Allen v Ewing and Anor

1. [1]

   The plaintiff filed proceedings in this Court on 13 October 2017 seeking declarations that a search warrant executed at premises in a place called Dorroughby in northern New South Wales was invalid and that a search conducted on 31 May 2017 pursuant to that warrant was unlawful. The nominated defendants to the summons were the police officer who applied for the warrant (the first defendant) and the Registrar of the Local Court who issued the warrant (the second defendant). As is customary, the second defendant will submit to the orders of the court. The first defendant will contest the summons.

2. [2]

   By notice of motion filed on 2 November 2017, the first defendant seeks an order that the proceedings be dismissed, or in the alternative that they be permanently stayed, or in the further alternative that they be stayed pending the resolution of criminal proceedings commenced against the plaintiff in the Local Court. At this time, the question before the Court is whether any of those alternative orders should be made.

3. [3]

   The grounds upon which such orders might be made are that the proceedings commenced by the summons are vexatious or frivolous, or that no reasonable cause of action is disclosed or, most relevantly in this case, that the proceedings represent an abuse of the process of the Court. For reasons that will become clear I am not satisfied that the proceedings are vexatious or frivolous or that no reasonable cause of action is disclosed. On the contrary. Further, I am not satisfied that the proceedings represented an abuse of process at the time they were commenced. However, the nub of the first defendant’s case on the notice of motion is that, at this stage, the proceedings are an abuse of process because there are concurrent criminal proceedings in the Local Court. The first defendant relies on a body of authority to the effect that, in the ordinary course of events, criminal proceedings ought not to be fragmented by the taking of interlocutory appellate points or the bringing of concurrent proceedings in courts other than the court of trial.

4. [4]

   To understand the submissions of the parties and the decision I have reached, it is necessary to understand the chronology of events leading up to the hearing of the notice of motion as well as the facts of the case in very general terms.

5. [5]

   Before setting out that chronology and summarising the facts giving rise to the substantive criminal proceedings, it may be helpful to identify at the outset the legal issue at the heart of the controversy between the parties on the notice of motion. That issue is not one that is easy of resolution and requires a close analysis of the High Court's decision in Ousley v The Queen. [1] The question is whether the Local Court, in hearing the substantive criminal proceedings, has the jurisdiction or authority to consider the kinds of matters that the plaintiff seeks to ventilate in his summons before this Court. In short, the question is whether the Local Court has the power to determine that the warrant is invalid on the basis of matters other than legal errors that appear on the face of the warrant. Put another way, can the Local Court consider evidence and make findings about the circumstances leading up to the issue of the warrant?

6. [6]

   Counsel for the first defendant referred to this as latent legal error, to be distinguished from patent legal error on the face of the warrant. If the Local Court has jurisdiction to entertain arguments concerning such latent errors, there is more force in the first defendant’s contention that the concurrent proceedings in this Court represent an unwarranted fragmentation of the criminal proceedings and constitute an abuse of process (in that limited sense).

Chronology of events and litigation

1. [7]

   On 27 March 2017, police received information as a result of a report through "Crime Stoppers". The information was that a person called “Chris” was threatening to shoot someone and warned the person to stay away from his cannabis crops and macadamia trees on a property known as 26 Lace Flower Lane Dorroughby. It is not clear what, if anything, was done by way of the investigation of that information in the two months that followed.

2. [8]

   On 31 May 2017 police investigated the matters arising from the Crime Stoppers report. A Detective Fraser, along with a Senior Constable Thompson, attended the area and spoke to some local residents. Those enquiries caused the two police officers to attend a property at the corner of Dorroughby Road and Lace Flower Lane known as 584 Dorroughby Road, Dorroughby. They entered the land, made certain observations and spoke to the plaintiff’s father who said he knew nothing about the information the police were investigating. The police walked between two residences on the property and observed cannabis seedlings (or what they believed to be cannabis seedlings) growing in some trays. They returned to speak to the plaintiff's father and asked for permission to search the property. Permission was not granted. The police officers said they could obtain a search warrant. The plaintiff's father said that would be the better course.

