State of NSW v Corbett & Anor [2007] HCATrans 119 (21 March 2007)

Last Updated: 23 March 2007

[2007] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S2 of 2007

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

JAMES JOHN CORBETT

First Respondent

ROBYN JEAN CORBETT

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 MARCH 2007, AT 10.21 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR M.J. NEIL, QC and MR P.R. STERNBERG, for the appellant. (instructed by Crown Solicitor for New South Wales)

MR J.M. IRELAND, QC: May it please the Court, I appear with my learned friends, MR S.G. MOFFET and MR J.S. COOKE, on behalf of the respondents. (instructed by Moloney Lawyers)

GLEESON CJ: Yes, Mr Solicitor.

MR SEXTON: Your Honours, if the Court pleases, these proceedings arise out of a police search of the plaintiff’s property at Goulburn on 4 June 1998. The New South Wales Court of Appeal found that the warrant was invalid because of what the members of the court considered to be a defect in the application for the warrant which was made on the previous day, 3 June 1998.

I need to take your Honours to a number of pieces of relevant legislation but before doing that, can I simply in two or three sentences baldly state what our argument will be, and it is this; that in making the application the police officer in question swore that he had reasonable grounds to believe that the things to be searched for were connected with a firearms offence, and he specified a particular provision of the Firearms Act 1989. That Act had been repealed at that time and replaced by the Firearms Act 1996. This misdescription was the defect identified by the Court of Appeal.

GUMMOW J: The question is, was it a defect? Literally, section 12A of the Search Warrants Act as it then stood, if you pick it up and track it through the regulations to which it refers and back to the definition as it then was of “firearms offence”, was still speaking to the old statute, was it not?

MR SEXTON: What we say, your Honour, is because there was an essentially similar provision - - -

GUMMOW J: No, what I am coming to is, what could have been done conformably with section 12A other than what was done? So therefore, I wonder, where was there any defect?

MR SEXTON: We say there was not a defect, your Honour, that is so. In a sense to deal with what the Court of Appeal said, we say that because there was an essentially similar provision in the later Act that there was no defect in the application such as would lead to the warrant being invalidated and if there was a defect we say that it was cured by one of three statutory provisions that I will take your Honours to.

There is one ground in the notice of contention that we need to address as well. The respondents say that the applicant for the warrant did not have reasonable grounds for believing, as he said he did in the application, that there was located or would be within 72 hours on the property articles connected with a firearms offence. We say that he did and I will come to that in due course. Your Honours, there should be a folder of legislation and the first item in it, behind tab 1, is the Search Warrants Act.

GUMMOW J: Reprint No 6?

MR SEXTON: Yes, that is so, your Honour, as in force at 1 May 1997. We have put at the back of tab 1 the amendments up to the relevant date, that is 4 June 1998, but none of this affects these proceedings so it is possible to work simply off that reprint.

GUMMOW J: I was referring to paragraph 5.8 in your submissions, Mr Solicitor. This is not necessarily hostile to your interests:

It should also be noted that as at 3 June 1998, the [Warrants Act] had not been amended: the definition of “firearms offence” in s 5(2) still referred to the 1989 Act - - -

MR SEXTON: Yes, that is right, your Honour.

GUMMOW J: Well?

MR SEXTON: It is another way of looking at it, your Honour, which I will come to, but we say that in any event that the way the Court of Appeal approached it that they were in error in terms of the way that they dealt with it in this particular case.

KIRBY J: You accept the principle stated by this Court in Rockett that a high measure of strictness is applied in construing the compliance with the request for search warrants?

MR SEXTON: We do, your Honour, but we say that that - - -

GUMMOW J: The question is compliance with what, and that is why I direct your attention to 5.8 in the text of the Search Warrants Act, that is the problem. There seems to be two levels of reality involved.

CRENNAN J: The warrant might be void right at the outset simply because the relevant legislation has not been consequentially amended as a result of the 1990 amendment.

MR SEXTON: We would not accept that, your Honour. We would say that whether one looks at it literally in a sense, which is the point that has been raised by Justice Gummow, or whether one looks at it substantively in terms of the two offences under the two pieces of legislation, that one will come to the same conclusion which was that there was not a defect here that would invalidate the warrant.

GUMMOW J: When we talk about “invalidation”, what are we in fact referring to, voidness, invalidity, for what, want of compliance as some statutory precondition to exercise of a power?

MR SEXTON: The Court of Appeal’s judgment assumes - - -

GUMMOW J: It is opaque on that question.

MR SEXTON: Perhaps it assumes voidness, your Honour, in the sense that the warrant was simply of no effect so that therefore the search - - -

GUMMOW J: Because it did not comply with section 12A?

MR SEXTON: Because it did not comply with section 5, I think. Section 5(1), your Honour, is what the Court of Appeal judgment amounts to. Section 5(1) is a convenient starting point with the legislation. Your Honours will see that it says:

A member of the police force may apply to an authorised justice for a search warrant if the member of the police force has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises . . .

(b) a thing connected with a particular firearms offence -

and I will take your Honours to the relevant application and the form - - -

GUMMOW J: Wait a minute. Then that is a defined term – “firearms offence” is defined in subsection (2)?

MR SEXTON: Yes, that is right, your Honour.

GUMMOW J: And it is defined, in reference to this, by then a repealed statute.

MR SEXTON: Yes, your Honour.

GUMMOW J: The real question in this case is there has been some shortcoming in the administration of the law in New South Wales at the parliamentary level through this delay until 1998. The question is how does that fall out?

MR SEXTON: Your Honour, as I say, it can be looked at at two levels. One is the terms of section 5 itself, but another is that the form did not require a particular provision to be identified, and what the form – I will take your Honours to it - said was “firearms offence” and then it referred to the repealed provision.

KIRBY J: Subject to what you say, it does not seem to me that you can slip out of the problem by reference to section 5(1)(b) because, as Justice Gummow has pointed out, that is a defined term and that incorporates the 1989 statute, and therefore insofar as you are relying on that, then you have not enlivened the relevant power at the time of the search warrant in question because it is a defined concept under the old Act.

MR SEXTON: Your Honour, it is a question of whether there was compliance with the search warrants legislation, and I will take your Honours to the various provisions of it. There was, I should say to Justice Gummow, a transitional provision.

GUMMOW J: Yes, should we see that? It seems to me, unless we start at the beginning, it is just going to descend into an even deeper pit.

MR SEXTON: So if I just skip ahead, but if your Honour looks at the Firearms Act 1996.

KIRBY J: Where is that, which tab?

MR SEXTON: That is behind tab 3, and if your Honours go to the second-last page which is page 71 of the reprint, the last clause of Schedule 3. You will see there there is the transitional provision that says that:

Except as provided by the regulations, a reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act 1989, or the Firearms Regulation 1990, is to be read as a reference to the corresponding provision of this Act, or the regulations made under this Act, respectively.

We of course, your Honours, rely on that provision to say that even if the reference to the old provision in the application for the search warrant is a defect, that it can be read as a reference to the equivalent provision in the 1996 Act because of that transitional provision.

GUMMOW J: The question is, does this item 12 in Schedule 3 work an amendment to the definition of “firearms offence” in section 5(2). Undoubtedly the earlier statute is classified as an instrument, the words in brackets in item 12 indicate that, “other than this Act”. That would include another Act but that is the question, I suppose. I do not know what the answer is to all of this.

MR SEXTON: It is one question, your Honour.

KIRBY J: There is also a question concerning the meaning of “instrument”, is there not?

MR SEXTON: Yes, there is, your Honour, whether in fact the application for the warrant is an instrument.

GUMMOW J: But however that may be, the earlier statute, the 1985 Act, is an instrument, is it not?

MR SEXTON: Yes, your Honour. Your Honours, can I say though that, in a sense, our primary submission is that – the starting point is, did the application and therefore the warrant comply with the Search Warrants Act. That is the overriding question and we say that, because there was no requirement to nominate a particular statutory provision in the application, that the application did comply with the legislation and that, therefore, the warrant would not be invalidated. We say that, inasmuch as there was a reference to a particular statutory provision in the application, it had a direct equivalent in the later legislation and that, therefore, the member of the police force could have the reasonable belief in question that is required by section 5. That is the primary way in which we put our argument.

I have just taken your Honours to section 5 but if I can just say about section 5(2) in relation to what your Honour Justice Gummow has raised, that reference to the 1989 Act was changed as at 26 November 1998 and your Honour has taken us to that. There is a reference to the Statute Revision Act in our written submissions at paragraph 5.8, as your Honour has already noted, so it remained in that form until 26 November 1998 but there is the transitional provision.

KIRBY J: The relevant days here are before that date in November.

MR SEXTON: It is 4 June 1998 and the application was made on 3 June 1998, your Honour. If I can take your Honours to some further provisions of the Search Warrants Act. Section 11(1) provides that:

An application for a search warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.

I will come back to the regulations and to the form in a moment. Section 11(2) provides that:

An authorised justice must not issue a search warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice on oath or affirmation or by affidavit.

Section 12A(1) sets out the information without which:

An authorised justice must not issue a search warrant unless the application –

contains a list of information and it is (a) to (f).

I do not think that (a) to (e) are the subject of any dispute in these proceedings, (f) is:

any other information required by the regulations.

I am sorry, I am told that (b) is in dispute as well.

Now, at that stage perhaps it might be convenient if I take your Honours to the regulation - - -

GUMMOW J: Before you do that, what is the force of the statutory injunction in sections 11 and 12, that “justice must not”. What is the sanction or consequence of a failure to observe the prohibition as a matter of statutory construction?

MR SEXTON: It might depend on the nature of the lack of compliance, your Honour. If it was significant, then it may affect the validity of the warrant subject to section 23 of the Act which is - - -

GUMMOW J: What I am putting to you is there is a Project Blue Sky question here as to the imperative or facultative nature of this prohibition, and I think the view is taken, is it not, that it is imperative or mandatory and that it leads to a denial of power?

MR SEXTON: I think that is right, your Honour, yes, if there is a lack of compliance and subject to section 23. Perhaps if I just take your Honours to section 23, as I mention it. It simply states that:

A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

KIRBY J: There must be a lot of law on that question, one would think.

MR SEXTON: Not perhaps as much as your Honour thinks. There is some law on the subject, but the case is about material particulars tend to depend on the nature of the document in question, and perhaps to some extent on their own facts, but I will take your Honours to some authorities - - -

GUMMOW J: But does “any defect” in 23 mean defect in the warrant or defect in the conditions precedent to the exercise of the power to issue the warrant?

MR SEXTON: Your Honour, that is something that has been considered, but we would say that if the Court of Appeal found that the warrant was invalid, they must have ultimately found a defect in the warrant itself. In other words, the defect in the application flowed through to the warrant, so that in a sense we would say section 23 would deal with a situation where a defect in the application had that consequence, assuming that it otherwise met the requirements of section 23.

KIRBY J: There are really two gateways to getting out of the problem. One, that it does not affect the substance, and the other, that it does not affect that “in a material particular”. I am just wondering what that is getting at because deciding what is the substance depends a bit on the strictness with which one approaches the requirement of accuracy in the search warrant itself.

