Criminal Behavioral Analysis: An Introduction to the Non-linear Mathematical Theory

The Mathematical Theory of Nothing: Mohamad Izaham Bin Mohamed Yatim

The Mathematical Theory of Nothing

“The Universe, which, so elegant and self-contained fashionably explained in higher dimensions of mathematically topological spaces, is the creations out of nothingness. Indeed, the explanation demands, such diversification of “nothingness” in creativity. Whereas, the diversification of “nothingness” itself is creativity of God, is basically the fundamental of all forces and matters.” – Mohamad Izaham Bin Mohamed Yatim, 2002, Cambridge, United Kingdom.

Die mathematische Theorie von nichts

“das Universum, das, also elegant und selbständiges fashionably erklärt in den höheren Maßen der mathematisch topologischen Räume,  die Kreationen aus Nichtse heraus ist. In der Tat verlangt die Erklärung, solche Diversifikation “des Nichtses” in der Kreativität. Während,  die Diversifikation “des Nichtses” selbst Kreativität des Gottes ist, im Allgemeinen ist die Grundlage aller Kräfte und Angelegenheiten.”  – Mohamad Izaham bin Mohamed Yatim, 2002, Cambridge, Vereinigtes Königreich.

La théorie mathématique de rien

“l’univers, qui, si élégant et d’un seul bloc fashionably expliqué dans des dimensions plus élevées des espaces mathématiquement topologiques,  est les créations hors de néant. En effet, l’explication exige, une telle diversification d’”néant” dans la créativité. Considérant que,  la diversification du “néant” elle-même est créativité de Dieu, est fondamentalement le principe fondamental de tous les forces et sujets.”  – Mohamad Izaham bin Mohamed Yatim, 2002, Cambridge, Royaume-Uni De.

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Abstract

The mathematical theory of nothing is the theory about nihilism, which the verdicts of quantum theory, general relativity theory and grand unified field theory have concluded that the universe as Non-Existence of the universe itself. The Universe, which, so elegant and self-contained fashionably explained in higher dimensions of mathematically topological spaces, is the creations out of nothingness. Indeed, the explanation demands, such diversification of “nothingness” in creativity. Whereas, the diversification of “nothingness” itself is creativity of God, is basically the fundamental of all forces and matters. For thousands of years, philosophers have tried to clarify, “Creator” and “Creations”, just like ancient cosmological argument about “Chicken and Egg”. The philosophies of eternity and the philosophies of nothingness rebut about the mathematical concept of energy and its equilibrium in the First Law of Thermodynamics. The law, which states that, “Energy can neither be created nor destroyed” is absolutely twaddling. The concept of the energy equilibrium is the logic that defines energy as eternal, no beginning and no end. Metaphysically and ontologically speaking, the conceptual logic of Eternity and the conceptual logic of Nihilism (Creations), will always contradict each other, as mathematicians and scientists used the the concepts of both logic vice versa. Likely, the hypothetical analysis, that all sciences are either “Cosmology” or “Kama Sutra”. Cosmological mind or cosmological forces and matters that either will be used to define the structure of our universe, when scientists started to gain entertainment upon such vague, yet substantial evidence of the “Non-Existence of Beings” (The Universe) against “The Absolute Existence of Being” (The Creator). Most of them suffer from a form of amnesia. Thus, the mathematical logic of Eternity and the mathematical logic of Nihilism can be distinguished between. Meanwhile, the concept of energy equilibrium, which used before, will be replaced from conceptual “zero” as the point of equilibrium into an “Empty Set” as new “Absolute Point of Equilibrium” with respect to “The Absolute Static Point of Equilibrium of Universe”.

Mohamad Izaham Bin Mohamed Yatim, and special words of thanks to Mick Mattis (of St. Leonards on Sea, Hastings, United Kingdom) for proof reading this Abstract and the whole thesis, September 2002, Cambridge CB3 0FD United Kingdom.

Mohamad Izaham Mohamed Yatim, “The Mathematical Theory of Nothing”, September 2002, Cambridge CB3 0FD United Kingdom.

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For a statement P(x) that is false for every possible value of x, nothing within the universe can pass the elementhood test for the truth set of P(x), and so, therefore, this truth set must have no elements.

Since the truth set of P(x) has no element, this result of

statement, which is always false.

Therefore,

Theorem 1:

Any theory T generated from this statement including basic arithmetical nihilism and  T will always contradict to almost all Physics Laws and Cosmological Principles.

(Proof of this mathematical theorem will not be shown in this blog).

(Mohamad Izaham Bin Mohamed Yatim , First Published January, 1992)

Mohamad Izaham Mohamed Yatim, “The Mathematical Theory of Nothing”, September 2002, Cambridge CB3 0FD United Kingdom.

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Theorem 2:

“Time present and time past

The end precedes the beginning

And the beginning were always there

Before the beginning and after the end

And All is always now”.

(“Time”, By Mohamad Izaham Bin Mohamed Yatim, First Published September 6, 1991)

Mohamad Izaham Mohamed Yatim, “The Mathematical Theory of Nothing”, September 2002, Cambridge CB3 0FD United Kingdom.

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“[N]othingness is the highest dimensions of mathematically topological spaces.” Mohamad Izaham Mohamed Yatim, “The Mathematical Theory of Nothing”, September 2002, Cambridge CB3 0FD United Kingdom.

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Abstrakte

Die mathematische Theorie von nichts ist die Theorie über nihilism, dem die Urteilssprüche der Quantentheorie, der allgemeinen Relativität Theorie und der großartigen vereinheitlichten Feldtheorie daß das Universum als Nicht-Bestehen des Universums selbst festgestellt haben. Das Universum, das, also elegant und selbständiges fashionably erklärt in den höheren Maßen der mathematisch topologischen Räume, die Kreationen aus Nichtse heraus ist. In der Tat verlangt die Erklärung, solche Diversifikation “des Nichtses” in der Kreativität. Während, die Diversifikation “des Nichtses” selbst Kreativität des Gottes ist, im Allgemeinen ist die Grundlage aller Kräfte und Angelegenheiten. Für Tausenden Jahre, haben Philosophen versucht, zu erklären, “Schöpfer” und “Kreationen”, gerade wie altes kosmologisches Argument über “Huhn und Ei”. Die Philosophien der Ewigkeit und die Philosophien des Nichtses widerlegen über das mathematische Konzept von Energie und von seinem Gleichgewicht im ersten Gesetz von Thermodynamik. Das Gesetz, das das angibt, “Energie machen weder wird verursacht ein, noch zerstört” twaddling absolut. Das Konzept des Energiegleichgewichts ist die Logik, die Energie definiert, wie ewig, kein Anfang und kein Ende. Metaphysisch und ontologically der Ewigkeit sprechen, die Begriffs-Logik und die Begriffs-Logik von Nihilism (Kreationen), widersprechen sich immer, wie Mathematiker und Wissenschaftler die Konzepte von beiden Logik umgekehrt verwendeten. Wahrscheinlich die hypothetische Analyse, daß alle Wissenschaften entweder “Kosmologie” oder “Kama Sutra” sind. Kosmologischer Verstand oder kosmologische Kräfte und Angelegenheiten, daß irgendein verwendet wird, um die Struktur unseres Universums zu definieren, als Wissenschaftler begannen, Unterhaltung nach solchem vagem zu gewinnen, dennoch überzeugender Beweis des “Nicht-Bestehens der Wesen” (das Universum) gegen “das absolute Bestehen des Seins” (der Schöpfer). Die meisten ihnen leiden unter einer Form von Amnesia. So können die formale Logik der Ewigkeit und die formale Logik von Nihilism bemerkenswert zwischen sein. Unterdessen wird das Konzept des Energiegleichgewichts, dem vor verwendete, von Begriffs”null” als der Punkt des Gleichgewichts in “leeren Satz” als neuer “absoluter Punkt des Gleichgewichts” in Bezug auf “den absoluten statischen Punkt des Gleichgewichts des Universums” ersetzt.

Mohamad Izaham bin Mohamed Yatim und spezielle Wörter des Dankes Mick Mattis (von Str. Leonards auf Meer, Hastings, Vereinigtes Königreich) für Beweismesswert dieses abstrakte und die vollständige These, September 2002, Cambridge CB3 0FD Vereinigtes Königreich.

Indiscernibility of Identicals: Willard Van Orman Quine (June 25, 1908 – December 25, 2000)

Willard Van Orman Quine – In his essay “From a Logical Point of View”, 1953

“Indiscernibility of Identicals – a logical principle which states that if A and B are identical, every property that belongs to one of them belongs to the other.”

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Willard Van Orman Quine (June 25, 1908 – December 25, 2000) (known to intimates as “Van”)^[1] was an American philosopher and logician in the analytic tradition. From 1930 until his death 70 years later, Quine was continuously affiliated with Harvard University in one way or another, first as a student, then as a professor of philosophy and a teacher of mathematics, and finally as a professor emeritus who published or revised several books in retirement. He filled the Edgar Pierce Chair of Philosophy at Harvard from 1956 to 1978. A recent poll conducted among philosophers named Quine one of the five most important philosophers of the past two centuries.^[2] He won the first Schock Prize in Logic and Philosophy in 1993, for “his systematical and penetrating discussions of how learning of language and communication are based on socially available evidence and of the consequences of this for theories on knowledge and linguistic meaning.”

http://en.wikipedia.org/wiki/Willard_Van_Orman_Quine

The Legendary Geisha Then So-Called Well-Known-Super-Sly-Malicious Deputy Public Prosecutor Recently

GEORGE TOWN: A lawyer representing a food outlet assistant on a drug trafficking charge lost his cool after the judge ordered his client to enter defence.The drama transpired after High Court judicial commissioner Mohd Amin Firdaus Abdullah ordered Sharifurahim Abdullah, 30, to enter his defence for trafficking in 23kg of cannabis.Sharifurahim’s lawyer, R.S.N. Rayer immediately expressed dissatisfaction after arguing that Amin had given the decision on the spot after hearing his and deputy public prosecutor Norina Zainol Abidin’s submissions.
Rayer argued that Amin had passed judgment instantaneously, without taking time to consider the submissions.

“I have been handling drug trafficking cases for a long time. I am shell-shocked with the court’s decision.

“If you want to proceed with the defence today, then I have no choice but to discharge myself,” Rayer said.
Amin said: “In that case, I will have to call the chief justice and complain to the Bar Council.”

Rayer then replied that Amin “can do as you please”, noting that he had to take instructions from his client.

