DPP (NSW) v Sounthorn [1999] NSWSC 786

New South Wales Supreme Court CITATION : DPP (NSW) v Sounthorn [1999] NSWSC 786 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11493/99 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 4 August 1999

PARTIES : Director of Public Prosecutions (NSW) v Sourasith Sounthorn JUDGMENT OF : Michael Grove J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : J. Heagney

COUNSEL : P.I. Lakatos (Applicant) D. Jordan (Respondent) SOLICITORS : S.E. O'Connor (Applicant) T.A. Murphy (Respondent) CATCHWORDS : Local Courts - Justices Act Subdivision 6A - summary offence - A copy of a search warrant authorizing entry to premises is not necessarily required to be served as part of the brief of evidence pursuant to Justices Act s66B. ACTS CITED : Justices Act CASES CITED : George v Rockett & Anor 1990 170 CLR 104 DECISION : Declaration and Orders made. Remitted to Local Court Burwood for determination according to law.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

4 August 1999

11493/99 - DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v SOURASITH SOUNTHORN

JUDGMENT 1 HIS HONOUR : Constable Rachel Dowd laid an information against the defendant Sourasith Sounthorn alleging an offence contrary to s527C(1)(c) of the Crimes Act particulars of which were that he had $2,020 cash in his possession which may be reasonably suspected of being stolen or unlawfully obtained. A hearing commenced at Burwood Local Court on 10 February 1999. Constable Dowd commenced evidence that she and other officers made forcible entry into relevant premises and continued to the point when she testified that she showed a search warrant to the defendant and another person in the premises. The transcript then notes: "OBJECTION. EVIDENCE SHOULD NOT BE ALLOWED AS COPY OF SEARCH WARRANT NOT SERVED WITH BRIEF. LEGAL ARGUMENT." 2 Mr Kristhenthal the solicitor appearing for the defendant is recorded as saying that "it (the search warrant) was shown to him (the defendant), he retained it for a period of time and then it was subsequently taken back by the police". That remark is not consistent with some responses of the defendant during police interview when he appeared to claim that the police had no "paper, warrant". 3 The learned presiding magistrate requested the assistance of written submissions in connection with the objection and these were in due course provided. On 31 March 1999 he published a written judgment wherein he had posed four questions, the answers to which he regarded as germane to resolution of issues in the case before him. The fourth question was, as he recognized and expressed, critical. It is convenient to extract that part of his judgment namely: " Question 4 This is the critical question i.e. if the search warrant has not been served on the defendant pursuant to s.66B, is the prosecuting authority precluded from adducing evidence of a legitimate search? The answer to this question involves an examination of Subdivision 6A of the Justices Act. This was inserted into the Act relatively recently and in simple terms, it requires that a defendant who has pleaded not guilty be served, at least fourteen days before the hearing, with all of the material upon which the prosecution will rely at the trial. The intention of the Parliament in enacting Subdivision 6A seems to have been to put a defendant upon early notice of the case which is being brought against him so that he can organize his defence. As legislation which reforms the existing criminal procedures, it must be interpreted in a non-restrictive, liberal fashion. When one looks at the scope of the Subdivision, it follows that if the prosecution (as in this case) relies upon the issuing of a search warrant to justify what would otherwise be an illegal entry to premises, then that warrant (or a copy of it) must be served upon the defendant at least fourteen days before the hearing. It is the search warrant itself - and no other document - which authorises entry, search and seizure. My answer to question 4 is 'yes'." 4 After publication of those reasons an adjournment was granted to enable the parties to examine the content and as there is now dispute about the significance of what followed I will also extract the transcript record: "BENCH: Well where do we go from here? PROSECUTOR: Your Worship in view of the determination that you've made in respect of section 66 I think I'm precluded from calling any further evidence. So unfortunately I don't have anything that I can do, so to speak your Worship, in furthering this case. BENCH: Well it was only in the list today to hand down my reasons I think wasn't it? KRISENTHAL: Yes, as far as I'm aware your Worship. BENCH: So do you wish not to offer any further evidence, is that what you're - I mean I'm quite happy to put it over for a day or two while you consider your position. PROSECUTOR: That might be appropriate, thank you your Worship. I would appreciate that. Yes, if I could make further inquiries and consider the situation then that would certainly assist me. BENCH: See what you're left with I think now is evidence of a forcible entry, a search and seizure which can't be justified in terms of a search warrant and prima facie any evidence resulting from that process would be inadmissible. PROSECUTOR: Yes. BENCH: And unless it were admitted that would be the end of it wouldn't it? PROSECUTOR: Yes your Worship. And your Worship has made that determination that section 66 not being complied with or the warrant not being served with the brief then really I think it may be fruitless to put it over to another day. I think that it might be appropriate to deal with it today your Worship. BENCH: Well if you're happy to -- PROSECUTOR: Yes, well I don't think that an adjournment will assist me any further based on your Worship's decision. BENCH: Have you got anything you want to say about that, Mr Krisenthal? KRISENTHAL: No your Worship. BENCH: ON THE BASIS THAT THE PROSECUTOR OFFERS NO FURTHER EVIDENCE THE CHARGE WILL BE DISMISSED." 5 This summons was taken out seeking inter alia a declaration that a search warrant issued under the Search Warrants Act 1985, which is not identified as a proposed exhibit in a written statement taken from a person the prosecution intends to call to give evidence in proceedings for a prescribed summary offence, is not included in the definition of "brief of evidence" set out in s66A(1) of the Justices Act 1902. 6 By notice dated 19 July 1999 pursuant to s10 of the Director of Public Prosecutions Act, the Director has taken over these proceedings in lieu of the plaintiff Constable Dowd. 7 As can be derived from question 4 posed in connection with the proceedings below, the essential question is whether the search warrant which authorized entry, search and seizure was a document encompassed within the definition of "brief of evidence" in that part of the statute which provides: