: Ng Xb pe - — ——- CATCHWORDS Appeal against order for directions upon return of oider n+si for certiorari - Material to be cxamined when consider 'ng validity of search warrant - Whether appeal should he entertained Criminal Law and Piocedure Act, ss.19(b}, 29(d) Federal Court of Australia Act 1976, s.24(1)(h) Supreme Court Act 1979, ss.21(1), 78 Supreme Court Rules, 0.353 ATTORNEY-GENERAJ, FOR TH} NORTHIRN TERRIIORY OF AUSTRALTA VTE QUPENG EX PARTE JGIUN RICHARD TO:LINSON No. NTG 39 of 1980 Coram: Fox, Forster and McGregor JJ. Darwin 9 March 1981 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION , No. NTG 39 of 1980 BETWEEN ATTORNEY-GENLCRAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Appellant AND ex parte JOHN RICHARD TOMLINSON . Respondent ORDER JUDGES MAKING ORDER. Fox, Forster and McGregor JJ DATE OF ORDER- 17 March 1981 WHERE MADE. Darwin The Court orders that. 1) The appeal be dismissed with costs. vem + IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. NTG 39 of 1980 BETWEEN, ATTORNEY-GENERAL FOR THE NORTHER:. TERRITORY OF AUSTRALIA Appellant AND THE QUELN ex parte JOHN RICHARD TOMLINSON Respondent CORAM: FOX, FORSTER and MCGREGOR JJ The 17th day of March, 1981. The Attorney-General for the Northern Territory (appellant) appeals against an interlocutory order made by his Honour Mr. Justice Muirhead on the 2 December 1980. On 20 March 1980, a search warrant, which is the subject of the argument in this case, was issued by Mr. G.P. Galvin, Chief Stipendiary Magistrate for the Northern Territory, in purported reliance on the Criminal Law and Procedure Act of the Northern Territory, s.10(b)._. Section 10(b) is as follows. "10. If a Justice of the Peace is satisfied by evidence on oath, whether orally or by affidavit, that there are reasonable grounds for believing that there is in certain premises or a vehicle, vessel, aircraft or place - Fe Be eee Se Perrys rene (b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of such an offence." The warrant in terms permitted search for and seizure of any video tape depicting the arrest of Geoffrey Yumarra on 10 February 1976. 'thereafter, on the same day, certain incidents occurred at Winnellie when police officers, relying on the warrant, seized copics of a video tape film from John Richard Tomlinson (respondent). On 22 July 1980, three complaints and an intormation were laid on oath against the said respondent and sunmonscs served on him in respect of them. 'wo of the said complaints are set out in material placed before us as follows:- "ol. . (The Respondent) . . . On the 20th day of March 1980 at Darwin in the Northern Territory of Australia resisted a member of the Police Force in the execution of his duty contrary to Section 158 of the Police Administration Act. . . AND FURTHER on the 20th day of March 1980 at Darwin obstructed a member of the Police Force in the execution of his duty. Contrary to Section 159 of the Police Administration Act." ee It appears from the particulars supplied in respect of the first charge that the alleged resisting by the respondent occurred when the member of the police force was exccuting the search warrant referred to earlicr. On 27 October 1980 the matter the suhject of the conplaints came on for hearing before Mr Murphy, Stipendiary Magistrate, in the Summary Court of Jurisdiction in Darwin, whereupon the respondent's counsel challenged the validity of the warrant and sought an adjournment of tne hearings. On 29 October 1980 his Vorship refused to rule upon the validity of the warrant or to grant a further adjournment; but for other reasons unconnected with this argument, the further hearing was, in fact, adjourned on thet day. On 12 November 1980 an order nisi for Certiorari was made by his Honour Mr Justice Muirhead to quash the search warrant issued by the learned Chief Stipendiary Magistrate. On 18 November 1980 the respondent's solicitors applied for directions and his Honour's order was made on 2 December 1980. It 1s against that order that . . . the present appeal is brought. Upon application made on 9 December 1980, pursuant to the Supreme Court Act 1979 s.78, it was ordered that the Attorney-General for the Northern Territory be joined as a party to these proceedings, and he is the appellant. On the appeal coming on to be heard there was no appearance by or on behalf of the respondent Mr Galvin, and no evidence that he had been served. At the request of the court an appearance was later made by counsc] on his behalf, who submitted to such order as the court might make. The order under appeal gives directions as to the hearing, or preparation for the hearing, of the return of the order nisi for certiorarj. It is in an unusual form in that, after formal statements, 1t reads - " . . . Tl IS ORDERED THAT upon the return of the order nisi for certiorari the following matcrial be considered upon the substantive argument:- .. ." (We have underlined "considered". ) Thereafter follows a list of various natertal' (a) the affidavit