MR SEXTON: There is a judgment to be made there but there are some authorities on the point which I will take your Honours to. Can I at this stage take your Honours to the regulation and the form. The regulation is behind tab 5, it is the Search Warrants Regulation 1994 and you will see in regulation 4 on the second page that:

For the purposes of section 11 of the Act:

(a) Form 1 is the form for an application for a Part 2 search warrant –

This was a Part 2 search warrant. That is defined in section 3(1) which includes a search warrant issued under Part 2 of the Act in respect of a firearms offence. If your Honours go the first form, Schedule 1, form 1, and that is the form of application for a Part 2 search warrant. At that stage it is perhaps convenient if I take your Honours to the actual application which is in the appeal book at page 368.

KIRBY J: The actual search warrant in this case was lost, as I understand it.

MR SEXTON: That is right, your Honour, yes.

KIRBY J: But there was no real dispute as to what it contained.

MR SEXTON: No. I will say something about that your Honour when your Honours go to page 368. Can I say generally about these pages that the application, which is at 368 to 370, is slightly out of order. The first page is 368, the second page is in fact 370, the third page is 369. What follows, something that has just been raised by Justice Kirby, from 371 to 376 are described as pro forma search warrant documents. They are in fact recreated documents because the search warrant was not located and the same for the other documents there but, in a rather confusing way, the application has also been recreated even though the full application - and that was the document that was the subject of argument in the Court of Appeal - is in fact there and present at the earlier pages. I do not know quite how all this happened at the trial, your Honours, in a sense but nothing, I think, turns on that.

KIRBY J: Was there no system for having a copy of the search warrant and the application in police records?

MR SEXTON: I assume so, your Honour, but all I can say is in this case we have the application; we do not have the warrant.

KIRBY J: And there is no contest between the parties - - -

MR SEXTON: Not as far as I am aware, your Honour. My learned friend says no, your Honour. If I go to the application itself starting on page 368, can I say that there are some very slight differences in format from form 1 in Schedule 1 to the regulation but, again, I do not think that anything turns on that. It is in particular in relation to the footnotes and the way in which they fit into the text.

If your Honours look at page 368 you will see that Inspector Jago applied for a search warrant in relation to the particular premises and said on oath that:

I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in these premises, the following things:

And then he says:

Unspecified firearms

then secondly:

I have reasonable grounds for believing that -

(a) the things are connected with the following indictable –

well, he did not strike out “indictable offence” or “narcotics offence”. They should have been struck out, but –

connected with the following . . . firearms offence –

which would seem to be the relevant item here –

within the meaning of the Search Warrants Act 1985 (s 5(2))

- Possession of Firearm Firearms Act No 25/1989 Sect 5(a) –

which, as we know, had been the repealed provision. That was repealed and the 1996 Act had come into operation.

GUMMOW J: Section 5(a) had not?

MR SEXTON: Of the 1989 Act, your Honour. I will take your Honours to that. It is about possession without the authorisation of a licence or a permit.

CRENNAN J: But in any event, the form itself contained the reference to the repealed statute, so the policeman was actually filling in a form?

MR SEXTON: No, your Honour. He inserted that because – I do not think I can technically describe this to your Honours but he did this by way of a computer which in a sense threw up a pro forma and he inserted some materials which, however, were also thrown up by the computer, and it threw up the reference to the statutory provision because when it saw “possession of firearms”, presumably that was the relevant provision in the 1989 legislation.

KIRBY J: This was in the police computer at the time although the Act had been changed?

MR SEXTON: Yes, that is right.

KIRBY J: And the form which is shown on page 368 and following is a form that is generated by a computer with that provision then inserted by the computer, is it?

MR SEXTON: Yes.

KIRBY J: So that it came up, he slipped it in, and then he printed it, and out it all came?

MR SEXTON: Yes.

GLEESON CJ: He pressed “Enter”, that is probably what he did.

MR SEXTON: Yes. I will take refuge in the fact that I was not there, I think, your Honours, to say that I do not know what he did, but that is what came out and, of course, as Justice Gummow has already noted, the Search Warrants Act itself still referred to the 1989 legislation.

GUMMOW J: No, but Justice Crennan was inviting attention, I think, to form 1 of Schedule 1, and took us to it.

MR SEXTON: Yes, your Honour.

CRENNAN J: Because section 14 of the Search Warrants Act provides:

A search warrant shall be in or to the effect of the prescribed form.

So the prescribed form itself contains a reference to a repealed statute, and what the policeman is doing in accordance with section 14 of the Search Warrants Act is preparing an application in terms of the prescribed form, that is to say, prescribed under the regulations of 1994.

MR SEXTON: I do not think so, your Honour. The form does not contain a reference to - it simply refers to the Search Warrants Act.

GUMMOW J: No, form 1, Schedule 1, Search Warrants Act 1985, the regulation, item 2:

I have reasonable grounds for believing that –

(a) the things are connected with the following indictable offence/firearms - - -

MR SEXTON: If one tracks back to the - - -

GUMMOW J: Yes, that is the point, it is within the meaning of the Search Warrants Act 1985, section 5(2), and those words are - - -

CRENNAN J: That is the prescribed form.

GUMMOW J: Yes.

MR SEXTON: That is so, your Honour, yes.

GUMMOW J: What was the policeman supposed to do? .....ask you this, I will be asking Mr Ireland.

MR SEXTON: As I say, your Honour, it can be looked at at two levels, that Justice Crennan has, in a sense, gone back to the point that your Honour raised at the outset. At any rate, we say that in a sense there was not anything else that was going to happen here because of the form of the legislation at the time.

Your Honours, (3) deals with previous applications which is not relevant here and (4), “The additional information which I consider justifies the making of this further application is”, and if your Honours go to page 370, “The grounds which I rely on are” – they are more easily read on page 374 because they are not blacked out at all there – and your Honours will see that they have been set out. The material that is written underneath was written in by the justice and it reads - there is an asterisk which goes back to the grounds, and it says:

Pump action 12 Gauge Shotgun
Has Current Firearms Licence. Action is being taken to suspend license. Person of Interest is a Police Officer.

That was written in by the justice.

If one goes back to page 369, which is the material to be filled in by the justice, you will see that he has filled it in and under 3 in relation to the grounds, he has written in:

See Deposition on oath. Writings of POI, Perused, Contain threats.

That is what he has written in there. I just mention again your Honours that of course paragraph (2), as we say, did not require that a particular provision be identified in any event. It would have been sufficient if he had just put “possession of firearm” but he added, or it was added by the system, the provision of the 1989 legislation.

KIRBY J: The respondents say that that was therefore that which was in his mind when he filled in the application for the search warrant.

MR SEXTON: Your Honours, we say that what was in his mind was an offence, possession of a firearm without the authorisation of a licence or a permit.

KIRBY J: That would have been so if he had simply put in “Possession of firearm” but he added these words - - -

MR SEXTON: But that was still the offence under the new Act.

KIRBY J: But it was not the offence under Act No 25 of 1989.

MR SEXTON: But it was an offence under the 1996 Act, your Honour, in almost exactly the same terms.

KIRBY J: The point that is being urged on us is that it was a different offence. It was an offence under a different Act. That is why I say it all really gets back to the degree of strictness that one applies in this Court in Rockett’s Case and the Court of Appeal in Carroll and other cases has always adopted a rule of strictness. It is a good discipline to the Executive Government.

MR SEXTON: Your Honour, we do not have a problem with a rule of strictness but we say that it is not strictness that would result here in the invalidation of the warrant, but it would be, we would say, very much an over-technical approach - - -

KIRBY J: This is a technical area of the law.

MR SEXTON: - - - and one that would not reflect or support the underlying policy of the legislation, which we accept. Now, your Honours, can I go back from there to the Search Warrants Act to just one or two more provisions, but just for the sake of completeness if I take your Honours to section 14 of the Act, which I think Justice Crennan has referred to, but it simply says that:

A search warrant shall be in or to the effect of the prescribed form.

So we are back behind tab 1, your Honours. As Justice Crennan said, “or to the effect of the prescribed form”. Now, if I can just add in relation to the Search Warrants Act, section 6 allows the:

authorised justice . . . if satisfied that there are reasonable grounds . . . issue a search warrant authorising any member of the police force:

(a) to enter the premises, and

(b) to search the premises for things of the kind referred to in section 5 (1).

I have already taken your Honours to section 5(1). It just might be noted that section 4(1) of the Act says that:

For the purposes of this Part, a thing is connected with a particular offence if it is:

(a) a thing with respect to which the offence has been committed . . .

(2) A reference in this Part to an offence includes a reference to an offence that there are reasonable grounds for believing has been, or is to be, committed.

So we say that that would have been the basis of the application here. Section 12A(2), which is on page 11 of the reprint, states what the justice is to consider when determining whether there are reasonable grounds, that is:

(a) the reliability of the information on which the application is based, including the nature of the source of the information,

(b) if the warrant is required to search for a thing in relation to an alleged offence – whether there is sufficient connection between the thing sought and the offence.

I have already taken your Honours to section 23, the curing provision, to which I will have to come back.

I was going to take your Honours to the two pieces of firearms legislation. The first is behind tab 2 and if your Honours look at section 5(a), your Honours will see that it says:

A person shall not:

(a) possess a firearm . . .

unless authorised to do so by a licence or a permit.

“Firearm” is defined in section 3 and section 3(3) says that:

For the purposes of this Act, possession of a firearm includes a case in which a person knowingly . . .

(c) has the firearm in or on any premises . . . belonging to or occupied by the person.

Your Honours may have noted that in this case Mr Corbett’s property was at Goulburn but at the time of the search he was in a hospital near Wollongong, Port Kembla, but section 3(3) would operate in those circumstances.

KIRBY J: But the firearm here is a firearm under the Firearms Act 1989; it is not a firearm under the later Act.

MR SEXTON: I will come to that point, your Honour. The 1996 Act had come into operation but there were transitional provisions in it relating to past or existing licences. It is a little complicated, that question, although ultimately we say it does not affect the result in this case, but I will take your Honour to that point. I just wanted to set an overview of the legislation.

If your Honours go to section 21 of the Act, your Honours will see that it provides for types of licences and then following that in the subsequent pages is a table which sets out various types of licences. They, we would say, have their approximate equivalents in the kinds of licences that could be sought and held under the 1996 Act. If your Honours go to section 30, it says:

The regulations may provide for different classes of permits.

And the regulations did provide for that.

KIRBY J: What was Mr Corbett’s licence, the one that was cancelled by - - -

MR SEXTON: It was a shooter’s licence apparently, your Honour. My learned friend says it is - the licence is not in evidence but there are references in the course of evidence to his holding a shooter’s licence.

KIRBY J: There are two classes. Does it matter that we should know which one?

MR SEXTON: I cannot answer that, your Honour. That certainly does not. I should say that the application for the warrant referred, I think, to unspecified firearms - class 1, apparently, your Honour.

CRENNAN J: What page is that?

MR IRELAND: Page 352.

MR SEXTON: It is the suspension notice, your Honour. The application referred to unspecified firearms. As your Honours will see from the grounds that were relied on, a pump-action shotgun was something that was in the mind of the police officer who made the application, but he did not confine the application to that because apparently there were suggestions that there might be some other firearms as well, but it was thought that Mr Corbett had a shooter’s licence and that related to a pump-action shotgun.

CALLINAN J: What is the consequence of a suspension? Can a licence be revoked? A suspension is a suspension. It just goes into limbo, as it were.

MR SEXTON: It applies from the suspension – it has to specify the date, as this one did, that it - - -

KIRBY J: This one specified until August, I think.

MR SEXTON: Yes, how long it would last, that is right, your Honour.

CALLINAN J: So what does the Act prescribe has to be done with a firearm when the licence is suspended? Does it have to be surrendered for the period of the suspension, or what happens?