3. [9]

   The two police officers remained on the property and made a number of further observations. They contacted the first defendant who indicated that he would make an application for a search warrant.

4. [10]

   The first defendant contacted the second defendant and made an application for a search warrant. Meanwhile, Officers Fraser and Thompson remained on the property. They saw two people (who I take to be the plaintiff's parents) leaving the property.

5. [11]

   Other police arrived with the search warrant and a search of the premises was undertaken. A number of relevant items were seized during the search. As a result of things that were found at the premises, a court attendance notice (“CAN”) was issued to the plaintiff on 23 June 2017. Six charges were particularised in the CAN:

   1. (1)

      Cultivation of 76 cannabis plants.

   2. (2)

      Possession of a prohibited drug, (10.6 kg of cannabis leaf).

   3. (3)

      Possession of a shot gun.

   4. (4)

      Possession of a Winchester rifle.

   5. (5)

      Supply (deemed) of the same 10.6 kg of cannabis subject to the second charge.

   6. (6)

      Receiving the shot gun and rifle subject of the third and fourth charges knowing that those items had been stolen.

6. [12]

   On the same day (23 June 2017) the matter was first mentioned before the Lismore Local Court. The case was adjourned for mention on 8 August 2017 and an order was made for the service of the prosecution brief by 31 July 2017. Bail was refused and the plaintiff was taken into custody.

7. [13]

   On 8 August 2017 the matter came back before the Lismore Local Court. The prosecution (or police) had failed to comply with the brief service orders. Even so, the matter was listed for hearing on 13 October 2017 and a further order for service of the prosecution brief was made.

8. [14]

   On 15 August 2017 the plaintiff was granted bail by the Supreme Court.

9. [15]

   On 11 September 2017 the matters were mentioned in the Lismore Local Court. Complaint was made about the failure of the prosecution to comply with the further brief service orders and the Magistrate directed the attendance of a police officer to explain the failure of police to comply with those orders. The matter was mentioned in the Local Court again on 18 September 2017 at which time the Magistrate was told that the prosecution brief had been served.

10. [16]

    On the same day the plaintiff’s solicitor (Ms Randall) issued a subpoena directed to the New South Wales Police Force to produce various documents relevant to the lawfulness of the search and validity of the search warrant. On 3 October 2017 documents were produced to the Court in response to the subpoena. An application was then made to the Lismore Local Court on 8 October 2017 to inspect the documents.

11. [17]

    On 8 October 2017 Ms Randall wrote to the Registrar of the Lismore Local Court seeking the opportunity to inspect a number of documents relevant to the validity of the search warrant. On 11 October she wrote to the Local Court and indicated that “the lawful basis for the execution of a search pursuant to the search warrant … will be in issue at the hearing of these charges”.

12. [18]

    On 12 October 2017, Ms Randall attempted to file the summons in this Court in which declarations were sought in relation to the validity of the search warrant and legality of the search. For reasons that are not clear, the filing date stamped on the summons is 13 October 2017.

13. [19]

    On 13 October 2017 the case was before the Lismore Local Court for defended hearing. However, contrary to what the Court had been told at the mention on 18 September 2017, the full prosecution brief had not been served. The plaintiff made an application to adjourn the proceedings on two bases; first, that the full brief had not been served and second, that proceedings had been commenced in this Court and that the Local Court should await the outcome of the Supreme Court proceedings before embarking on a hearing of the substantive charges. The prosecution did not oppose the adjournment application and the matter was adjourned for mention on 20 November 2017.

14. [20]

    The final item in the brief has since been served and the proceedings in the Local Court are currently listed for mention on Monday, 11 December 2017. Subject to what happens in this Court and the status of these proceedings, it would be expected according to the parties appearing before me that the case would receive a hearing date in the Local Court in April or May 2018. On my understanding of the list, it is unlikely that the summons in this Court would receive a hearing date before that time.

15. [21]

    Meanwhile, on 2 November 2017, the first defendant filed its notice of motion seeking that the plaintiff’s summons be dismissed, permanently stayed, or stayed pending the outcome of the Local Court proceedings.

The issues surrounding the validity of the warrant and the lawfulness of the search

1. [22]

   There is no suggestion, as I understand it, that the search warrant was (or is) invalid on its face.

