Validity of Search Warrant Issued Under Law Enforcement Powers

The Court of Appeal dismissed an appeal challenging the validity of a search warrant issued under the Law Enforcement (Powers and Responsibilities) Act 2002. The warrant was issued for an offence under the Crimes Act 1900, and the Court held that the issuing officer need only determine reasonable grounds for issuance without delving into complex legal issues.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [NAME] [2015] NSWCA 256 Hearing dates: 24 July 2015 Decision date: 27 August 2015 Before: Beazley P at [1]; [NAME] at [2]; Simpson JA at [3] Decision: (1) Leave to appeal granted;

(2) Appeal dismissed. Catchwords: APPEAL - search warrant - Law Enforcement (Powers and Responsibilities) Act 2002, s 48 - whether validly issued - whether issuing officer had reasonable grounds for issuing warrant - searchable offence nominated by applicant police officer - offence against Crimes Act 1900, s 326(2) - reprisals against judges, witnesses, jurors - connection with any judicial proceeding - whether judicial proceeding encompasses judicial proceeding contemplated but not commenced - role of issuing officer in deciding whether reasonable grounds for issuing warrant - whether required to consider or determine complex legal issues - [NAME] v Campbell [1983] HCA 39 - search warrant validly issued

APPEAL - whether search warrant had been sought for an ulterior motive - proposition never put to the witness - Browne v Dunn (1893) 6 R 67 - no evidence supporting proposition - leave to appeal granted - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 326(2) Crimes Act 1900 (NSW), ss 311, 315, 315A, 326 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 5, ss 3, 46, 46A, 47, 48, 62 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cll 4, 6 Cases Cited: [NAME] v Campbell [1983] HCA 39; 153 CLR 52 Browne v Dunn (1893) 6 R 67 George v Rockett [1990] HCA 26; 170 CLR 104 [NAME] v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 [NAME] v [NAME] [2014] NSWSC 1191 [COMPANY] v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 R v [NAME] (NSWCCA, 22 May 1995, unreported) R v Orcher [1999] NSWCCA 356; 48 NSWLR 273 Category: Principal judgment Parties: [NAME] (Applicant) [NAME] (First Respondent) [NAME] (Second Respondent) Representation: Counsel: [redacted] M England (Respondents)

Solicitors: [redacted] [NAME] (Respondents) File Number(s): 2015/48647 Decision under appeal Court or tribunal: Supreme Court Citation: [NAME] v [NAME] [2014] NSWSC 1191 Date of Decision: 29 August 2014 Before: [NAME](s): 2012/271413

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Simpson JA. I agree with her Honour's reasons and with the orders she proposes. 2. [NAME]: I agree with Simpson JA's reasons and the orders her Honour proposes.

3. SIMPSON JA: This is the concurrent hearing of an application for leave to appeal and, if leave is granted, an appeal against a decision of [NAME] in the Supreme Court of NSW.

4. By Summons filed on 27 August 2012, the applicant ([NAME]) sought a series of orders arising out of the issue and the execution (both on 30 December 2011) of a search warrant authorising entry and search of her residential premises. The search warrant was issued under the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the [NAME]"). On 29 August 2014, [NAME] dismissed the Summons: [NAME] v [NAME] [2014] NSWSC 1191.

5. In support of the application for leave to appeal, it was pointed out, on behalf of the applicant, that an appeal would turn upon the construction of a section of the Crimes Act 1900 (NSW) (s 326(2)) that has not previously received judicial attention, at least at an appellate level, and which is contentious. As will be seen, there is an unexpected by-product of that submission.

Relevant legislation 1. For the convenience of the reader, I will here set out the legislation relevant to the application.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

1. The relevant provisions appear in Pt 5 of the [NAME]. Section 3: "authorised officer means: (a) a Magistrate … or (b) a registrar of the [ADDRESS] … indictable offence means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on an indictment." Section 46: definitions for the purpose of Pt 5: "eligible issuing officer means: (a) for a warrant other than a covert search warrant or a criminal organisation search warrant - an authorised officer … indictable offence includes any act or omission which if done, or omitted to be done, in New South Wales would constitute an offence punishable on indictment. Section 46A: "(1) For the purposes of this Part, searchable offence in relation to a warrant: (a) means any of the following: (i) an indictable offence …" Section 47: "47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant … in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. …" Section 48: "48 Issue of search warrants (1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant. …" Section 62: "62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. (2) … (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters: (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. (4) … (5) … (6) …"

1. Clauses 4 and 6 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) ("the LEPR Regulation") prescribe the forms to be used, respectively, for the application and issue of search warrants.