MR SEXTON: Yes, your Honour. It is section 22 of the 1996 Act, your Honour, which is behind tab 3, section 22. It is at page 25.

KIRBY J: Was the suspension performed under the 1996 Act?

MR SEXTON: It was the only Act in force, your Honour, and it says that at the top of the suspension form.

CALLINAN J: What are you supposed to do when your licence is suspended? What are you supposed to do with the firearm?

MR SEXTON: If your Honour looks at section 25 which is on the next page, your Honour will see that:

If a licence is suspended or revoked, the person to whom it was issued must immediately surrender to a police officer:

(a) any firearm in the person’s possession

and in section 25(2):

A police officer is authorised to seize any firearm in the possession of a person if that person’s licence is suspended or revoked.

CALLINAN J: So you do not need a search warrant under section 25; you can just go in.

MR SEXTON: But the point here was that the police thought that they needed to suspend the licence before the - - -

CALLINAN J: I understand that but, having suspended it, was it necessary to obtain a search warrant? Could a police officer not have gone in under section 25 and seized it? They did not find one, did they?

MR SEXTON: No, that is so, your Honour.

CALLINAN J: Why have a search warrant if there is a suspension? Do you need it?

MR SEXTON: That is an interesting question. Under subsection (2) whether that would have been an option - - -

KIRBY J: It could be in his possession in his auntie’s cupboard or anywhere else; it does not have to be in his home. There is another interest in the home, namely that of Mrs Corbett.

MR SEXTON: But it is in his possession if it is on the premises even if he is not there, your Honour, under the Act.

GUMMOW J: Was this not the problem in Coco’s Case in a sense with the wire tapping? There was authority to tap the phone but you have to get on the land - - -

CALLINAN J: They named the wrong Act, did they not? They named a State Act instead of federal Act.

GUMMOW J: You had to get some sort of warrant to get on the land to get access to the wire you were going to tap. That is the sort of problem area, I think. I think it is Coco, is it not?

CALLINAN J: Yes, it is.

GUMMOW J: Coco v The Queen [1994] HCA 15; 179 CLR 427.

MR SEXTON: We will have a look, your Honour.

CALLINAN J: I think there was a question whether it was valid under the State or the federal Act. I cannot remember.

GUMMOW J: While we are looking at section 25, what is the note to “APMC”? What statute is that talking about, do you know?

MR SEXTON: No, I am afraid I cannot help.

GUMMOW J: This legislation postdates the events in Tasmania, does it not?

MR SEXTON: I think that is what provoked it, your Honour, yes. Perhaps Australian police or a ministerial conference - - -

GUMMOW J: I think so. I think there was uniform legislation as a product of some meeting.

MR SEXTON: Yes, that is right, your Honour.

CALLINAN J: Mr Solicitor, just getting back to that, it would not matter where the firearm was. Once the licence was suspended it could be seized anywhere presumably without any search warrant. A search warrant might be desirable but one would think the power to seize would carry with it the power to make a reasonable search.

GLEESON CJ: They were, however, looking for weapons other than the weapon the subject of a licence, were they not?

MR SEXTON: Possibly, your Honour, yes. In other words, the evidence is that the police thought that there may be more than one weapon. They thought that he had one weapon and that he had a licence for it and they thought there may have been others.

CALLINAN J: They were not sure whether everything had been surrendered under the amnesty, I think.

MR SEXTON: Yes. There is some reference earlier to an air rifle, I think, that may have been handed to somebody, given away at some stage.

GLEESON CJ: Anyway, the litigation was based on the premise, which is not in question, as I understand it, that an action for trespass lay unless there was a valid search warrant.

MR SEXTON: Yes, your Honour. Your Honours, can I just deal with the regime under the 1996 Act in comparison with the 1989 Act. The relevant key provision setting up offences is section 7 which is on page 8 of that – we are back behind tab 3, your Honour, and section 7(1) provides that:

A person must not possess or use a firearm unless the person is authorised to do so by a licence or a permit.

And we would say that that is in all relevant respects, substantially the equivalent of section 5(a) of the 1989 Act. It simply creates the same offence. Then there is a regime of licences and permits under the 1996 Act. If your Honours go to section 8(1):

The categories of licences, the firearms to which they apply, and the authority they confer –

are set out then in a form of a table, and we would say that corresponds essentially to the regime under 1989 Act except that, as Justice Gummow points out in the aftermath of the events at Port Arthur, there is some no doubt greater stringency, and then section 28 says:

The Commissioner may issue permits for any one or more of the following purposes -

and various purposes are set out. Your Honours will recall there was a regime of permits under the – now, the Court of Appeal considered that because there were some differences between the two regimes – the licences and permits – that this would have affected the applicant police officer holding a reasonable belief as to the connection between the thing searched for and the relevant offence. It seems to us that given the fact that the offence was in almost exactly the same terms, that the underlying regime would not have that effect and would not give rise to that problem with his reasonable belief, but that was the basis for the decision in the Court of Appeal.

If I can just come back to what I think is a side issue but just perhaps to deal with it because it has arisen in the course of argument. There may be a question, although we would say nothing turns on it, as to whether the shotgun that Mr Corbett had previously surrendered, as it turns out, but that that surrender notice had not been found prior to the warrant being executed, could have been the subject of a licence at all as at June 1998. Justice Giles at page 476 of the appeal book considered that it could not be because it was a prohibited weapon under the 1996 Act and that Mr Corbett’s shooter’s licence under the old Act would not have authorised the possession of such a weapon. However, if one looks at Schedule 1 to the 1996 Act, that is behind tab 3, at page 68 of the reprint, clause 4 of Schedule 3 which is headed “Savings of existing licences”, and it says:

Subject to the regulations and to this clause, an existing licence that authorised the possession or use of a firearm –

and there was one -

(a) is taken to be a licence of the corresponding kind (as determined by the Commissioner) issued under this Act, and

(b) continues to authorise the possession or use of the firearm in respect of which it was issued for the period of 12 months from the commencement of this clause -

That commenced on 1 July 1997 so that 4 June 1998 would have fallen just within that 12 months period.

KIRBY J: Just inside or just outside?

MR SEXTON: Just inside, yes. Clause 4(2) then goes on to say that it does not authorise use but it would presumably have authorised possession. The problem is that if such a weapon could not be the subject of a licence under the new Act there may be a doubt, and as Justice Giles seemed to think therefore that the licence under the old Act would not have continued to authorise its possession for 12 months, but there must be an argument that that clause would have allowed that. It is not an easy clause to construe but the reason I say that nothing turns on that is that the licence was suspended in any event and the application referred not only to one particular firearm – it did not refer to a particular firearm, it referred to unspecified firearm. It seems that whatever the answer to that conundrum is that it does not affect the result of the case.

KIRBY J: But does it not suggest that there is importance in clarifying which regime you have in your mind when you are seeking a - - -

MR SEXTON: Once the licence was suspended, we say that – and I will come to that provision – the offence of possession without authorisation arose, and that was the offence in the mind of the applicant police officer. It is unrealistic, we would say, in these circumstances to expect that he would have regard to such fine questions under the regime and under transitional provisions. He had in mind an offence, which was essentially the same under the two pieces of legislation, and he specified that offence, possession of a firearm. He simply went on to add a reference to the repealed provision.

KIRBY J: Can we accept Justice Giles’ apparent conclusion that the only shotgun that the respondent, Mr Corbett, had was one in respect of which no licence could be issued under the 1996 Act?

MR SEXTON: That may be right, your Honour, but the question is whether the transitional provision would have authorised possession for a further 12 months, and it seems to us that there has to be an argument to that effect, but it is not necessary, we would say, to determine that question.

CALLINAN J: It is very difficult to be specific about an offence. It might be that there is a very grave and real concern that an offence might be committed with a firearm, but just precisely which offence it might be nobody could predict.

MR SEXTON: Your Honours, we say that the matters, with respect, Justice Giles identified as being a distinction between the two pieces of legislation are very fine matters, if there are any distinctions. There are no distinctions in a conceptual sense. There was an offence of possession without authorisation; there was a regime of authorisation. The police officer had in mind, clearly from the application, the offence of possession without authorisation that he - - -

CALLINAN J: Is there an offence in New South Wales of going armed in public so as to cause fear? There is such an offence in many places; certainly under the Codes there is. It does not matter, but it simply makes the point that a lot of criminal things can no doubt be done with a firearm, the precise nature of which cannot be predicted.

MR SEXTON: But the offence in mind here was the – and in fact there was one firearm in mind. That is clear at least from the warrant, but not only one, and the reasons why, as your Honours are aware of the reasons here, that there was concern about the position of firearms speaks for itself, and that was the point of the application. We say it is important that the form itself and the legislation does not require the particular provision to be identified. The warrant itself, which is issued by the justice, does not require even the offence to be identified, so that - - -

CALLINAN J: That is my point, for good reason. It does not only apply to firearms. It could apply to many objects capable of being put to a criminal use.

CRENNAN J: The point is, is it not, that it has to be identified sufficiently so everybody knows, including the person whose premises are about to be searched, what is being searched for. That is the point of identifying the offence.

MR SEXTON: Yes.

CRENNAN J: It is different from an indictment or a charge and the requirements there in respect of accuracy about every particular.

MR SEXTON: In this case, your Honour, it identified what was being searched for and it identified the offence and there was a clear connection between those two here. That person looking at the warrant would be in no doubt at all as to what was happening here and they, of course, would not, presumably, turn their mind to a particular statute in any event. But our real point is that there was not a lack of compliance with the legislation.

KIRBY J: I may be wrong and I will have to read the cases again. I did read Carroll again this morning but my understanding is that there is a high degree of particularity required and that is in defence of the principle inherited from English law that a person’s home is their castle and that before you enter it with the authority of the State, you have to be very particular in identifying what you seek to have authority to go for and what you get, and that that is a very important principle defensive of the liberty of Australian citizens and others in this country and that it is one that the High Court in the past has been quite strict about.

MR SEXTON: But it was done here, your Honour.

KIRBY J: That is the question. How was it done if you specified, at your asking, authority under a different Act which has a different regime, which different regime applies in a differential way to this shotgun which may not have been able to be possessed at all?

MR SEXTON: But the regime does not matter here, your Honour, because once the licence was suspended the regime falls away. What the police officer knew or believed was that the licence was going to be suspended and in those circumstances, any firearms on the premises would be unauthorised; they could not be the subject of a permit or of a licence under any legislation, old or new.

KIRBY J: So be it, but you asked for your search warrant under a different Act and that Act was not in force at the time that you made your application.

MR SEXTON: He noted a different Act - - -

KIRBY J: I can well understand that there is a certain sense of impatience about this but all I am saying is there are centuries of law on this. This is not just something that is dreamed up in Rockett’s Case, this has been around for centuries, defensive of the principle that an Englishman’s home is his castle, and now in Australia an Australian’s home is his homestead.

MR SEXTON: There is an important policy – your Honour identifies it -underlying it, but it is not offended, we would say, by what happened in this case.

CRENNAN J: But the importance of the policy emphasises, does it not, the need to keep forms under the relevant regulations updated?

MR SEXTON: It would obviously be desirable - - -

CRENNAN J: It is a very important matter.

MR SEXTON: It would obviously be better, your Honour, but I come back to the point that he noted the provision here but there was no need to do that, that the form was otherwise complete and that, insofar as that notification referred to the previous provision, it is essentially in the same form and creates the same offence, so that is why we say that neither the policy nor in fact the legislation here is contravened.

