Re Thomas Chung v Wendy Elder and Ors [1991] FCA 369; 104 ALR 379; (1991) 31 FCR 43 (14 August 1991)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS CHUNG
And: WENDY ELDER AND ORS
No. G439 of 1991
FED No. 522
Criminal Law and Procedure
[1991] FCA 369; 104 ALR 379
(1991) 31 FCR 43

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Criminal Law and Procedure - Jurisdiction, Practice and Procedure - Arrest - Power to arrest for offence under Crimes Act 1914 (Cth) - Arrest Warrants - Issue and Validity - Jurisdiction of Justice to issue a first instance warrant for arrest pursuant to Justices Act 1902 (NSW) in respect to an offence under the Crimes Act 1914 (Cth) - Consideration by Justice at issue of arrest warrant of appropriateness of proceeding by summons - Consideration by Justice of oral information at issue of warrant.

Crimes Act 1914 (Cth) - s 8A

Judiciary Act (Cth) - s 68

Crimes Act 1900 (NSW) - s 352

Justices Act 1902 (NSW) - s 21, s 22, s 23, s 24

Hatzinikolaou v Snape and Anor (1989) ATR 68,798

Donaldson v Broomby (1982) ALR 525

HEARING

SYDNEY
14:8:1991

Counsel for the Applicant: D. Campbell

Instructed by: Verekers

Counsel for the First Respondent (submitting appearance only): Crown Solicitor
(New South Wales)

Counsel for the Second to Ninth Respondent: J. Agius

Instructed by: Director of Public Prosecutions

ORDER

Orders in accordance with paragraphs 1 to 4 of the application be made.

The application be dismissed insofar as it relates to the order sought in paragraph 6.

The balance of the applications be stood over to a date to be fixed.

Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant in these proceedings has been arrested pursuant to a warrant issued by the first respondent on 1 August of this year. The warrant was based upon an information of the same date alleging that the applicant

"did between about the 19th day of October 1990 and about
the 23rd day of November 1990, at Sydney in the state of New
South Wales defraud the Commonwealth in that he did enter
goods into Australia without the payment of sales tax and
customs duty contrary to the Act in such case made and
provided."

2. In addition to the warrant under which the arrest was effected, other warrants in the nature of search warrants were issued by the first respondent. These warrants authorised the searching of the applicant's business premises at 68-70 Dixon Street Sydney and also his home at 36 Coxs Road North Ryde.

3. Early next week, the applicant is to appear before the Local Court in Sydney in relation to the charge in respect of which he was arrested. This fact has occasioned the urgency of the matters brought before me today.

4. Those matters originate in an application to the Court made on 8 August 1991 which seeks various orders in respect of the first instance warrant issued for the arrest of the applicant. The applicant also seeks to have the search warrants, to which I have made reference, declared void and of no effect. He makes a similar application in respect of the first instance warrant, alleging that it is void as having been issued without jurisdiction. Various other orders are sought, including damages on the basis of the commission of the torts of abuse of process, malicious procurement of search warrants, malicious prosecution, trespass and the like, allegedly committed against the applicant by the various respondents.

5. The respondents consist of the Justice of the Peace who issued the respective warrants (the first respondent) and eight officers of the Australian Federal Police who have been involved in the proceedings against the applicant (the second to ninth respondents).

6. The matter came before a Judge of the Court on 8 August 1991 when it was made known that the imminence of the prosecution proceedings next week required that the Court deal with at least some aspects of the application which bear upon the continuance of those proceedings. There was urgency also in connection with the obtaining of orders in relation to documents and other items which had been seized in the raids which had taken place at the premises pursuant to the search warrants.

7. Although it is not clear from the consent orders which were made by the Court on 8 August 1991, it is sufficiently apparent today that the hearing that was contemplated for today was to be a final hearing in respect of certain aspects of the application. Those aspects are the orders claimed in paragraphs 1 to 6 of the application. It may be noted that the order sought in respect of the first instance warrant is in effect a declaration that it was void as having been issued without jurisdiction.

8. Other aspects of the case which might be said to relate to the improper procurement of the warrant, as a result of actions taken on the part of the police, do not arise for consideration in these proceedings today. If they are to be proceeded with, they clearly are matters that will be the subject of some further hearing in this Court in relation to the balance of the application.

9. So far as the matters claimed in the orders sought in paragraphs 1 to 4 of the application, the questions have become simplified by events today. It has been conceded that the relevant search warrants suffered from technical defects which rendered them void. In light of that fact, orders 1, 2 and 3 must necessarily be made. No submission is made to the contrary. So far as order 4 is concerned, the Court has been advised that the relevant documents and articles seized under the void search warrants have been brought to Court and are available to be handed over to the applicant. Accordingly, there is no impediment to the making of order 4 in the terms of that order and that order will also be made.

