Hausfeld v Commissioner of Police

1. [1]

   In these proceedings the plaintiff seeks, pursuant to a summons filed on 12 April 2018, an order declaring that a search of his premises at 50 Oakland Drive, Banora Point on 6 April 2017 and the seizure of items from those premises was not lawful because the warrant under which police officers purported to act was not regularly issued. He seeks an order quashing or declaring invalid both the warrant and the occupier's notice issued in connection with it. He claims further relief by way of an order for delivery up of items that were seized under the subject warrant and an injunction to restrain police from acting on or taking any further step in relation to material seized.

2. [2]

   The active defendants in the proceedings are the first defendant, the Commissioner of Police, and the second defendant, Detective Sergeant Allcroft, who applied for the subject warrant under the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”). Now before the Court for determination is a notice of motion filed by the first and second defendants on 15 May 2018 seeking that the summons be dismissed as an abuse of process. The ground for that application is that in circumstances where the plaintiff has been indicted on charges based upon the evidence seized under the subject search warrant, to permit this summons to be litigated in this Court would fragment those criminal proceedings. The defendants contend that the question whether the warrant was regularly issued can be determined by the District Court Judge who is to preside at the plaintiff’s trial, upon an application by the plaintiff to exclude the evidence as having been unlawfully or improperly obtained.

3. [3]

   The subject warrant was applied for on 6 April 2017 under s 140 of the Law Enforcement Act. Upon issue on that date the warrant was executed at 50 Oakland Drive, which was occupied by the plaintiff. At the premises police located and seized prohibited drugs and other items. Upon the basis of those seizures and other evidence in possession of police, a large number of charges were laid against the plaintiff on 7 April 2017 by the issue of court attendance notices.

4. [4]

   He was charged with possession of cocaine, cannabis leaf, oxycodeine, cannabis seeds and testosterone. He was also charged with possession of a prohibited weapon, namely a set of handcuffs. He was charged with being in possession of the proceeds of crime, one count in respect of $12,000 in cash and another in respect of $99,950. The plaintiff was charged with knowingly take part in the supply of drugs, including those earlier mentioned and methylamphetamine.

5. [5]

   The criminal proceedings progressed through the Local Court during 2017. The brief was served sequentially. By 4 June 2017 a copy of the warrant which had been executed was served as part of the brief. On 2 February 2018 the full police brief was served. On 20 February 2018 the plaintiff was committed to the District Court at Lismore for trial.

6. [6]

   On 11 April 2018 the Crown sought to have the plaintiff arraigned but the plaintiff successfully applied for adjournment of that procedure upon intimation to the Court that the summons which is now before me would be filed. It was so filed the next day. Subsequently on 26 April 2018 and 1 June 2018 there were further listings of the matter in the District Court at Lismore. Ultimately it has been listed for mention on 22 November 2018 and for trial on 26 November 2018.

The application and the warrant

1. [7]

   Section 140 of the Law Enforcement Act is within Pt 11. It provides as follows:

2. [8]

   Section 60, which is in Pt 5 of the Act, contains the following provisions concerning applications for warrants generally, including those sought under s 140:

3. [9]

   Section 62 also has a bearing upon applications for warrants under s 140. It stipulates as follows:

4. [10]

   Clause 6(1)(d) of the Regulation made under the Act specifies that a warrant issued other than under Pt 5 is to conform to Form 14. Form 4 is prescribed by cl 4(1)(d) of the Regulation as the pro forma of an application for a warrant under s 140. As best I can understand the challenge which the plaintiff wishes to make to the warrant issued in this case, it concerns both the form of the application made to the eligible issuing officer and also the form of the warrant itself.