Crimes Act 1900 (NSW) "311 judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath. 315 Hindering investigation etc (1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years. (2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence. (3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence. 315A Threatening or intimidating victims or witnesses (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any other person intending to influence any person not to bring material information about an indictable offence to the attention of a police officer or other appropriate authority is liable to imprisonment for 7 years. (2) In this section: material information means information that a person has that might be of material assistance in securing the apprehension of a person who has committed an indictable offence, or the prosecution or conviction of any such person. 326 Reprisals against judges, witnesses, jurors etc (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person: (a) as a witness or juror in any judicial proceeding, or (b) as a judicial officer, or (c) as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. (2) A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to imprisonment for 10 years. (3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2)." An offence against s 326 is an indictable offence.

Background facts 1. Unless otherwise stated, the following facts (arranged chronologically, so far as dates or approximate dates can be ascertained) appear to be uncontroversial and will aid an understanding of the issues presented on the application.

2. On or about 1 July 1996, the body of [NAME] was discovered in his home in Mumbil NSW. [NAME] had been shot in the head. At some stage (not identified in the evidence) police received information linking an organisation called the [NAME] with the death. Also at some unspecified time, [NAME] and [NAME] lived in Mumbil in a domestic relationship. That relationship came to an end in about the middle of 2010.

3. In 2011, Strike Force Burrendong was established in the NSW Police Force to investigate the death (suspected to be murder) of [NAME]. By that time, [NAME] was in a relationship with [NAME], although they maintained their own separate premises. [NAME] lived at premises in [NAME], Mumbil. On 22 December 2011, police approached [NAME] to inquire about any information he might have in relation to [NAME]' death and the investigation.

4. The following day, 23 December, police issued a media release concerning the murder investigation. It is alleged that, on or about 24 December 2011, [NAME] approached [NAME] at a local hotel. He was wearing clothing and insignia associated with the [NAME]. He asked [NAME] whether she had been interviewed about the death of [NAME], and asked her about parties arranged by the [NAME] that she had previously attended. He spoke to her in a manner that she interpreted as directly threatening her in the event that she cooperated with the police investigation. Specifically, he told her that he hoped people were not talking to police about [NAME]' death because, if they did, "bad things could happen to them". (I do not suggest that these allegations are uncontroversial as far as [NAME] is concerned; that [NAME] is alleged to have spoken as he did is uncontroversial for present purposes.)

5. The first respondent, [NAME], was a plain clothes [NAME] who was, in 2011, engaged fulltime in the [NAME]. On 30 December 2011 she prepared and presented an application for a search warrant authorising entry and search of [NAME]'s premises at [NAME], Mumbil. The application was in the form prescribed by cl 4(1)(a) of the LEPR Regulation. 6. [NAME] presented the application to the second respondent, [NAME], on the same day. [NAME] was, for the purposes of the [NAME], an eligible issuing officer. [NAME] identified herself and her authority to make the application and the address of the premises in respect of which the application was made. Her application then contained the following: "1 I have reasonable grounds for believing that: (a) there is, or within 72 hours will be, in or on the premises, the following things: Items relating to '[NAME]' including but not limited to clothing containing [NAME], documentation, Harley Davidson motorcycle, motorcycle keys and a pistol. (b) the things are connected with the following searchable offence(s) within the meaning of s 46A(1)(a) of the [[NAME]]: Reprisals against judges, witness, jurors etc – Crimes Act (1900) section 326(2)"

1. There followed par (c) as follows: "A child prostitution offence, within the meaning of section 47 of the [[NAME]] has recently been committed, is being committed or, within 72 hours will be committed, on or with respect to the premises." It was not in issue that this ought to have been, but was not, struck out.

1. The application went on: "2 I rely on the following grounds in support of this application: [[NAME] then recounted the history concerning the death of [NAME]. With respect to the conversation alleged to have taken place between [NAME] and [NAME], she wrote]: [NAME] questioned [NAME] as to whether she had been interviewed about the death of [NAME] and asked her about the '[NAME]' parties she had previously been at. [NAME] said to [NAME] that he hopes that people are not talking to the detectives about [NAME], because if they do, bad things could happen to them. [NAME] believed this to be a direct threat towards her that if she spoke to police that the '[NAME]' would bash her."