Amin then fixed 9am today to hear the defence.
Sharifurahim was charged with trafficking in the cannabis behind a house in Kampung Permatang Rawa, Bukit Mertajam, at 9pm on March 31, 2006.

Earlier, Rayer submitted that the search list confirmed the defence contention that Sharifurahim was arrested in the house in Bukit Mertajam.

“The prosecution’s version that the drugs were recovered in an open space is not true.

“The raiding officer’s oral evidence contradicts the search list, which stated that the drugs were found in the house.”

Deputy public prosecutor Norina Zainol Abidin submitted that there was no contradiction, noting that if there was, it was a minor one.

Norina added that oral evidence carried more weight than the search list.

Amin, in ordering the accused to enter his defence, said the court found there was evidence that the accused had physical control of the drugs.

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GEORGE TOWN: After losing his cool over a High Court judicial commissioner’s decision ordering his client to enter defence on Wednesday, counsel R.S.N. Rayer yesterday applied to withdraw himself from the case.

Rayer, who is representing food outlet assistant Sharifurahim Abdulah, 30, said the defence believed the court, which was presided by Mohd Amin Firdaus Abdullah, was prejudiced.

Rayer said his client, who is charged with trafficking in 23kg of cannabis, had expressed loss of confidence in the court and begged him (Rayer) to get a different judge to hear his case.
Amin then went into chambers to consult with the chief justice. When he returned about an hour later he told Rayer to write to the chief justice on his request, but the court would still proceed to hear the defence.

Rayer and Amin then had an argument, with Rayer saying:

“If I had known Your Honour was going to proceed with the hearing today I would have faxed the letter to the chief justice myself earlier.”
Rayer argued that during Wednesday’s 90-minute submissions, Amin did not take any notes but quickly ordered his client to enter defence, passing judgment instantaneously without considering the submissions by both the defence and deputy public prosecutor Norina Zainol Abidin.

“This is not a simple curi ayam (chicken stealing) case but a Section 39B (of the Dangerous Drugs Act). With due respect, I beg the court to speak to the chief justice on this matter.”

Amin, with both the defence and prosecution, then returned to chambers to deliberate on the matter.
After 15 minutes, Rayer returned and told his client that the court has allowed the defence to write to Tan Sri James Foong, managing judge for the Penang courts to recuse Amin.

Photograph Must Be Tendered to Prove Crime Scene: CHOOI KAM WOH V REGINA [1954] 1 MLJ 264 MAGISTRATE’S APPEAL NO 119 OF 1954

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal

CHOOI KAM WOH V REGINA

[1954] 1 MLJ 264

MAGISTRATE’S APPEAL NO 119 OF 1954

ACRJ SINGAPORE

DECIDED-DATE-1: 18 NOVEMBER 1954

MURRAY-AYNSLEY CJ

CATCHWORDS:
Criminal procedure – Identification by photograph – Subsequent identification

HEADNOTES:
This appeal raises a point of importance as to the value of identification by photograph. The facts and ratio decidendi appear in the short judgment reported below.  n1

n1

Editorial Note

While identification by photograph before arrest is acceptable in law, it has always been held that once a man has been arrested the identification should be by personal inspection. See Lai Ah Kam & Anor v Rex (1939) MLJ 306 and Public Prosecutor v Kok Heng & Ors (1948) MLJ 171.

MAGISTRATE’S APPEAL

The appellant in person.

GS Hill (Crown Counsel) for the respondent.

ACTION:

MAGISTRATE’S APPEAL

LAWYERS: The appellant in person.

GS Hill (Crown Counsel) for the respondent.

JUDGMENTBY: MURRAY-AYNSLEY CJ

The facts in this case were rather unusual. Someone was seen by a detective taking the bicycle of the complainant. The thief was not caught. A few days later the detective was shown 200 photographs from which he picked out one of the appellant. The appellant was later arrested in Kuala Lumpur and subsequently identified by the detective more than three months after the offence. There was absolutely no other evidence against the appellant. The procedure adopted is usual and perfectly legitimate, but the effect of a subsequent identification is thereby weakened. In the circumstances I did not consider that the charge was sufficiently proved.

Appeal allowed.

Computer Printout – Data Through Human Mind: Castle v Cross QUEEN’S BENCH DIVISION [1985] 1 All ER 87, [1984] 1 WLR 1372, [1984] Crim LR 682, [1985] RTR 62

“Of course, where a computer is used in respect of its memory function, it is possible to envisage where it might fall foul of the rule against hearsay.”

“[Counsel for the appellant] submitted that there was a difference in kind between the measuring device (even a sophisticated one) and this computer. He also suggested that there was a difference in kind between a mathematician who used a slide rule and one who used a calculating computer. We do not agree. This computer was rightly described as a tool. It did not contribute its own knowledge. It merely did a sophisticated calculation which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr. Kellie whom the Crown called as a witness. The fact that the efficiency of a device is dependent on more than one person does not make any difference in kind. Virtually every device will involve the persons who made it, the persons who calibrated, programmed or set it up (for example with a clock the person who set it to the right time in the first place) and the person who uses or observes the device. In each particular case how many of these people it is appropriate to call must depend on the facts of, and the issues raised and concessions made in that case.”

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[1985] 1 All ER 87, [1984] 1 WLR 1372, [1984] Crim LR 682, [1985] RTR 62

Castle v Cross
QUEEN’S BENCH DIVISION
[1985] 1 All ER 87, [1984] 1 WLR 1372, [1984] Crim LR 682, [1985] RTR 62
HEARING-DATES: 17 JULY 1984

Road traffic – Breath test – Device – Analysis of breath specimen by approved device – Whether print-out produced by device at conclusion of analysis admissible evidence of failure to provide proper specimen – Whether print-out product of a mechanical device constituting real evidence at common law – Road Traffic Act 1972, s 8(7).
HEADNOTE:
On the trial of an information alleging an offence under s 8(7) [a] of the Road Traffic Act 1972 of failing without reasonable excuse to provide a specimen of breath when required to do so, the test record print-out of an automatic breath-testing device (such as the Lion Intoximeter 3000) used to ascertain the proportion of alcohol in specimens of breath is admissible as evidence, since the print-out constitutes the product of a mechanical device which, at common law, falls into the category of real evidence (see p 91 c d j and p 92 a b and d to f, post).

a   Section 8(7), provides: ‘A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section shall be guilty of an offence.’

Dicta of Simon P in The Statue of Liberty [1968] 2 All ER at 196 and of Lord Lane CJ in R v Wood (1982) 76 Cr App R at 27 applied.

NOTES:
Notes

For failure to provide specimen, see 40 Halsbury’s Laws (4th edn) para 493.

For evidence of the proportion of alcohol in a specimen of breath, see ibid para 496.

For admissibility of statements produced by computers, see 17 ibid para 59.

For the Road Traffic Act 1972, s 8 (as substituted by the Transport Act 1981, s 25(3), Sch 8), see 51 Halsbury’ Statutes (3rd edn) 1432.

CASES-REF-TO:
Cases referred to in judgments

Myers v DPP [1964] 2 All ER 881, [1965] AC 1001, [1964] 3 WLR 145.

R v Wood (1982) 76 Cr App R 23, CA.

Statue of Liberty, The, Sapporo Maru (owners) v Statue of Liberty (owners) [1968] 2 All ER 195, [1968] 1 WLR 739.

INTRODUCTION:
Case stated

Douglas Castle appealed by way of a case stated by the justices for the county of Hertford acting for the petty sessional division of Welwyn in respect of their adjudication as a magistrates’ court sitting at Hatfield on 2 March 1984. On 11 November 1983 the appellant preferred an information against the respondent, Nicholas Sidney Cross, alleging that on 25 October 1983 at Welwyn Garden City police station the respondent, being a person who had been driving a motor vehicle on a road in Welwyn Garden City and having been required, pursuant to s 8 of the Road Traffic Act 1972(as substituted by s 25 of and Sch 8 to the Transport Act 1981), to provide a specimen of breath for analysis by means of the Lion Intoximeter 3000 device, failed without reasonable excuse to provide such a specimen, contrary to s 8(7) of the 1972 Act (as so substituted). At the close of the prosecution’s case the justices upheld a submission of no case to answer made on behalf of the respondent and dismissed the information. The question for the opinion of the High Court was whether, on the trial of an information alleging an offence under s 8(7) of the 1972 Act of failing without reasonable excuse to provide a specimen when required to do so, pursuant to s 8(1)(a) of that Act, for analysis by the Lion Intoximeter 3000 device, the ‘test record’ print-out from that device was admissible in evidence. The facts are set out in the judgment of Stephen Brown LJ.

COUNSEL:
J P Wadsworth QC and Neill Stewart for the appellant.; Alan Beaven for the respondent.

17 July 1984. The following judgments were delivered.

17 July 1984

Solicitors: Wynter Davies & Lee, Hertford (for the appellant); Breeze & Wyles, Enfield (for the respondent).

Hilary Kindelan Barrister.

PANEL: STEPHEN BROWN LJ AND KENNEDY J

JUDGMENTBY-1: STEPHEN BROWN LJ.

JUDGMENT-1:
STEPHEN BROWN LJ.

This is a prosecutor’s appeal by way of case stated from the decision of the justices acting for the petty sessional division of Welwyn sitting at Hatfield in the county of Hertford on 2 March 1984 when they dismissed, on finding no case to answer, a charge against the respondent of failing to provide a specimen of breath for analysis without reasonable excuse, contrary to s 8 of the Road Traffic Act 1972(as substituted by s 25(3) of and Sch 8 to the Transport Act 1981).

The short facts which gave rise to that summons are set out in the statement of the justices’ case. The respondent was the driver of a motor car in Welwyn Garden City on Tuesday night, 25 October 1983. The car was seen by a police officer to be travelling fast and it braked harshly on the approach to a roundabout. The car was stopped and the respondent, who was the driver, was requested by the police constable to provide breath for a roadside breath test, administered by an Alcotest 80 device. He failed fully to inflate the bag. Some of the crystals, apparently, had changed colour and the officer came to the conclusion that he had failed to provide the sample for that test. He was arrested and taken to the police station. There, after the facts leading to his arrest had been reported to the station sergeant, Sgt Martin, he was required to provide two specimens of breath on an approved Intoximeter 3000 breath-testing machine in accordance with the provisions of the Road Traffic Act 1972, s 8. It is to be observed that, when specimens are required at a police station, they are referred to as ‘specimens’ to distinguish them from the sample which is requested at the roadside under s 7.