of John Richard Tonlansen and exhibits thereto already filed; (b) the original warrant; {c) any records naintained by the Chief Stipendiary Magistrate relating to the issue of the warrant in question; (d) affidavit evidence of the Chief Stipendiary Magistrate relating to any information or evidence supplied to him at the time he granted the warrant; (e) affidavit evidence of Inspector O'Brien setting out the information or evidence supplied by him (or any other police officer in his presence) to the Chief Stipendiary' Magistrate. In his use of the word "considered", 1t would appear that his Honour paid due deference to the argunent on behalf of the Attorney-General, which was to the effect that on such an application, the only matter to be considered should be the warrant itself. It appears that his Honour probably intended that the resolution of this matter he left open to the argument which might be presented in due course to make the order absolute. To have done otherwise would have been to enter upon the substance of the hearing to make the rule absolute. For the purposes of this appeal we are prepared to assume that the directions given came within the powers expressly or impliedly given to judges of the Supreme Court (see Order 33), and that the order under appeal is a "judgment" within the meaning of the Federal Court of Australia Act 1976, s.24(1)(b} (see s.4). No argument on these matters was addressed to us. The appellant by his counsel does not object to the production and taking into evidence on the return of the order nisi of the documents referred to in (a) and (b) ot the directions. Counsel's submission is that the other directions display a wrong view of the relevant law, and should not have been given. The notice of appeal asserts a number of errors in the directions given but the essence of the matter can be found in (a) and (b) which are as follovs:- (a) finding that in the case of proceedings brought to test the validity of a search warrant issued pursuant to the provistons of Section 10 of the Criminal Law and Procedure Act of the Northern Territory of Australia that the record to be exanined comprises anything more than the warrant itself; (b) in deciding that the issue of the validity or othernise of the warrant was to be decided by considering material additional to that appearing upon the face of the record." There is no attack upon the order nisi itself and we must assume that it was correctly made, that is, that there was a case to support it. The contention of counsel for the Attorney-General is that in the case of a search warrant which on its face complies with statutory provisions and is otherwise regular - the court should not receive any further evidence, even although jurisdiction to grant the warrant is challenged. We have not been shown the affidavit referred to in (a) of the directions. Although counsel for the Attorney-General] and for the prosecutor were anxious to argue a question ahout what material should be examined when considering the validity of a search warrant, the court raised with them at the outset the question whether we could or should entertain the appeal. As both submitted that the appeal could proceed on the question they wished to arguc, we heard submissions thereon and wil] later make some comments on their relevance and merits. We are of the view, however, that the question comes hefore us at a premature stage, and is as a result an abstract one. I1t has long been held that such a question should not be dealt with, and as being in that sense beyond the power of the court to which it 1s presented. (Stephenson Blake § Co. v Grant, Legros & Co. (1917) 86 L.J.Ch. 439; Australian Commonvealth Shipping Board v Federated Seamen's Union of Australia (1925) 36 CLR 442, 452). In our view, the same holds good in an appeal under the Federal Court of Australia Act. We are asked to decide the question without reference to the evidence already called, and with only a limited foresight of what the ultimate facts might be found to be. The principal reliet sought is in any event to a limited degree discretionary (R v Staiford Justices (1940) 2 KB 33 at 43, 44; Yairrell v Yirrell (1939) 62 CLR 287 at 297). A decision on (c), (d) and (e) of the directions will not of itself determine the 1ssue betwecn the parties and may or may not prove to be critical in doing so. His Honour was not finally determining what material could be examined by the court which would decide in due course whether the writ would go; he was endeavouring to anticipate the nature of material which might be thought on the question of validity by the future presiding judge to be material he should consider/ Its admission would depend on a number of matters, including its form, and his Honour's order could not foreclose argument as to admissibility at that stage. Turther evidence, or evidence of a different nature, may well be admissible. A contlict of testimony might arise. [lis Honour's order was a procedural step in the