KIRBY J: Why should we paper over the cracks caused by your failure to have your computer system in proper order when you are going to be liable for a relatively modest sum if the primary judge is correct, and that might teach the Executive Government a lesson that in the matter of search warrants you have to be very particular and very strict.

CRENNAN J: It is not so much the computer, is it, it is the forms were out of date, the forms were extant forms, so naturally they come up on the computer.

MR SEXTON: Yes, that is right, your Honour.

GUMMOW J: But they were not out of date because of the legislature’s default as pointed out in 5.8 of your submissions, so there is a failure in public administration in this case, both at the executive and legislative branches in New South Wales.

MR SEXTON: But we say not a failure that created a defect in the warrant and not one that would flow through to - - -

GUMMOW J: The legislation, on your submission, is in the form which required an unreality about it because it spoke of a past and now repealed statute. What is the policy of the law in this situation given the history of search warrant treatment in the courts?

MR SEXTON: Your Honour, we say that this case does not cut across any of those decisions, that this does not go to the policy of the legislation, the protection of privacy and householders’ rights.

CALLINAN J: You have to give the word “particular” some meaning, have you not, a thing connected with a “particular” offence, indictable or firearms. The stress seems to be upon some degree of precision, does it not?

MR SEXTON: He specified the possession offence, your Honour. There was only one such provision in either the old or the new Act.

CALLINAN J: But you have specified a section of the old Act. All I am saying is that you can infer from the use of the word “particular” a requirement of particularity and particularity also means accuracy, I would have thought.

MR SEXTON: Your Honours, the question is what is the effect of this misdescription.

KIRBY J: You say you have three weapons up your sleeve?

MR SEXTON: No, I am just about to come to that, your Honour, but they are the fallback position, in a sense. Our submission is that there was no lack of compliance with the legislation. There is no defect in the application, therefore there is no defect in the warrant. That is our primary submission.

KIRBY J: That may be right, and I will have to read the cases, but the cases that were referred to in Carroll’s Case suggest a very high degree of insistence by the courts over centuries for particularity and accuracy. That is not a bad rule to have.

MR SEXTON: No. I will not prejudge your Honour’s reading of the cases except to say this, that we would say that none of the cases are really on all fours with this one. A number of them refer to, for example, material that was left out, that was not present. That may be a different situation. This is a case where, in a sense, a superfluous piece of information was added to the application, and we say that that ought not to result in the invalidation of the warrant. That is our primary submission. Now, can I take your Honours to three statutory provisions that we say would - - -

GUMMOW J: The real point in this case is whether there was some statutory authority to engage in what otherwise would be tortious conduct.

MR SEXTON: Yes, whether the Search Warrants Act authorised what happened. That is why we say it is the question of compliance with the Search Warrants Act and the Search Warrants Regulation that is the issue in the case.

GUMMOW J: In Coco 179 CLR 436 they say:

Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.

I do not think the language here is unmistakable and unambiguous at the moment because of the failure of the New South Wales legislature and Executive to update their statute references. That is why we are debating it all, that is why we are here.

MR SEXTON: Yes. Now, your Honour, can I come to these three statutory provisions. The first is section 23 of the Search Warrants Act to which I have already taken your Honours, and it is behind tab 1 at page 17 of the reprint. Your Honours will see there – and this is premised on the fact that there is a defect in the application which has flowed through to the warrant which we say there is not, but such a defect will not invalidate the warrant unless it “affects the substance of the warrant in a material particular”. We say that in a situation where there was no requirement to refer to the particular provision at all, that it would be difficult to say that it affects the substance of the warrant in a material particular.

There are some authorities on that phrase, “material particular”, but many turn on their own facts in relation to particular kinds of documents. If I can just take your Honours to one of those which is R v Davies (1974) 7 SASR 375 - - -

KIRBY J: Have you traced this provision back through the search warrant legislation of New South Wales back to colonial times, or not? It would be interesting to know whether this came in as an attempt to cure unmeritorious or immaterial mistakes. It may come from some English precedent and there may be a whole history behind such a provision. After all, it is particular to the subject of search warrants. It could be worth getting your limitless resources to look at this subject.

MR SEXTON: Yes. I must say we did not come across any authorities that would indicate why but we can check when and why it was introduced perhaps, your Honour.

KIRBY J: But I assume there was a Search Warrants Act before 1985.

MR SEXTON: My learned friend says it is in his materials, your Honour.

KIRBY J: The modest resources of the respondents have dug this up.

MR SEXTON: R v Davies, your Honours. It is at page 395 of that report, this is the judgment of Justice Wells. This was a case relating to a false statement in a statutory declaration and you will see there, at the beginning of the first full paragraph, Justice Wells says:

Speaking generally and, for the moment, without regard to whether the judge or the jury determines the issue of materiality, it seems to me that a material particular is one that goes to the subject matter of the declaration in the sense that it is of such significance and importance that, if stated incorrectly to the degree proved by the evidence in the case under consideration, it directly alters the essential meaning and character, if not of the whole declaration, then at least, of the portion of the declaration of which that particular forms a part.

We would say that it could hardly be said here that the reference, unessential as it was, to the repealed statutory provision directly altered the essential meaning and character of the application for the warrant or even of that part of the application in which it was contained.

KIRBY J: What page was that quote from Justice Wells on?

MR SEXTON: Page 395, about point 2 to about point 4.

KIRBY J: Thank you.

MR SEXTON: Perhaps if I refer your Honours to one other - - -

KIRBY J: His Honour was of course referring to a statutory declaration. The context may be different from the history of the requirement of particularity in search warrants.

MR SEXTON: I think Justice Wells is putting it in a general sense about the term “material particular” but we would certainly say that section 23 is certainly designed to deal with defects in warrants and that - - -

KIRBY J: But what is of substance in a search warrant may be different from what is of substance in a declaration about having contaminated meat. I mean, they are a different field of discourse.

MR SEXTON: That is why I say, your Honour, that a lot of the cases that refer to the term do not really for that reason provide a lot of assistance but we did think that that reasonably general comment by Justice Wells was a useful exercise. There is one other decision in relation to section 23, if I can just refer your Honours to. It is a case called Dalley v The Queen [2002] NSWCCA 284; (2002) 132 A Crim R 169. This was in relation to a detention warrant but at pages 184 to 185 Justice Simpson – it is a decision of the New South Wales Court of Criminal Appeal with whom the Chief Justice and Justice Blanch agreed – said that in relation to a detention warrant the failure by the applicant to later provide the authorised justice with an affidavit setting out the information on which a telephone application had been based did not affect the substance of the warrant in a material particular. It starts at the bottom there of 184 and goes over to the top of page 185.

KIRBY J: Was that a case where the telephone application had been accurate?

MR SEXTON: I think that is right, yes, your Honour. I do not see any contest about the application, it is a question of what happened in the aftermath, but it is really about the notion of a material particular. The second statutory provision is in the Interpretation Act (NSW) and it is behind tab 4, section 80 which is headed “Compliance with forms”. Section 80(1) says that:

(1) If an Act or statutory rule prescribes a form, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

Justice Giles took the view that section 1 would not be applicable because subsection (2) here required specified information to be included. In our submission, the particular statutory provision did not have to be included so that one would be able to rely upon section 1 in this case and that substantial compliance would be sufficient.

We say that these submissions, as your Honours appreciate, are made in the alternative. We have a primary submission that one would not get to any of these curing provisions. Then there are the curing provisions which we would say operate either one or all of them, they operate. I have dealt with section 23 of the Search Warrants Act, section 80 of the Interpretation Act.

The final of the curing provisions is to be found in the Firearms Act 1996 which is behind tab 3 and it is clause 12 of Part 2 to Schedule 3 which is to be found right at the very end of page 71 of the reprint. I have already taken your Honours to that but what it says is that:

any provision of the Firearms Act 1989 . . . is to be read as a reference to the corresponding provision of this Act –

the 1996 Act - in any instant. We would say that the application for the warrant here on the form prescribed by the legislation and set out in the regulation was an instrument. We have put in our written submissions some references to authorities in relation to the term “instrument”. Butterworth’s Australian Legal Dictionary at 606 simply describes it as a “formal legal document in writing” or a “formal legal document of any kind that is drawn up and executed in technical form”. It seemed to us to deal with the form that was used here - - -

GUMMOW J: For the purposes of the Interpretation Act 1987 there is a definition of “instrument” and includes:

an instrument . . . made under an Act, and includes an instrument made under any such instrument.

That would be enough for you, would it not?

MR SEXTON: Justice Giles did not decide whether it was an instrument or not because he said that even if it was, that clause 12 would not refer to something that was created after the 1996 Act had come into operation. It does not seem to us that that follows from the terms of clause 12, it simply appears to be open-ended in its operation.

Your Honours, there is one additional matter that I should deal with, which is – I think there were two grounds of contention but one is no longer pressed. It is ground 1 of the notice of contention which is to be found at page 513 of the appeal book and it says:

That the Court of Appeal erred in holding that Acting Inspector Jago had reasonable grounds for believing at the time of the application for the search warrant that there would be located within 72 hours on the respondents’ Goulburn property articles connected with a particular firearms offence.

I need to take your Honours back to the 1996 Act and to - - -

KIRBY J: Are we concerned in any way with the 72 hours?

MR SEXTON: Not with that period as such, your Honour, no. What my learned friends say is that once the licence was suspended, there must be a reasonable time before the offence arises in which you could surrender the weapons, so that that is why you could not be satisfied that when the licence was suspended the offence would arise within that period.

I have already taken your Honours to section 25 of the 1996 Act which is at page 26 and goes on to page 27 of that which is still behind tab 3. What we say is that that provision makes the possession unauthorised as soon as a licence is suspended, for better or for worse, regardless of whether the former holder had a reasonable time to dispossess himself or herself of any firearm. One might imagine that in a practical sense some common sense would operate in relation to this section but in any event, if the firearms had been on the premises, Mr Corbett could not have surrendered them in any event when the licence was suspended because he was not there. The licences being on the premises would count as possession under the legislation. So that in those circumstances we say that Inspector Jago was able to have reasonable grounds for believing that within 72 hours when the licence was suspended, there would be on the premises firearms that were connected with the offence of possession without a licence or a permit. That is our answer to that.

KIRBY J: I do not quite understand that point but maybe I will understand it better when Mr Ireland - - -

MR SEXTON: Perhaps I will just - what we say is that the result of section 25’s operations is that when the licence is suspended an offence of unauthorised possession arises immediately, but even if our learned friends were right that there was some sort of time – the section does not talk about it but if there was some sort of short time during which these could be surrendered and avoid the creation of an offence, it was not going to happen in this case because he was not there.

KIRBY J: He was in hospital.

MR SEXTON: Yes, that is right, your Honour.

KIRBY J: Is that the complaint that he could not be guilty of any offence under section 25(1) because “immediately surrender to a police officer” implies that you are in a position to do so and if you are in a hospital you cannot do that.

MR SEXTON: I will not make my learned friend’s argument for him but I think they say that even if he had been there, there would be a time during which the weapons could be surrendered without the offence being created, so it was not just the fact that he was not on the premises. But we say that is not what the section says, so one could imagine that the section would normally be administered in a way that would not result in prosecutions but that that is what it says on its face.

KIRBY J: What did Justice Giles say on this point?

MR SEXTON: He rejected the argument that was put by my learned friends on that basis, your Honour. The findings of the Court of Appeal are made on the one ground, that is the effect of the misdescription on the reasonable belief of the police officer under paragraph (2) of the search warrant. If the Court pleases, those are our submissions.