The facts as found by the justices were that, on being required to provide two specimens of breath on the approved Intoximeter 3000 breath-testing machine, the respondent agreed to do so, and the sergeant then instructed him to blow into the mouthpiece of the machine with one breath until he was told to stop. He was allowed four attempts. On the first attempt the respondent blew air through the mouthpiece into the machine but it plainly did not produce any result. A second test was then administered with the same result. A third and fourth attempt were then made by the respondent. The justices record: ‘… in the third the result was inconclusive and on the fourth air went through the mouthpiece into the machine’, but no result, it would appear, was achieved.

The justices found that the machine was ‘fitted with a visual display panel’ but that no clear evidence was adduced before them ‘as to the precise state of the visual display panel during each of the respondent’s attempts’. They record: ‘The Intoximeter 3000 produced a print out at the conclusion of the test being a test record of the tests carried out on the machine.’

Following that, Sgt Martin reported the respondent with a view to prosecution for an offence under s 8(7) of the 1972 Act of having ‘without reasonable excuse, [failed] to provide a specimen when required to do so in pursuance of [the] section’.

On behalf of the respondent it was submitted that the print-out from the machine which came forth at the conclusion of the fourth attempt was not admissible in evidence, that it was hearsay and should not be admitted in evidence. The court has before it the certificate with the print-out which, in accordance with the procedure, is affixed to that particular certificate recording the test. It specifies, in accordance with the requirements, the operating instructions of this machine, the date of the test, the subject, a signature and the time when the test took place. It records: ‘One no sample.’ That means, as the court understands it, that the machine did not have a sufficient sample of breath of the deep kind, from the deep lung, which is required to enable it to perform an analysis. But, as I have already said, the magistrates upheld a submission made on behalf of the respondent to this appeal that that certificate was inadmissible.

The justices found the following:

‘(a) We were of the opinion that the statement produced by the Intoximeter 3000 was a statement made by a machine akin to a computer. (b) The machine was required to assess sufficiency of breath, analyse the quantity of alcohol in the breath and convert that information into figures in statement form. (c) In our submission therefore the Intoximeter contributes to its own knowledge. (d) We noted that Parliament had specifically legislated to overcome this evidential difficulty by a specific statutory authorisation in Section 10(3) of the Road Traffic Act, 1972 (as amended) but that the Section only applied to proceedings under Section 5 and Section 6 of the Act and not to proceedings under Section 8(7). (e) We had our attention drawn to Section 12(3) of the Act dealing with sufficiency of breath for analysis but felt on the facts found by us that the appellant was unable to satisfy any reasonable Bench of Magistrates that the specimen was not sufficient to enable the test or analysis to be carried out. (f) Accordingly, we upheld a submission of no case to answer made on behalf of the respondent and dismissed the information.’

They ask the following question for the opinion of this court:

‘On the trial of an information alleging an offence under Section 8(7) Road Traffic Act, 1972 (as substituted by Section 25(3) of, and Schedule 8 to, Transport Act, 1981) of failing without reasonable excuse to provide a specimen when required to do so in pursuance of Section 8 of the said Act where the defendant had been required by a Constable under Section 8(1)(a) of the said Act to provide two specimens of breath for an analysis by means of a Lion Intoximeter 3000, whether the “test record” print out from that device is admissible in evidence?’

By the agreement of both counsel, the court has had placed before it the Lion Intoximeter 3000 Operator Handbook produced by the manufacturers. Our attention has been drawn to the breath test procedure, which sets out very clearly the sequence of events which has to take place if the correct procedure is to be adopted:

‘Step 1-Press “Start” Button; Step 2-Enter Operator Name; Step 3-Enter Operator Code; Step 4-Enter Subject’s Name; Step 5-Enter Subject’s Date of Birth; Step 6-Stand By; Step 7-Purge and Blank Cycle; Step 8-First Calibration Check; Step 9-Purge and Blank Cycle; Step 10-Attach Mouthpiece; Step 11-Subject’s First Breath Sample [and so on] .’

It is clear that the procedure is set in motion and supervised by a person trained as an operator for that particular purpose, ie a police officer. There is no suggestion in this case, and indeed no finding, to suggest that the correct procedure was not adopted. It is also clear that the justices’ case does not record any finding or indeed submission that the Intoximeter machine was in any way defective.

Counsel on behalf of the appellant prosecutor reminds us of the passage in Cross on Evidence (5th edn, 1979) p 47 headed ‘Mechanical Instruments’ which states:

‘A presumption which serves the same purpose of saving the time and expense of calling evidence as that served by the maxim omnia praesumuntur rite esse acta is the presumption that mechanical instruments were in order when they were used. In the absence of evidence to the contrary, the courts will presume that stopwatches and speedometers and traffic lights were in order at the material time; but the instrument must be one of a kind as to which it is common knowledge that they are more often than not in working order.’

The last sentence is not adopted by Phipson on Evidence (13th edn, 1982) p 209, para 12-34, but the principle which is there accurately set out in the view of this court is that, ‘In the absence of evidence to the contrary, the courts will presume that [mechanical instruments] were in order at the material time’. As I have already observed, there is no evidence recorded in the magistrates’ case and certainly no finding to suggest that this Intoximeter 3000 was defective or might have been defective at the relevant time.

Counsel for the appellant submits that the justices were in error in ruling that the statement on the print-out ‘One no sample’ was inadmissible. He submits that there is no logical distinction between the position in this case and that in many cases where sophisticated and less sophisticated mechanical devices or instruments are used. He cites The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739 for the proposition that the results of mechanical devices and electrical devices which are achieved without human intervention are admissible in evidence, that they are real evidence.

It is relevant to cite the final paragraph of the judgment of Simon P, when he stated his view that in the case which he was deciding, which related to a record made by a radar set at a shore radar station, the record was admissible in that case concerning liability for a collision at sea. He cited Cockle’s Cases and Statutes on Evidence (10th edn, 1963) p 348 (see [1968] 2 All ER 195 at 196, [1968] 1 WLR 739 at 740):

“‘Real evidence is evidence afforded by the production of physical objects for inspection or other examination by the court.” If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible-or, indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer, but not if it were operated by a trip or clock mechanism. Similarly, if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record. So, too, with other types of dial recordings. Again, cards from clocking-in-and-out machines are frequently admitted in accident cases. The law is bound now to take cognisance of the fact that mechanical means replace human effort.’

Counsel for the appellant submits that that is the correct basis on which to approach consideration of the status of the print-out from this particular machine. He submits that the fact that it is a sophisticated machine which depends for part of its operation on what has been described as computer control does not set it in a different class from other sophisticated mechanical devices and instruments of the kind referred to by Simon P in The Statue of Liberty.

Counsel for the appellant further relies on R v Wood (1982) 76 Cr App R 23. That was a case dealing with a different set of circumstances and was in fact considering the application of s 1(1) of the Criminal Evidence Act 1965. It was a case of handling stolen goods. The point was consideration of the method of proof of the origin of certain processed metals which had been stolen in transit from the processors and to tie up the original processed metals with metals found in the possession of the appellant, Mr Wood. Part of the method by which the Crown attempted to prove that chain, and to relate the metals found in the possession of the appellant with those actually stolen from the processors, was by certain records achieved by computer calculations. It involved an elaborate analysis of the various metals in order to seek to identify them and marry them up. The contention was that the computer print-outs produced in that case were inadmissible as hearsay evidence at common law and not authorised under the Criminal Evidence Act 1965.

The court decided (at 23-24) that whilst-

‘the printouts were inadmissible under section 1(1) of the Criminal Evidence Act 1965 because they had been prepared for the purpose of the prosecution of the appellant and not in the course of a trade or business as required by subsection (1)(a); nevertheless … the computer in the instant case had been used as a calculator-it was a tool and did not contribute to its own knowledge, and was properly treated as a piece of real evidence the actual proof of which depended upon the testimony of the witnesses; thus, the answers produced by the computer were in principle admissible at common law and were properly proved … ‘

In the course of giving the judgment of the court, Lord Lane CJ said (at 27):

‘[Counsel for the appellant] submitted that there was a difference in kind between the measuring device (even a sophisticated one) and this computer. He also suggested that there was a difference in kind between a mathematician who used a slide rule and one who used a calculating computer. We do not agree. This computer was rightly described as a tool. It did not contribute its own knowledge. It merely did a sophisticated calculation which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr. Kellie whom the Crown called as a witness. The fact that the efficiency of a device is dependent on more than one person does not make any difference in kind. Virtually every device will involve the persons who made it, the persons who calibrated, programmed or set it up (for example with a clock the person who set it to the right time in the first place) and the person who uses or observes the device. In each particular case how many of these people it is appropriate to call must depend on the facts of, and the issues raised and concessions made in that case.’

In point of fact, Myers v DPP [1964] 2 All ER 881, [1965] AC 1001 was distinguished in that judgment.

It seems to this court that in this case the Intoximeter was in terms a tool, albeit a sophisticated tool, which was operated by the police sergeant who was trained in the appropriate procedure. There has been no challenge recorded in the case to the efficiency of the machine or instrument and there is no finding that it was in any way defective. Accordingly, it seems to this court that the result in the form of the print-out was the product of a mechanical device which falls into the same category of real evidence as that indicated by Simon P in The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739.

Sophisticated arguments were addressed to the justices and it may be, if I may say so, that they were blinded by science. They used the phrase in para 6(c) of the case: ‘In our submission therefore the Intoximeter contributes to its own knowledge.’ That phrase is not explained. It seems to this court that it may be a misunderstanding of the headnote in R v Wood (1982) 76 Cr App R 23 at 23-24, to which I have referred.

Quite plainly the position in this particular instance was that this respondent was correctly required to give two specimens of breath for the purpose of analysis by the approved instrument, the Intoximeter 3000, and that he went through the motions of so doing but in fact failed to give a sufficient sample. That was observed by the police sergeant but apparently he was prevented from giving that evidence because of an objection made by the respondent’s counsel that such evidence would be hearsay. But it seems to this court quite plain that he was in a position to say, as the trained operator of the machine, that the result of the respondent’s attempt was a failure to deliver sufficient breath into the machine to permit it to carry out the required analysis. The justices held that there was no case to answer. It seems to this court that this was a misunderstanding of the position.