2. [23]

   Rather, the plaintiff will submit, either in this Court, or in the Local Court, or both, that the warrant was invalid due to the circumstances surrounding its issue. To that end the plaintiff’s solicitor has taken a number of steps to obtain the information available to police at the time the warrant was issued as well as the documents and information upon which the second defendant determined to issue the search warrant.

3. [24]

   It is obviously not necessary to come to any conclusions as to the validity of the warrant or the lawfulness of the search in determining the appropriate outcome of the first defendant's notice of motion. In fact, to do so would be quite inappropriate. However, to reach any conclusion as to the orders sought in the notice of motion, it is necessary to understand the nature of the arguments that are to be advanced as to the validity of the warrant and the lawfulness of the search. Plainly, if those assertions are unarguable, destined to fail or hopeless, the summons should be dismissed. However, the first defendant eschews any suggestion that this is the case. Rather, the argument is that the maintenance of the summons at this stage represents an abuse of process because of the fragmentation of the criminal proceedings. However, it is necessary to understand the nature of the attack that the plaintiff intends to make in order to determine whether there truly is a fragmentation (or duplication or concurrency) of the proceedings on the basis that the Local Court is able to deal with the kinds of arguments, and receive the necessary evidence, that the plaintiff could adduce in seeking declaratory relief in this Court.

4. [25]

   As I understand it, the basis of the attack on the lawfulness of the police conduct falls into two main categories. Those categories are related.

5. [26]

   First, the plaintiff will argue that the police had already commenced the search of the premises prior to obtaining the legal authority provided by the search warrant. Such evidence as there is before me suggests that this proposition is at least arguable. That is, there is evidence that the occupants of the property did not consent to the search and indicated that the police should obtain a warrant before conducting the search. Rather than leaving the property, the two officers remained on the property and, it seems, may have conducted the search in the sense that they were looking around and making observations (some of which may have been used implicitly in applying for the warrant).

6. [27]

   Secondly, the plaintiff will seek to argue that the first defendant provided the second defendant with incomplete and inadequate information in relation to the circumstances in which he (and the officers at the scene) formed a reasonable suspicion that there were items on the property meeting the description of the items nominated in the warrant and which were connected with the offence nominated on the face of the warrant. Again, without going into the limited evidence available at this time, and without reaching any conclusion as to the merit of this contention, this second proposition is also at least arguable.

7. [28]

   As I have said, in view of the limited decision I am called upon to make, the incomplete evidence tendered and the absence of full argument, it would be inappropriate to express any opinions as to these issues other than to determine that there are legitimate arguments that can be made. It is then necessary to consider (1) whether the Local Court hearing an objection based on section 138 of the Evidence Act 1995 (NSW) is authorised to receive the evidence that would need to be elicited to advance these arguments and (2) whether the Local Court has jurisdiction to determine those issues.

8. [29]

   It is clear that in order for the plaintiff to make such arguments before any court, it would be necessary for the plaintiff to elicit evidence going beyond the tender of the search warrant itself. There is any number of documents, as well as oral evidence, that would have to be received in order to determine the arguments that the plaintiff seeks to advance.

Does the Local Court have jurisdiction to receive such evidence and to hear such arguments?

1. [30]

   There was a spirited and interesting debate on the hearing of the notice of motion as to whether the Local Court had jurisdiction to receive evidence upon which a collateral attack on the warrant might be made.

2. [31]

   Given their respective positions in the criminal proceedings, the approaches taken by the parties were somewhat unusual. By that I mean that ordinarily, in a criminal trial, it is the accused person who argues that that the trial judge has the jurisdiction to receive such evidence and make such determinations; while the police or prosecution (often enough) contend that if the warrant is valid on its face the trial court cannot go beyond the terms of the warrant: see, for example, R v Simmons; R v Moore (No 3) [2015] NSWSC 189 especially at paragraphs [73] to [80].