10. With respect to the order sought in paragraph 5(a) of the application, it appears that the copies of the information as referred to have been made available and no present problems arise in relation to that. That application is not pressed. As to the order sought in paragraph 5(b), I have come to the conclusion that it is inappropriate at this stage that an order in those terms should be made. I think it is also inappropriate that such an order be refused. In the circumstances that there are proceedings pending in the local court and that the proceedings which are contemplated by the application before this Court will not be disposed of today, I consider it more appropriate that the final consideration of the order sought in paragraph 5(b) be deferred until the situation becomes clearer.

11. I turn then to the matters raised by paragraph 6 of the application. These matters have occupied the attention of the Court for the greater part of today. The submissions to the effect that the first instance warrant therein referred to, was issued without jurisdiction and was consequently void and of no effect, fall into two categories. Firstly, it has been submitted that in so far as the offence alleged in the information is an offence against the Commonwealth Crimes Act 1914, being the offence provided for in s 29A of that Act, there is and was no jurisdiction in the first respondent to deal with the alleged offence under the provisions of the Justices Act 1902 of the state of New South Wales. This submission is supported in argument by reference to certain sections of the Crimes Act 1914 (Cth) and of the Justices Act 1902 (NSW) to which I shall shortly make reference.

12. The second submission in relation to the absence of jurisdiction is based upon, in effect, administrative law considerations. It is said that even if the first respondent had jurisdiction to deal with the matter under the provisions of the Justices Act 1902 (NSW), she nevertheless failed to exercise that jurisdiction by failing to advert to matters which were necessary for the exercise of that jurisdiction. It is submitted that the result of this is that the jurisdiction was not exercised and the first instance warrant was accordingly not validly issued.

13. I turn to the first submission as to absence of jurisdiction. The Court was taken in pursuance of this submission to s 8A of the Crimes Act 1914 (Cth) which deals with arrest by a constable. Section 8A has been held to apply to constables, whether of federal or state police, seeking to make an arrest in relation to alleged Commonwealth crime (Hatzinikolaou v Snape and Anor (1989) ATR 68,798). The section provides as follows:

"Any constable may, without warrant, arrest any
person, if the constable has reasonable ground
to believe:
a) that the person has committed an offence
against a law of the Commonwealth; and
b) that proceedings against the person by
summons would not be effective."

14. It is clear, as was pointed out by the learned Justices of the New South Wales Court of Appeal deciding Snape, that this provision is far wider in scope than the corresponding provision in the Crimes Act 1900 (NSW), viz s 352. A constable exercising power of arrest under s 8A is required specifically to take into account, and to reach a state of reasonable belief, that proceedings by way of summons against the person whose arrest is contemplated would not be effective. Such a requirement is not to be found in s 352 of the Crimes Act 1900 (NSW). The sections also differ in other respects to which it is not now necessary to make reference.

15. As I understand the submission, it is put that the provisions of s 8A, in effect, provide the only basis upon which the arrest of any person for the alleged commission of a crime established under the Crimes Act 1914 (Cth) can legally take place. It is put that no power to effect such an arrest is to be found in any other source. In particular, it is said that the provisions of s 68 of the Judiciary Act (Cth) and ss 21 to 23 of the Justices Act 1902 (NSW) do not provide the legal basis for the arrest of any person for alleged commission of a Commonwealth crime.

16. I am quite unable to give this effect to s 8A. It is perfectly clear in my view that this provision and s 352 of the Crimes Act 1900 (NSW) deal with the situation of a constable making an arrest without a warrant having been provided to him by a judicial officer. Indeed, both sections specifically state that they apply in circumstances where a constable is seeking to make an arrest "without warrant". Consequently, those sections and cases such as Snape and Donaldson v Broomby [1982] FCA 58; (1982) 40 ALR 525, which deal with a constable's powers of arrest without warrant, have no bearing upon the decision that I am called to make here.

17. In my view, the matter is clearly governed by s 68(1) of the Judiciary Act which, so far as relevant, provides as follows:

"The laws of a State or Territory respecting the
arrest and custody of offenders or persons
charged with offences ... shall, subject to this
section, apply and be applied so far as they are
applicable to persons who are charged with
offences against the laws of the Commonwealth in
respect of whom jurisdiction is conferred on the
several courts of that State or Territory by
this section."

18. The information was laid before a Justice of the Peace of the State of New South Wales. The charges having been made under s 29A of the Crimes Act 1914 (Cth), the matter is for hearing in the local court of the State of New South Wales. There is no contest that that court is a court upon which relevant federal jurisdiction is conferred for the purposes of the Crimes Act 1914 (Cth). I am totally persuaded that the relevant procedures in relation to the approaching of a Justice, the laying of an information and the obtaining of a first instance warrant are governed by the provisions in Part IV of the Justices Act 1902 (NSW).

19. If it was necessary to seek fortification for this view I find it in the total absence in the Crimes Act 1914 (Cth) of any provisions at all for the arrest of persons to be charged with crimes under that Act by way of warrant issued by an appropriate judicial officer. In my view, it is contemplated by the Commonwealth legislation that where an arrest is to be sought pursuant to a warrant issued by a judicial officer in respect of alleged Commonwealth crime, the procedures relating to the issue of the warrant are to be governed by the relevant State law.