Counsel for the respondent has argued forcefully that the potential for computer error renders the consideration of evidence stemming from a computer particularly sensitive and places it into a separate class in relation to its admissibility. He has referred to the relevant statute in Australia and to a case heard in the courts of the State of South Australia. It does not seem to this court that they can substantially assist in this problem, which is essentially whether this evidence which was sought to be given was admissible at common law.

The question of computer error does not enter into the ambit of this appeal. As I have already indicated, the justices made no finding which would permit the inference that the Intoximeter was in any way defective or not in proper working order. It has to be assumed, certainly for the purposes of the submission of no case to answer, that it was in proper working order and that the proper procedure was followed.

I, for my part, am unable to accept the submissions made by counsel for the respondent. They were extremely wide in their ambit but, in my judgment, did not go to the central issue, which was simply one of admissibility. Other authorities were referred to by counsel for the appellant which in fact are in line with The Statue of Liberty [1968] 2 All ER 195, [1968] 1 WLR 739 and with what I have indicated can be derived from R v Wood (1982) 76 Cr App R 23.

In my judgment, this print-out was admissible and, furthermore, the controlling, operating station sergeant ought to have been permitted to give evidence as to what he had observed and as to the result of what he observed, interpreting if necessary the print-out and supplementing it by saying that it meant no sufficient sample, just as if he had been looking at a dial where the pressure and degree of effort was recorded.

The justices, in my judgment, were in error and I would allow this appeal. I would answer the question which they pose: ‘… whether the “test record” print out from [the] device is admissible in evidence’ with the word Yes. I would, therefore, allow the appeal and remit the case to the justices for them to continue to hear the case.

I should add that, because the case was stopped at the close of the evidence for the prosecution, the respondent was not given the opportunity of developing any reasonable cause which there might or might not have been for failing to provide the specimen of breath. All that the court at that stage had to consider was whether a specimen of breath had been provided. In s 12(3) of the Road Traffic Act 1972 (as substituted by the Transport Act 1981, s 25(3), Sch 8, and amended by the Transport Act 1982, s 59), the test which they should have applied is set out:

‘A person does not provide a specimen of breath for a breath test or for analysis unless the specimen is sufficient to enable the test or the analysis to be carried out and provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.’

In my judgment that was what they had to consider at that stage of the case and plainly there was a case for them to consider. It follows furthermore that I regard the reference to s 10(2) of the 1972 Act to be irrelevant to considerations in this case.

I have dealt with this matter on the basis of common law principles. That, in my judgment, is what this matter amounts to.

JUDGMENTBY-2: KENNEDY J.

JUDGMENT-2:
KENNEDY J.

I agree. The central issue here is whether the police sergeant, who was called as a witness and who invited this respondent to provide a specimen of breath, was entitled to rely on the indications he obtained from the Intoximeter 3000 machine when he said that the respondent had not provided the specimen. In my judgment also he was entitled to rely on those indications because they amounted to real evidence.

This machine, as it was used in relation to this respondent, was indistinguishable in principle from, for example, a speedometer or a calculator. Of course, where a computer is used in respect of its memory function, it is possible to envisage cases where it it might fall foul of the rule against hearsay. But that is not this case.

I observe in looking at the form (with a copy of which we have been provided) that it says, in handwriting which may be that of the sergeant: ‘The accused made a very poor attempt to blow into the machine. He would blow for approximately two seconds and this he kept repeating.’ As I understand it, what was said to us by counsel during the course of this case was that that evidence of the sergeant was not in fact given because counsel for the respondent was able to persuade the lower court that the evidence of the sergeant, as to his own observations, was objectionable. That submission made by him was upheld.

Speaking for myself, if the sergeant was able to say what appears on the face of the form, it seems to me that that is evidence which he plainly could have given without any reference whatsoever to the Intoximeter and that is evidence which he should have been allowed to give.

DISPOSITION:
Appeal allowed. Case remitted to justices to continue hearing.

A Bad Judge: Maharaj v Attorney-General of Trinidad and Tobago (No 2) PRIVY COUNCIL [1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902

[1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902

 

Maharaj v Attorney-General of Trinidad and Tobago (No 2)

PRIVY COUNCIL

[1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902

HEARING-DATES: 13, 14 DECEMBER 1977, 27 FEBRUARY 1978

27 FEBRUARY 1978

CATCHWORDS:
Trinidad and Tobago – Constitutional law – Human rights and freedoms – Right not to be deprived of liberty otherwise than by due process of law – Redress – Committal for contempt of court – Judge failing to specify nature of contempt charged – Contemnor applying by motion to another High Court judge for redress by award of damages against the Attorney-General as representing the state – Whether judge having jurisdiction to entertain motion – Whether committal contravention of constitutional right – Whether ‘redress’ including damages – Whether award of damages contrary to rule of public policy that a judge is not liable for anything done in his judicial capacity – Constitution of Trinidad and Tobago 1962 (SI 1962 No 1875), ss 1(a), 6(1)(2)(a).

HEADNOTE:
On 17th April 1975 a judge of the High Court of Trinidad and Tobago made an order committing the appellant, a barrister, to prison for seven days for contempt of court. On the same day the appellant applied ex parte by a motion to another High Court judge claiming, in purported pursuance of s 6 a of the Constitution of Trinidad and Tobago 1962, redress for alleged contravention of his right under s 1(a) b of the Constitution not to be deprived of liberty except by due process of law. The redress claimed was, inter alia, an order for immediate release from prison pending final determination of the motion and damages for wrongful detention and false imprisonment against the respondent, the Attorney-General, as representative of the state. The judge ordered that the appellant be released from prison forthwith. On the substantive hearing of the motion, a third judge (Scott J) dismissed the motion and ordered the appellant to serve the remaining six days of his sentence, which he served. He appealed against the decision to the Court of Appeal. Whilst the appeal was pending he obtained special leave to appeal to the Judicial Committee of the Privy Council against the committal order made on 17th April. On 27th July 1976 the Judicial Committee c allowed that appeal on the ground that the judge who made the committal order had failed to specify sufficiently the nature of the contempt charged against the appellant before committing him to prison and held that in consequence the committal order was invalid. On 29th April 1977 the Court of Appeal dismissed the appeal relating to the motion on the ground that, although a High Court judge had jurisdiction under s 6 of the Constitution to grant the appellant redress for contravention of his constitutional rights which resulted from something done by another High Court judge acting in his judicial capacity, the failure of the judge to inform the appellant of the nature of the contempt charged did not contravene his rightsunders 1(a) of the Constitution. The appellant appealed to the Judicial Committee against the decision.

a Section 6 is set out at p 674 j to p 675 d, post

b Section 1, so far as material, is set out at p 674 f g, post

c [1977] 1 All ER 411

Held – (i) The claim for redress in the motion fell within the original jurisdiction of the High Court under s 6(2)(a) of the Constitution since it involved an enquiry into whether the procedure adopted by the judge before committing the appellant to prison had contravened the appellant’s right, under s 1(a) of the Constitution, not to be deprived of liberty otherwise than by due process of law, and did not involve an appeal on fact or substantive law from the judge’s decision that he was guilty of conduct amounting to contempt of court. Accordingly Scott J, though of equal rank tothe judge who made the committal order, had jurisdiction to entertain the motion. Moreover the Attorney-General was a proper respondent to the motion, by virtue of s 19(2) d of the State Liability and Proceedings Act 1966, since the redress claimed under s 6 was against the state for contravention by its judicial arm of the appellant’s constitutional rights (see p 675 g to p 676 a and p 681 e to g, post).

d Section 19(2) provides: ‘Subject to this Act and to any other enactment, proceedings against the [state] shall be instituted against the Attorney-General’

(ii) The protection afforded by s 1 of the Constitution was, by virtue of the combined effect of ss 1, 2 and 3 of the Constitutio, protection against interference by the state, or some other public authority, with a right or freedom described in s 1 insofar as the interference would have been unlawful under the law in force immediately before the Constitution came into effect. Since the committal order would have been unlawful under the common law, which governed contempt before the Constitution came into effect, it followed that the failure of the judge to inform the appellant of the nature of the contempt charged before committing him to prison constituted deprivation of liberty without due process of law within the meaning of s 1(a) (see p 676 e f and j to p 677 a and e and j to p 678 c and e and p 680 j, post); dictum of Lord Devlin in Director of Public Prosecutions v Nasralla [1967] 2 All ER at 165 and de Freitas v Benny [1976] AC 239 applied.

(iii) (Lord Hailsham of St Marylebone dissenting) Section 6(1) of the Constitution created a remedy against any interference with the rights or freedoms protected by s 1 which would have been unlawful under the previously existing law in addition to any other remedy which may have been available. The appellant was therefore entitled to apply to the High Court for redress under s 6(1) in respect of his imprisonment notwithstanding that he also had a right of appeal against the committal order to the Judicial Committee. Since the word ‘redress’ in s 6(1) bore its ordinary meaning of reparation or compensation for the wrong sustained, the appellant was entitled to claim damages for the imprisonment. This entitlement did not subvert the rule of public policy that a judge could not be made liable for anything done by him in the exercise of his judicial functions for it was only errors in procedure amounting to failure to observe the rules of natural justice, which were likely to be rare, that were capable of constituting infringement of the rights protected by s 1. Moreover, the claim for damages under s 6(1) was a claim against the state directly and not vicariously for something done in the exercise of its judicial power, and a failure by a judge too observe the rules of natural justice would bring the case within the scope of s 6 only if the deprivation of liberty had already been undergone. The measure of the damages recoverable under s 6(1) where the contravention consisted of deprivation of liberty otherwise than by due process of law was not at large since the claim was in public law and not for a tort in private law, but it would include loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered during the imprisonment (see p 677 b c, p 678 f g, p 679 a and d to j and p 680 a and c d, post).

(iv) It followed (Lord Hailsham of St Marylebone dissenting) that the appeal would be allowed and the case remitted to the High Court with a direction to assess the damages to which the appellant was entitled (see p 680 e, post).

NOTES:
For the Constitution of Trinidad and Tobago, see 6 Halsbury’s Laws (4th Edn) para 1009.

