Defective Search Warrant Used To Seize Magazines

Press, Volume CVIII, Issue 31645, 3 April 1968, Page 26

Defective Search Warrant Used To Seize Magazines

(N.Z. Press Association) WELLINGTON, April 2.

A search warrant under which the police seized 3449 magazines last August was defective, Mr Justice McGregor held in a judgment delivered today in the Supreme Court.

The judgment granted a writ of certiorari quashing the warrant and a writ of prohibition to prohibit a Magistrate from hearing a summons calling on the owner of the books to show cause why they should not be destroyed. The writs were granted in favour of Seven Seas Publishing Pty, Ltd, Wellington. Two Wellington Magistrates, Desmond John Sullivan and James Albert Wicks, were named as first defendants. Two police officers. Detective Senior-Sergeant Robert Nelson Leslie Lark and Detective Constable Peter John Woodward, were named as second defendants. Mr R. B. Cooke, Q.C., with him Mr P. J. Downey, appeared for the plaintiff company and Mr R. C. Savage for the defendants. Three Jurlsdictiona

“Difficulties seem to have arisen from the fact that three bodies have jurisdiction in relation to indecent publications,” his Honour said. “In the first place the Customs Department has certain authority to impound im-

ported literature on the ground that such literature is indecent.

“In the second place, application can be made to the Indecent Publications Tribunal to declare named books or magazines indecent. “In the third place, the Police Department can lay informations under the Indecent Publications Act.

“In regard to the documents seized by the police under the authority of the search warrant it transpired that two of the titles had been previously referred to the Indecent Publications Tribunal. "One had been held to be not indecent and a second had been restricted to persons of the age of 18 or more. “None of the other books seized had been referred to the tribunal by the Customs Department or the Justice Department. This, however, seems to me to be beside the point. Rights Given “The search warrant gives the right of entry and the right to seize anything upon or in respect of which the offence has been or is sus-

pected of having been committed, or anything which there is reasonable ground to believe will be evidence as to the commission of the offence or anything which there is reasonable ground to believe is intended to be used for the purpose of committing the offence. “The warrant in the present case is in somewhat different form in three -espects. “It states that the Magistrate has reasonable grounds for suspecting that a breach of the Act has been committed, in that indecent documents are in the possession of the plaintiff for sale, not that be has reasonable grounds for belief that there are such things on the premises.

“It refers to the fact that the breach consists of indecent documents, to wit, magazines and books, being in possession for sale at the premises, whereas the form contemplates a description of the things to be searched for.

“The warrant authorises entrance and the right to search and seize the said documents. There is no reference to authority to seize anything which .there is reasonable ground to believe, will be evidence as to the commission of an offence in the prescribed form.

Ground For Belief “Mr Cooke submits that the requirement that the Magis trate must be satisfied that there is reasonable ground for belief is intended to be a protection for the subject prerequisite to the issue of a search warrant and the Magistrate is under a judicial duty to exercise his judg ment in deciding whether there is such reasonable ground for belief. This submission seems to me to be well founded.

“It seems to me that the learned Magistrate has misdirected himself as to the prerequisite for the issue of a search warrant. The belief of the constable is immaterial, and it would seem that the Magistrate has accepted a lesser standard than that required by the Act. “Although he is required only to have reasonable grounds for belief, it seems to me that he has adopted a lesser standard of suspicion rather than the standard of belief. In this respect the search warrant seems to me to indicate an error in law on the face of the document. “Modification”

“Mr Savage accepts that the warrant is defective in form and that is a poor modi-

fication of the prescribed form, but suggests that it is implicit that the Magistrate was satisfied that there was reasonable ground for belief and the fact of issue makes it implicit he was so satisfied. “He suggests that this is a matter of fact and, if the question is really in issue, leave should be granted to obtain an affadavit from the Magistrate as to his reasonable belief at the time of the issue of the warrant. "I think this would constitute an improper practice and that the Magistrate should not be drawn into the arena,” his Honour said.