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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HALL, J.
MONDAY 7 MAY 2007
No 11340 of 2006
FRANCIS HETHERINGTON BALLIS v. MARK RANDALL & ORS
JUDGMENT
HIS HONOUR:
Introduction
1 The central questions in these proceedings are, firstly, whether three search warrants, issued respectively by the first and second defendants, were invalid, and, secondly, assuming the warrants were validly issued, whether they were executed unlawfully.
2 The plaintiff, by an amended summons dated 14 November 2006, filed in Court on 20 February 2007, claims relief in respect of the following three search warrants:-
• Search warrant issued on 24 September 2002 by the first defendant in respect of specified premises at Randwick (the first warrant).
• Search warrant issued on 11 November 2002 by the first defendant in respect of specified premises at Bondi Junction (the second warrant).
• Search warrant issued on 19 December 2002 by the second defendant in respect of specified premises at Bondi Junction (the third warrant).
3 The three warrants (referred to in this judgment as “the warrants”) were issued on the application of members of the New South Wales Police. The premises at Waverley Street, Bondi Junction at the relevant times, was the residential premises of the plaintiff. The warrants were issued under the Search Warrants Act 1985 (NSW) (since repealed and referred to in this judgment as “the Act”) which enacted a statutory scheme for the issue and execution of search warrants. The equivalent provisions in respect of search and seizure powers are now to be found in Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
4 The plaintiff claims an order in the nature of certiorari that the first, second and/or third warrants be set aside or quashed and declarations that the execution of each of the warrants was contrary to law.
5 A further order is sought in the nature of prohibition preventing the defendants or any of them, their servants or agents, from relying on the validity of the said warrants.
6 A further order in the nature of mandamus or an injunction is sought against the defendants, their servants or agents, requiring them to deliver up to the plaintiff any property seized and any audio, video, digital or computer recordings and/or transcripts or copies or notes made from the recordings.
7 Mr. M. A. Robinson, of counsel, appeared on behalf of the plaintiff. Mr. P. Saidi and Ms. K. Richardson of counsel, appeared on behalf of the third, fourth and fifth defendants. Submitting appearances were entered on behalf of the authorised justices, the first and second defendants.
8 The plaintiff relied upon eight grounds in support of the relief claimed in the amended summons, but at the hearing, not all grounds were pressed. In particular, Grounds 5 and 7 (respectively the validity of Regulation 10 under the Search Warrants Regulation 1999 (NSW) and a contention of “bad faith” were abandoned).
9 The plaintiff’s challenge in the present proceedings, accordingly, had a two-fold aspect. The first challenged the validity of the warrants. The second asserted that the execution of the warrants was contrary to law.
10 In relation to the first of these two aspects, the central contention on behalf of the plaintiff is that the three “covert” warrants were not contemplated or authorised by the Search Warrants Act 1985 (NSW) or, alternatively, they were not warrants contemplated by the Act and are, accordingly, invalid.
11 The primary submission made on behalf of the plaintiff was that in each case authorisation was sought that the warrants be executed covertly and, as such, involved “… an application … to do something which we say is unlawful and the magistrate acceded to it and … that makes what might be a plainly valid warrant on the face of it invalid in reality in light of the evidence” (transcript, p.124).
12 It was contended that there was a purported exercise of a power authorising the covert execution of the warrants and that such was ultra vires the Act “… there is no power for a magistrate to issue a warrant that he or she knows is going to be executed covertly” (transcript, p.130).
13 The plaintiff also submitted that s.19 of the Act by which an authorised justice may authorise the execution of a warrant by night, was of no assistance in providing authority for the covert execution of a warrant. Section 19(1A) of the Act provided that an authorised justice is not to authorise the execution of a search warrant by night “… unless satisfied there are reasonable grounds for doing so …”. The submission on behalf of the plaintiff was that the authorised justice in relation to each warrant purported to improperly exercise the power under s.19(1A) by relying upon the fact that such manner of execution would facilitate the surreptitious execution of the warrants.
14 At the forefront of the plaintiff’s submissions was the proposition that in each case the execution was intended to be undertaken in his absence as occupier of the premises and without notice or information to him as contemplated by the Act. As such, the submission proceeded, each warrant was invalid.
15 In ground 3 of the amended summons it was stated:-
“… The Act contemplates the postponement of the service of the Occupier’s Notice only after the occupier is not found at the premises (s.15(3)(b) and s.15(4)). The warrants here were issued on the basis that the Occupier’s Notice would not be served. At the time of the issue of the warrants, the authorised justice was aware that the occupant was to have the execution of the warrant kept secret from him. Such a process is not contemplated or authorised by the Act. Accordingly, the warrants were invalidly issued and/or executed.”
16 The plaintiff, in support of the amended summons, relied upon the affidavits of Christopher Heath Watson sworn 21 March 2006 and 4 April 2006 and documents comprising the tender bundle (Exhibit H) which related to the issue and execution of the warrants.
17 It was submitted on behalf of the third, fourth and fifth defendants (the police officers who made the applications for the issue of the three warrants) that in each case there was disclosure of the intention to execute each of the warrants covertly and that, as a matter of statutory construction, power existed under the Act for the issue and execution of the warrants upon that basis.
Background to the charges
18 The applications for the warrants reveal that a number of persons were suspected by the Australian Federal Police of involvement in the importation of a large quantity of MDMA (ecstasy). The plaintiff’s activities in the latter part of 2002 had been the subject of physical and electronic surveillance. On 25 December 2002, he was arrested and charged in respect of his alleged involvement in the importation.
19 The defendants relied upon an affidavit of Mark William Standen sworn 29 November 2006. Mr. Standen is the Assistant Director, Investigations, with the New South Wales Crime Commission (the “Commission”). According to Mr. Standen’s affidavit, the plaintiff was charged following an investigation conducted by a joint taskforce comprised of the Special Crime Unit of the New South Wales Police, the Australian Federal Police and the Commission.
20 On 21 February 2006, the plaintiff was committed for trial on the charge of supply prohibited drugs. Other charges relating to firearms and prohibited weapon offences alleged to have occurred in 2002 are to be heard at the same time as the supply prohibited drugs charge.
21 Information concerning each of the search warrants may be summarised as follows:-
(a) The first search warrant
(i) The first application was made on 24 September 2006. The application expressly recorded that the third defendant sought to “have this search warrant executed covertly and would be applying for an extension of time regarding the service of the Occupier’s Notice”.
(ii) The application made it clear that night time execution of the warrant was required so that it would coincide with the absence of the plaintiff as occupier.
(iii) The application also sought to prevent access under Clause 10 of the Search Warrants Regulation 1999 (NSW). The reason provided was stated to be the “information contained is sensitive in nature and is part of a long term, ongoing investigation into organised crime on the East Coast of Australia’.