CASES-REF-TO:

Baker v The Queen [1975] 3 All ER 55, [1975] AC 774, [1975] 3 WLR 113, PC, 14(2) Digest (Reissue) 730, * 4704.
Cassell & Co Ltd v Broome [1972] 1 All ER 801, [1972] AC 1027, [1972] 2 WLR 645, HL, 17 Digest (Reissue) 82, 17.
de Freitas (also called Malik) v Benny [1976] AC 239, [1975] 3 WLR 388, PC, Digest (Cont Vol D) 111, * 132a.
Director of Public Prosecutions v Nasralla [1967] 2 All ER 161, [1967] 2 AC 238, [1967] 3 WLR 13, PC, 14(1) Digest (Reissue) 441, 3786.
Hinds v The Queen, Director of Public Prosecutions v Jackson, Attorney General of Jamaica (intervener) [1976] 1 all ER 353, [1977] AC 195, [1976] 2 WLR 366, PC.
Jaundoo v Attorney-General of Guyana [1971] AC 972, [1971] 3 WLR 13, PC, 8(2) Digest (Reissue) 761, 356.
Maharaj v Attorney-General for Trinidad and Tobago [1977] 1 All ER 411, PC.
Oliver v Buttigieg [1966] 2 All ER 459, [1967] 1 AC 115, [1966] 3 WLR 310, PC, 8(2) Digest (Reissue) 759, 351.
Pollard, Re (1868) LR 2 PC 106, 5 Moo PCCNS 111, 16 ER 457, PC, 16 Digest (Repl) 60, 576.
Rookes v Barnard [1964] 1 All ER 367, [1964] AC 1129, [1964] 2 WLR 269, [1964] 1 Lloyd’s Rep 28, HL, 17 Digest (Reissue) 81, 14.
Sirros v Moore [1974] 3 All ER 776, [1975] QB 118, [1974] 3 WLR 459, 139 JP 29, CA, Digest (Cont Vol D) 736, 572a.
Woolmington v Director of Public Prosecutions [1935] AC 462, [1935] All ER Rep 1, 104 LJKB 433, 153 LT 232, 23 Cr App Rep 72, 30 Cox CC 234, HL, 14(2) Digest (Reissue) 474, 319.

INTRODUCTION:
Appeal. This was an appeal, by leave of the Court of Appeal of the Supreme Court of Judicature of Trinidad and Tobago, by Ramesh Lawrence Maharaj against the judgment and order of the Court of Appeal (Hyatali CJ and Corbin JA, Phillips JA dissenting) given on 5th May 1977 dismissing his appeal against an order of Scott J made on 23rd July 1975 dismissing his application by notice of motion dated 17th April 1975 claiming redress against the Attorney-General, under s 6 of the Constitution of Trinidad and Tobago 1962, for contravention of his rights under s 1 of the Constitution. The facts are set out in the majority judgment of the Board.

COUNSEL:
David Turner-Samuels QC, Fenton Ramsahoye SC (of the Trinidad and Tobago Bar) and William Birtles for the appellant. J A Wharton SC and Clebert Brooks (both of the Trinidad and Tobago Bar) and Gerald Davies for the Attorney-General.

PANEL: LORD DIPLOCK, LORD HAILSHAM OF ST MARYLEBONE, LORD SALMON, LORD RUSSELL OF KILLOWEN AND LORD KEITH OF KINKEL

JUDGMENTBY-1: LORD DIPLOCK.

JUDGMENT-1:
LORD DIPLOCK. The unfortunate misunderstandings that resulted in the appellant, a member of the Bar of Trinidad and Tobago, being committed to seven days’ imprisonment for contempt of court of 17th April 1975, on the order of Maharaj J, are narrated in the reasons for judgment delivered by the Judicial Committee on 11th October 1976 in the previous appeal to which they have given rise. Maharaj v Attorney-General for Trinidad and Tobago n1. That was an appeal against the committal order. It was allowed and the order of Maharaj J was set aside. The grounds for doing so were n2:

n1 [1977] 1 All ER 411

n2 [1977] 1 All ER 411 at 416

‘In charging the appellant with contempt, Maharaj J did not make plain to him the particulars of the specific nature of the contempt with which he was being charged. This must usually be done before an alleged contemnor can properly be convicted and punished (Re Pollard n3). In their Lordships’ view, justice certainly demanded that the judge should have done so in this particular case. Their Lordships are satisfied that his failure to explain that the contempt with which he intended to charge the appellant was what the judge has described in his written reasons as “a vicious attack on the integrity of the Court” vitiates the commital for contempt.’

n3 (1868) LR 2 PC 106

This was a finding that the judge, however inadvertently, had failed to observe a fundamental rule of natural justice: that a person accused of an offence should be told what he is said to have done plainly enough to give him an opportunity to put forward any explanation or excuse that he may wish to advance.

The question in the instant appeal is whether this constituted a deprivation of liberty otherwise than by due process of law, within the meaning of s 1(a) of the Constitution of Trinidad and Tobago of 1962 n1, for which the appellant was entitled to redress by way of monetary compensation under s 6.

n1 SI 1963 No. 1875

In 1975 there was no right of appeal to the Court of Appeal from an order of a judge of the High Court finding a person guilty of contempt of court and ordering him to be punished for it. An appeal did lie to the Judicial Committee of the Privy Council but only by special leave of that committee itself. So the appellant sought an immediate means of collateral attack on the order of Maharaj J. On the very day of his committal he applied ex parte by notice of motion to the High Court in purported pursuance of s 6 of the Constitution claiming redress for contravention of his constitutional rights under s 1 of the Constitution and for a conservatory order for his immediate release on his own recognisance pending the final determination of his claim. The nature of the redress that he claimed was (a) a declaration that the order committing him to prison for contempt was unconstitutional, illegal, void and of no effect, (b) an order that he be released from custody forthwith and © an order that damages be awarded him against the Attorney-General ‘for wrongful detention and false imprisonment’, together with a claim for all such other orders etc as might be appropriate. Both the Attorney-General and Maharaj J were named as respondents to the notice of motion but only the Attorney-General was served and from the outset the motion has been proceeded with against him alone.

The ex parte application came before Braithwaite J on 17th April 1975. He granted the conservatory order, and the appellant was forthwith released, after suffering imprisonment for part of the day. It is not without interest to note that Braithwaite J on 26th June 1975 gave reasons in writing for his decision. In these he expressed the view that, on the evidence before him, the appellant had made out a prima facie case that his right under s 1(a) of the Constitution not to be deprived of his liberty without due process of law had been contravened.

The substantive motion, however, did not come before Braithwaite J but before Scott J. After an intermittent hearing extending over 13 days he dismissed the motion on 23rd July 1975 and ordered the appellant to serve the remaining six days of his sentence of imprisonment. His ultimate ground for dismissing it was that the High Court had no jurisdiction under s 6 to entertain the motion since to do so would, in his view, amount to the exercise by one judge of the High Court of an appellate jurisdiction over another judge of the High Court. This would be inconsistent with the ‘equal power, authority and jurisdiction’ which by s 5(2) of the Supreme Court of Judicature Act 1962 is vested in all the judges of the High Court.

Despite his disclaimer of jurisdiction no entertain the motion Scott J did express his own view that the appellant not only had been guilty of contempt of court but also had been told with sufficient particularity the nature of the contempt of which he was accused.

From the dismissal of his originating motion the appellant appealed to the Court of Appeal; but that appeal was not heard until April 1977. In the meantime he had sought and obtained from the Judicial Committee special leave to appeal to them against the original order of Maharaj J committing him to prison for contempt of court. By July 1976 this appeal had been heard and determined in his favour by the Judicial Committee on the grounds which were stated later in their judgment of 11th October 1976 n1. So by the time the appeal from the judgment of Scott J on the originating motion came to be decided by the Court of Appeal the invalidity of the order of committal had been established as res judicata and the only questions then to be determined by the Court of Appeal were: (1) whether the High Court had jurisdiction under s 6 of the Constitution (now s 14 of the republican Constitution) to grant the appellant redress for an alleged contravention of his constitutional rights resulting from something done by a judge when acting in his judicial capacity; (2) whether the failure of Maharaj J to inform the appellant of the specific nature of the contempt of court with which he was charged before committing him to prison for it contravened a constitutional right of the appellant in respect of which he was entitled to protection under s 1(a) of the Constitution (now s 4(a) of the republican Constitution); and, if so, (3) whether the appellant was entitled by wasy of redress to monetary compensation for the period that he had spent in prison.

n1 [1977] 1 All ER 411

All three members of the Court of Appeal (Hyatali CJ, Phillips and Corbin JJA) answered question (1), Yes. Hyatali CJ and Corbin JA answered question (2), No; so for them question (3) did not arise. Phillips JA, in a dissenting judgment, answered questions (2) and (3), Yes.

From that judgment by a majority of the Court of Appeal the Appellant now appeals once more to the Judicial Committee. In addressing themselves to the questions raised it would seem convenient to set out the most important of those provisions of the Constitution on which in their Lordships’ view the answers turn.

‘Whereas the People of Trinidad and Tobago… (e) desire that their Constitution should… make provision for ensuring the protection in Trinidad and Tobago of fundamental human rights and freedoms…

‘CHAPTER I

‘THE RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

’1. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, an the right not to be deprived thereof except by due process of law…

’2. Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared and in particular no Act of Parliament shall — (a) authorise of effect the arbitrary detention, imprisonment or exile of any person… (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations…

’3. — (1) Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution…

’6. — (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section of this Constitution has been, is being, or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

‘(2) The High Court shall have original jurisdiction — (a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) thereof, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections or section to the protection of which the person concerned is entitled.

‘(3) If in any proceedings in any court other than the High Court or the Court of Appeal any question arises as to the contravention of any of the provisions of the said foregoing sections or section the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless in his opinion the raising of the question is merely frivolous or vexations.

‘(4) Any person aggrieved by any determination of the High Court under this section may appeal therefrom to the Court of Appeal.