GLEESON CJ: Thank you, Mr Sexton. Yes, Mr Ireland.

MR IRELAND: Your Honours, could I commence with the subject matter which seems to have attracted the attention of the Court as to the suggested deficiency in the legislation which leads poor Inspector Jago into trouble. The Search Warrants Act 1985 was the applicable search legislation at the time of the events of June 1998 and, as has been rightly pointed out, section 5(2) of that Act as originally enacted referred not unexpectedly to the contemporary firearms legislation, that is the Firearms Act 1989. But we submit that there was effectively an amendment to that section perforce of the Firearms Act 1996 and in my learned friend’s bundle it is under tab 3 at page 71. You have looked at it twice already in different connections. So that when item 12 of Schedule 3 of the Firearms Act comes into play, one of the things - - -

GUMMOW J: Just slow down a bit, Mr Ireland. So that when what comes into play?

MR IRELAND: When the Firearms Act 1996 comes to be enacted, one of the things which it does is to correct the statutory reference in section 5(2) because it says:

A reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act . . . is to be read as a reference to the corresponding provision of this Act –

It is just like an incorporated amendment of any other type. So that the legislative footing on which the Search Warrants Act 1985 stood at the relevant date in June 1988 was section 5(2) as amended by that provision.

KIRBY J: Is that not against you in the sense that it suggests that what was provided was accurate and if you are in any doubt, you have regard to the clause that takes you to the 1996 Act?

MR IRELAND: No, your Honour. I must have been very unclear in putting that submission. What is does is it insists that the particular offence which the applicant for the search warrant must be considering is a particular firearms offence now under the Firearms Act 1996 and that clearly did not occur. That is the essence of our point. So that the distraction of the thought that section 5(2) remained unamended to a point where the relevant Act which the Search Warrants Act directed attention to as a repealed Act is a misconception, in my submission.

To answer your Honour Justice Kirby’s question, that meant that in 1998 what had to be considered was the possibility of a future offence in the facts of this case under the 1996 Firearms Act. This Act in 1985 consolidated and drew together a lot of disparate provisions. Your Honour, we sent up a smaller bundle of materials of mainly parliamentary materials and the Hansard for 1985 which attended the introduction to the Legislative Assembly of the Search Warrants Act is under tab 1. The page number is 3859. Mr Sheahan, the then Attorney-General, moves, and he says, if your Honours have it in the third paragraph on that page, at about the middle of the paragraph after speaking of Entick v Carrington and the important principle of - I think in the modern idiom it would be every Australian’s McMansion rather than a castle, but he said:

As a result of the generally piecemeal way in which these provisions have grown, there is now little consistency or coherency in their terms or the tests they require. In addition, the procedures specified tend to . . . varies considerably.

So that there are a lot of provisions in lots of legislation positing different tests for the issue of warrants, and the importance of this Act in 1985 was to unify the procedure for all purposes.

Your Honour Justice Kirby set out that material in Carroll (1991) 25 NSWLR 441 and the passage in your Honour Justice Kirby’s judgment is at 448. Your Honour refers to this parliamentary speech at letter B, and to the “bewildering array of tests” which existed in current legislation of various types. So that may contribute to an answer to your Honour Justice Kirby’s question as to why this Act was enacted in the way it was.

KIRBY J: Are there similar Acts in other States or not?

MR IRELAND: There are different Acts in other States. We have not researched those, your Honour, for obvious reasons. However, what was then created by the 1985 Search Warrants Act was what the legislators described as “tests”. If your Honours in the same bundle go to tab 2, 4667, which is the Legislative Council, Mr Unsworth, then Minister for Transport, said at the first full paragraph on the page:

I now turn to the major features of the bills. The most notable feature is that they create a single integrated system for the control of searches by warrant. All Acts containing provisions for the issuing of search warrants that can be amended, are either repealed or amended to comply with the scheme. The new search warrants system rests on four main proposals. These are first, only magistrates and justices of the peace employed by the Local Courts administration . . . will be empowered to issue search warrants. Second, for a search warrant to be issued two tests must have been met. An applicant must have had specific reasonable grounds for seeking the warrant and the justice must have had reasonable grounds for issuing the warrant. Third, all occupiers of premises . . . will receive a notice -

and so on. So that what this Act does is to set up a dialogue between the applicant for a search warrant and the issuing justice.

That is brought into force by section 5 of the Search Warrants Act which is under tab 1 of the Crown’s bundle at page 3 of the print. I should interpolate that it is said in the State’s submissions here that these provisions are no longer in force. We do, with respect, point out that exactly counterpart tests now exist under the current legislation which is called the Law Enforcement (Powers and Responsibilities) Act 2002 and we have reproduced that under tab 3 in our smaller bundle. The test and approach is really indistinguishable, so all of this has a continuing importance on similar language.

KIRBY J: Is that statute, with its long-winded and self-serving name, in the collection here?

MR IRELAND: Your Honour, we have extracted in our bundle under tab 3, I think, the relevant part, which is Part 5 of that Act.

KIRBY J: I see, yes.

MR IRELAND: If I could take your Honours to it, on a page numbered 27 in this extract under tab 3 you will see a familiar looking schema, “Power to apply for warrant for particular offences”:

A police officer may apply to an authorised officer for a search warrant if the police officer believes on reasonable grounds that there is or, within 72 hours will be, in or on any premises . . .

(b) a thing connected with a particular firearms offence -

so there is a replicated scheme under that Act.

The 1985 Act sets up, we say, a dialogue between the applicant and the justice and in order to make that dialogue meaningful and to allow the justice in particular to exercise his or her function, there was an insistence under the legislation that certainly material be provided and that, as Justice Callinan has observed, it is not any imagined offence that grounds this application; it is a particular firearms offence. The word “particular” is not part of the definition of “firearms offence”, “firearms offence” only takes you to the relevant Firearms Act. The word “particular” is inserted in section 5(1) as an overriding requirement of the kind of offence which will engage this possibility.

KIRBY J: But what is put against you is that it is really not a very significant or material substantial difference because if the legislature keeps amending these statutes, it is almost inevitable that slips will occur. We see it every day, as the Chief Justice pointed out on the special leave application, of counsel referring to earlier drafts of legislation and it is very easy to do and it is not really material, it is not something that touches the merits in any way. It is not as if your client receiving the incorrect warrant if he had been at home would have rushed out to the kitchen and got the 1985 copy of the statute and checked what it said in his case.

MR IRELAND: Your Honour, the insistence on the details being conveyed is so that the justice can evaluate and, in our submission, invigilate upon whether he should issue the warrant at all.

That is section 6 of the Act on page 4 of the print:

An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant –

This is not a rubber stamping. One starts a dialogue by the application and one consummates the issue of the warrant by the satisfaction of the justice of the peace, but there is more because - - -

KIRBY J: If the justice had looked at the wrong statute, as in the application, then he would have found provisions which in substance are exactly the same as those appearing in the new statute and therefore his mind, at least in this instance, would not have been addressed to immaterial, irrelevant, additional or inconsequential provisions. He would have been referring to exactly the provisions which under the new statute his mind had to be focused on.

MR IRELAND: Our point is a slightly different one, your Honour, and it is this, that the essence of this jurisdiction, as it were, to issue a warrant or power, a statutory power, resides in an established present and approved reasonable belief in the state of affairs. There must be formed the reasonable belief and it must be articulated in the application and it must be approved by the justice. So, there are three stages of attention that must be given to the identity of the particular offence but it is more confusing than that on the facts of this case because the typical case will be a thing on premises connected with an offence, and the legislation envisages, of course, that the offence which is being contemplated may be a future offence. As the statute says in section 4, the reference to “a thing” is either:

(a) a thing with respect to which the offence has been committed...

(c) a thing that was used, or is intended to be used, for the purpose of committing the offence.

We say ultimately, so I can illustrate to your Honours where I am going with all of this, that there was a complete misconception in the reasoning of the applicant for the search warrant as to the construct of this offence that he expressed his reasonable belief in.

CRENNAN J: May I ask you this. I understand the point you make about the transitional provisions in section 5(2) in the Search Warrants Act. Do you make the same argument in relation to form 1?

MR IRELAND: Yes, by reference to section 68.

CRENNAN J: Then if you look at 368 of the appeal book, it is – just for convenience, anyway - - -

MR IRELAND: Which is the actual application.

CRENNAN J: Yes. It is repeating form 1 at least to the extent that you find in form 1 what is set out at (2)(a):

the things are connected with the following indictable offence . . . within the meaning of the Search Warrants Act 1985 –

Now, I just want to understand how the transitional provisions, on your argument, work in relation to form 1 and how that would affect what is the actual form in the appeal book.

MR IRELAND: What it would do, just returning to page 71, which is that Schedule 3 item 12 number under tab 3, that extends, in our submission, to a revision of the form as well.

CRENNAN J: But what does that mean? Does the magistrate then read the form as being a reference to the Search Warrants Act as amended on your argument to be a reference to the current - - -

MR IRELAND: Firearms Act.

CRENNAN J: Firearms Act, sorry, yes.

MR IRELAND: No, your Honour, I was just finishing the sentence for your Honour.

CRENNAN J: Sorry, I was just skipping through it, but that is to be read, is it, as a reference to section 5(2) as affected by that amendment?

MR IRELAND: Yes, it is.

GLEESON CJ: So there is a repugnancy between the form in paragraph (a) and the information added to paragraph (a)?

MR IRELAND: No, there should be – I am sorry, your Honour, the form - - -

GLEESON CJ: Whatever the consequence of it may be, the reference to “firearms offence . . . within the meaning of the Search Warrants Act 1985”, because of the effect of item 12, is a reference to an offence under the Firearms Act 1996 and there is, therefore, is there not, whatever the consequence might be, a repugnancy between what I will call the printed form, the basic form, in paragraph (a) and the information that was added by the police officer, because the information added by Inspector Jago referred not to a firearms offence within the meaning of the Search Warrants Act 1985, but to a firearms offence under the repealed legislation?

MR IRELAND: Yes, it did. I put it this way, your Honour, that the effect of item 12 was to both amend section 5(2) in its reference to the 1989 Act and to amend the consequence of that internal reference in the form.

GLEESON CJ: Yes.

GUMMOW J: I know that, the Chief Justice has put that to you, but what do we then make of what was added under (a)?

MR IRELAND: That it was non-responsive, because what had to be filled in there – and no doubt the police computer here is partly at fault. They have not got round to implementing these changes, but they are now, certainly if my approach so far is correct - - -

GUMMOW J: Anyhow, what it should have said instead of “Possession of Firearm Firearms Act No 25/1989”, it should have referred to the later statute?

MR IRELAND: 1996, section 7.

GLEESON CJ: Or said nothing at all. If it had said “Unauthorised possession of firearm”, no problem.

MR IRELAND: It does not say “Unlicensed possession of firearm”. It says “Possession”.

GLEESON CJ: No, I am saying, if Inspector Jago - - -

MR IRELAND: I understand what your Honour is saying.

GLEESON CJ: - - - had added the words “Unauthorised possession of firearm” full stop, end of problem.

MR IRELAND: Yes, because that would then be congruent with the structure of the new Firearms Act.

GLEESON CJ: Yes.

MR IRELAND: But once he goes on to be specific - - -

GLEESON CJ: Yes, he sets up the repugnancy.

MR IRELAND: That is right.

GLEESON CJ: The question for our decision is whether the words “Firearms Act No 25/1989 Sect 5(a)” are immaterial surplusage?

