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: "66A (1) In this Subdivision: brief of evidence , in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and (b) any document, or other thing, identified in such a written statement as a proposed exhibit." 8 The correct answer to the question number 4 posed in the Local Court was "no". As revealed in the reasons for judgment published by the learned magistrate, he based his opposite conclusion upon an analysis that the prosecutor relied upon the issuing of the search warrant to justify what would otherwise be an unlawful entry whereas the question which ought to have been addressed was whether the search warrant was a document " regarding the evidence which the prosecution intends to adduce in order to prove the commission of the offence ". The document class therefore relates to evidence of particular quality related to the intention of the prosecution. The true construction of the statutory language is not to be ascertained, as submitted at one point by the defendant, by attention to the phrase "documents regarding the evidence" without reference to the qualification following it. 9 The search warrant itself was not part of the proof of the offence by the prosecution. Its existence (coupled with validity) was capable of defeating objection on behalf of the defendant to the admissibility of evidence concerning entry, search and seizure but the evidence upon which the prosecution intended to rely in order to prove the commission of the offence included the facts of the entry, search and seizure by police but not as a matter of evidence the antecedent legal authority for so doing. It is recognized that the specified inclusive examples in subss(1)(a) and (b) of s66A are not exhaustive but it can be mentioned that it was plain that the prosecution did not, as part of its case, propose that the search warrant be tendered as an exhibit. 10 It is worthwhile noting the procedures relative to search warrants. Application is made to an authorized justice, and if granted, it is obligatory that it issue in a prescribed form: Search Warrants Act s14. Within ten days after execution of the warrant or its expiry whichever first occurs, the applicant must report in writing back to the issuing justice: s21(2). Search Warrant reg 8 provides that the report pursuant to s21 of the Act must be in or to the effect of prescribed Form 7 and must contain the particulars to complete that form. The form provides that the original warrant is to be attached to the report unless the report is in fact endorsed on the back of that original warrant. In a voir dire hearing following the objection on 10 February above noted, it was revealed that the original warrant had been "sent back" to Fairfield Court where, I infer, the issuing justice was located. 11 As s66B(2) of the Justices Act requires service of the brief of evidence fourteen days before the hearing of the prosecution evidence, it can reasonably be postulated that, given the limits specified by s21 of the Search Warrants Act, an original search warrant is likely to have passed from the possession of the applicant and the prosecutor (if the latter ever had possession of it) well before a defended hearing would be scheduled. Of course the original warrant could be retrieved if for example an issue as to its validity were raised at the hearing but it would suffice for proof of a prosecution case that the appropriate witness testify that a search warrant was possessed and produced. The statutory requirement for service of an occupier's notice is not overlooked but it is not a matter of issue in the present contest. 12 In this case the brief of evidence contained a statement by Constable Dowd which included: "7. Inside the loungeroom I said, 'I am Constable Dowd from the Cabramatta Police Station. I have a search warrant here to search the premises for drugs. Who lives here'. The defendant said, 'I live here for past week'. 8. About 11.55am that date, Sergeant O'Keefe activated the video camera. I handed the occupier's notice of the search warrant to the defendant and explained the contents of the search warrant. I said to the defendant, 'You do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?' He said 'Yes'." 13 Testimony to that effect from Constable Dowd was (in part) the evidence which the prosecution intended to adduce in proof of the commission of the offence. Insofar as it might be suggested that such testimony given orally involved proof of the content of the written document (the search warrant), s48(4)(b) of the Evidence Act permitted it. 14 Much of the submission on behalf of the defendant both in writing and in oral elaboration, was directed to the parliamentary purpose in legislating subdivision 6A of the Justices Act. The Attorney General's Second Reading Speech made clear the intendment that persons who were the subjects of summary prosecution would by service of material know the charge brought against them and have particulars provided. 15 There is in my view no ambiguity in the legislated definition of the brief of evidence and the requirements of purposive construction of statutory language do not mean that in the present context the prosecution must supply a copy of every document which may possibly become relevant in the course of hearing. The evidence summarized in Constable Dowd's extracted statement was admissible and it was that evidence which the prosecution intended to call in proof of the offence. If the search warrant was to become required such a requirement would have emerged from an objection seeking to advance a case on behalf of the defendant rather than emerging as part of the prosecution case. In short, whilst it may be foreseen that if the case took a particular turn, evidence to overcome objection or evidence in rebuttal might come to be tendered, the requirement for inclusion in the brief does not extend to that contingent material. 16 I add, in deference to express submission by the defendant, that I am of opinion that proof of lawful authority by tender of the warrant is not a prerequisite for the admission of evidence of observations by police upon forcible entry or of items seized by them. The case cited, George v Rockett & Anor 1990 170 CLR 104 does not lead to, let alone oblige, a contrary view. 17 In the event that I came to the conclusion, as I have, that the fourth question posed in the Local Court ought to have been answered in the negative it was submitted that I should refuse relief on discretionary grounds. The record of 31 March above recited was contended to show that the prosecution declined the opportunity of adjournment and therefore the possibility of meeting the objection by obtaining and tendering the warrant and that it should not in effect be permitted to recant its election to close its case in circumstances where the evidence to that point was clearly inadequate to support the charge. On behalf of the Director it was submitted that there had hardly been an election in the Local Court but rather a recognition that the reasons of the learned magistrate had "closed the gate" against tender of evidence. The oral testimony of Constable Dowd had been excluded on the ground that that exclusion was demanded by the absence of a copy search warrant from the brief and there could be no different result if the original were produced and offered for tender because the situation remained that no such copy document had been included in the brief. 18 In the circumstances, I conclude that the dispute should be remitted for resolution at first instance. 19 The current proceedings have been brought in accordance with new procedures in substitution for those formerly undertaken by way of case stated. If appropriate to the new procedures the defendant should have a certificate in respect of his costs pursuant to the Suitors Fund Act. 20 The terms of the first prayer in the summons seek a broad declaration in general terms, it should be made in reference to the instant case. 21 I make the following declaration and orders: (1) I declare that the search warrant used to authorize entry, search and seizure was not a document, a copy of which was required to be included in the brief of evidence served by the prosecution pursuant to subdivision 6A of the Justices Act. (2) I order that the dismissal of the information ordered at Burwood Local Court on 31 March 1999 be quashed. (3) I order the matter be remitted to the Burwood Local Court for further hearing and determination according to law. (4) The defendant is ordered to pay the plaintiff's costs of the summons and if he is qualified and it is available is to have a certificate under the Suitors Fund in respect of those costs. 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