20. The provisions of the Justices Act 1902 (NSW) dealing with this matter are ss 21 to 23. Section 21, so far as relevant, provides that: "an information may be laid before a Justice in any case where any person has committed or is suspected to have committed any ... indictable offence ... in New South Wales". The relevant section of the Crimes Act 1914 (Cth) provides for such an offence. Section 22 provides that where it is intended that a warrant in the first instance be issued the information "shall be laid in writing, and the matter thereof substantiated by the oath of the informant...".

21. Section 23 provides that when an information is so laid before the Justice and the matter thereof substantiated by the oath of the informant, such Justice may, if such person is not then in custody, issue the relevant first instance warrant for his apprehension. I am satisfied, therefore, that as a matter of the construction of the relevant statutory provisions, the first respondent had jurisdiction to issue the warrant in this case.

22. I turn then to the second submission which is to the effect that notwithstanding the existence of jurisdiction to issue the warrant, the warrant was in fact issued without jurisdiction through failure on the part of the first respondent properly to exercise that jurisdiction. Specifically it was alleged that she failed to take into account the question of whether it might be appropriate that the procedure on the information take place by way of issue of summons rather than by way of issue of warrant for arrest. The issue of such a summons is provided for by s 24 of the Justices Act 1902 (NSW). I am satisfied that a fair reading of the sections would indicate that, insofar as a Justice has the statutory option of issuing a first instance warrant or issuing a summons in respect of the one information, it is not only appropriate but necessary for the Justice to give consideration to whether one procedure or the other should be adopted. A failure to advert to the question of issuing the summons rather than a first instance warrant could lead to a failure to exercise the jurisdiction at all.

23. It was submitted specifically that the first respondent had not only the broad duty to which I have just made reference, but also the very specific duty of considering the matters raised in s 8A of the Crimes Act 1914 (Cth). In other words, if she did not specifically advert to that section in the exercise of her jurisdiction she would in fact fail to exercise it. It follows from what I have already said that in my view s 8A has no bearing whatever on the jurisdiction exercised by the Justice considering the issuing of a warrant.

24. The applicant has made the submission that the jurisdiction conferred has not been exercised because the first respondent did not advert to the alternative of procedure by way of summons. The learned Justice of the Peace has entered a submitting appearance to the proceedings today. There is before the Court an affidavit from the relevant Detective Constable Seabrook who attended upon the first respondent and sought the issue of the first instance warrant. Material appears in paragraph 4 of that affidavit, bearing upon conversations which took place between him and the first respondent at that time. The material was objected to but I have held it to be admissible.

25. One ground of objection was that this conversation necessarily formed part of the "information" contemplated in the sections of the Justices Act 1902 (NSW) to which I have made reference and accordingly should have been in writing and the subject of substantiation by oath before the Justice. I do not accept this construction of the legislation. The "information" therein referred to, in my view, clearly applies to the formal document prescribed under the Justices Act 1902 (NSW) which is in fact the initiating document in the subsequent prosecution of the person whose arrest is contemplated by the issue of a warrant, pursuant to the information. It must be sworn to. It is perfectly acceptable, however, in my view, that other information relating to matters bearing upon the issue of a first instance warrant be provided orally to the relevant justice.

26. The deponent, Detective Constable Seabrook, has been cross-examined before me in relation to the material as set out in paragraph 4 and also in relation to matters said to go to his credit. Having considered the material in the affidavit and considered the cross-examination and his demeanour in the witness box, I accept what is in paragraph 4. That is to say, I accept that the Detective Constable said to the Justice, on the occasion when the issue of the warrant was sought, the words, or words to the effect of the words, that are set out in that paragraph.

27. I make no finding whatever as to the accuracy of what was said to the Justice. That question, in my view, does not arise at present although it may arise in relation to matters which are still to be litigated pursuant to portions of the application not dealt with today.

28. Suffice it to say that the evidence clearly indicates to me that it was present to the mind of the Justice that there was the option of issuing a summons rather than the issuing of a warrant for arrest in the first instance. It appears that the Justice specifically adverted to the question of whether the applicant, having a home and business in Sydney, would not be amenable to a summons. I am satisfied that Detective Constable Seabrook evinced concern as to whether a summons would be effective and specifically raised the question of the applicant having connections in Hong Kong and the police fear that he might try to leave the country. It is to be noted that expressions of this concern are also referred to in a police Statement of Facts which appears to relate to a question of bail.

29. I am satisfied quite clearly that the relevant consideration was present to the mind of the Justice and received consideration. That is sufficient to indicate that the Justice exercised the jurisdiction which I have held as a matter of statute she necessarily had.

30. In these circumstances I am not prepared to make the orders sought in paragraph 6 of the application and I dismiss the application insofar as it relates to seeking that order.