MR IRELAND: Correct, on that approach. The Court of Appeal articulates why the difference is substantial by saying that the scheme of the two Acts are different. The licensing provisions are different. Can I return to the facts of this case because they are very special.

GUMMOW J: But wait a minute, do not slip away from it all.

MR IRELAND: I am sorry, I did not hear that.

GUMMOW J: What do you say as to what the Chief Justice says is the nub of the case?

MR IRELAND: My submission is that – and that is what I was just coming to, I am sorry, your Honour – this is a dialogue which is taking place between the applicant for the warrant and the justice who must approve the issue of the warrant. That entails making decisions about the connection between the thing, the place and the offence, the three elements of the Search Warrants Act as it then stood. There has to be a relationship believed in by the applicant for the search warrant between a future offence, a thing and a place. That is the way the Act works, and one has to reason in making the application, in light of a particular statute, whether that relationship generates an entitlement on that belief to apply for the warrant and that is because it is only particular offences that qualify. So it is not to the point that some idea of an offence or some offence in the broadest terms be contemplated - - -

GUMMOW J: Wait a minute, what do you then say to the proposition that there would be no trouble if the additional words after (a) on page 368 had stopped at “Possession of Firearm”, full stop, with no reference to any statute to follow?

MR IRELAND: I am just coming to that, your Honour. I hope this will answer your Honour’s question. The putting in of these words is not the solution to the problem because the putting in of these words is only part of the exercise of articulating to the justice what the facts are that you say justify the issue of the warrant, and he or she has a role to play in checking that logic.

Now, the special facts of this case are, we have Mr Corbett licensed, at the moment an application for the warrant, we have a contemplation in respect of Jago that there will be service upon him the next day in the morning of an effective suspension of his then current shooter’s licence, so the future offence arises on the construct, as we have submitted it, of the policeman himself. That is the only offence.

Now, we submit, your Honours, that under section 4 of the Search Warrants Act, which is on page 3 of the print that I was referring to, that cannot be a thing intended to be used for the purpose of committing an offence, because he has to postulate that at the moment of the suspension of the licence Corbett then intends to use the shotgun for the purpose of an offence, and that is not a qualifying analysis.

So that the symbiosis that is created by this Act to check the position was always misconceived even if a neutral expression had been introduced in answer to question 2, and that is my answer to your Honours - - -

GLEESON CJ: This is your notice of contention point?

MR IRELAND: Yes.

GLEESON CJ: But coming back to the other points, a possible point of view is that what arises here is a question of construction of the application for the search warrant. That is, what does the application for the search warrant communicate? That is an issue of construction. If you are right about the proposition – and at the moment I cannot see why you could be wrong about this – that, read in the light of item 12 of Schedule 3, the expression “firearms offence . . . within the meaning of the Search Warrants Act 1985” means firearms offence under the Firearms Act 1996, and if there is then a repugnancy between that part of the form and what is added by the police officer in the next line, as a matter of construction of the application of the search warrant, how does one resolve that repugnancy?

MR IRELAND: It is slightly worse than that because, as my learned friend fairly pointed out, the alternatives were not struck out. That is “indictable offence/firearms offence/narcotics offence”, and so on. So that you are left with a complete uncertainty unless you specify which of the Acts, and we say which of the provisions, engages the entitlement for consideration.

GUMMOW J: It says “following indictable offence”.

MR IRELAND: No, “indictable offence” is one of the alternatives of section 5. The form reflects all of the alternatives in subsection (1). There are four or five. There is a selection of them, but none of those have been eliminated.

GUMMOW J: You have to get some work out of the word “following”, that is what I am putting to you.

GLEESON CJ: As you rightly say, that complicates the question of construction, but how does one answer the question of construction? Probably it was not the case, but suppose the recipient of the application, the justice, was a person particularly interested in construction of instruments.

MR IRELAND: I will assume that, your Honour.

GLEESON CJ: What is the true construction of this application for a search warrant, bearing in mind the uncertainties and the repugnancy to which you point?

MR IRELAND: We would say, your Honour, that the alarm bells should immediately ring. One of the things that the - - -

GUMMOW J: No, they ring but then what happens?

MR IRELAND: They say, “Hang on, this is a repealed Act”.

GLEESON CJ: The justice who gets this says, “What is this applicant telling me?” That is a question of construction of a document.

MR IRELAND: Your Honour, could I respond to that by saying this. There is much more to the application than that. It is a little distracting because the application on 368 is continued on 370, so you have to look at 368 with 370. The document at 369 is logically really the third page of the form because it is the record of the issue of a warrant. So what he is being told, as your Honours will see, at the top of 370 there is an item (4) – that follows on from the item (3) on page 368 – so all of the things he is being told are the factual matters which go to base the legal assertion as to the applicability of the particular firearms offence. He is not just given the bland statement, “There is a firearms offence here”; the applicant has to set down in (4) the grounds which lead into that conclusion and to that reasonable belief.

KIRBY J: But in the context of the unremoved provisions in (a) relating to an indictable offence and a narcotics offence, given that subsequently just below that reference is made to the Firearms Act, would you not read that as excluding the indictable offence and the narcotics offence?

MR IRELAND: You would as filled in but my response was to the Chief Justice, if it was at some shorter assertion, “possession”, it might be a common law indictable offence - - -

GLEESON CJ: No, I was inviting you to comment upon the proposition that upon the true construction of this confusing document, with all its uncertainties and apparent repugnancy, the information that was being communicated to the justice was that the applicant had reasonable grounds for believing that there was an offence under the 1996 Act.

MR IRELAND: Your Honour, my submission is that could not be so because one would have to ignore those concluding words and, as the Court of Appeal said, you cannot transmogrify a belief stated in respect of one legislative scheme into a subjective belief held in relation to another, and that is the reason for the insistence. No doubt the police computer which provides this information reflects the correct approach to the matter, that is that particular information should be given because the word “particular” has to be given full weight in subsection (5).

GLEESON CJ: There are established principles of construction of documents to deal with cases of repugnancy. Do they have any relevance to this issue?

MR IRELAND: Your Honour, it is not the form that is repugnant, it is the information which is introduced into the form, erroneously on our case, by the police officer that creates the so-called repugnancy. In my respectful submission, this notion of repugnancy is usually applied to an instrument, or even a contract, I think, but more usually an instrument, including a statute, where the whole thing is laid out by Parliament. In other words, one finds one part of the document fighting with the other and one has to resolve that internal repugnancy.

GLEESON CJ: That is right. You actually made the point, I thought, that that part of the document that follows the letter (a), the three lines of that are fighting with the following line.

MR IRELAND: Yes.

CALLINAN J: You do not get any assistance in resolving the repugnancy by reference to the grounds because they are really talking about possible other offences entirely. Normally you might be able to resolve the repugnancy internally by reference to other parts of the document, but that does not seem to happen here.

MR IRELAND: Save for one qualification, if I could be permitted to put it. What the magistrate is being told in point of fact over on page 370, and he notes it – that handwriting, I think it is common ground, is the magistrate’s handwriting. Remember that this procedure of issue of the warrant is not to simply submit a form, somebody in a room looks at it and either stamps it yea or nay. The Act insists that the person attend personally, except in a telephone exception, on the magistrate, be sworn – or the issuing justice it is called – being sworn and give such information as is sought. These notes reflect the interrogations of the magistrate.

KIRBY J: Where is that insistence? Where are the provisions requiring that formality?

MR IRELAND: Section 11 of the Search Warrants Act.

GUMMOW J: It is section 12A(1)(f). That is all we are fixed on, is it not?

MR IRELAND: Yes.

GUMMOW J: The question is, was this additional material in paragraph (a) with the reference to the section 5(a), was that information required by the regulation?

MR IRELAND: No, your Honour, it is (b), it is not (f), relevantly. Section 12A(1)(b), “the grounds on which the warrant is being sought”. That is part of the insistence of the statute. You have to go there personally under - - -

KIRBY J: That is what I want. It is not in section 11. No, it is. It is in section 11(1), “and must be made by the applicant in person.”

MR IRELAND: Yes, “in person”. That is what I had in mind, your Honour. So you go there with your form. You are then questioned or not, as the case may be. You are sworn and the magistrate witnesses the oath, at the bottom of 370. Then there is this process of interrogation which, in the facts of this case, leads to these notes. The magistrate is then told, “We have a situation here where there is an existing shooter’s licence”. “Action is being taken to suspend License”. That is at line 29 on the page. And “Pump action 12 gauge shotgun” reflects, so the trial judge finds and the Court of Appeal, I think, confirms this, that there is some dialogue. Indeed, Inspector Jago’s evidence was to similar effect, that dialogue about the facts of the case which lead to the grounds, we would suggest, for the legal assertion about the connection in the future between the offence, the place and the particular crime.

So this is not to be construed in isolation as some form that the poor magistrate sitting alone in his chamber over a cup of tea is trying to understand. The magistrate is being verbally given a lot of information under oath, face to face, about the facts which would justify the answer given.

GUMMOW J: But look, Mr Ireland, 12A(1)(b) says:

An authorised justice must not issue a search warrant unless the application for the warrant includes the following information...

(b) the grounds on which the warrant is being sought –

Right?

MR IRELAND: Yes, your Honour.

GUMMOW J: They were included. They were deeply confusing but they were included. Now, where is the failure to observe 12A(1)(b)?

MR IRELAND: I was not putting it that way. I referred to 12A.

GUMMOW J: What we have to get to is this, we have an action in trespass.

MR IRELAND: Yes, your Honour.

GUMMOW J: The question is: is there a statutory authority to permit the acts which amounted to the trespass, right?

MR IRELAND: We agree with that.

GUMMOW J: On the face of it it is the warrant. The question is: is the warrant then “invalid”? No one will tell me what that really means but it seems to be some want of compliance with the mandatory requirement in this process for issue, right?

MR IRELAND: Yes, your Honour.

GUMMOW J: And you point to section 12A(1)(b) and (1)(f) and what I am asking you is where is the default based upon 12A(1)(b) when the grounds are set out? They are contradictory and confusing but they are set out.

MR IRELAND: Your Honour, with respect, one needs to look at section 5. Section 5 says that the grounds which are articulated have to have these three-way relationships and they have to be reasonable grounds which allows the magistrate to intervene on any illogicality that comes to it and he certainly has a function - - -

GUMMOW J: Wait a minute, 5(1) is a condition precedent to making the application, is it?

MR IRELAND: It says he may make an application - - -

GUMMOW J: No one in this case seems to be willing to grapple with the statute in its precise terms and the precise consequences for validity and invalidity.

MR IRELAND: I am sorry, your Honour, the statutory requirement for a particular form is in 11(1), as we have noticed.

GUMMOW J: Yes, that is right. Presume there is no problem with the form. You then brought me back to 5.

MR IRELAND: Yes, because I am saying that inherent in this scheme is a reasonable relationship.

GUMMOW J: Now, you are talking about this word “scheme”.

MR IRELAND: Statutory scheme. The statutory scheme I have described - - -

GUMMOW J: Which is generative of invalidity in certain circumstances as to the end product, namely the warrant.

MR IRELAND: Yes.

GUMMOW J: I need to have that explained to me precisely.

MR IRELAND: I see. I understand that. Your Honour, we would put it this way - - -

GUMMOW J: There are a number of things that must or must not be done in this process, but what is the consequence of each faulting step for the validity of the end result?

