Citation: Ballis v Randall [2007] NSWSC 422
Court: Supreme Court of New South Wales (Common Law Division)
Date: 7 May 2007
Judge(s): Hall J
Background
Three search warrants were issued in 2002 by authorised justices at the Local Court in Redfern, on applications by NSW Police officers. The warrants authorised entry to residential premises at Randwick and Bondi Junction. The plaintiff was the occupier of the Bondi Junction premises.
Each warrant was executed covertly, meaning police entered the premises without notifying the occupier at the time of entry and without observing the procedural requirements that ordinarily accompany the execution of a search warrant. The plaintiff challenged the warrants in the Supreme Court while criminal proceedings against him remained on foot in the District Court.
The plaintiff sought orders in the nature of certiorari to quash the warrants, declarations that their execution was unlawful, prohibition against reliance on the warrants, and delivery-up of any property or recordings seized during execution.
Legal Issues
- Whether the three warrants were validly issued under the Search Warrants Act 1985 (NSW)
- Whether the Search Warrants Act 1985 authorised an authorised justice to issue a warrant intended to be executed covertly
- Whether the covert execution of the warrants was lawful
- Whether the Supreme Court should exercise its jurisdiction to grant relief where criminal proceedings were pending in the District Court, and what principles govern that discretion
Decision
Hall J held that each of the three warrants was validly granted under the Search Warrants Act 1985. The fact that the applications contemplated covert execution did not, of itself, invalidate the warrants on their face. The warrants were regular on their terms and within the authorised justice's power to issue.
However, the court found that the covert execution of each warrant was a different matter entirely. The Search Warrants Act 1985 did not authorise covert search warrants as a species of warrant, and the statutory scheme contained procedural safeguards specifically designed for the benefit of occupiers. Executing the warrants covertly negated those safeguards and was therefore contrary to the Act.
The court also considered the question of whether the power under section 19(1A) of the Act, permitting night-time execution where reasonable grounds exist, could be stretched to authorise covert execution. The court rejected that argument. The plaintiff's contention that the magistrates had improperly relied on the cover of night as a vehicle for authorising covert entry was accepted in its essential thrust.
Hall J surveyed comparable legislation in other Australian jurisdictions and in the United States, observing that specific statutory authority is required before covert search warrants can lawfully be issued and executed. Such authority exists in targeted counterterrorism and organised crime legislation enacted in several jurisdictions after 2002, but it did not exist under the general search warrant scheme in place at the time these warrants were executed.
Orders Made
- Declaration that the execution of the first warrant (issued 24 September 2002, Randwick premises) was unlawful.
- Declaration that the execution of the second warrant (issued 11 November 2002, Bondi Junction premises) was unlawful.
- Declaration that the execution of the third warrant (issued 19 December 2002, Bondi Junction premises) was unlawful.
- Parties directed to bring in short minutes of orders to give effect to the judgment.
- Submissions on ancillary orders, including costs, reserved.
Key Takeaways
- A warrant issued under the Search Warrants Act 1985 (NSW) could be validly granted even where the application contemplated covert execution, but the validity of the warrant itself was a separate question from the lawfulness of how it was carried out.
- Covert execution of a search warrant, without specific statutory authority permitting it, was unlawful under the 1985 Act. Statutory procedural safeguards protecting occupiers cannot be bypassed simply by treating the warrant as authorising covert entry.
- The power under section 19(1A) of the Act to authorise night-time execution of a warrant does not extend to authorising covert execution more broadly.
- Specific statutory authority is required to issue or execute covert search warrants. At the time these warrants were executed, no such authority existed in the general NSW search warrant regime. Later legislation, including the Terrorism (Police Powers) Act 2002 (NSW) and equivalent Queensland, Victorian and Northern Territory statutes, introduced that authority in defined circumstances.
- The Supreme Court exercised its jurisdiction to grant declaratory relief notwithstanding the existence of pending criminal proceedings in the District Court, consistent with established principles governing that discretionary jurisdiction.
Legislation and Cases Referenced
Legislation:
- Search Warrants Act 1985 (NSW) (repealed)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Terrorism (Police Powers) Act 2002 (NSW)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)
- Police Powers and Responsibilities Act 2000 (Qld)
- Terrorism (Community Protection) Act 2003 (Vic)
- Terrorism (Emergency Powers) Act 2003 (NT)
- Invasion of Privacy Act 1971 (Qld)
- Telecommunications (Interception) Act 1979 (Cth)
Key Cases:
- Coco v The Queen (1993-94) 179 CLR 427
- George v Rockett (1990) 170 CLR 104
- Grollo v Palmer (1995) 184 CLR 348
- Ousley v Regina (1997) 192 CLR 69
- Plenty v Dillon (1991) 171 CLR 654
- Sankey v Whitlam (1978) 142 CLR 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Jacobson v Rogers (1995) 182 CLR 572
- Carroll v Mijovich (1991) 25 NSWLR 441
- Commissioner of Police v Atkinson (1991) 23 NSWLR 495
- Corbett v State of NSW [2006] NSWCA 138
- Wright v Queensland Police Service [2002] 2 Qd R 667