1. The second part of the form provides for a record to be made by the eligible issuing officer to whom the application for the search warrant is made. It was completed at 9.20am on the same day. [NAME] recorded that, on considering the application, she found that there were reasonable grounds for issuing the warrant, and that the relevant particulars of those grounds on which she relied to justify the issue of the warrant were "as per application and over".

2. On the next page (that is, "over") [NAME] recorded, in handwriting: "Satisfied on reasonable grounds the information is reliable and recent to believe the items being searched for are in connection with an offence and likely to be on the premises." (It is likely that the word "recent" was intended to be "reason".)

1. The search warrant (on the form prescribed by cl 6(1)(a) of the LEPR Regulation) authorised entry to the [NAME] premises by [NAME] and all other police officers, to search for any of the following things: "Items relating to the '[NAME]' including but not limited to clothing containing [NAME], documentation, Harley Davidson motorcycle, motorcycle keys and a pistol." and stated that the applicant ([NAME]) had reasonable grounds for believing that those things: "(a) are connected with the following searchable offence(s) of: Reprisals against judges, witness, jurors etc – Crimes Act (1900) s 326(2)"

1. Police executed the search warrant later that day. [NAME] was charged with two offences, not under s 326(2) of the Crimes Act, but under s 315(1)(a) (hindering the investigation of a serious indictable offence committed by another person) and s 315A(1) (threatening or causing injury or detriment to another person intending to deter the provision of material information about an indictable offence to a police officer or appropriate authority).

The Summons and the proceedings in the Supreme Court 1. The Summons in the Supreme Court sought an order that is not presently material, and: * a declaration that the search warrant was invalidly issued; * a declaration that the execution of the search warrant was accordingly unlawful; and * an order in the nature of certiorari quashing the warrant.

1. Affidavits of [NAME] and [NAME], and their solicitor ([NAME]) were read in the applicant's case. In the respondent's case, affidavits of a solicitor ([NAME]), of [NAME], and [NAME] (also a police officer) were read. [NAME] was the officer in charge of Strike Force Burrendong, and the "case officer" for the execution of the search warrant. [NAME] and [NAME] were cross-examined. [NAME] was extensively questioned about the identification of the "things" she said she had reasonable grounds for believing would be in the premises - items associated with the [NAME], and documentation. The object of the cross-examination appears to have been to show that these items could not aid in proof of an offence against s 326(2), and that the warrant was sought for an ulterior purpose - that is, the investigation of [NAME]' murder. 2. [NAME] responded that the allegation was that the threat made by [NAME] to [NAME] was made while he was wearing [NAME]-associated clothing and insignia, and that this contributed to the intimidation of [NAME]. In his affidavit, [NAME] said that, prior to the execution of the warrant, police did not have evidence of [NAME] wearing [NAME]-linked clothing or insignia (other than the evidence that at the time of the threat he was doing so). Execution of the search warrant might therefore yield corroborative evidence.

3. Two grounds asserting invalidity of the search warrant were advanced to the primary judge. The first was that the factual matters - that is, the threats said to have been made by [NAME] to [NAME] - put forward as the basis for the issue of the warrant were not capable of establishing the "searchable offence" nominated in the application and re-stated in the search warrant as issued. The second was that the application was made for the purpose, not of investigating an offence against s 326(2) of the Crimes Act, as stated in the application, but for the investigation of the murder of [NAME].

4. The primary judge rejected both grounds.

5. In relation to the first, the argument put at first instance (and repeated on appeal) may, I think, be stated simply. For the purposes of outlining the argument, it can be accepted that, if the words and conduct attributed to him were proved against [NAME], they could amount to a threat, and that [NAME]'s belief was that the threat was in relation to a putative prosecution in relation to the murder of [NAME].

6. The argument was that the words and conduct alleged against [NAME] in relation to [NAME] were incapable of providing a foundation for the prosecution of the "searchable offence" nominated in the application (that is an offence against s 326(2) of the Crimes Act), of threatening to do or cause any injury to [NAME] because [NAME] believed that [NAME] would or may be called as a witness in any judicial proceeding. The reason that was said to be so is that there was no judicial proceeding on foot in relation to the murder of [NAME], and no judicial proceeding on foot in relation to which any threat was made. Any threat made by [NAME] could therefore not be a threat in relation to "any judicial proceeding".

7. The argument depended upon the proposition that an essential element of an offence against s 326(2) is the existence of a judicial proceeding that is current at the time of the threat, and in relation to which the threat is made. It was not in issue that there was no such proceeding on foot in relation to the death of [NAME]. To the extent that any threat made by [NAME] related to a judicial proceeding, the judicial proceeding was no more than a speculative possible prosecution for the murder of [NAME].