3. [32]

   However, in this Court, counsel for the plaintiff (that is, the accused in the Local Court) submitted that the Local Court hearing the substantive charges would have no jurisdiction to hear submissions concerning a collateral attack on the validity of the warrant. On the other hand, the first defendant (the police officer who applied for the search warrant) submitted that the Local Court would have jurisdiction to receive evidence on the issue and to make findings concerning the plaintiff's collateral attack on the warrant.

4. [33]

   Both parties placed reliance on the decision of the High Court in Ousley v The Queen, at times relying on the same passages of the judgments to advance opposing submissions.

5. [34]

   The plaintiff submitted that there was a “clear majority” in Ousley v The Queen supporting its proposition that no collateral attack could be made on the search warrant in the absence of proceedings of the kind brought by his summons. He relied on observations made by Toohey J at 80 and 85, by Gaudron J at 87, by Gummow J at 124-131 and by Kirby J at 144-147. The plaintiff submitted that those passages supported the proposition that four of the five judges determined that no collateral attack on such a warrant could be made in the trial court and that only McHugh J held otherwise.

6. [35]

   Counsel for the first defendant contended that there was no such majority. It was conceded that the judgment of Toohey J supported the plaintiff's approach while the judgment of McHugh J supported the first defendant's approach. The judgments of Gaudron J, Gummow J and Kirby J needed to be read closely to understand precisely what it was that their Honours were saying. The first defendant submitted that on a close analysis, none of those judgments was authority for the proposition that a trial court could not entertain such a collateral attack on the validity of a search warrant or similar instrument.

7. [36]

   The first defendant relied on the following observation of Gaudron J at 87:

8. [37]

   However the plaintiff relies upon the words that immediately follow:

9. [38]

   Similarly, the parties each relied on the observations of Gummow J at [130]:

10. [39]

    And at [131]:

11. [40]

    The plaintiff submitted that Gummow J was suggesting that "appropriate proceedings" were the kind of proceedings that are currently before this Court by way of its summons, that is proceedings for judicial review of an administrative action. The first defendant submitted that the reference to "appropriate proceedings" was a reference to either the trial court or to a court entertaining an application for judicial review.

12. [41]

    The first defendant submitted that when Gummow J said that "the warrants were otherwise to be taken as effective until set aside in proceedings for judicial review”, his Honour was not suggesting that a trial court was prevented from determining that the warrant was invalid for the purpose of deciding whether evidence was unlawfully obtained. Further, the trial court could decide that a search was not sanctioned by the warrant if the court formed the view that the warrant was invalid due to some collateral attack made by the party seeking to impugn its validity. The first defendant submitted that Gummow J was saying that the validity of the warrant could be collaterally attacked in the trial court – because it was not “regularly granted” – but that any finding as to the validity of the warrant was only binding on the parties in those proceedings. For other purposes (for example in an action for trespass) the warrant would remain valid and the finding of the trial judge could not be relied upon in support of the proposition that the warrant was void in consequence of the collateral attack made in unrelated proceedings.

13. [42]

    Both parties accepted that the judgment of McHugh J was the clearest statement of principle that a collateral attack on the warrant could be undertaken in a trial court. Reference was made to his Honour’s analysis from page 100 to 102. In particular, I should refer to the following statements of principle: [2]

14. [43]

    A similar position was taken in Flanagan v Australian Federal Police where the Federal Court (Beaumont, Ryan and Lindgren JJ) said: –

15. [44]

    Perhaps more relevantly to the facts and circumstances confronting the plaintiff in the present case, their Honours said:

16. [45]

    Counsel for the plaintiff accepted that in an extreme case a trial court could entertain a collateral attack on a warrant. The plaintiff accepted that in the hypothetical situation I posited in R v Simmons & Moore (No 3) – namely that the trial court found that a police officer committed perjury in the application for a warrant – the collateral attack could be entertained. It is difficult as a matter of legal principle, to understand why, if such a collateral attack is authorised, why collateral attacks of a less extreme nature cannot be entertained. Further, it is impossible to know where the line would be drawn in determining which collateral attacks might be countenanced in the trial court and which might not.

