the documents. It is accepted that the first defendant did not do so.
The plaintiff submitted that if the decision to issue the warrants was open to challenge then, necessarily, the documents forming the basis for the decision needed to be retained in order to see if the challenge had any merit. I have already observed that the plaintiff did not subpoena, or issue a notice to produce, on the second defendant to produce the documents. Absent this step I find it difficult to understand how any submission could be made that there had been any breach of an obligation, on the part of the second defendant, to retain the documents. This of course excludes any reasons given by the judicial officer, a step which I have found was not required.
As to the documents being retained by the first defendant I agree with the second defendant that any judicial review would be a review of the decision to issue the warrants, it would not be a review of whether or not the documents were retained. In Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs AAM17 [2021] HCA 6; 95 ALJR 292, Steward J said, at [22]:
Underlying the Federal Court's decision, and the first respondent's submissions in this Court, was a conception of procedural fairness that exceeds the range of matters with which that concept is concerned. In this case, as the Minister rightly submitted, the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision. That is not to gainsay the Minister's concession, properly made, that the duty to give reasons is an inherent aspect of the exercise of judicial power and that the need for fairness applies to the discharge of that duty. As a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. But to the extent that the practical manifestations of the first respondent's entitlement to be accorded procedural fairness were diminished as a result of the primary judge's failure to translate his ex tempore reasons or to produce written reasons timeously, any consequent practical unfairness to the first respondent could only logically arise in the conduct of the first respondent's appeal to the Federal Court. That, however, was not the basis on which the appeal to the Federal Court was allowed.
Section 187 does not tell the issuing officer to keep any documents. Any attack on the procedural fairness of the issuing of the warrants would not depend on whether the documents were retained. It is true that if the documents no longer existed an attack would be difficult to mount. But in this case, it is only known that the documents were not retained by the first defendant. The plaintiff, as I have said above, chose not to compel their production by the second defendant.
Finally, I will deal with the plaintiff’s submission that the affixing of the court seal to the warrants, rendered them invalid. Rule 6304 of the Court Procedure Rules 2006 (ACT) states:
6304Documents—sealing and stamping
(1) A document must be sealed if the document is—
(a) issued by the court; and
(b) required to be sealed under these rules.
(2) The registrar may stamp a copy of a document to indicate that it is a copy of a filed document if—
(a) the document has been filed by a party; and
(b) a copy of the document must or may be served on another party.
The plaintiff submitted that if the warrant was issued by the first defendant, in the guise of a persona designata, the court seal should not have been placed on the document because its presence deemed the document to have been “issued by the court”.
I agree with the second defendant that the placing of the seal does not lead to a converse conclusion, namely that if the seal is present the document was issued by the court. The rule in, in my view, says that if a document is issued by the court then it must be sealed. It does not say that if a document is sealed, it necessarily becomes a document issued by the court.
The result is that the Originating Application must be dismissed. The parties indicated to me that there might be applications for special costs orders. I said I would deal with any such applications when these reasons were handed down.
I make the following orders:
1. The Originating Application is dismissed.
2. I will hear the parties on costs.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 21 October 2021 |
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