22 The first defendant, as the issuing justice, granted the warrant on 24 September 2002 at 10.45 am and purported to permit it to be executed at night on the grounds of, inter alia:-
“(d) Ongoing investigation – to be executed covertly.”
23 The warrant authorised a search for things of the kind referred to in s.5(1) of the Act with appropriate particulars of those “things”.
24 It was the plaintiff’s case that the police officers who executed the warrant at night were confident that he would not return during the search and they intended that the fact that the search has been carried out would not be detected upon his return. The plaintiff’s case was that from the outset, there was an intention in those applying for the warrant not to give him any notice of the search until the law enforcement agencies determined it to be appropriate.
25 The warrant was executed at 9.00 pm on 24 September 2002. It is not necessary, for the purposes of the present proceedings, to detail the outcome of the search of premises. It is sufficient to record the contentions made on behalf of the plaintiff to the effect that the execution of the warrants was essentially an intelligence-gathering exercise marked by a selectivity in the approach taken during the search with care being taken to avoid creating any visible signs of disturbance of the premises and its contents so as to maintain the covert nature of the execution of the warrants. I will return to the question as to whether there is substance to the proposition that the manner of execution supports the contention in effect that the warrants were sought for extraneous or improper purposes.
26 On 24 October 2002, a report pursuant to the Act was made reporting upon the execution of the first warrant on 24 September 2002. The document contained a request, purportedly by way of application pursuant to s.15(4) of the Act, to extend the time for service of the Occupier’s Notice for a period of six months as “service of the Occupier’s Notice would alert the occupant and their associates of police interest and therefore compromise the current operation”.
27 The Report to Authorised Justice on the Execution of a Search Warrant made pursuant to the Act dated 24 October 2002 included a handwritten note at the foot of the report: “granted. Six mths extension granted to 24/3/02”. This was clearly an error and was intended to refer to 24 March 2003. This note related to the decision of the authorised justice purportedly postponing service of the Occupier’s Notice.
(b) The second search warrant
28 On 11 November 2002, an application was made by the fourth defendant.
29 This application referred to an earlier application for a warrant issued on 8 November 2002 but which could not be executed due to operational circumstances.
30 On 11 November 2002 at 3.45 pm, the first defendant issued a search warrant for specified premises at Bondi Junction. In the application for the warrant appeared the following statement:-
“Application for caveat on warrant grounds
Furthermore, police are seeking that a Clause 10 provision be granted for this search warrant application. Information contained in this application is sensitive in nature and is part of a long term, ongoing investigation into organised crime on the East Coast of Australia. Release of any of this information would jeopardise this ongoing investigation. Furthermore, police hold grave fears for the identity and subsequent safety of the informants mentioned herein, should the details of the information they are supply (sic) to police become public.”
31 The authorised justice referred in his record of the application to the alleged facts arising from police investigations and to the fact that on 24 September 2002, police had executed a warrant covertly at the plaintiff’s premises and located certain items:-
“4. … the grounds on which I relied to justify the execution of the warrant by night are as follows:-
(b) there is likely to be less risk to the safety of any person;
(d) ongoing investigation – covert execution.”
32 An Occupier’s Notice for the warrant was made and was dated 11 November 2002.
33 The Report to Authorised Justice on the Execution of a Search Warrant noted that the Occupier’s Notice was not served and a request made that the service of the Notice be withheld in accordance with the provisions of s.15(4) of the Act. An “extension” was sought for service of the notice for a period of six months.
34 At the foot of the report, there is a handwritten note “extension granted to 11.5.03”. The independent observer field report in relation to the execution of the second warrant (dated 11 November 2002) contained an entry concerning the Occupier’s Notice “not served/delayed service”.
35 In the summary of the results of the execution of the warrant it is noted “Covert search at … Bondi Junction” and records items of interest as being “located” rather than “seized”.
36 As in the case of the first warrant, it is unnecessary for the purposes of the present proceedings to record in any detail the results of the execution of the warrant. The issues referred to in paragraph [25] above were also raised in relation to the second warrant. It was, in particular, contended that the recording of data, such as phone card numbers, was part of what was said to be a covert intelligence and evidence gathering procedure and not a search and seizure operation authorised under the Act.
37 On 9 April 2003, a letter was sent to the issuing justice (the first defendant) by the fourth defendant outlining the result of the service of the Occupier’s Notice on the solicitor for the applicant in his trial. It was asserted, accordingly, that the Occupier’s Notice was served more than three months after the applicant was arrested (namely, on 9 April 2003).
(c) The third search warrant
38 On 19 December 2004, Detective Sergeant Cullen applied to the second defendant for a search warrant in respect of the plaintiff’s premises at a specified address in Bondi Junction. The application set out factual matters relied upon. It referred to the covert execution of the warrant on 24 September 2002 and the results of the search of premises. The application also recorded that police were seeking “… the provision to execute the search warrant at any time during the day, including after 9.00 pm. Due to the ongoing operational investigation of BALLIS and his associates, that is necessary to preserve the integrity of this investigation”.
39 A search warrant was issued dated 19 December 2002 authorising entry and search of the plaintiff’s premises. The things to be searched for were of a kind similar to those sought in the November warrant, except for a handwritten addendum which referred to specified items.
40 The Occupier’s Notice was dated 19 December 2002. As in the case of the first and second searches, it was contended on behalf of the plaintiff that it was clear that the warrant was to be a “covert” warrant and that the service of the Occupier’s Notice was to be postponed until the end of the operation or at the expiry of an indeterminate period. Unlike the first two warrants, there was no express reference in the application for the third warrant to an intention to execute the warrant covertly. The authorised justice’s record (tender bundle, p.190) stated that the grounds relied upon to justify the execution of the warrant at night included:-
“(d) the execution of the warrant is dependent upon the continuing investigation and activities of the suspects and may occur at night.”
41 The independent observer field report in respect of the third warrant (dated 19 December 2002) recorded in respect of “Occupier’s Notice” “N/A. Covert warrant”.
42 Mr Robinson of counsel contended that Regulation 10 (which permitted a certificate to issue to prevent the inspection of documents in relation to a search referred to in Regulation 9) was relied upon to keep information concerning the application for the warrant from the plaintiff as occupier. Mr. Watson stated that there was no information which established that the Occupier’s Notice was ever served.
43 The fifth defendant made application on 16 January 2003 to delay service of the Occupier’s Notice pursuant to s.15(4) of the Act. The second defendant purportedly delayed service of the Notice without stating the date by which it had to be served. On 9 April 2003, the Notice was served, not on the plaintiff himself, but on the plaintiff’s solicitor. This was disputed as proper service under the Act.