5. [11]

   In the application to the issuing officer the second defendant, Detective Sergeant Allcroft, set out her grounds for believing that the issue of a s 140 warrant was justified. These included the following:

6. [12]

   Further information advanced by the applicant to justify the issue of the warrant was set out following the above passage. Then on p 4 there was an item 4 in the form, in which the applicant was required to specify functions which the applicant sought to be able to carry out upon entering the subject premises. A note to guide persons completing the application was included on the pro forma prescribed in the Regulation, in these terms:

7. [13]

   The second defendant completed item 4 of the application in these words only: "Powers conferred in Div 1 of the Law Enforcement Powers and Responsibilities Act 1985". The section which the applicant evidently intended to rely upon was s 142, which is within Pt 11, Div 1. Section 142 contains the following with respect to the powers of a police officer executing a warrant under s 140:

8. [14]

   In completing item 4 the second defendant made reference only to "Div 1" rather than to "Div 1 of Pt 11" and made no reference to a particular section. The plaintiff’s argument on the summons would rely upon this as constituting non-conformity with the requirement of cl 4 of the Regulation and of Form 4 that is prescribed under it. The significance of this is greatly weakened by the circumstance that the proposed warrant was necessarily provided to the issuing officer with the application. The warrant clearly invoked the powers conferred by s 142 in Div 1 of Pt 11.

9. [15]

   The warrant issued was on Form 14 as prescribed by cl 6 of the Regulation. That form is structured in such a manner that under par 1 it would authorise the holder of the warrant to enter the nominated premises and under par 2 it would authorise the holder to perform certain acts. The note to cl 2 of the form contains this instruction as to how to complete that part of the warrant:

Alleged irregularities

1. [16]

   The plaintiff's argument on the summons would be that this warrant was not regularly issued. The first irregularity is said to be that the application was defective because of the manner in which Pt 4 of it was completed: see [14] above. That is said to be an inadequate description of the powers to be exercised under the warrant in that the application referred only to "Div 1" rather than to "Div 1 of Pt 11" and made no reference to a particular section. The plaintiff submits that this constitutes non-conformity with cl 4 of the Regulation and with Form 4 prescribed under it. The weakness of this point has been referred to in [14] above.

2. [17]

   Secondly, it is said that the application failed to identify things that were to be seized. Section 62(1)(d) and (e) are expressed conditionally rather than prescriptively and, prima facie, do not appear to have been contravened by the terms of this application. In any event this application did specify “kinds of things” which were to be searched for in the following terms:

3. [18]

   Thirdly, it is said that the warrant as issued was defective because it failed to specify an offence. The application specified an offence, namely mid-level drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (as quoted at [11] above). It is argued that although the Act and Regulations did not of themselves require that the warrant specify an offence, once an offence had been nominated in the application it had to be recorded in the warrant. Because par 2 of this warrant reproduced s 142(1), it referred (in subpar (d)) to the Drug Misuse and Trafficking Act but not to a particular penal provision of that Act.

4. [19]

   Fourthly, it is said that the warrant is defective because it does not specify what is to be seized. This submission is advanced notwithstanding that the quotation of s 142(1) at par 2 of the warrant imports the specification of “any firearm” and also "any prohibited drug, prohibited plant and money found on the premises and any syringe or other thing that is kept or used in connection with or relates to any activity prohibited by or under Drug Misuse and Trafficking Act”.

5. [20]

   All of these arguments appear, on first impression, tenuous at best. That is relevant to the exercise of the Court’s discretion whether to hear the summons or to leave the alleged irregularities to be ruled upon in the District Court. In the context of the criminal proceeding the tenuousness of the arguments would have a bearing upon whether the police who executed the warrant should have appreciated it was irregularly issued (if that should be the trial judge’s conclusion). That in turn would bear upon the discretion to admit or exclude the evidence.

Principles governing the plaintiff’s application for review

1. [21]

   The basis of the notice of motion to have the summons dismissed is that it amounts to a fragmentation of proceedings in the criminal court on the charges which have been laid against the plaintiff. It has been stated authoritatively and repeatedly that courts exercising civil and supervisory jurisdiction may, in their discretion, refuse to proceed with the determination of issues which bear upon the conduct of criminal proceedings where they are capable of being dealt with by the court of trial. This was expressed in strong terms in Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, in particular at 186-188.