17. [46]

    Ultimately, I am driven to accept the submission of the first defendant. This is in accordance with the view I expressed in R v Simmons & Moore (No 3) although I have re-considered the question carefully in view of the persuasive submissions of counsel for the plaintiff. I am satisfied that this approach is consistent with more recent decisions of the High Court in Minister for Immigration v Bhardwaj, Gedeon v NSW Crime Commission and Plaintiff S157, albeit that those decisions arose in different legal landscapes. [4]

18. [47]

    I am satisfied that the Local Court hearing the substantive criminal matters has jurisdiction to consider a collateral attack on the validity of the warrant, that the inquiry can go beyond the question of whether there is invalidity patent on the face of the warrant, and that the Local Court can receive relevant and admissible evidence in order to determine those issues.

Fragmentation of criminal proceedings

1. [48]

   Once it is accepted that the Local Court has the power to entertain a collateral attack on the validity of the warrant, the first defendant’s complaint that the criminal proceedings are apt to be fragmented by the maintenance of the summons in this Court becomes a potent one.

2. [49]

   There are many authorities in which courts of high authority have actively, if not stridently, discouraged a course where interlocutory applications are entertained during the currency of extant criminal proceedings. Ironically, in many of those cases, the court in question did in fact entertain those other applications. [5]

3. [50]

   The plaintiff accepts, notwithstanding the reality that superior courts have often entertained such applications during the currency of criminal proceedings, there is a general rule that criminal proceedings ought not to be fragmented. However, the plaintiff submits that this is the kind of case which falls in to the exceptional category because the evidence upon which the ultimate legal question turns (that is, the validity of the search warrant) is very confined. The first defendant contests this proposition and argues that this is not a case that would fall within the exception to the rule of practice against the fragmentation of criminal proceedings.

4. [51]

   The following observations of the High Court in Gedeon v Crime Commission v NSW Crime Commission are important:

5. [52]

   The plaintiff pointed to decisions of this and other courts where judges have entertained precisely this kind of argument. For example reliance was placed on the recent decision of Garling J in Lee v the New South Wales Commissioner of Police. [6] However, in that case, the area of debate was very confined and the summons commencing the proceedings was brought just two days after the execution of the subject search warrant and some considerable time prior to the institution of the criminal proceedings.

6. [53]

   Subject to one matter to which I will immediately return, I have concluded that this is a case where the Court should decline to entertain the summons at this stage. Subject to a further consideration of the precise content of the relief that should be granted, the plaintiff’s summons ought not to be heard and determined by this Court prior to the matter being ventilated and heard in the Local Court.

Can the prosecution take a different approach in the Local Court or might the magistrate refuse to entertain the plaintiff’s submissions?

1. [54]

   Counsel for the plaintiff, an experienced criminal lawyer who appears across all jurisdictions, expressed a concern as to what might happen if I reached the conclusion that the Local Court had the authority to entertain the kinds of arguments that the plaintiff will seek to advance in contending that the warrant was invalid and that the search was unlawful. The basis of his concern is that the parties to the proceedings before this Court are not the same as the parties in the criminal proceedings in the Local Court. The "prosecutor” or "informant" in the criminal proceedings is Detective Andrew Fraser, the officer who conducted the investigation and search of the plaintiff’s premises (assuming they are his premises), whereas the named defendant in this court is Detective Sergeant Ewing, the officer who made the application for the warrant. This was a point made by counsel for the first defendant in a different context in the course of oral argument.

2. [55]

   To put it shortly, counsel for the plaintiff was worried that when the matter comes on for hearing in the Lismore Local Court the prosecutor may contend, in direct contradiction to the submissions advanced by the first defendant before me, that the Local Court cannot entertain a collateral attack on the validity of the warrant but may only concern itself with legal defects patent on the face of the warrant. Such a stance would be contrary to the submission made on behalf of the first defendant in this Court and (ironically enough, I suppose) precisely in accordance with the submissions advanced by the plaintiff.

3. [56]

   Counsel for the plaintiff observed that criminal defendants are regularly confronted with technical applications and obstacles by the Commissioner for Police and those prosecuting summary matters in the Local Court. He pointed to difficulties encountered by the plaintiff’s solicitor in obtaining the information necessary to mount the present case. Counsel for the first defendant submitted that this judgment would be binding on the Local Court and, in any event, it would be most unlikely that the prosecutor in the criminal proceedings would advance a different submission to that advanced by the first defendant in the current proceedings.