‘(5) Nothing in this sections shall limit the power of Parliament to confer on the High Court or the Court of Appeal such powers as Parliament may think fit in relation to the exercise by the High Court or the Court of Appeal, as the case may be, of its jurisdiction in respect of the matters arising under this Chapter.’
Question (1)

Their Lordships can deal briefly with the question of jurisdiction. The notice of motion and the affidavit in support of the application for the conservatory order for the immediate release of the appellant pending the final hearing of his claim made it clear that he was, inter alia, invoking the original jurisdiction of the High Court under s 6(2)(a) to hear and determine an application on his behalf for redress for an alleged contravention of his right under s 1(a). It is true that in the notice of motion and the affidavit which, it may be remembered, were prepared with the utmost haste, there are other claims and allegations some of which would be appropriate to a civil action against the Crown for tort and others to an appeal on the merits against the committal order of Maharaj J on the ground that the appellant had not been guilty of any contempt. To this extent the application was misconceived. The Crown was not vicariously liable in tort for anything done by Maharaj J while discharging or purporting to discharge any responsibilities of a judicial nature vested in him; nor for anything done by the police or prison officers who arrested and detained the appellant which discharging responsibilities which they had in connection with the execution of judicial process; s 4(6) of the State [formerely 'Crown'] Liability and Proceedings Act 1966 so provides. At that time too there was no right of appeal on the merits against an order of a High Court judge committing a person to imprisonment for contempt of court, except to the Judicial Committee by special leave which it alone had power to grant. Nevertheless, on the face of it the claim for redress for an alleged contravention of his constitutional rights under s 1(a) of the Constitution fell within the original jurisdiction of the High Court under s 6(2). This claim does not involve any appeal either on fact or on substantive law from the decision of Maharaj J that the appellant on 17th April 1975 was guilty of conduct that amounted to a contempt of court. What it does involve is an enquiry into whether the procedure adopted by the judge before committing the appellant to prison for contempt contravened a right, to which the appellant was entitled under s 1(a), not to be deprived of his liberty except by due process of law. Distasteful though the task may well appear to a fellow judge of equal rank, the Constitution places the responsibility for undertaking the equiry failrly and squarely on the High Court.

It was arged for the Attorney-General that even if the High Court had jurisdictions, he is not a proper respondent to the motion. In their Lordships’ view the Court of Appeal were right to reject this argument. The redress claimed by the appellant under s 6 was redress from the Crown (now the state) for a contravention of the appellant’s constitutional rights by the judicial arm of the state. By s 19(2) of the State Liability and Proceedings Act 1966 it is provided that proceedings against the Crown (now the state) should be instituted against the Attorney-General, and this is not confined to proceedins for tort.
Question (2)

The structure and the presumptions that underlie Chapter I of the Constitution of Trinidad and Tobago and the corresponding chapters in other Constitutions on the Westminster model that provide for the recognition and protection of fundamental human rights and freedoms, have been referred to in a number of previous cases that have come before the Judicial Committee, notably in Director of Public Prosecutions v Nasralla n1, Baker v The Queen n2 and de Freitas v Benny n3. In the first of these authorities Lord Devlin n4, speaking for the Board, said of the corresponding chapter in the Constitution of Jamaica:

n1 [1967] 2 All ER 161, [1967] 2 AC 238

n2 [1975] 3 All ER 55, [1975] AC 774

n3 [1976] AC 239

n4 [1967] 2 All ER 161 at 165, [1967] 2 AC 238 at 247, 248

‘This chapter… proceeds on the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed.’

That the same presumption underlies Chapter I of the Constitution of Trinidad and Tobago was stated by the Judicial Committee in de Freitas v Benny n5. In s 1 the human rights and fundamental freedoms which it is declared (by the only words in the section that are capable of being enacting words) ‘shall continue to exist’ are those which are expressly recognised by the section to ‘have existed’ in Trinidad and Tobago. So, to understand the legal nature of the various rights and freedoms that are described in the succeeding paragraphs, paras (a) to (k), in broad terms and in language more familiar to politics than to legal draftsmanship, it is necessary to examine the extent to which, it his exercise and enjoyment of rights and freedoms capable of falling within the broad descriptions in the section, the individual was entitled to protection or non-interference under the law as it existed immediately before the Constitution came into effect. That is the extent of the protection or freedom from interference by the law that s 2 provides shall not be abrogated, abridged or infringed by any future law, except as provided by s 4 or s 5.

n5 [1976] AC 239 at 244

What confines s 2 to future laws is that it is made subject to the provisions of s 3. In view of the breadth of language used in s 1 to describe the fundamental rights and freedoms, detailed examination of all the laws in force in Trinidad and Tobago at the time the Constitution came into effect (including the common law so far as it had not been superseded by writeen law) might have revealed provisions which it could plausibly be argued contravened one or other of the rights or freedoms recognised and declared by s 1. Section 3 eliminates the possibility of any argument on these lines. As was said by the Judicial Committee in de Freitas v Benny n5:

n5 [1976] AC 239 at 244

‘Section 3 debars the individual from asserting that anything done to him that is authorised by a law in force immediately before August 31, 1962, abrogates, abridges or infringes any of the rights or freedoms recognised and declared in section 1 or particularised in section 2.’

But s 3 does not legitimise for the purposes of s 1 conduct which infringes any of the rights or freedoms there descirbed and was not lawful under the pre-existing law. There was no pre-existing law which authorised that of which complaint is made in this case: s 3(1) therefore does not override the constitutional right of the appellant under s 1. True, he had no remedy, other than appeal for infringement of his right. Insofar as s 6 supplies a remedy where pre-existing law said there was none, s 3(1) does not deny it, since it does not refer to s 6.

Section 6(1), to which it will be necessary to revert in greater detail when dealing with question (3), is not expressed to be subject to s 3. It is general in its terms. So it applies to any interference with a right or freedom recognised and declared by s 1, except insofar as that interference would have been lawful under the law in force in Trinidad and Tobago on 31st August 1962. If it would not have been lawful under that previously existing law, s 6 creates a new right on the part of the victim of the interference to claim a remedy for it described as ‘redress’. This remedy of ‘redress’ co-exists with any other remedy to which the victim may have been entitled under the previously existing law.

To revert then to the legal nature of the rights and freedoms described in paras (a) to (k) of s 1, and, in particular, to the question, against whom is the protection of the individual in the exercise and enjoyment of those rights and freedoms granted? In his dissenting judgment Phillips JA said:

‘The combined effect of these sections [sc 1, 2 and 3], in my judgment, gives rise to the necessary implication that the primary objective of Chapter I of the Constitution is to prohibit the contravention by the State of any of the fundamental rights or freedoms declared and recognised by s 1.’

Read in the light of the recognition that each of the highly diversified rights and freedoms of the individual described in s 1 already existed, it is in their Lordships’ view clear that the protection afforded was against contravention of those rights or freedoms by the state or by some other public authority endowed by law with coercive powers. The chapter is concerned with public law, not private law. One man’s freedom is another man’s restriction; and as regards infringement by one private individual of rights of another private individual, s 1 implicitly acknowledges that the existing law of torts provided a sufficient accommodation between their conflicting rights and freedoms to satisfy the requirements of the new Constitution as respects those rights and freedoms that are specifically referred to.

Some of the rights and freedoms described in s 1 are of such a nature that, for constraventions of them committed by anone acting on behalf of the state or some public authority, there was already at the time of the Constitution an existing remedy, whether by statute, by prerogative writ or by an action for tort at common law. But for others, of which ‘© the right of the individual to respect for his private and family life’ and ‘(e) the right to join political parties and express political views’ may be taken as examples, all that can be said of them is that at the time of the Constitution there was no enacted law restricting the exercise by the individual of the described right or freedom. The right or freedom existed de facto. Had it been abrogated or abridged de facto by an executive act of the state there might not necessarily have been a legal remedy available to the individual at a time before the Constitution came into effect, as, for instance, if a government servant’s right to join political parties had been curtailed by a departmental instruction. Nevertheless de facto rights and freedoms not protected against abrogation or infringement by any legal remedy before the Constitution came into effect are, since that date, given protection which is enforceable de jure under s 6(1) (cf Oliver v Buttigieg n1).

n1 [1966] 2 All ER 459, [1967] 1 AC 115

The order of Maharaj J committing the appellant to prison was made by him in the exercise of the judicial powers of the state; the arrest and detention of the appellant pursuant to the judge’s order was effected by the executive arm of the state. So if his detention amounted to a contravention of his rights under s 1(a), it was a contravention by the state against which he was entitled to protection.

Whether it did amount to a contravention depends on whether the judge’s order was lawful under the law in force before the Constitution came into effect. At that time the only law governing contempt of court in Trinidad and Tobago was the common law; and, at common law it had long been settled (Re Pollard n1) that –

n1 (1868) LR 2 PC 106 at 120

‘no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him…’
That the order of Maharaj J was unlawful on this ground has already been determined in the previous appeal; and in their Lordships’ view it clearly amounted to a contravention by the state of the appellant’s rights under s 1(a) not to be deprived of his liberty except by due process of law.

It is ture that under the law in force at the coming into effect of the Constitution the only remedy available to the appellant against an order for committal that was unlawful on this or any other ground would have been an appeal to the Judicial Committee of the Privy Council, by special leave, to have the order set aside. No action in tort would have lain against the police or prison officers who had arrested or detained him since they would have acted in execution of judicial process that was valid on its face; not would any action have lain against the judge himself for anything he had done unlawfully while purporting to discharge judicial functions: see Sirros v Moore n2, in which many of the older authorities are cited. But ss 1 and 2 are concerned with rights, not with remedies for their contravention.

n2 [1974] 3 All ER 776, [1975] QB 118

Accordingly their Lordships, in agreement with Phillips JA, would answer question (2): ‘Yes; the failure of Maharaj J to inform the appellant of the specific nature of the contempt of court with which he was charged did contravene a constitutional right of the appellant in respect of which he was entitled to protection under s 1(a).’
Question (3)

Section 6(1) and (2), which deals with remedies, could not be wider in its terms. While s 3 excludes the application of ss 1 and 2 in relation to any law that was in force in Trinidad and Tobago at the commencement of the Constitution it does not exclude the application of s 6 in relation to such law. The right to ‘apply to the High Court for redress’ conferred by s 6(1) is expressed to be ‘without prejudice to any other action with respect to the same matter which is lawfully available’. The clear intention is to create a new remedy whether there was already some other existing remedy or not. Speaking of the corresponding provision of the Constitution of Guyana, which is in substantially identical terms, the Judicial Committee said in Jaundoo v Attorney-General of Guyana n3:

n3 [1971] AC 972 at 982

‘To “apply to the High Court for redress” was not a term of art at the time the Constitution was made. It was an expression which was first used in the Constitution of 1961 and was not descriptive of any procedure which then existed under Rules of Court for enforcing any legal right. It was a newly created right of access to the High Court to invoke a jurisdiction which was itself newly created…’
As has been already mentioned, in his originating motion in the High Court of 17th April 1975 the appellant did allege that the provisions of s 1(a) had been and were being contravened in relation to him. He was thus entitled under s 6(1) to apply to the High Court for redress, without prejudice to his right also to pursue his remedy of appealing to the Judicial Committee against the judge’s order.