2. [22]

   In opposition to the motion for dismissal of the summons the plaintiff has contended that the issues he raises with respect to the validity of the warrant and the legality of seizure of evidence under it are not matters which could be determined in the District Court. I reject that argument. In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [33] to [52] Basten JA surveyed the authorities on the nature of challenges to warrants which may be dealt with in a criminal court. What emerges from that summary is that in the present case the District Court trial judge will be able to determine whether or not, on the face of the record, the warrant complied with statutory pre-conditions for its issue and was regularly obtained. This may include deciding:

3. [23]

   This is not an exhaustive statement of the types of questions that may be resolved by the trial judge if the regularity of the issue of the warrant is challenged in the District Court. It is issues of this nature that the plaintiff raises by his summons. The plaintiff does not raise any challenge to the evidentiary sufficiency of the materials that were before the issuing officer to justify that officer’s determination that the factual pre-conditions for the warrant were established. Matters going to the sufficiency of evidence and hence to the merits of the issuing officer’s decision could not be looked into by a District Court trial judge on a challenge to the warrant. Indeed, as Basten JA's judgment in Gould v Director of Public Prosecutions (Cth) shows, they are not matters which could be examined upon any judicial review of the issue of a warrant. Judicial review of such an administrative decision does not extend to examination of whether the evidence presented to the decision maker was sufficient, in the view of the Court, to support the conclusions reached and the decision made.

4. [24]

   For present purposes the important point is that the challenge which the plaintiff wishes to make to this warrant can be made before the trial judge. This Court should decline to hear and determine such a summons when there are pending criminal court proceedings which, very clearly, would be fragmented, disrupted and delayed if the plaintiff’s summons should proceed to final determination.

5. [25]

   If the plaintiff pursues in the District Court his challenges to the warrant on the grounds that have been outlined to me, then in the course of determining the substance of those arguments the trial judge will be seized of an appreciation of how serious any departures from statutory requirements have been and whether they appear to have been deliberate, reckless or inadvertent. The trial judge will also, in the course of considering these challenges to the warrant, gain an understanding of how serious are the charges against the plaintiff and how important the evidence obtained under the warrant may be to the substantiation of those charges. Those are things which the trial judge would then take into account in exercising his or her discretion, under s 138 of the Evidence Act 1995 (NSW), whether to receive the evidence, assuming it should be found that the warrant was not regularly issued and that the material was therefore seized unlawfully. It is by far preferable that the whole of the issues be litigated before the trial judge where the discretionary considerations can immediately be brought to bear, with full information, if the challenges to the regularity of the warrant are sustained.

6. [26]

   This is not a case in which any significant question of law could usefully be decided in this Court on the plaintiff’s summons, with benefit to the legal profession and to the administration of justice generally. It is not a case which presents what might be termed a "question of law alone”, by which I mean a question of statutory interpretation or some other legal proposition which might be answered authoritatively by this Court in the abstract, divorced from the particular facts of this individual case. The present is not a case in which a useful general statement of the law of that nature might be declared. The issues which the plaintiff wishes to agitate are mixed questions of law and fact particular to his circumstances.

7. [27]

   A further discretionary consideration here is that of delay. The plaintiff has known of the terms of this warrant since 6 April 2017. He has known of the charges laid upon the evidence obtained under the warrant since 7 April 2017. The plaintiff has had in his possession, served as part of the brief, a copy of the warrant itself since at latest 4 June 2017. To bring proceedings in this Court on 12 April 2018, a year after execution of the warrant, when the prosecution has been on foot against him for the whole of the intervening period and the Crown is ready for trial, is a measure of delay that tells strongly against the Court exercising its discretion to entertain his summons.

8. [28]

   Upon all of these considerations, the Court's discretion could not be properly exercised in favour of proceeding to determine the summons on its merits. The defendants’ notice of motion should succeed. Accordingly the orders of the Court will be:

   1. (1)

      Pursuant to Uniform Civil Procedure Rules 2005 r 13.4, the summons is dismissed.

   2. (2)

      The plaintiff is to pay the costs of the first and second defendants of these proceedings, including of this notice of motion.