MR IRELAND: We would say, your Honour, just as the court found, I think in – the Court of Appeal in this case and in - - -

GUMMOW J: If I can just interrupt you a little bit further, a lot of the decided cases - and Rockett is one and Propend in this Court is another - a case of administrative review at the time the warrant is or is about to be issued. That is not this case.

MR IRELAND: No. This case, as your Honour has absolutely correctly identified - - -

GUMMOW J: Is a tort case.

MR IRELAND: Yes, and it is about statutory authority. So we are, on our side of the case, undermining the proposition that there was statutory authority and in doing so we point to the requirements and the scheme of the issue of the warrant and we say that fundamental, at the first step of all of this, there was a failure to constitute a reasonable ground for the warrant. If that is right as a matter of logic, the whole of the rest of the process falls and fails. That is the way in which I put it, your Honour, and say that these reasonable grounds are reviewable in a collateral way. This is not, as your Honour absolutely correctly points out, a certiorari - - -

GUMMOW J: Just a minute. When you refer to section 5, are you saying that it was incompetent for a member of the police force to apply because section 5 was not observed?

MR IRELAND: Yes.

GUMMOW J: But application was made, so you say that taints everything that followed?

MR IRELAND: Yes, it does. That is the only way I can put it because it is a series of events: the formation of the belief, the application, the communication of the belief, the approval of that belief and the issue of the warrant. They are all logical steps in the same statutory scheme.

GUMMOW J: Now, why was 5(1) not satisfied?

MR IRELAND: Because it was not a thing connected with a particular firearms offence that he expressed his belief in, because he did not turn his attention to the legal question. All he did, unfortunately, in this case was to have a menu on a computer, and as the Chief Justice said at the beginning, pressed “Enter”. We are all modern enough to know that, and indeed, he said in his evidence he did not – Mr Neil got this out of him, I noticed this morning, that he did not give any consideration to any section of any Act.

GUMMOW J: And you say what he had to do was to give attention to not the 1989 Act but the later Act, but in any event he did not give any attention to any particular statute?

MR IRELAND: That is right.

KIRBY J: What if he had given attention and his belief was the actual content of the offence, and he had not really given any thought to a particular statute. Now, would that not enliven 5(1)(a) or 5(1)(b)?

MR IRELAND: I take refuge in the requirement for consideration of a particular firearms offence.

CRENNAN J: Would that not be satisfied by unlawful possession of a firearm?

MR IRELAND: Not in the facts of this case because one starts off with the proposition that at the time the application is made we are in lawful possession of the firearm. It is only future events. If I could just try and slip this in while there is a moment, normally the crime that one is looking at with which the thing is connected is not the crime of possessing the thing. This is an exceptional case. It may have application but it is a highly exceptional case.

Normally it is the jemmy found on the property which is going to be used to stove in the jeweller’s window the next day in a future offence under contemplation or the drugs in the house that are going to be sold to the purchaser at midnight, or whatever it is. One is looking for a thing connected with a future offence, but the having of the thing is not usually the substance of the offence and especially when at the time the application is made for the warrant there is lawful possession.

So this is a case where we submit, your Honours, that the misconception on the reasonable basis travels much further than that. We say that in a case of suspension of a licence, which this was, one looks under the 1996 Firearms Act which is found under tab 3 of the Crown’s material. Section 25 to which attention has been given, which creates an obligation upon a suspension to hand it over, covers the field, and that carries with it - - -

CALLINAN J: You say an offence that used to be an offence under a repealed Act cannot possibly be a particular offence? It is really as simple as that, is it not?

MR IRELAND: That is our primary argument.

GUMMOW J: Is there a finding to the effect that you say, that the member of the police force did not turn his mind at all to any particular offence?

MR IRELAND: There is unequivocal evidence at 271 but I will check whether there is a finding. I had an impression there was. He was asked in chief at 271, line 50:

Q. Did you personally turn your mind to which particular section of any Act it might be?
A. No.

KIRBY J: And do you say that that, therefore, does not conform to the requirement of a particular offence?

MR IRELAND: Yes, and I also say in additional argument that the thing does not qualify as a thing that can come into the equation because it is not a thing that my client intended within the meaning of section 5 of the Act. The only answer to that would seem to be that if the relevant intention should be one of intending the mental element of possession but we say that the requirement of section 4 of the Search Warrants Act, that the thing can only qualify where it is a future matter, where it “is intended to be used, for the purpose of committing the offence” - this is section 4(1)(c). That is the only gateway through which this could pass.

CALLINAN J: Mr Ireland, I have a recollection of a case, and I do not know whether it would really bear upon this or not, but in this Court within the last couple of years, on the question whether there could be a reasonable suspicion or a reasonable basis for customs officers or police officers acting when they were acting under a mistake of law. I do not know whether it bears on this case but it may be - - -

MR IRELAND: I have not got that in mind, your Honour.

GLEESON CJ: Shaw I think is the name of the case. It is that line of cases about alienage.

CALLINAN J: That sounds right, yes. I am just wondering whether it has any relevance on the question of materiality, that is all.

MR IRELAND: Yes, I see. Could we have permission to have a look at that and what may flow - - -

CALLINAN J: It may have nothing to do with it but - - -

MR IRELAND: I just cannot usefully answer your Honour on my feet about that, I need to look at - - -

GLEESON CJ: You can put in a note about that within 14 days.

MR IRELAND: Could we do that?

GLEESON CJ: Yes. I think the case was Shaw but it was certainly in that line of cases dealing with the question of the status of alienage and the removal of somebody where there was a possibility that the officer was or was not acting upon some understanding of the law that changed as a result of a decision of this Court.

MR IRELAND: The changing law.

GLEESON CJ: Yes.

KIRBY J: I do not think it is Shaw because Shaw was at about that time and that was the man who was a British subject but it was at about that time.

CALLINAN J: I think there were two Shaw Cases; it is the later one.

MR IRELAND: Thank you, your Honour. I am sorry I am not at the moment any use on that.

GLEESON CJ: Anyway, you can let us have a note on that.

MR IRELAND: As I say, we seek to attack the first stage in all this which was the formation of the reasonable belief and that is our contention, so I have really been dealing with the contention in this context. It is a very special case because, in order for the applicant policeman to have a reasonable basis for this, there are a number of things he had to assume. The first thing was that there would be an effective suspension of the licence the following day. That was in his hands.

He had to assume that an offence would thereby be created by the effective suspension of the licence. Our submission is that that involves giving section 7 of the relevant legislation, the Firearms Act 1996, the wrong meaning because - - -

GLEESON CJ: Mr Ireland, I am not clear about an aspect of the facts relating to this argument of yours. What significance, if any, attaches to the circumstance that they apparently thought there might have been other weapons there?

MR IRELAND: Your Honour, there was some talk about a rifle, but all of the information which the police had suggested, as I think the trial judge held, that the rifle had been given to his brother in Queensland, I think, or interstate. I might be wrong about the State. So that the focus, as the magistrate’s note reveals, is on the pump action shotgun.

GLEESON CJ: They were not going to confine their search to a search for that, were they?

MR IRELAND: No.

GLEESON CJ: By the way, the case that we were referring to earlier was a case of Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.

MR IRELAND: I am obliged, your Honour. We will look at that. So our submission is that where you have lawful possession because there is a licence to possess and there is a suspension of that licence under section 22 – I am sorry, could I just add a reference on the other weapon. It is in the trial judge’s decision at 410, line 15. It was the Northern Territory that he had given the .22 rifle to in the second half of the 1990s prior to the amnesty. So the only real cogent belief was in relation to the shotgun. I have not come to this yet, but the vice of all this was, I will just say quickly, that if they had looked properly they had within their own records knowledge of the fact that this shotgun had been handed in and we rely on that to some degree because the - - -

KIRBY J: They looked for it, but they went through all the folders, they did not have it apparently computerised, and they could not find it.

MR IRELAND: Yes, the trial judge was wrong about a fact which I will just quickly point to. It may not make any difference in the outcome. The trial judge accepted the evidence that it was not on the computer because it only went on the computer when there was an application to destroy the gun, if your Honours remember that evidence, and he said there was no evidence of that. That was not so. Judge Charteris’s finding is at 434, line 33. He says:

That entry –

on the computer –

according to the witness, was only created when there was an application to destroy the weapon. The evidence does not reveal when that application was made.

That is wrong as a matter of fact because the documents which were tendered by the Crown made that good. In particular, I refer to page 391, which is the computer search, which makes it clear that the request for disposal of the weapon was made on 30 September 1997 not only by the police, but by the very person who signed the suspension notice, which is Sergeant Topham. He had requested it go on the computer and, therefore, it follows from the judge’s reasoning and from logic that it would have been available on the computer. That may not ultimately make a lot of difference in the result, but it is a point about the facts which should be corrected. Our case does not depend on that, but it is certainly very much on the merits that it contributes to a conclusion about the reasonability of the formation of this so-called view as to the likelihood of an offence.

All I want to just get clear for your Honours, because I think I have not, is that section 25 of the Firearms Act 1996 under tab 3 gives the consequences of a suspension and it says:

If a licence is suspended or revoked, the person to whom it was issued must immediately surrender to a police officer –

We say that covers the field, that controls the offence and it is wrong, as our learned friends do, to try and overlay section 7, the general notion of possession on that.

GLEESON CJ: I imagine that that word “immediately” has a degree of flexibility that would respond to the circumstances of the case.

MR IRELAND: Yes, we say that, of course, and the common ground here is he is in his hospital bed in Port Kembla, the gun is presumptively 150 kilometres away at Goulburn on the farm, he is given the notice in his bed, he hands over the licence – we know that – responsibly, and an offence is instantly created there because he intends, upon the hypotheses put forward, to use that for the purpose of committing an offence. Now, there is no warrant for any of that conclusion, literally.

KIRBY J: Except (a) that he was a person who had had some mental health problems; (b) he had attempted to take his own life – a very serious step; (c) he had left a note in which he said, “Some police will die”; (d) these were senior officers of police; (e) we know police do get killed unfortunately. Indeed, one of the decisions handed down this morning was about such a case.

MR IRELAND: I have not read it yet, your Honour.

KIRBY J: You have not had the time yet; I do not hold you responsible for that. Therefore, the police were at least reasonably entitled to consider taking steps to protect other police.

MR IRELAND: But the justification for the warrant must be in relation to a particular offence. In other words, all of those worries – if I can use that word compendiously – do not get you a search warrant. You have to go through the framework of this Act and point to a particular offence, the anticipation of which is reasonably based, and I have given the reasons why we say that did not occur in this case.

KIRBY J: Given a threatening letter, why is not there a reasonable anticipation of an offence of using a firearm, which he is known to have, to kill a policeman if he can get access to it?

MR IRELAND: Because that is not the basis for the application. The basis for the application is that he intends to use that firearm for the purpose of the offence of illegally possessing a firearm. That is the problem with that logic.

GLEESON CJ: When the prediction “Police will die” appears in the context of a suicide note, it is probably not likely that the author is talking about what he is going to do.

KIRBY J: Well, except that it is - - -

MR IRELAND: I do not know if your Honour has read it, but that was a complete misconstruction of what that meant. That meant if the new radio system goes in, it will be ineffective and police will die.

GLEESON CJ: That is the point I am seeking to make. If you are the author of a suicide note and saying that something is going to happen, it is unlikely on the true construction of the suicide note that you are going to do it yourself.

MR IRELAND: Yes.

KIRBY J: That is a very dispassionate view of the suicide note. Another view is he did not die, and this is a man who has a gun and he has said, “Police will die”, and if senior officers had done nothing to protect their police officers under their responsibility, they would be in the gun politically.