What then was the nature of the ‘redress’ to which the appellant was entitled? Not being a term of legal art it must be understood as bearing its ordinary meaning, which in the Shorter Oxford Dictionary is given as: ‘Reparation of, satisfaction or compensation for, a wrong sustained or the loss resulting from this.’ At the time of the original notice of motion the appellant was still in prison. His right not to be deprived of his liberty except by due process of law was still being contravened; but by the time the case reached the Court of Appeal he had long ago served his seven days and had been released. The contravention was in the past; the only practicable form of redress was monetary compensation.

It was argued on behalf of the Attorney-General that s 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v Attorney-General of Guyana n1. Reliance was placed on the reference in the subsection to ‘enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections’ as the purpose for which orders etc could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships’ view an order for payment of compensation when a right protected under s 1 ‘has been’ contravened is clearly a form of ‘redress’ which a person is entitled to claim under s 6(1) and may well be the only paracticable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of s 6(2), viz jurisdiction ‘to hear and determine any application made by any person in pursuance of subsection (1) of this section’. The very wide powers to make orders, issue writs and give directions are ancillary to this.

n1 [1971] AC 972

It has been urged on their Lordships on behalf of the Attorney-General that so to decide would be to subvert the long established rule of public policy that a judge cannot be made personally liable in court proceedings for anything done by him in the exercise or purported exercise of his judicial functions. It was this consideration which weighed heavily with Hyatali CJ and Corbin JA in reaching their conclusion that the appellant’s claim for redress should fail. Their Lordships, however, think that these fears are exaggerated.

In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. When there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infalliable but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by s 1(a), and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event.

In the second place, no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. The claim for redress under s 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability: it is a liability of the state itself. It is not a liability in tort at all: it is a liability in the public law of the state, not of the judge himself, which has been newly created by s 6(1) and (2) of the Constitution.

In the third place, even a failure by a judge to observe one of the fundamental rules of natural justice does not bring the case within s 6 unless it has resulted, is resulting or is likely to result, in a person being deprived of life liberty, security of the person or enjoyment of property. It is only in the case of imprisonment or corporal punishment already undergone before an appeal can be heard that the consequences of the judgment or order cannot be put right on appeal to an appellate court. It is true that instead of, or even as well as, pursing the ordinary course of appealing directly to an appellate court, a party to legal proceedings who alleges that a fundamental rule of natural justice has been infringed in the course of the determination of his case, could in theory seek collateral relief in an application to the High Court under s 6(1) with a further right of appeal to the Court of Appeal under s 6(4). The High Court, however, has ample powers, both inherent and under s 6(2), to prevent its process being misused in this way; for example, it could stay proceedings under s 6(1) until an appeal against the judgment or order complained of had been disposed of.

Finally, their Lordships would say something about the measure of monetary compensation recoverable under s 6 where the contravention of the claimant’s constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration. Counsel for the appellant has stated that he does not intend to claim what in a case of tort would be called exemplary or punitive damages. This makes it unnecessary to express any view whether money compensation by way of redress under s 6(1) can ever include an exemplary or punitive award.

For these reasons the appeal must be allowed and the case remitted to the High Court with a direction to assess the amount of monetary compensation to which the appellant is entitled. The respondent must pay the costs of this appeal and of the proceedings in both courts below.

DISSENTBY-1: LORD HAILSHAM OF ST MARYLEBONE.

DISSENT-JDGMT-1:
Dissenting judgment by LORD HAILSHAM OF ST MARYLEBONE. In this appeal I find, to my great regret, that I cannot concur in the judgment of the majority. The proceedings have their origin in an incident the circumstances of which have already been explored before the Judicial Committee, and are reported sub nomine Maharaj v Attorney-General for Trinidad and Tobago n1; they therefore do not require to be repeated in detail. Suffice it to say that the present appellant, a barrister, was committed for seven days on a charge of contempt in the face of the court by a judge of the High Court of Trinidad and Tobago, a conviction against which be appealed by special leave. In the result his appeal was allowed and his conviction set aside on two substantive grounds, the first of which is not, and the second of which is, relevant to the present appeal. The first, of great importance to the appellant but no longer relevant, was that, as I understand it, on a correct analysis of the facts, he had not in fact committed the contempt of which he was charged. The second which is at the heart of the present appeal was, in effect, that he had been deprived of his liberty without due process of law. This was because the learned judge never explained to him with sufficient clarity or in sufficient detail the nature and substance of the contempt of which he stood accused. We are clearly bound by the decision in the earlier appeal, and in the present appeal it was never argued that the proceedings before the committing judge were not a contravention of the Constitution of Trinidad and Tobago in the form in which it was then in force.

n1 [1977] 1 All ER 411

On the same day as his committal, the appellant commenced the present proceedings by notice of motion under s 6 of the Constitution (of which more later) and Ord 55 of the Rules of Court. They were at first adjourned but when they came on for hearing were dismissed by Scott J on a number of grounds. As a result of Scott J’s decision the appellant served his sentence and has therefore been deprived of his liberty for seven days without redress other than the subsequent declaration of his innocence contained in the decision of the Judicial Committee above referred to and their conclusion that he had been convicted without a proper opportunity to defend himself.

On appeal from the decision of Scott J, the Court of Appeal (Hyatali CJ and Corbin JA, Phillips JA dissenting) though differing in part from the learned judge dismissed the appeal and from their decision the appellant now appeals, by leave, to their Lordships acting as they now do as an appellate court by virtue of s 109 of the 1976 Constitution of Trinidad and Tobago.

The notice of motion claims a variety of different types of relief, but, in view of the events which have supervened, it seems to me that the only one which can do the appellant substantial service is that in which he claims monetary compensation as ‘damages for wrongful detention and false imprisonment’.

The respondent to this appeal is the Attorney-General of Trinidad and Tobago sued as the representative of the state by virtue of s 19 of the State Liability and Proceedings Act 1966. The original notice named in addition the committing judge, but he was never served with the notice and no remedy is now sought against him. Accordingly the only question in this appeal is whether the state is liable to pay monetary compensation to the appellant. It is common ground between the parties that any right to compensation which may exist can only arise by virtue of the Constitution in force at the time of the appellant’s committal. That is the Constitution of 1962. Apart from the enacting sections of the order the relevant provisions are contained in Chapter I, ss 1, 2, 3 and 6, and of these ss 1, 3 and 6 are of critical importance. The respondent placed in the forefrom of his argument two contentions, which I mention only to dismiss them because I agree entirely with the reasons given by the majority for their rejection. They were accepted by Scott J, but not by any member of the Court of Appea. They were (1) that the High Court, in which the proceedings originated, had no jurisdiction to entertain them and (2) that, in any event, they failed since the Attorney-General was not an appropriate party. On the assumption (which I make for this purpose) that the remedy of damages is otherwise available to the appellant against the state it appears to me that the Attorney-General is the appropriate party by virtue of s 19 of the State Liability and Proceedings Act 1966, and that whatever other proceedings may have been available, the notice of motion to the High Court is an appropriate, though not necessarily the only, means of procedure by virtue of s 6 of the 1962 version of the Constitution, and Ord 55 of the Rules of Court. The case therefore stands of falls entirely on the availability of a remedy by way of damages or compensation against the state in respect of the action of the judge insofar as this was a contravention of the entrenched rights or freedoms guaranteed by the Constitution of 1962. Since in my opinion such a remedy is not so available, it would follow that in my view the appeal should be dismissed.

The 1962 Constitution is one of a family of constitutions similar, but not now identical, in form, enacted for former colonial depedencies of the Crown on their attaining independence, as the result of negotiations and discussions relating to the terms on which independence should be granted. Many of them (including that of Trinidad and Tobago) have been amended since independence (sometimes more than once), but they still retain strong family resemblances. One of the main features of those constitutions is the enumeration and entrenchment of certain rights and freedoms. In the 1962 version of the Constitution of Trinidad and Tobago these, referred to as ‘human rights and fundamental freedoms’, are contained in Chapter I, and, in the words of s 1 of this chapter include:

‘the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.’
The nature of these rights and freedoms and the purpose of their entrenchment has been discussed more than once in reported cases. The first point to observe is that they do not claim to be new. They already exist, and the purpose of the entrenchment is to protect them against encroachment. In a Jamaican case (Director of Public Prosecutions v Nasralla n1) Lord Devlin put it thus: they proceed –

n1 [1967] 2 All ER 161 at 165, [1967] 2 AC 238 at 247, 248

‘on the presumption that the fundamental rights… are already secured to the people of Jamica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed’;
or, as Lord Diplock put it in de Freitas v Benny n2, regerring to the 1962 Constitution of Trinidad and Tobago itself:

n2 [1976] AC 239 at 244

‘Chapter I of the Constitution of Trinidad and Tobago, like the corresponding Chapter III of the Constitution of Jamaica (see Director of Public Prosecutions v. Nasralla n3), proceeds on the presumption that the human rights and fundamental freedoms that are referred to ain sections 1 and 2 are already secured to the people of Trinidad and Tobago by the law in force there at the commencement of the Constitution.’

n3 [1967] 2 All ER 161, [1967] 2 AC 238

The purpose of entrenchment was also described by Lord Diplock in another case relating to Jamaica (Hinds v The Queen n4) as follows:

n4 [1976] 1 All ER 353 at 361, [1977] AC 195 at 214

‘The purpose served by this machinery for “entrenchment” is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up to the constitution, should not be altered without mature consideratio by the parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws.’
And again n5:

n5 [1976] 1 All ER 353 at 360, [1977] AC 195 at 213

‘The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down… impose a fetter on the exercise by the legislature, the executive and the judiciarly of the plenitude of the their respective powers.’
In other words the entrenchment is designed to preserve and protect what already exists against encroachment, abrogation, abridgment or infringement. It is concerned with future abuses of authority, usually state authority, and it is largely preoccupied with the possibility of abuse of authority by the legislature (see s 2), or the executive, though doubtless as Lord Diplock said it binds also the judiciary and inferior authority, and presumably also individuals. Except insofar as it protects against future abuse, entrenchment does not purport to alter existing law.

That this is so is clear from the Constitution itself. So far from creating new law, s 1, in identifying the rights and freedoms entrenched, begins with the words:

‘It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms’ (emphasis mine);
and s 3 provides:

‘Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution.’
By the interpretation section (s 105) the expression ‘law’ includes ‘any unwritten rule of law’ and s 6 (of which more later) relates only to proceedings for alleged contravention of ss 1 and 2 (the second of which is mainly framed to invalidate legislation which contravenes the first), and to this extent must be read as subject to s 3 insofar as this limits the application of s 1 to existing rules of law.