8. There were, so the argument ran, therefore no reasonable grounds for believing that [NAME] had committed an offence under s 326(2), which was the basis on which the warrant was issued. The argument, as stated in written submissions on this application, was: "47 It is submitted that upon the facts alleged in the application for search warrant there were no reasonable grounds to suspect that [NAME] had committed an offence under s 326(2) of the Crimes Act, or that any evidence obtained upon execution of the search warrant would sustain such a charge."

1. The position adopted by the respondent was that the focus of s 326(2) is on the belief of the alleged offender. It is not an essential element of an offence against s 326(2) that there be a current judicial proceeding in relation to which the threats were allegedly made.

2. Both parties cited authority to support their positions, although none was directly in point (in that no authority directly involved s 326(2)). The respondent relied on the decision of the Court of Criminal Appeal in R v [NAME] (NSWCCA, 22 May 1995, unreported), concerning a prosecution under s 323(a) of the Crimes Act, which creates an offence of acting to influence witnesses or jurors in judicial proceedings. The applicant relied upon another decision of that Court, R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, concerning s 326(1), which relevantly created an offence of threatening injury or detriment to a public justice official in connection with any judicial proceeding. In Orcher, Spigelman CJ (with whom Grove and Sully JJ agreed) held that threats made to a police officer who had arrested the applicant in that case did not have a sufficiently close connection to a (then anticipated but not commenced) judicial proceeding to amount to an offence against the sub-section. Important to the decision were the words "in connection with", which do not appear in s 326(2).

3. The issue put before the primary judge therefore was one of statutory construction - the reach of "judicial proceeding" as it appears in s 326(2). On behalf of the applicant, it was argued that, having regard to the principles applicable to the construction of statutes creating criminal liability, s 326(2) is to be construed strictly, and in favour of the appellant, and that that construction requires the existence of a current judicial proceeding. On behalf of the respondent, it was argued that the section is sufficient to extend to a judicial proceeding in contemplation, that it was sufficient if the prosecution established that [NAME] believed that there was or was likely to be, a judicial proceeding, and that the facts established the real possibility of a charge of murder. [NAME]'s words and conduct, if proved, were capable of amounting to a threat in relation to that contemplated judicial proceeding.

4. The absence of the words "in connection with" in s 326(2) (cf Orcher) was integral to the reasoning of the primary judge, who therefore resolved the issue in favour of the respondent. He held that the existence of a current judicial proceeding was not an essential element of an offence against s 326(2). All that was necessary was that [NAME] believed that [NAME] might be called as a witness in any judicial proceedings (implicitly, proceedings not commenced at the time of the conduct said to constitute the offence). His conclusion is encapsulated in [58] of his reasons: "In my view, the clear terms of s 326(2) tend positively against the conclusion that in order for the offence to be made out the relevant judicial proceedings must be on foot at the time of the offending. Viewed in the context of the present case, the conduct to which the section is directed is the alleged threat of [NAME] to do or cause injury or detriment to [NAME]. Under the section, and again viewed in the context of the present case, that conduct would become unlawful only if it could be established that [NAME] believed that [NAME] would or may be called as a witness in any judicial proceedings. It is not the fact that [NAME] would or may be called as a witness in judicial proceedings which is pivotal to the operation of the section. Rather it is [NAME]'s belief in that respect. Construing the provision in this way gives effect to the plain meaning of its terms. There is nothing in those terms which supports the proposition that the Parliament intended that an offence would be committed only if the judicial proceedings were already on foot." (italics in original)

1. With respect to the second ground, the primary judge held that the allegation that [NAME] had sought the warrant for a purpose other than that stated in the application had never (in lengthy cross-examination) been squarely put to [NAME], and ought to be (and was) rejected on the principles stated in Browne v Dunn (1893) 6 R 67.

The appeal to this court 1. Two grounds of appeal are proposed. They are: "1 His Honour the Judge below erred in his construction of the meaning and application of subs 326(2) of the Crimes Act 1900 … 2 His Honour erred in not accepting that the real purpose of the issue of the search warrant was not that stated in the Application but was to further the investigation of the suspicious death of [NAME] in 1996." The arguments advanced in this Court were identical to those advanced to the primary judge.

1. Underlying the argument put before the primary judge, rejected by his Honour, and re-stated on appeal, was an assumption that, before [NAME] could validly issue the warrant, it was necessary that she be satisfied that the conduct attributed to [NAME] was capable of supporting a conviction under s 326(2). That assumption is incorrect.