44 The authorised justice’s record of the application states that reasonable grounds existed for issuing the warrant. As indicated above, the statutory report in relation to the issue of the execution of the third warrant by night does not state in express terms that execution of the warrant by night was authorised as part of a covert operation. In respect of its execution by night, the grounds relied upon were stated as including:-
“(c) An occupier is likely to be on the premises only at night to allow entry without the use of force.
(d) The execution of the warrant is dependent upon the continuing investigation and activities of the suspects and may occur at night.”
45 Whilst there was no express reference in relation to the third warrant, as in the case of the first and second warrants, to its execution by night by reason of the continuing investigation, Mr. Robinson contended that the authorisation given in respect of the third warrant was “implicitly” one which authorised its covert execution.
46 The report on the execution of the warrant on 19 December 2002, is entitled “covert search at … Bondi Junction”. The warrant, of course, was, in fact, executed covertly on 19 December 2002.
47 The Report to authorised justice on the execution of the search warrant dated 16 January 2003 recorded that the warrant was executed on Thursday 19 December 2002 at 6.08 pm. It records that the result of the execution of the warrant as “no items seized”. It also records that the Occupier’s Notice was not served and a request was made for service of it to be withheld:-
“… in accordance with the provisions of s.15(4) of the Search Warrants Act. The execution of this search warrant is part of an ongoing police operation. Service of the Occupier’s Notice at this point in time would alert the occupant and their associates of police interest and therefore compromise the current operation.”
48 The statement of Detective Sergeant Cullen dated 9 May 2003 (pp.114-116 of Exhibit H) records the result of the search.
49 The evidence establishes, and I find accordingly, that, in the case of each search warrant, each application to the relevant authorised justice (the first and second defendants) disclosed that it was the intention that police officers who were to execute each warrant would do so covertly and that, accordingly, the Occupier’s Notice would not be served on entry into the premises.
50 The evidence further establishes, and I so find, that each application disclosed that it was likely that, following execution of each warrant, an application for postponement of service of the Occupier’s Notice given in each case would be made.
51 Subsequent to the execution of each warrant, each authorised justice purported to authorise the postponement of service of the Occupier’s Notices in respect of each warrant.
52 The parties reached agreement (recorded in Exhibit B) in terms as follows:-
“The three search warrants were executed in such a manner as to conceal the occurrence of their execution from Mr. Ballis, the occupier, until such time as service of the occupier’s notices were affected.”
The plaintiff’s contentions
53 The plaintiff contended that the three warrants were invalid as they did not constitute search warrants authorised by the Search Warrants Act 1985 (NSW). No objection was taken as to the form of the warrants. In a letter of particulars dated 31 October 2006, Mr. Watson furnished the solicitors for the defendants with particulars in the following terms:-
“… the warrant purported to authorise a ‘covert’ investigative process or operation not contemplated by the Search Warrants Act 1985.”
54 In the letter of particulars, to which I have referred, it was asserted, in relation to each warrant:-
“… the … warrant was contrary to law as it was not a warrant contemplated by the Search Warrants Act 1985 and its execution was purposely to be undertaken in the absence of the occupier, without notice or information to the occupier of the entry as contemplated by the Search Warrants Act 1985.”
55 Mr. Watson also asserted in the abovementioned letter of particulars that the applicant relied upon an interpretation of the Search Warrants Act 1985 (NSW) to the effect that it did not authorise postponement of the service of an Occupier’s Notice by reason of or on the basis of the concurrent undertaking of a covert operation.
Plaintiff’s written submissions
56 In the plaintiff’s submissions it was contended:-
(a) That the three warrants issued were invalid (the term “unlawful” was from time to time used in oral submissions, eg, transcript 27 February 2007, p.18).
(b) That the execution of the warrants was invalid (or “unlawful”).
(c) That postponement of the service of the Occupier’s Notice in respect of each warrant was “unlawful”.
57 On behalf of the plaintiff, Mr. Robinson observed that the Search Warrants Act 1985 (NSW) established a scheme for the issue and execution of search warrants, and that that scheme contemplated (in particular by reference to s.15) that upon execution of a warrant or as soon as practicable thereafter, the person executing it “shall” serve an Occupier’s Notice on the occupier of the premises. That notice was to be in accordance with the prescribed form.
58 Reliance was also placed upon the provisions of s.9(2) of the Interpretation Act 1987 (NSW) which provides:-
“In any Act or instrument, the word ‘shall’, if used to impose a duty, indicates that the duty must be performed.”
59 It was contended that on application for each of the warrants it was made clear to the particular authorised justice that the warrants were sought upon the basis that they were part of a “covert” operation by law enforcement agencies.
60 In the Summary of Applicant’s Argument (undated), it was contended:-
“5. In the present circumstances, the warrants were sought as part of a ‘covert’ operation. Relevantly to the present circumstances, this meant that the police determined to execute the warrants at a time when they planned that the occupant would not be at the premises. Further, that they never intended to notify the occupant of the premises of the issue and execution of the warrant at the time of the search or at any point proximately thereafter. This, notwithstanding, that they were aware of the location and movements of the occupant at all relevant times.
6. The applications for the warrants and their issue were based on the premise that the occupant would not be notified of the search at or about the time of the search and that the service of the Occupier’s Notice would be withheld from the occupant and delayed depending on the police operational requirements.
7. It is submitted that a warrant of this nature is not contemplated or authorised by the Search Warrants Act 1985 and that accordingly the warrants issued were invalid and should be quashed.”
61 Mr. M. Robinson, in his written submissions dated 21 February 2007 (paragraph 14) submitted:-
“Relevantly to the present circumstances, this meant that the police were always determined to execute the warrants at a time when they planned and had ascertained that the plaintiff occupant would not be at the premises. Further, they never intended to notify the occupant of the premises of the issue and execution of the warrant at the time of the search or at any point approximately thereafter. This is notwithstanding that they were aware of the location and movement of the occupant at all times (having him under blanket surveillance at relevant times).”
62 It was submitted that a warrant issued in these circumstances was neither contemplated nor authorised by the Act. Accordingly, it was contended the warrants were invalid and should be quashed. It was also contended that “the execution of the purported warrants was bad and that each was contrary to law”.
63 It was further submitted that the Act contemplated that a decision for postponement of service of an Occupier’s Notice could only validly be made by an authorised justice after the warrant had been executed and when no occupier “is then present or in or on the premises” (s.15(3)(b) and s.15(4)). In other words, it was contended that s.15(4) only permitted the postponement of an Occupier’s Notice in the limited circumstances specified in s.15(3)(b).
64 There is, in my opinion, some substance to the proposition that if s.15(4) were intended to be construed as making available a covert search warrant procedure in order to enhance the effectiveness of an investigation, one would expect that such a procedure would be expressed in clear terms and not appear in a subsection to a section of the Act concerned with the service of occupier’s notices.
