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Siddique v Martin and Another (2016) 51 VR 564

The case Siddique v Martin And Another (2016) revolves around the questions regarding the search and seizure powers of the police officers when executing the warrants issued by Magistrates. Muhamed Siddique’s (the appellant) house and business premises were searched and certain items were seized pursuant to the search and seizure warrant which allowed the police to enter and search for:

“Any paint, frames, solvents, sketches, notebooks or any other item used in the manufacturing of the fraudulent WHITELEY paintings. Evidence of financial transactions, photographs and/or digital images relating to fraudulent WHITELEY paintings.”[1]

The search was in connection with the criminal proceedings for the manufacture of fake and fraudulent pictures of the well-known Australian artist, Brett Whiteley. However, several items not in connection with these paintings but also attributed to other renowned Australian artists were also confiscated but the police. Being aggrieved, Siddique asked Magistrate to have returned to himself under section 78(6) of the Magistrates’ Court Act 1989 certain time that was wrongly confiscated by the police. The provisions of section 78(6) are reproduced below for ease of reference:

“The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.[2]

The Magistrate initially held that he had no power to order the return of goods that were not listed in the warrant. This decision was later upheld by the trial judge, and hence the appeal then lied with the Supreme Court of Victoria to answer the question of whether section 78(6) allows recovery of items seized during the course of search proceedings but were not specifically listed in the search warrant in pursuance whereof the investigation was conducted?

The matter principally depends on the proper construction of the aforementioned section of the Magistrates’ Court Act 1989 and determining the intention of the parliament behind this provision of law and what purpose it seeks to achieve. The court answered these questions in relation to the instant case with references to the statutory text, context, and purpose.[3]

Articulation of the legal context of the decision

The Court granted the appeal of the appellant and stated that the Magistrate had erred and therefore his decision was quashed. The Court ordered the Magistrates’ Court to re-hear the proceedings and once again determine the applicant’s application for the return of his property according to law, thereby answering the above-mentioned question in affirmative.

In reaching the decision the Court insisted that the purpose of section 78(6) seeks to limit the interference of the State in the personal property/estate of the common citizens by affording them a means of recourse for obtaining the items which have been taken by the police or other investigating officer against their consent and will and without having any particular warrant for. Whereas the warrant specifically allowed the officers to enter the personal and business premises of the accused and specified the items to be obtained in connection with paintings of a particular artist, the paintings that were confiscated also included several paintings attributed to other renowned artists including Charles Blackman and Howard Arkley. This shows that no distinction was drawn out by the police in confiscating items that were mentioned in the warrant and other items that were not mentioned.

In support of their argument, the respondent had relied on findings of several case laws including Chic Fashions (West Wales) Limited v Jones[4] and ending with Goldberg v Brown.[5] And stated that the other items not mentioned in the warrant were taken ‘pursuant to the common law and not section 78 of the Act’ as per the principles laid down in Griffith University v Tang.[6] The Court of Appeal stated that the facts applicable in the Griffith University case are not applicable in the instant case as the question, in that case, was to determine whether the subject decision could be reviewed under the Judicial Review Act.[7] The court further based their findings on the basis that where a warrant is an instrument made “under” the Act, there has to be a direct connection between the instrument and the Act. Under in this case refers to section 78(6) which provides a summary method to citizens for obtaining relief against the State’s trespass of their property or obtaining their belongings without their consent or lawful authority.

Having relied on the above, the Court has drawn the following conclusion stated in paragraph 20 of the judgment:

“Given these observations and given what was said in the passage from R v McNamara set out above, there is no reason to read s 78(6) strictly or narrowly. Quite the opposite. While a strict construction may be mandated with respect to the authorization of State interference with private property, a broad construction is to be preferred with respect to a statutory provision that alleviates that interference. Nor does there seem to be any reason why Parliament would have intended to distinguish between seized items that had been named and described in the relevant warrant and other items seized in the course of executing the self-same warrant. We note again that, initially at least, the police officers responsible for the search and seizure saw no reason to draw any such distinction.”[8]

Critical analysis of the court’s decision

The warrant for investigation was issued under section s 465 of the Crimes Act 1958 limits the powers of such warrant to the extent of anything that will afford reasonable grounds to the commission of an indictable offense. In order to protect a common man and limit the authority of the officer, which is the sole purpose of section 78(6) as mentioned by the Court in the instant case, it should be necessary to determine the purpose of the search proceedings and define its scope so as to avoid giving an open hand to the officers to take out any items or personal belongings with them.

It so appears that the reasoning of the Court given in the judgment for overthrowing the argument of the respondents that they have relied on the common law principles for search and seizure of property is well placed. This is because the respondents at various times mentioned that the seizures were made in accordance with the law. Hence the items were not seized merely on the basis of common law powers but ‘under’ a search warrant within the meaning and for giving effect to the purposes of section 78(6) of the Magistrates’ Court Act.

The reasoning of the Court in relation to the powers to confiscate other property is also found well placed. This is so because if the search warrant specifically mentions the purpose of the investigation it does so purposefully with the intent to limit the scope of such investigation. Now the only possible means to go beyond the warrant and have authority to seize goods not named in the warrant would be if during the course of the search the officers come across any evidence which could prove that the person is involved in some other crime, and that could be in the public interest to seize and produce before the Court. It would be prudent to side with this interpretation of Lord Denning in the case Ghani v Jones[9] because not limiting the scope of the search would be tantamount to rendering the instructions in the warrant meaningless and the provisions of law in this respect surplusage, which could not be allowed.

In view of the above discussion, it could be said that when the purpose of the warrant has been fulfilled, the officers could not go beyond and seize ‘something extra’. To quote the example given in Tronc, Crawford and Smith, if the warrant calls for the seizure of a grand piano, it should not be looked under the bed or into personal drawers. Further, if the purpose of search has been fulfilled the only means to go beyond would be after obtaining the consent of the occupier of the premises without which it would amount to trespass.

The Court also elaborated the general principles of search under common law by citing the understanding given in R v Elomar (No 11),[10] wherein it has been stated that:

“The common law extends the reach of a warrant to include a power of seizure of evidence, found during the search authorized by the warrant, relating to serious offenses not mentioned in it’.

Thus, an extension of the powers of search under common law is limited and possible only in certain circumstances where such powers would normally arise independently of the warrant. Hence for all means, what really matters is whether a seizure of certain property can be appropriately regarded as a seizure “under the search warrant” undertaken within the meaning of section 78(6).

Issues of policy and possible reform

One policy issue that arises in the above circumstance is clearly defining the scope of warrants under the legislation thereby limiting the application of the common law. The warrant can also be required to explicitly state the purpose, the location to which it extends, and the things it covers. Anything that falls outside the scope of the warrant could be argued to be returned to the owner under section 38(6) of the Magistrates’ Court Act 1989.

Reforms may include disclosure responsibilities on the part of the officers to let the owner of the premises be known the purpose of the search and investigation and such investigation to be performed in the presence of the Court representative.