4. [57]

   In deference to the concerns raised by counsel for the plaintiff, I should make it plain that if the prosecution were to attempt to shut the plaintiff out from advancing its case in terms of impugning the validity and integrity of the warrant and submitting that the search was an unlawful one, by reference to old authorities concerning the limitations on a trial court's power to find a search warrant to be invalid in the absence of patent legal error on the face of the warrant itself, the findings that I have made as to the fragmentation of the proceedings would no longer have the force and impact that I believe they have at this point.

5. [58]

   If such a contrarian approach were taken by the prosecutor in the Local Court proceedings, or if the Magistrate doubted his or her power to entertain the arguments or to receive the evidence upon which those arguments are based, the plaintiff should have leave to apply to this Court on short notice to re-ventilate the issues raised in his summons. Without purporting to bind a judge who might be called upon to consider the matter, this Court may then find favour with an application by the plaintiff to stay the Local Court proceedings pending the outcome of the determination of the plaintiff’s summons.

The appropriate relief

1. [59]

   The background and chronology of this matter does not support a finding that the plaintiff commenced these proceedings in bad faith. They were not (and are not) vexatious proceedings. It need hardly be said that lawyers of the experience and integrity of those representing the plaintiff were not acting frivolously in bringing this summons.

2. [60]

   Further, at the time they were instituted, the proceedings did not represent an abuse of process. While the matter was listed in the Local Court for hearing, the adjournment of the proceedings was inevitable given the failure of the prosecution on at least two occasions to comply with the Local Court's orders for the service of its brief. I cannot accept the submission of the first defendant that if the matter had proceeded, the only party which may have been disadvantaged was the prosecution. Until the whole of the prosecution brief was served, the plaintiff was not in a position to know whether the outstanding material was to his advantage or otherwise. He was not in a position to make important forensic choices in terms of the way in which the proceedings would be conducted.

3. [61]

   It is accepted by the first defendant that the case brought on the summons is not hopeless or untenable such that it would otherwise constitute an abuse of process and be subject to this Court's unquestioned power to strike out the summons or to dismiss the suit summarily.

4. [62]

   However, I accept that because of the undesirability of the fragmentation of the criminal proceedings and because of the conclusion that I have come to that the Magistrate is in a position to entertain the arguments that the plaintiff seeks to make as to the lawfulness of the search, and the validity of the warrants, the proceedings in this Court should not continue until the criminal proceedings in the Local Court have been decided.

5. [63]

   Of course, if the plaintiff is unsuccessful in the Local Court he will have a variety of avenues of appeal. That includes an appeal to the District Court by way of re-hearing and appeals on questions of law to this Court. In view of the concerns raised by counsel appearing for the plaintiff as to the possibility of those conducting the litigation in the Local Court doing a backflip or volte-face, I am not disposed to grant the primary relief sought by the first defendant in its notice of motion. That is, I do not propose to make an order dismissing the plaintiff's summons or an order permanently staying the proceedings on the summons.

6. [64]

   The appropriate relief is the third alternative sought in the notice of motion; that is, an order staying the proceedings pending the resolution of the criminal proceedings in the Local Court. That is the order I propose to make and I also propose to make an order that the plaintiff has liberty to apply on two days’ notice. I make that second order against the possibility that the plaintiff is confronted in the Local Court with an argument that the Magistrate does not have the power to deal with the issues he seeks to ventilate.

7. [65]

   For those reasons I make the following orders:

   1. (1)

      The proceedings in this Court (17/308967) are stayed pending the resolution of the criminal proceedings in the Local Court commenced by Court Attendance Notice H 65675339.

   2. (2)

      The plaintiff has liberty to apply to the Court on two days’ notice.

   3. (3)

      No order as to costs.

8. [66]

   After delivering this judgment orally the first defendant indicated that no application was made for costs. This was appropriate in view of the content of the judgment and the fact that the plaintiff was represented by a public defender and the first defendant is not funding the litigation personally. Accordingly I made no order as to costs.