2. The argument misconceives the nature of the task undertaken by an eligible issuing officer to whom an application for the issue of a search warrant is made. That task is prescribed by the relevant provisions of the [NAME].

3. By s 47(1) of the [NAME] was authorised to apply to [NAME] for the issue of a search warrant if she - [NAME] - believed on reasonable grounds that there was (or would within 72 hours be) in the premises at [NAME] "a thing" connected with a searchable offence. There is no doubt that s 326(2) creates a searchable offence, and that was the offence identified in [NAME]'s application to [NAME]. The belief required of a police officer is a composite one - before applying for a search warrant a police officer must believe (on reasonable grounds) that the searchable offence nominated in the application has been committed, and that there is (or will, within 72 hours, be) in the premises in relation to which the warrant is sought a thing connected with that offence. (The first part of that formulation may be subject to a minor qualification. Section 47 does not actually state that the police officer must believe that a searchable offence has been committed, and it may be wide enough to encompass, and may be deliberately so framed as to encompass, a belief that the commission of a searchable offence is imminent. Whether that is so does not arise in this application and need not be considered; [NAME]'s assertion was clearly that she believed that an offence against s 326(2) had been committed.)

4. Although the attack made in the proceedings was on the issue of the warrant, rather than the application for its issue, it may be taken that it applied at least equally to [NAME]'s asserted belief that an offence against s 326(2) had been committed. That belief, it was submitted, could not have been reasonable, because there was no basis upon which [NAME] could have believed that an offence against s 326(2) had been committed. That was because there was no current judicial proceeding in which [NAME] could have believed that [NAME] may have been called as a witness.

5. The power conferred on [NAME] by s 48 of the [NAME] was to issue the warrant "if satisfied that there were reasonable grounds for doing so". The satisfaction must be that of [NAME]. Satisfaction that there are reasonable grounds for issuing the warrant involves satisfaction that [NAME] had reasonable grounds for her belief that the searchable offence had been committed, and satisfaction that [NAME] had reasonable grounds for believing that there were relevant items in the premises. [NAME]'s power was confined by s 62, which imposes restraints on the issue of warrants. A warrant is not to be issued unless the information specified in s 62(1) is contained in the application. The information required by s 62(1) includes "the nature of the searchable offence": s 62(1)(b). Sub-section (3) states (non-exhaustively) matters that [NAME] was required to consider when determining whether there were reasonable grounds for issuing the warrant: the second matter there specified is "whether there is sufficient connection between the thing sought and the offence": that is, in this case, an offence against s 326 (2). The submission was that it was not open to [NAME] to be satisfied that there were reasonable grounds for issuing the warrant. To repeat, that was because there was no current judicial proceeding in which [NAME] could have believed that [NAME] may have been called as a witness.

6. Behind each argument lay the proposition that, on the facts put forward to [NAME] in the application for the issue of a warrant, [NAME] could not be convicted of an offence against s 326(2). The existence of a current judicial proceeding was an essential element of such an offence.

Resolution 1. The argument on appeal centred, as did the argument at first instance, on the construction of s 326(2): for proof of an offence, is it necessary that there be a current judicial proceeding in relation to which the threat is allegedly made? While there is no conclusive authority, [NAME] point in opposite directions. Implicit in the argument advanced on behalf of the applicant is that [NAME], as the eligible issuing officer, ought to have considered the conflict in authorities, resolved the issue in favour of the position adopted by the applicant, and refused the application, because the facts stated in the application as the basis for [NAME]'s belief that a s 326(2) offence had been committed were insufficient to sustain a conviction under that section, and her belief was therefore not reasonable.

2. I have come to the conclusion that the question of the validity of the issue of the search warrant is to be resolved, not by the construction of s 326(2), but by reference to s 48 of the [NAME]. In the view that I have taken, it is unnecessary for this Court to determine whether, for conviction of an offence against s 326(2), that a current judicial proceeding is in existence is an essential element, or whether, as the primary judge held, that the alleged offender believes that a judicial proceeding is contemplated is sufficient. Nowhere in the [NAME] is there any provision which requires an eligible issuing officer to determine whether the information contained in the application as the basis for the application is capable of "sustaining" (the language in the applicant's written submission) a charge under s 326(2).