65 It is clear that a covert search warrant procedure plainly would represent a significant departure from the balance struck in the Act as discussed by Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441. The covert execution of search warrants would clearly tilt the balance in favour of law enforcement authorities.
66 It was submitted in this case, that the warrants were issued on the basis that the Occupier’s Notice in each instance would not be served, in that the entire operation was to be covert as an integral part of an overall investigation. In other words, it was submitted, at the time the warrants were issued, the authorised justice was aware that the execution of the warrant was to be kept secret from the plaintiff and that following execution of each warrant an application for postponement of service of the respective Occupier’s Notice would follow. This was based upon the assumption that s.15 permitted postponement of service in such circumstances.
67 The plaintiff concedes that, whilst the warrants do not, on their face, reveal or manifest error, the “other primary material” does reveal the plain intention of both the applicants and the authorised justices who issued the warrants.
68 Mr. Robinson supported the plaintiff’s argument by specific reference to the requirements of the statutory scheme described as one “… for the open and reviewable conduct of warrants …” (paragraph 10 of the Summary of Applicant’s Argument). The elements in the statutory scheme were identified as including:-
• the requirement upon entry of premises to announce that a search warrant is to be executed (s.15A);
• the duty to show the warrant (s.16);
• execution by day (s.19) (absent a specific order permitting execution by night);
• the necessity for record keeping (s.13);
• the obligation to inform the occupant of rights of review (the prescribed Occupier’s Notice); and
• the right of an occupier to inspect the grounds for issue etc.
69 These were said to point to the absence of a power to authorise the covert execution of warrants issued under the Act and to the absence of a power to withhold service of an Occupier’s Notice by reason of police operational requirements.
Jurisdictional considerations
70 The Court’s jurisdiction to grant declaratory and other relief in proceedings challenging the validity of search warrants has not infrequently been exercised prior to the laying of criminal charges and where orders are sought for the return of items seized and consequential orders and in some cases damages have been sought, see, for example, Trimboli v Onley (No. 3) (1981) 56 FLR 321 and Cassanti v. Croucher & Ors [2000] 48 NSWLR 623.
71 In the present case, where the plaintiff has been charged and criminal proceedings are pending, I have considered whether, as a discretionary matter, this Court should assume jurisdiction or whether the issues as to the validity of the warrants and/or the lawfulness of their execution should be left for determination by the trial judge in the District Court, the hearing of the criminal proceedings having been scheduled for June 2007.
72 It has been observed as a matter of general principle that civil courts appreciate that it is of vital importance that law enforcement agencies should not be hindered unduly in their task of investigating fully allegations of criminality. Similarly, it has been stated that civil courts appreciate the need to ensure that the work of the criminal courts is not frustrated by applications challenging the validity of warrants, particularly those which are quite unmeritorious and designed to achieve little more than delay: Chief Executive Officer of Customs v Jiang (2001) 183 ALR 604. That case addressed the previous ready availability of administrative law remedies in the federal sphere in relation to what have commonly been referred to as “collateral attacks”. Reference was there made to the body of case law developed over time in which courts have stressed the dangers of fragmentation of the criminal justice process and the need for restraint on the part of civil courts in reviewing decisions taken in the course of that process: Jiang (supra) at [7]. See also ACS v Anderson [1975] 1 NSWLR 212 at 215-217; Conwell v Tapfield [1981] 1 NSWLR 595 at 601, 603-605; Cain v Glass (No 2) [1985] 3 NSWLR 230 at 244-245, 253; Anderson v Attorney General (NSW) [1987] 10 NSWLR 198 at 200-202; and Carroll v Attorney General (NSW) (1993) 70 A Crim R 162.
73 This Court, nonetheless, has exercised its jurisdiction where considered appropriate in circumstances where criminal proceedings are pending. See for example Commissioner of Police v Atkinson [1991] 23 NSWLR 495. However, in each case there remains a need to examine and determine the particular circumstances in which the jurisdiction ought to be exercised. Reference to relevant case law establishes a number of general propositions including the following:-
(a) There ought to be sound justification in point of practical utility in a Court intervening by way of granting declaratory relief in criminal proceedings. Otherwise, discretionary considerations will point against the grant of such relief (see Conwell (supra) at 601 per Street CJ).
(b) Where an application for declaratory and ancillary relief raises important questions both of statute law and of evidentiary principle, the resolution of which may have a substantial bearing upon criminal litigation, then this Court may exercise its jurisdiction where such relief is sought (see Conwell (supra) at 601).
(c) There is a distinction between proceedings in which a declaration is sought as to the construction of a statute which provides for the issue of search and seizure warrants from those in which in criminal proceedings a declaration is sought on a question of evidence or procedure. In the case of the latter, the circumstances must be exceptional to warrant the grant of relief: Sankey v Whitlam (1978) 142 CLR 1 at 25 per Gibbs ACJ. See also ACS v Anderson (supra) at 216 per Hutley JA; Cain (supra) at 253 per McHugh JA; Anderson (supra) at 200-201 per Kirby P and Carroll (supra) at 168.
(d) An application for declaratory and other relief which involves evident unmeritorious delaying tactics ought not be permitted to fragment the criminal justice process.
74 The determination of the issues raised in the present application will not in itself decide the admissibility of any evidence established as having been seized under the warrants (although such a determination may be relevant thereto) nor do they relate to a mere matter of procedure. The proceedings do not, in any relevant sense, involve any interference in the conduct by the District Court of the trial scheduled to commence in June 2007: see, for example, Carroll (supra) at 168 per Kirby ACJ.
75 The present application seeks review in advance of trial and not strictly by way of collateral review. The situation in that respect is not unlike that which arose in Carroll (supra). See Ousley v Regina (1997) 192 CLR 69 at 79 per Toohey J. In circumstances in which, as discussed below, there has been a determination by a District Court judge of a similar issue concerning what has been referred to as “covert warrants” under the Act, which determination rejected the challenge to validity, I consider that there is a proper basis upon which this Court should determine the questions raised involving as they do the construction and application of the Act as it affects occupiers’ rights.
76 The determination of the issues raised in these proceedings will not, as indicated above, interfere with the trial judge’s determination as to whether or not any evidence seized under the warrants is ultimately to be admitted, for, in the event of any attempt to adduce such evidence, he or she, in the event of an objection, will be required to consider the matters that are relevant to the exercise of his or her discretion under s.138 of the Evidence Act 1995 (NSW) for the purpose of making any ruling on admissibility pursuant to those provisions.