proccedings, without finality. It was intended to help the partics 1n the preparation of their cases and has doubtless done so. But neither can appeal at this stage. The abstract nature of the question was emphasised in argument by the fact that although invited to do so, neither counsel sought to examine closely before us the terms of the warrant or how consistent it was with the statutory grant of power under which it 1s said to have been issued. The question posed has been extracted from the evidence in the case; it does not come before us as part of a stated case (see s.21(1) of the Supreme Court Act 1979; cf Spratt v Hermes (1965) 114 CLR 226); and even a stated case would have to deal with ultimate facts. The order in question was made by his Honour after hearing argument at some length, mainly as to what constitutes the "record" tor the purposes of certiorari. Because this 1s a case which admittedly involves the jurisdiction of the Magistrate (sitting as a justice of the peace) the ascertainment of what constitutes the record does not take on the significance it has when the sole question is one of error of law on the face of the record. This latter basis for certiorari has had a different history from that relating to absence of jurisdiction, and the extent of the materials which may be examined for error of law has been the subject of much discussion and difference of opinion (see "Principles of Australian Administrative Law" Whitmore 5th edn. (1980) pp. 174-178). In a case such as the present, if the prosecutor is successful, the effective part of the order will be that the warrant be quashed It may be that for some purposes the record will include the affidavit (if any) leading to the warrant, or some note of the "evidence on oath" kept by the magistrate, but it is confusing and as a general proposition wrong to say that only the "record" can be looked at, it is well established by many authorities that if necessary evidence can be received in the certiorari proceedings which goes to show want of jurisdiction. Halsbury's Laws of England, 4th edition, Vol. 11, para. 1559 states the law as follows "Where certiorari is sought on the ground of error of law on the face of the record, the court will not admit any extraneous evidence the error must be apparent from the record itself. Where certiorari is sought on the ground of absence or excess of jurisdiction, bias by interest, - fraud or breach of natural justice, extraneous evidence of these matters will be admissible, and indeed necessary, if they are not apparent on the face of the record." The warrant is in a standard form, apparently prepared for use under other legislation There are a number of errors in it, and in the middle, where reference is made to the offence, 1t is jumbled. Section 305 of the Criminal Law Consolidation Act and Ordinance 1876-1960, which is referred to, relates to the malicious publication ofa defamatory libel, knowing the same to be false, and not simply "defamatory libel'', as stated in the warrant. Whereas s.20(b) of the Criminal Law and Procedure Act refers to evidence on oath, the warrant reters to information on oatn. _, The sub-section refers to reasonabJe grounds for hclievins the presence of goods in certain premises, but the sarrant says the justice of the peace had reasonable ground for suspecting their presence there. While belief may be regarded as encompassing suspicion, in the absence of a special content the reverse 1s not true (see Shorter Oxford English Dictionary; 3rd Edn. pp 165,2204, 10 Corpus Juris Secundum p.238 and cf. G.H. Photography Pty. Ltd. v. McGarrigle (1974) 2 NSWLR 635 at 643). It 1s for the trial judge to decide what effect, 1° any, these errors and variations have on the validit) of the warrant. We refer to the matter for three reasons, The argument before us assumed that the warrant was valid and regular on its face; this was the Foundation of the argument on behalf of the Attorney-General. As we have said, the mattcr was not argued. The fact 1s that, having been issued by an inferior tribunal or authority, the warrant must show juris- diction on its face; (Gossett v Howard (1847) 10 QB 359 and see Yirrell v Yirrell (1939) 62 CIR 287 especially at 298, 37-8) in the absence of special statutory provision regularity is not assumed. If it does not show jurisdiction 1t 1s invalid. This view seems to have been accepted by the draftsman of the warrant, because it docs purport to show compliance with the requirements of s.10(b). Third, the fact that it 15 regular on its face does not exclude evidence going to show absence of jurisdiction; it follows from what has already been said that an assertion of the existence of jurisdiction is not conclusive. We are of the view that the appeal should he dismissed with costs, and we so order. I certify that this end the lo es are a true copy of the Aa, a Reasons for Juugment herein of (es Honcur preccc_ng Pp Ca Mr. Just.ces Fox, Forster and Me Gregue nn By Ba 02 Associate nated: YF Hance (71