MR IRELAND: On the other end of the gun. Your Honour, I think if you read the suicide note with any kind of good sense, you will see what “Police will die” means and the Court of Appeal so finds.

KIRBY J: I do understand that argument, but there is another construction, and in the circumstance of protecting other police officers, I do not think it is so unreasonable that senior officers should do that.

MR IRELAND: Your Honour, I accept what you have said about that, but what I am saying is that does not have any linkage with the offence that was posited as a basis for the warrant. It was not shooting someone that was the pretended basis for the warrant. It was intending to use that gun for the offence of unlawful possession. That is the way it all ties together. That is why you cannot wander into a magistrate and say, “Look, this fellow’s got a gun and I’m worried he’s going to shoot someone. Please give me a warrant”. You cannot do that. You have to posit a particular offence.

The particular offence here which was under attention was unlawful possession of that shotgun which could only be orchestrated by the effective revocation. My point, finally, is that that would have led to a consequence under section 25 of the Firearms Act that he had to give it back, but not an immediate offence of possession, in any event. So all that was
wrong-headed as well. That is really what I wanted to add. Those are our submissions.

GLEESON CJ: Thank you, Mr Ireland. Mr Sexton, do you want to reply now? How long do you think you will be in your reply?

MR SEXTON: I will only be about five or ten minutes, your Honour, but I would prefer to do it – but I do not want to cause the Court - - -

GLEESON CJ: Would you prefer to do it after lunch? It suits us. Do you want to do it now or after lunch?

MR SEXTON: No, I would prefer to do it after lunch, if that does not inconvenience the Court.

GLEESON CJ: All right. We will adjourn until 2.15 pm.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR IRELAND: Your Honour, before my friend replies, in my excitement before lunch I forgot to hand up the Hansard relating to the section 12A that was introduced in 1991. Could I supply that?

GLEESON CJ: Yes, thank you.

MR IRELAND: I did mention it, but I did not hand it up - both in the Legislative Assembly and also the Legislative Council.

GLEESON CJ: Thank you.

MR SEXTON: If the Court pleases, there are five short matters that I will refer to by way of reply. The first is that my learned friend took your Honours to pages 390 and 391 of the appeal book which is a computer record of the fact that Mr Corbett’s shotgun was surrendered. It is not clear, however, that that record was in existence at the time when the warrant was applied for. At page 460 of the appeal book - I will not take your Honours to it - in the Court of Appeal’s judgment it is clear that a manual search was conducted at the relevant time and it did not turn up the information. Whether or not it was on the computer at that time is just not clear. So in other words, it is not clear when this computer record was generated.

As to Ruddock v Taylor which was raised by Justice Callinan, we have just had a quick look. It does not perhaps seem squarely on point, but my learned friend, Mr Ireland, may want to put in a note about it, which he says he will do within seven days and if the Court is agreeable we will respond, if at all, within seven days, if that is convenient to the Court.

Could I take your Honours just back briefly to the application which is page 368 of the appeal book and paragraph (2)(a) about which the case revolves. As I noted earlier, the various alternatives – there are three alternatives, but two of them have not been struck out in clause (2)(a), but that is the words “indictable offence” and “narcotics offence”, but we would say that given what follows, “possession of Firearm”, and given what is referred to in the grounds in paragraph (4), that there could not be any doubt about the fact that it was the firearms offence that was being referred to in this particular case.

GLEESON CJ: So what was the offence?

MR SEXTON: Possession without the authorisation of a licence or a permit.

GLEESON CJ: Of what?

MR SEXTON: Of a firearm, not specified.

GLEESON CJ: What, the pump action shotgun?

MR SEXTON: No. That was one possibility.

GLEESON CJ: I am looking at page 370 in paragraph (4).

MR SEXTON: Yes, your Honour.

GLEESON CJ: And the grounds relied on are:

He was in possession of a number of firearms during the recent ‘amnesty’, however a search of records failed to locate them as having been surrendered.

That is why I asked Mr Ireland before lunch about the factual relationship of the intention to search for a number of firearms with the grounds. His notice of contention argument, as I understand it, is as far as that shotgun was concerned he had a licence for it that had not been suspended at the time the justice considered this and, assuming it was going to be suspended the next day, his only obligation was to immediately surrender it and “immediately” in that context would mean doing the best you can in the circumstances. So that if, for example, a man was in hospital and his possession consisted of being the owner of a dwelling house 100 miles away that had the firearm in it, his obligation under section 25 was to do what he could as quickly as he could to get the thing to the police. But if you concentrated only on that shotgun, the argument is that there were not reasonable grounds for believing that the shotgun was a thing connected with a particular firearms offence. On the other hand, it may take on a different colour if you look at the possibility of other firearms.

MR SEXTON: Your Honour knows that we say that the offence arises immediately when the licence is suspended but, just putting that to one side for a moment, paragraph (1) of the application refers to “Unspecified firearms” and there is references in the grounds to other firearms. The evidence seems to be that the police thought that there might be a number of firearms on the property. As it turns out, there were not any but they were not sure what they might be. They thought that there was one at least that they could identify by its description of the pump action shotgun but the application is not confined to that.

If your Honours looks at section 4(1) of the Search Warrants Act, in the course of his argument, my learned friend said that the thing searched for could not be connected with a particular offence because it was not – and then he went to (c) and said:

a thing that was used, or is intended to be used, for the purpose of committing the offence.

But really we would look at paragraphs (a) and (b):

a thing with respect to which the offence has been committed –

And that picks up (2) where:

there are reasonable grounds for believing –

that an offence –

has been, or is to be, committed.

So it really goes back to the notion of possession and either possession, we would say, of the shotgun because when the licence was suspended that offence would arise immediately and the police can seize it immediately under section 25 of the 1996 Act or, as your Honour the Chief Justice says, other “Unspecified firearms” which may or may not have been licensed at all, that that was something about which there was not concrete information but the warrant seems to envisage that there may have been other firearms and that some of them may have been licensed and some not.

GLEESON CJ: Were there any findings by the primary judge or in the Court of Appeal about the reasonableness of grounds for believing that there were other firearms apart from the shotgun on the premises?

MR SEXTON: I would have to have that checked, your Honour. I think there was a finding that the requisite beliefs were reasonable in terms of the application for the warrant. I think there were findings to that effect, but I am not sure the findings are split up in that way. There is just one further point that I will make- or perhaps if I just hand up - - -

GUMMOW J: Before you do that, this word “particular” strikes me that it may have been put there for historical reasons, namely the fact that the common law had sets its face against general warrants, and that that is the force of the word “particular”, but that does not mean you have to say it is section 420 something or other.

MR SEXTON: No, even if it says “particular” it might have to identify the offence which it does here in that form. It might not just simply be able to say, “firearms offence” which is what the first part of the paragraph says. We say it does not have to go on and nominate a particular statutory provision.

KIRBY J: The problem is here that you did go on.

MR SEXTON: Of course, your Honour.

KIRBY J: And the question is the effect of what you went on to do that you did not have to do and that you had that in your mind at the relevant time.

MR SEXTON: I will come to the mind. Now, your Honour is on the point. What we say is that Inspector Jago believed that there was a current offence of unauthorised possession of a firearm, and there was such a current offence, and he specified that as possession of a firearm. He was not required by the statute to go any further. As your Honour points out, he did, but in those circumstances we would say that that addition is simply superfluous and it does not relevantly affect his belief, that is the belief that he was required to and did express under paragraph (2)(a) and we say that is underlined by the fact and reinforced by the fact that he did not have a particular provision in mind.

My learned friend took your Honours to a part of the evidence, and if I could just take your Honours back to it, it is at page 271 at line 40, and you will see there that Mr Neil asks him:

Where in the application the system has shown the words –

possession, it presumably means –

of firearms”, “Firearms Act”, et cetera, was it your belief that upon – put it this way – at least upon service of the suspension notice there were reasonable grounds to suspect that the plaintiff was then in possession of firearms to which he was not lawfully entitled to have possession?
A. Yes, that’s correct.

Then at page 280 at line 10, Mr Neil asked him:

Q. Did you have a belief that there was a potential offence relating to unlawful possession of a firearm?
A. Yes.

We say that that is why he had the reasonable belief that is required by paragraph (2)(a) and the addition of those words simply does not affect that belief or its reasonability. That is our essential argument, your Honours. Can I just finally hand up - - -

GUMMOW J: Just before you do that, assuming you are wrong about that, what do you say as to Mr Ireland’s reliance upon non-compliance with section 5? Assume there had been non-compliance with section 5, what would flow from it for this case?

MR SEXTON: Non-compliance because of the reference - - -

GUMMOW J: Because of lack of reasonable grounds for believing.

MR SEXTON: Your Honour, we say the same thing, I think, that he had the required reasonable belief.

GUMMOW J: Assume you are wrong about that, what follows from the non-compliance of section 5, being the first of a series of steps? Mr Ireland says that everything that follows collapses. Do you accept that or not?

MR SEXTON: No, your Honour, we say in that case there are two ways of looking at it. There is section 23 or – it is something that your Honour has raised on a number of occasions. What is it that would invalidate a warrant, what would be the effect of non-compliance? We say that that is not a non-compliance that would have that effect. Maybe that is simply another way of stating section 23.

KIRBY J: This must be quite a common problem in jurisdictions other than New South Wales, one would think, because of the constant change of criminal law and then somebody seeks a search warrant that specifies a particular Act and it turns out there is such an offence but it is in a later Act. It just seems curious that you have not been able to find, with your vast resources, the State of New South Wales dealing with this problem. It must arise all the time, one would think.

MR SEXTON: I do not think anyone except my learned friend would have thought of this point, your Honour.

KIRBY J: Unless policemen everywhere are absolute minimalists and they never say a word more on their search warrants than they absolutely have to.

MR SEXTON: We cannot find any cases that are similar to this, your Honour.

KIRBY J: By the way, is that the form of the State search warrant? I mean, does it still look like that? It is such a tacky little piece of paper. I mean, if somebody presented you with a piece of paper like that that looks for all the world like the roneoed law school notes that I used to receive 40 years ago, you would not take it seriously. It does not even have the State coat of arms on it.

MR SEXTON: It is a standard form, your Honour.

KIRBY J: It is a very unimpressive document. I mean, if you are wanting to impress people with a search warrant, it should have at least a facsimile of the great seal of New South Wales on it.

MR SEXTON: My learned friend says it is a different form, but I still do not think it has the coat of arms, your Honour.

KIRBY J: You can do these colourful things in computers now, you know. You can also keep your statutes up to date.

MR SEXTON: I will bear all this in mind, your Honour. Now, your Honours, finally, we referred in our list of authorities and said we
would provide it, but we have not to date, just a single page from Butterworth’s Australian Legal Dictionary that is about the meaning of the word “instrument”. I will just hand those up if I may.

GLEESON CJ: Thank you.

MR SEXTON: Just in relation to your Honour the Chief Justice and the different forms of firearms, just perhaps pages 299 and 300 of the evidence might - they touch upon that question of unspecified firearms. Your Honours will see at the bottom of the page Inspector Jago said:

The information I had been provided by Inspector Hines was that Mr Corbett was supposed to be in possession of other firearms, but the exact description of them was not known.

Unless there are any other matters, your Honours, those are the submissions for the appellant.

GLEESON CJ: Thank you, Mr Solicitor. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 2.34 PM THE MATTER WAS ADJOURNED