77 In Regina v. Ballis & Hinke (unreported, 9 September 2004), Shadbolt DCJ considered the question as to whether or not evidence that had been unlawfully obtained should be excluded in circumstances in which the search warrant under which the evidence was obtained had been executed in a covert manner. The accused, Hinke, argued that in the application for the warrant there in question, without there having been disclosure of information to the issuing magistrate of an intention to execute the warrant covertly, such constituted an abuse of process.
78 The Crown there submitted that there was no requirement for police to, in fact, inform the authorised justice that the warrant was intended to be executed covertly, the Act being silent on the matter. The Crown also contended that the Act provided for covert searches and for searches in the absence of an occupier, it being said that there was no distinction between the two.
79 In upholding the Crown’s contention in that case, the learned judge placed considerable reliance upon the provisions of s.15(3) and s.15(4) of the Act. His Honour held that, in light of those provisions, there was no requirement to inform the authorised justice that the search warrant was to be executed in the absence of the occupier. By reason of the fact that the Act envisaged and provided, in specified circumstances, for the execution of warrants in the absence of an occupier, his Honour arrived at the conclusion that it did not preclude the covert execution of warrants. Specific support for that conclusion was said to be found in the provisions under which authorising justices may order postponement of the service of an Occupier’s Notice. In consequence, his Honour was of the view that the search warrant in question was not unlawful, nor was its execution.
80 Whilst, with respect, I agree with his Honour’s ultimate conclusion as to the validity of the warrant, although for different reasons than were expressed in that case, I am unable to agree with the conclusion that the implementation of a planned execution of a warrant covertly constitutes a valid execution of it under the Act.
81 The specific issues that arise for consideration concerning the validity of the warrants themselves and the lawfulness of the execution of the warrants are as follows:-
(1) The validity of the warrants require an examination of the following four matters:-
(a) The general principles relating to the issue of search warrants.
(b) The provisions of the Act.
(c) The terms of the applications for the warrants.
(d) The authority or purported authority granted by the authorised justices as expressed in the warrants.
(2) The lawfulness of the execution of the warrants requires consideration of the following three matters:-
(a) The statutory safeguards which the Act afforded occupiers whose premises are to be searched under the authority of a search warrant.
(b) The provisions concerning Occupier’s Notices.
(c) The question as to whether there was valid postponement of service of the Occupier’s Notices in accordance with the Act.
Validity of the search warrants
(a) The general principles relating to the issue of search warrants
82 The validity of a warrant turns on the fulfilment of the conditions for its issue: see George v Rockett (supra) at 111, that is, upon whether the authorised justice issuing it has complied strictly with the statutory requirements governing its issue: see Ryan & Raven v Tran Nominees (1986) 22 A Crim R 274 at 281 per Cox J. In that case it was stated that these include the limitations, express or implied, upon the power to issue the warrant. If the statutory pre-conditions are not met, it is very likely that the warrant will be at least seriously defective (Cox J at 281). See also Corbett v State of New South Wales [2006] NSWCA 138 per Giles JA at [109].
83 The duty of an authorised justice issuing a statutory search warrant requires the issuing justice to “… stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and inviolate security of his personal and business affairs” (per Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322). In Carroll v Mijovich (supra), Kirby P emphasised that a central question is the protection of privacy of individuals against the arbitrary use “… of the great power of entry and search …”. Accordingly, in determining an application for a search warrant and an application for postponement of service of an Occupier’s Notice upon entry into or onto premises, an authorised justice must adopt an impartial role between police and the citizen. In other words, he or she is not permitted to exercise the statutory powers under the Act in a partial manner such that the interests of law enforcement agencies impermissibly trump the statutory safeguards that Parliament has put in place for the protection of occupiers.
(b) The relevant provisions of the Act
84 In applying the principle that the validity of a search warrant, essentially, turns upon whether or not it has been issued in accordance with the prescribed statutory pre-conditions, it is necessary to identify those conditions. These include a requirement under the Act for a verified written application (except for cases of urgency - see s.12, telephone search warrant), that the application contains specified information (s.12A), and the requirement that the authorised justice be satisfied that there are reasonable grounds to issue a search warrant. Additionally, a warrant should be in the prescribed statutory form (s.14).
85 Accordingly, for a search warrant to be valid under the Act, it was essential that there be compliance with the statutory provisions in ss.5, 6, 11 and 12A. If such requirements were met and the warrant was in the prescribed form in accordance with s.14 of the Act, then it met the conditions essential for its validity. In these proceedings, it has not been suggested that the three warrants did not each satisfy all such statutory pre-conditions or otherwise meet the prescribed statutory requirements.
(c) The terms of the applications for the warrants
86 The fact that the applicants for the warrants disclosed that it was their intention that they be executed covertly, did not, of itself, in my opinion, invalidate the process leading to the issue of the warrants themselves. Their initial validity is dependent, not upon the provisions concerned with the ancillary or separate power in an authorised justice to authorise the execution of a warrant by night (ie, s.19). Validity depends, as stated above, upon fulfilment of the statutory preconditions. The applications for the warrants complied with the Act.
87 Notwithstanding the disclosed intention as to the manner by which the warrants were to be executed and whether or not the specific power to authorise execution of a search warrant by night under s.19 was properly exercised on the ground, inter alia, that to do so would facilitate a covert execution of it, are not matters that detract from the fact that the pre-conditions for the warrant’s issue were satisfied. I will return to this aspect below.
(d) The terms of the authority/purported authority granted by the warrants
88 Mr Saidi of counsel, in emphasising that the necessary pre-conditions for the issue and the execution of the warrants were satisfied, observed that this included the fact that the Occupier’s Notices were served within the six month period.
89 On behalf of the third, fourth and fifth defendants, he sought to argue in support of a power for a warrant to be executed covertly:-
“15. One should not confuse the concepts of a covert search warrant with that of a search warrant which may be executed covertly. The latter is permissible, though the former arguably is not. It is submitted that the plaintiff is confusing these concepts in these proceedings. The provisions of Clause 10 of the Regulations recognises the need to protect informants, address safety issues and protect the integrity of investigations. This is consistent with the policy of the legislation. There is recognition that the interests of the occupier can be clearly over-ridden by the terms of the legislation.”
90 An alternative submission was that there had been substantial compliance with the relevant statutory requirements within the meaning of s.23 of the Act.
91 The grant of the warrant did not, in its terms, authorise it to be executed covertly. The warrant did not authorise its execution otherwise contrary to law. At most, at least in the case of the first and second warrants, the intended covert execution of them was, as indicated above, only relied upon as one of two grounds to justify their execution by night and for that to be permitted.