3. In determining whether or not to issue a warrant, an eligible issuing officer is acting administratively, or ministerially, although the discretion to do so is to be exercised judicially: [NAME] v Campbell [1983] HCA 39; 153 CLR 52 at p 70, per Gibbs CJ (noting that his Honour was in dissent as to the principal issue in that proceeding). It is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence upon which reliance is placed by the police officer seeking the issue of a warrant.

4. Indeed, it is not the role of the eligible issuing officer to determine whether the information contained in the warrant is sufficient to provide the foundation for a conviction under the identified provision. Search warrants are issued in the investigative stages of the criminal process, and relied upon, often, to produce the very evidence that will provide that foundation: see George v Rockett [1990] HCA 26; 170 CLR 104.

5. I accept that, in this case, it was reasonably clear to [NAME], from the information in the application, that there was then no current relevant judicial proceeding. But it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence identified in the application. The question for that officer is whether that material provides "reasonable grounds" for the issue of a warrant, which may yield relevant evidence or information.

6. Nor is it the role of the eligible issuing officer to engage in the construction of the legislation in question; particularly is that so, where, as here, there existed an unresolved (unresolved until the decision of the primary judge in this very case) issue of the construction of that provision. Ironically, it was the very absence of certainty about the construction of s 326(2) upon which the applicant relied to advance her claim for leave to appeal.

7. In a very different context (the extent of the application of legal professional privilege) Mason J (as he then was) and others in the High Court have commented on the undesirability of committing the determination of complex legal issues to individuals exercising administrative functions: [NAME] v Campbell, at p 75-76; [NAME] v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 at 26. A similar approach was taken by Brennan J (as he then was) in relation to s 155(1) of the Trade Practices Act 1974 (Cth), which required the provision of information which might have exposed the person supplying the information to the risk of penalty: [COMPANY] v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 at 355. Yet that is the very nature of the exercise, it was implicit in the applicant's argument, upon which [NAME] ought to have embarked.

8. The guidance to be obtained from these cases is limited, but not non-existent. In each case, the argument concerned an implicitly asserted obligation on a non-judicial officer to make decisions that are essentially judicial, and of some legal complexity.

9. The submissions of the applicant, if accepted, would require an eligible issuing officer to determine, in some cases (including this) complex legal issues, and to do so in almost a factual vacuum.

10. The question [NAME] was obliged to ask herself was whether there were reasonable grounds for issuing the warrant, in the light of the information provided to her, and having regard to the provisions of ss 62(1) and (3). It was not for [NAME] to engage in a fine dissection of what would suffice to support a conviction under s 326(2).

11. In my opinion, Ground 1 of the proposed appeal should be rejected.

Ground 2 1. The second proposed ground of appeal concerns the position taken on behalf of the applicant before the primary judge, that the application for the warrant was made by [NAME], not for the purpose of furthering the investigation into an offence against s 326(2), but to further the investigation into the suspicious death of [NAME].

2. On appeal, counsel for the applicant took issue with the finding that the allegation that the warrant had been sought for an ulterior purpose had never "squarely" been put to [NAME]. He referred to the cross-examination of [NAME] concerning the identification of the items for which she sought a warrant to search. The proposition contained in the questioning appeared to be that those items were unlikely to aid in the prosecution of a s 326(2) offence, and were not, in any event, necessary because there were said to have been witnesses present at the time the threat was allegedly made.

3. There was nothing in the cross-examination to which reference was made that calls into question the finding by the primary judge that an allegation that the warrant was sought for the purpose of the murder investigation was not squarely put to [NAME]. Moreover, there is nothing in the evidence that supports the proposition that that was the case. Part of the allegation against [NAME] was that, at the time of the threats, he was wearing [NAME] clothing. Evidence that, in premises with which he was associated ([NAME]) there was found [NAME] paraphernalia could plainly provide evidence corroborative of that allegation. [NAME]'s affidavit evidence was to the effect that there was, prior to the execution of the search warrant, no corroborative evidence of [NAME]'s use of [NAME] clothing.

4. A clear inference (to the extent that is necessary for, or open to, this Court to draw inferences), is that the warrant was sought in order to obtain evidence that could support the allegation that [NAME]'s threat to [NAME] was made in an atmosphere of intimidation created by his manner of dress.

5. There is nothing in the evidence that is remotely capable of supporting Ground 2. I would reject it.

6. Because the issues have been fully argued, and because the first ground (at least) raised issues of some legal complexity, I would grant leave to appeal. However I would dismiss the appeal.

7. The orders I propose are: (1) Leave to appeal granted; (2) Appeal dismissed.

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