92 In these proceedings, the fact that “ongoing investigation – covert investigation” was stated as one of two grounds for authorising the execution of the first warrant by night and “ongoing investigation – covert execution” recorded as a ground for the execution of the second warrant by night could not, even if not valid or proper ground for the exercise of the discrete discretion under s.19 of the Act, in my opinion, lead to the conclusion that that of itself rendered the warrants themselves, otherwise lawfully issued, invalid. An authorised justice impermissibly taking into account a matter for the limited purpose of authorising execution by night would not, in other words, infect the antecedent or primary exercise of power to issue the warrant with vitiating error.
93 In Coco v The Queen (1994) 179 CLR 427, a case involving the purported authorisation to use a listening device under s.45(3) of the Invasion of Privacy Act 1971 (Qld), the High Court held that that provision did not confer power to authorise trespass and the installation of devices and no power of entry was implied.
94 The majority (Mason CJ, Brennan, Gaudron and McHugh JJ) examined the question whether the order made purporting to authorise entry could be disregarded so as to leave on foot a valid approval for use of the device so far as that use did not involve otherwise unlawful entry.
95 The Court determined that the purported authority given to enter premises was integral to the authorisation given holding that (at p.443):-
“The extraneous factor … the perceived necessity to approve entry onto private property … not only contributed to the making of the decision to approve the use of the listening devices but it also took the form of an invalid authorisation to enter private property.”
96 In some cases, the Court acknowledges it may be possible to disregard that part of the decision that goes beyond power and treat as valid that part of the decision which is within power (see Coco (supra) at p.443).
97 In the present case, there is no basis in my opinion for a conclusion that the statement of each of the applicants of an intention to execute the warrant covertly, in the words of the majority in Coco, “influences the valid part of the decision” or was “an element integral and essential” in the decision to grant the warrants (Coco (supra) at p.443). The information that was otherwise provided to the authorising justices in the case of each application under the Act for a warrant relevantly addressed the matters to be satisfied under the Act. The intended surreptitious execution of the warrants as disclosed by the applicants, in other words, was a matter separate and indeed extraneous to the statutory pre-conditions required to be fulfilled.
98 Accordingly, the intended execution of the covert execution of the warrants was not a matter, in my opinion, which in any way influenced or related to the antecedent or primary decisions to actually grant the warrants. The authorised justices did not, in the terms of the warrants, authorise or purport to authorise the covert execution of the warrants. I am of the opinion that the warrants were properly issued in accordance with the Act.
99 On the same basis, I do not consider that it can be said that the power to grant a search warrant under the Act was exercised for an improper purpose, namely, for the purpose of granting a covert search warrant. Whilst the disclosures were made to the authorised justices as to the intended covert method of executing the warrants, the warrants were, as I have stated, correctly issued upon the basis that the statutory preconditions were satisfied. Those conditions formed the basis upon which the authorised justices’ power to grant the warrants depended.
Whether there was valid execution of the warrants
(a) Statutory safeguards for occupiers
100 The procedures prescribed by the Act on the execution of a search warrant are fundamental to the second question referred to in paragraph [1]. In Ousley v The Queen (supra), Toohey J, at 82, emphasised the importance of the statutory procedural safeguards attending the execution of such a warrant:-
“Tran Nominees is, I think, distinguishable and the grounds just mentioned offer the basis for distinction. In particular, while both search warrants and listening devices involve an invasion of privacy, an analogy between the two cannot be pressed too far. A search warrant will ordinarily be produced to the person whose premises are to be searched whereas the authority for a listening device will necessarily not be known to the person whose communications are to be recorded. It follows that in the case of a listening device, no opportunity is provided for an assessment of its lawfulness at the time of its installation.
101 These observations reflect the accepted rationale that underpins statutory schemes that provide for the giving of authority for the execution of search warrants and associated procedural safeguards.
102 Similarly, in Ousley (supra), McHugh J (at 111-112) stated:-
“A listening device warrant differs from a search warrant because the execution of the former is by way of covert installation of the listening device. Its installation is intended to go undetected by the person against whom or against whose interests the warrant is executed … In contrast, a search warrant is ordinarily presented to the person whose rights and liability stand to be affected. At common law, the requirement for the officer executing a search warrant to produce the warrant to the occupier of the premises to be searched was restricted to circumstances where the occupier requested to see the warrant and this position is maintained in legislation such as the Search Warrants Act 1985 (NSW), s.16. However, provisions such as s.3H of the Crimes Act 1914 (Cth) make it mandatory for the executing officer to make a copy of any search warrant issued under that Act available to the occupier of the premises. Such provisions reflect the desire to achieve an appropriate balance between a person’s rights of privacy and the need to facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. Recognition is given to the importance of enabling persons whose rights of privacy stand to be affected to satisfy themselves of the authority for such action, as emphasised by Lord Wilberforce in Rossminster:-
‘The person affected, of course, has the right to be satisfied that the power to issue [the warrant] exists: therefore the warrant should … contain a reference to that power.’
Thus, although a requirement for disclosure of jurisdiction is easily understood in relation to search warrants, the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution …”
103 As McHugh J in Ousley (supra) observed, underlying the statutory procedures prescribed for the execution of a search warrant is the fact that, absent statutory authority, the search of a person’s premises and the seizure of items contained therein without the permission of the occupier clearly involves tortious conduct. Accordingly, any statutory authority for such conduct must be strictly construed (at 112).
104 Service of an Occupier’s Notice referred to in s.15 of the Act is a central provision in the statutory scheme prescribed by the Act. It is plainly an important procedural safeguard in relation to a warrant’s execution. As discussed below, this is of central importance in determining the lawfulness of the execution of the particular warrants in this case.
105 Section 15 provides that an authorised justice, in addition to issuing a warrant, is also to prepare and furnish an Occupier’s Notice to the person to whom the authorised justice issues a warrant (s.15(1)). The word “shall” in that provision imports an obligation upon the authorised justice to act in accordance with that section as does s.15(3) insofar as it also imposes an obligation upon the person or persons authorised to execute the search warrant.
106 The provisions of s.15 have been addressed in the submissions of the parties, in particular, those in s.15(3) and (4).
107 Section 15 is in the following terms:-
“1. An authorised justice shall prepare and furnish an occupier’s notice to the person to whom the authorised justice issues a search warrant.
2. An occupier’s notice furnished in relation to a search warrant:-
(a) shall be in or to the effect of the prescribed form,
(i) the name of the person who applied for the warrant,
(ii) the name of the authorised justice who issued the warrant,
(iii) the date and the time when the warrant was issued, and
(iv) the address or other description of the premises the subject of the warrant, and
(c) shall contain a summary of the nature of the warrant and the powers conferred by the warrant.
3. A person executing a search warrant shall:-
(a) upon entry into or onto the premises or as soon as practicable thereafter, serve the occupier’s notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or
(b) If no such person is then present in or on the premises, serve the occupier’s notice on the occupier of the premises, either personally or in such other manner as the authorised justice who issued the warrant may direct, as soon as practicable after executing the warrant.
4. Service of an occupier’s notice pursuant to subsection (3)(b) may be postponed by the authorised justice who issued the search warrant if that authorised justice is satisfied that there are reasonable grounds for the postponement.
5. Service of an occupier’s notice pursuant to subsection (3)(b) may be postponed on more than one occasion, but shall not be postponed on any one occasion for a period exceeding six months.”
(b) The provisions concerning Occupier’s Notices
108 In Black v Breen [2000] NSWSC 987, Ireland AJ, as his Honour then was, considered a contention that the execution of the warrant in that case was contrary to law. An incomplete copy of the Occupier’s Notice had been served. His Honour stated:-
“… of more significance is the fact that at the time of the execution of the warrant (police) handed to the plaintiff the first page of the Occupier’s Notice, but inadvertently left with (another police officer) the second page of the notice. I accept that this was done purely by way of oversight on the part of the police officers. P.2 of the Occupier’s Notice sets out under appropriate headings the basis for the issue of the warrant; the entitlement of the occupier to challenge the issue of the warrant or the conduct of the search; the limitations on the power conferred under the Search Warrant and the occupier’s entitlement to inspection of the Application for the Search Warrant, the written reasons for the issue of the warrant and other associated documents held at the Local Court of issue.”
109 Ireland AJ referred to the judgment of Kirby P (as his Honour then was) in Carroll v Mijovich (1991) 25 NSWLR 441 and to the Second Reading Speech and reference therein to the major reforms introduced by the 1985 Act. He then added at [36]:-
“It is not to the point that the plaintiff may have said that he did not wish to read the warrant or even the Occupier’s Notice. The integrity of the execution of the warrant depends upon the performance of the various duties including that of furnishing the occupier with the Occupier’s Notice which on the face of it recognises that it contains ‘important information for occupiers concerning a search warrant’.”
110 It was held that the failure to hand the plaintiff a complete Occupier’s Notice meant that the execution of the warrant was contrary to law and a declaration to that effect was made.
111 The requirement for service of an Occupier’s Notice under s.15(3)(a) arises “upon entry”. It is in light of that provision that the proper construction of s.15(3)(b) may be derived.
112 The latter provision essentially provides for service of an Occupier’s Notice other than on entry of the premises searched. Section 15(3)(b), insofar as it provides that “if no such person is then present in or on the premises …” (emphasis added), is a reference to the time of entry, as referred to in s.15(3)(a). If the occupier is not present at the time of entry into or onto the premises, then s.15(3)(b) provides two alternatives for the service of an Occupier’s Notice:-
(a) Personal service of the notice on the occupier.
(b) Service in such other manner as the authorised justice who issued the warrant may direct.
113 These alternatives, it is to be noted, are both subject to the requirement to effect service “as soon as practicable after executing the warrant”.
114 The evident purpose of s.15(3) was to ensure that an Occupier’s Notice was brought to the attention of the occupier either at the point of entry or “as soon as practicable after” the warrant’s execution. The importance and purpose which the legislature attached to the Occupier’s Notice and its service contemporaneously with the execution of the warrant or promptly thereafter is clear.
115 Similarly, s.15(4) is also an important provision. It provides for the postponement of the service of an Occupier’s Notice. However, it is not unlimited in its operation, for it specifically is concerned with and limited in its operation to “Service of an Occupier’s Notice pursuant to subsection (3)(b) …”.
116 It has been contended on behalf of the plaintiff that the power to postpone service only arises following, and not before, the issue of a search warrant and, in particular, after execution of it. That conclusion, it is said, is inescapable from the terms of s.15(3) read with s.15(4).
117 In Carroll v Mijovich (supra), Kirby P examined the historical background and statutory context within which the Act is to be construed. His Honour referred to the obligation to provide an occupier with a notice of rights as one of “… the major reforms introduced …” (by the Act). He quoted the Minister in the Second Reading Speech to the following effect (at 3860):-
“… this Notice will be given to every occupier of premises subject to search under a valid warrant. The Notice will contain details concerning the reason for the search and the nature of the powers conferred by the warrant. The language of the Notice will be plain so as to enable the occupier to check that the warrant has been properly issued. The Notice will contain advice in relation to seeking legal assistance should the occupier be dissatisfied with any aspect of the search. The occupier will keep this Notice. While introducing the idea of an Occupier’s Notice, the Bills preserve the requirement to show the original warrant.”
118 Parliament did not expressly provide in the Act for the consequence of a failure to comply with s.15. In those circumstances, as in Carroll (supra), it is necessary to identify, if possible, any presumed legislative “intent” from the words of the provision in question. As Kirby P there stated (at 449), the relevant words are to be construed in the context of the Act as a whole and for the purpose of achieving the objects which may be imputed to Parliament in providing as it did in that provision.
119 The execution of a search warrant is a serious matter (Carroll v Mijovich (supra) at 449). In the present case, the effect of the approach taken by each applicant and those executing the warrants was to give priority to operational considerations over and at the expense of the procedural safeguards in s.15 of the Act.
120 The operational requirements of law enforcement agencies may be such, in a particular case, that a covert search warrant procedure is considered by those involved in an investigation as being desirable or even necessary. Inconvenience without such a procedure may result. However, it is the terms of the statutory scheme that determine where the balance lies between the interests of such agencies and the interests of the occupiers of premises. Accordingly, it has been observed:-
“[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights”: Plenty v Dillon (1991) 171 CLR at 654 referred to by the Full Court of the High Court in Coco v The Queen [1993-94] 179 CLR 427 at 436.
121 Kirby J in Ousley (supra) stated (at 144) that occasionally there is a need for the enlargement of police powers beyond those traditionally enjoyed. His Honour noted the accepted approach that courts properly tend to adopt a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them. However, his Honour also observed that when a real defect is demonstrated “courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected” (at 144).
122 The Search Warrants Act provides occupiers of premises with procedural safeguards. Provisions by way of exception or qualification would be required to limit their application in particular cases. In Morris v. Beardmore [1981] AC 446, Lord Scarman (at 463) stated:-
“When, for the detection, prevention or prosecution of crime, Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation.”
123 In Regina v Inland Revenue Commissioners (1980) AC 952, Lord Wilberforce, at 997-998, stated:-
“The Courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens’ right to privacy. But they must do this in the context of the times, ie., of increasing Parliamentary intervention, and of the modern power of judicial review. In my respectful opinion, appeals to 18th Century precedents of arbitrary action by Secretaries of State and references to general warrants do nothing to throw light on the issue. Furthermore, while the Courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process.”
124 However, in this case, whilst particular provisions of the Act curtail occupier’s rights, they only do so to the extent that the Act authorises. Whilst the presumption against statutory interference with fundamental rights may be displaced by necessary implication, that test is a very stringent one: Coco (supra) at 438. The presumption, as the High Court stated in that case, may be displaced if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. That principle, however, has not been contended as having application in the present proceedings.
125 In the written submissions on behalf of the third, fourth and fifth defendants (paragraph 13), examples are provided of what are said to be “reasonable grounds for searching the premises in the absence of an occupier and/or postponement of the warrant …”. The examples provided were as follows:-
(a) Safety concerns if the warrant were to be executed in the presence of the occupier or other persons on the premises.
(b) To prevent the risk of the search being frustrated upon police attendance (eg., disposal of drugs before police entry).
(c) The occupier being a known violent offender or having known mental instability rendering it unsafe for police to conduct a search in his/her presence.
(d) Public interest immunity concerns insofar as the search may be part of a wider operation and any search may tip other suspected officers off when searches may be proposed with respect to other premises.
(e) To prevent any compromise or frustration of any ongoing investigation.
126 However, be that as it may, there is not to be found in the Act’s detailed regime governing the issue and execution of search warrants authorisation for their execution covertly. The provisions of the Act, in fact, point in the opposite direction. The regulatory regime is clearly intended to protect persons as occupiers of premises that are the subject of a warrant, by requiring, inter alia, that they be given a notice of rights.
127 The covert execution of each of the warrants was, in my opinion, clearly contrary to the provisions of the Act. It is plain that the planned covert nature of the execution in each case had the effect of negating the procedural safeguards provided for by the Act. The result is that the execution of each warrant was, in my opinion, unlawful.
(c) The question of the validity of the decision to postpone service of the Occupier’s Notices
128 It is clear from what has been earlier stated that there is support for the contention that a decision by an authorised justice to postpone service of an Occupier’s Notice solely for the purpose of enhancing the effectiveness of police investigations was not an available ground for a decision to postpone serve under s.15(4) of the Act.
129 However, given the conclusion expressed above, namely, that the execution of each warrant was unlawful, it is unnecessary to express any concluded view on this aspect.
Issues relating to the Occupier’s Notices
130 A number of procedural issues were raised concerning the Occupier’s Notices. These were:-
(a) whether an Occupier’s Notice in each case had been served;
(b) if such a notice had been served, the date upon which they were served;
(c) in the case of the third warrant, whether service of the notice upon the plaintiff’s solicitor was service for the purposes of the Act.
131 In light of the conclusion reached and expressed above, namely, that the execution of each warrant was unlawful, it is not necessary to deal with and resolve each of these procedural issues. They each relate to matters that post-dated the execution of the warrants and would only have required determination had the execution of the warrants otherwise been lawful.
132 It is also unnecessary, given the conclusion which I have expressed as to the lawfulness of the execution of each warrant, to resolve on a final basis the contention that the search was conducted on a selected basis as an intelligence-gathering exercise (see paragraph [25]). I simply observe that under s.7(1))(a) of the Act, police executing a warrant had a discretion to (“may”) seize things mentioned in a warrant. There may in particular circumstances be a strategic reason for not seizing all such things. Further, a search of premises under a warrant will result in police executing a warrant making observations. The fact that a note may be made of such observations during the course of a lawful execution of a warrant does not, to my mind, render the execution of a warrant unlawful.
Covert search warrant legislation
133 Mr Robinson referred to legislation that expressly addresses the subject of covert search warrants. Ms Richardson, on behalf of the defendants, correctly submitted that references to other legislation, in particular, the provisions of the Terrorism (Police Powers) Act 2002 (NSW), Part 3 – “Covert search warrants”, does not assist in the construction of the Act’s provisions. In deference to the submissions made, I will deal briefly with some of the matters raised.
134 Reference to such legislation does, at least, demonstrate, as one might expect, that the legislature has marked such covert investigative procedures as calling for specific provision, given the obvious implications such procedures have for the civil rights of occupiers of premises. This may be seen as reflected in the provisions governing the authorisation of applications for a covert search warrant under the Terrorism (Police Powers) Act. Section 27C requires, inter alia, that the person giving authorisation for a covert search warrant to issue must suspect or believe on reasonable grounds, inter alia:-
“(c) that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises.”
135 In this provision, the test of necessity rather than that of desirability or mere convenience has been selected by the legislature and sets the bar at a high level before authorisation may be given for such a warrant to issue.
136 Mr. Robinson provided a copy of an article entitled “Sneak and Peek Search Warrants and the USA Patriot Act” (September 2002). The article addresses the issue of statutory authorisation for what are referred to as “covert entry search warrants” or “surreptitious entry search warrants” (also referred to in the article as “sneak and peek search warrants”). In the year 2001, s.213 of the Patriot Act introduced for the first time statutory authorisation for such warrants. The section is not restricted to terrorism offences but potentially applies to any federal crime. Provision is made in that statute whereby any notice required to be given may be delayed, inter alia, if “… the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result …”.
137 The expression “adverse result” is defined as including specific circumstances such as “… otherwise seriously jeopardising an investigation or unduly delaying a trial”.
138 These provisions enacted in the United States reflect the acceptance, evident in some legislation enacted in recent times in Australia, for there to be specific statutory authority for covert search and seizure warrants. See, for example, the Terrorism (Police Powers) Act 2002 (NSW), the Police Powers and Responsibilities Act 2000 (Qld) (s.215, in relation to what is termed “Designated offence, organised crime or terrorism” in Chapter 9, Covert Searches), the Terrorism (Community Protection) Act 2003 (Vic) and the Terrorism (Emergency Powers) Act 2003 (NT).
139 In relation to the three warrants, I am of the opinion that each warrant was validly granted under the Act.
140 I have also concluded that the execution of each warrant was contrary to the Act and was, accordingly, in each case unlawful.
141 I, accordingly, consider that the plaintiffs are entitled to relief by way of declaratory relief in the following terms:-
(a) That the execution of the search warrant issued on 24 September 2002 by the first defendant at the Local Court of New South Wales at Redfern in respect of specified premises at Randwick (“the first warrant”) upon application by the third defendant was unlawful.
(b) That the execution of the search warrant issued on 11 November 2002 by the first defendant at the Local Court at Redfern in respect of specified premises at Bondi Junction (“the second warrant”) upon application by the fourth defendant was unlawful.
(c) That the execution of the search warrant issued on 19 December 2002 by the second defendant at the Local Court at Redfern in respect of specified premises at Bondi Junction (“the second warrant”) upon application by the fourth defendant was unlawful.
142 I request that the parties produce short minutes of orders to give effect to this judgment. I will provide the parties with the opportunity of making submissions in relation to any ancillary orders including any order as to costs.
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