It follows that, in order to construe the meaning and estent of the rights and freedoms protected by ss 1 and 2 of the Constitution, one must look first at the extent of these rights as they existed at the date of the commencement of the Constitution. They may be extended or improved after that date by subsequent acts of the state acting appropriately through any of its branches. But they are only protected against encroachment in the form in which they existed at the commencement date. This applies even to the right to life where the death penalty was in force at the commencement. Granted due process of law, the right to life is not infringed by judicial execution (cf de Freitas v Benny n1).

n1 [1976] AC 239

It thus becomes important to discuss in what form the rights to liberty and security of person and to due process existed in Trinidad and Tobago at the commencement of the 1962 Constitution, and for this purpose the extent both of state (then Crown) and judicial immunity is relevant. At common law the Crown could not be impleaded at all. Before the United Kingdom Crown Proceedings Act 1947 (the analogue of which in Trinidad is the State Liability and Proceedings Act 1966, enacted after the Constitution of 1962) a petition or right would lie against the Crown for certain types of remedy, but only be consent of the Crown signified by the Attorney-General’s fiat (though in practice this was granted as of course in a proper case). This immunity from suit was not technicality of procedure. It was part of the prerogative and universally insisted on. Apart from the petition of right procedure and some statutory exceptions the Crown was neither liable itself nor vicariously bound to answer for wrongs committed by its servants.

These servants however, from the highest Minister to the private soldier driving a truck, were personally liable for their own misdoings, negligence and crimes. Superior orders, even from the Sovereign himself, afforded no excuse or immunity from process civil or criminal, and although the Crown ordinarily ensured the satisfaction of civil judgments it did so of grace and not of necessity. A judge, of course, is not in the ordinary sense a servant. But he had a further immunity of his own. Judges, particularly High Court judges, were not, and are not, liable to civil actions in respect of their judicial acts, although, of course, in cases of corcuption or criminal misconduct, they have never been immune from criminal porcess or impeachment. This is trite law, and I need to no more than refer to the very full and interesting discussion of the subject in the Court of Appeal in Sirros v Moore n2. This civil immunity protected the judge whether he committed a mere error of law, or, in the case of a High Court judge, and perhaps not only the, if he exceeded his jurisdiction, or if he committed a breach of natural justice, or, subject to what I have said about criminal liability, if he acted maliciously or corruptly. There could therefore be no kind of action against a judge in circumstances like the present, and the state could not be liable either. It could neither be impleaded itself nor could it be vicariously liable in respect of a matter of which the principal wrongdoer was not himself liable, and was acting in a judicial capacity and not as a servant.

n2 [1974] 3 All ER 776, [1975] QB 118

Until the United Kingdom Crown Proceedings Act 1947 and its analogue in Trinidad and Tobago of 1966 the right of redress for judicial error was therefore limited to appeal (if any), and, since the right of appeal by way of rehearing is largely, if not entirely, the creature of modern statute, was at common law lergely confined to technical procedures like writ of error or motion in arrest of judgment. In cases, like the present, for committal for contempt the right of redress was even more restricted. In the United Kingdom a general right of appeal was conceded only in 1960 n1. It seems that in Trinidad (Maharaj v Attorney-General for Trinidad and Tobago n2) an appeal always lay by special leave to the Privy Council, and we were told that a general right of appeal to the Court of Appeal has now been conceded. But, apart from these qualifications, the right of redress in cases of contempt was limited to application to the committing judge for release, or, presumably, application for a writ of error for any error on the face of the record. In no case did it extend to damages.

n1 The Administration of Justice Act 1960, s 13

n2 [1977] 1 All ER 411

Nor did the legislation of 1947 or 1966 make any relevant difference. True, it admitted actiona against the Crown (state) for tort. But judicial error is not a tort, and the draftsmen of the 1966 Act were careful to exclude liability whether direct, personal or vicarious for judicial acts, and the office of judge from the definition of servant of the Crown (see ss 2(2)(h)(v) and 4(6)). There is no reference, of course, to judicial immunity for acts contravening the entrenched rights and freedoms. But I do not myself believe that this was because no such immunity existed (as must be the case if the majority decision in this case be correct). Personally I find it impossible to believe that, if a right of action for damages in such a case did exist, as the result of the Constitution of 1962, either against the judge or against the state, the draftsmen of the 1966 Act would have allowed it to pass sub silentio, and would not have made express reference to it. At all events, what is certain is that no such right of action against the state or a judge was conferred by the State Liability and Proceedings Act 1966.

We now reach the Constitution of 1962 itself. The first sections to construe are ss 1 and 3, and, of these, s 1 is the more important, though I think they are to be read together. As I read s 1, it means that the right to liberty and security of person as it existed at the commencement of the Constitution and therefore in the form in which it is entrenched did not extend to give a right of damages for unlawful judicial acts, nor, if I am right in my analysis, did a contravention by a judge of the right of due process give any such right. I am quite willing to concede that for whatever reason a failure to formulate a criminal charge including one for contempt correctly was not authorised by law at the time (which included the Bill of Rights (1688) n3), and that failure to do so would result in a conviction being set aside on appeal where one was available. I do not find the expression ‘due process’ (although it is a phrase familiar to English lawyers at least as far back as the statute 28 Edw 3 c 3 (1354), repeated in the Petition of Right (1627) n4 and the Habeas Corpus Act 1640) any easier to define exhaustively than have the American courts, but I am very ready to assume that any failure of natural justice such as conviction by or before a biased, interested or corrupt tribunal is struck down by the prohibition or even that a complete misdirection as to the burden of proof as in Woolmington v Director of Public Prosecutions n5 would do so, or that repeated interruptions by a judge if carried too far, might also be affected, since this would disrupt the conduct of the defence. If so, I can see no reason to exclude a failure sufficiently to formulate the charge. Exactly at what stage deprivation of due process fades into mere judicial error I do not find it easy to say and if I am right it probably never occurred to the framers of the Constitution to ask themselves this question. The results to the individual can be equally obnoxious whichever side of the line such errors fall. From the point of view of judicial integrity, judicial dishonesty is by far the most serious. From the point of view of the liability of the state to pay compensation, I am not sure that any consideration of public policy justifies these distinctions, logically unassailable as all, or some at least of them, may be. What is certain is that if I am right it does not matter for the purpose in hand, since neither class of error gives a right of damages, but if I am wrong and the majority decision correct, a new, and probably unattractive branch of jurisprudence is almost certain to arise in Trinidad and elsewhere, based on the distinction between those judicial errors which do, and those which do not, constitute a deprivation of due process of law.

n3 1 Will & Mar sess 2 c 2

n4 3 Car 1 c 1

n5 [1935] AC 462, [1935] All ER Rep 1

Since it appears to lie at the heart of the argument which has appealed to the majority, the time has now come to examine the effect of s 6 of the 1962 Constitution. Does it make any difference? Does it grant what had hitherto been withheld, a right to damages in cases of judicial misbehaviour, albeit limited to deprivation of due process? The majority decision involves an affirmative answer. Section 6 provides:

‘(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section of this Constitution has been, is being, or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

‘(2) The High Court shall have original jurisdiction — (a) to hear and determine any application made by any person in pursuance of subsection (1) of this section;… and may make such orders, issue such writs and give such directions as it may consider apporopriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections or section to the protection of which the person concerned is entitled…

‘(4) Any person aggrieved by any determination of the High Court under this section may appeal therefrom to the Court of appeal.

‘(5) Nothing in this section shall limit the power of Parliament to confer on the High Court or the Court of Appeal, such powers as Parliament may think fit in relation to the exercise by the High Court or the Court of Appeal, as the case may be, of its jurisdiction in respect of the matters arising under this Chapter.’

It is perhaps worth remarking that the sidenote to the whole section reads: ‘Enforcement of protective provisions.’ This is the section which is alleged to have made by necessary intendment fundamental changes in the long standing rules of law conferring immunity on the judges, on servants of the executive acting on a judge’s warrant, and on the Crown or state, and providing that the state should pay damages in respect of judicial misconduct, even though the judge himself remains immune, a possibility I discuss later.

The first comment which I feel myself constrained to make is that I find it more than a little surprising that a section giving a totally new cause of action against the state (particularly prior to the enactment of the State Liability and Proceedings Act 1966, and in the light of s 3 of the Constitution set out above) should begin with the somewhat anodyne expression ‘For the removal of doubts it is hereby declared’. An expression of this kind is not unusual in Westminister model legislation, but I must say that if the section be intended to create a fundamental change in the accepted law of state liability (as it must be if the appellant’s case and the majority decision be correct) it will be the first time that I have seen this particular phrase used in such a context, and it is particularly odd, since in 1962 the State Liability and Proceedings Act had not yet been passed.

The second point is that s 6 does not at first sight purport to do anything of the kind. What it purports to do in sub-s (1) is to provide a forum and a procedure independent of any other remedy available for persons desiring to secure redress against contraventions of ss 1 and 2. It does not specify the type of relief which may be granted in any one case. But sub-s(2) does give examples (the making of orders, the issuing of writs and the giving of directions) of the kind of remedy which may be available to an applicant seeking redress. It is by no means obvious, at least from these examples, that a totally new type of action for damages against the state in respect of actions by a High Court judge was in the forefront of the legislators’ minds, or in their minds at all.

I take it that the most obvious construction of sub-s (2) is not that it provides new types of relief where none would otherwise exist, but that it gives the High Court power to spell out the legal consequences of contravention by providing the appropriate orders, whether by declaration or otherwise, to give effect to those consequences whatever they may be.

A great deal of argument necessarily turned on the meaning to be attached to the word ‘redress’ in a 6(1) and ‘enforcement’ in s 6(2). It was contended for the appellant, and it is accepted by the majority decision, that either or both of these words is sufficiently wide, or at least sufficiently indeterminate in meaning, to include a right to damages or a direction for the assessment of damages as one of the remedies available to the High Court. Not unnaturally the attention of the Board was directed to its decision in Jaundoo v Attorney-General of Guyana n1, a decision based on the substantially analogous provisions of the Guyana Constitution. In that case, in allowing the applicant’s appeal, the Board remitted the motion to the court of first instance with a direction to hear and determine it on its merits, and, if these were found to be favourable to the applicant, to assess and give a direction for the payment of damages or compensation. This, it was contended, entirely supports the appellant’s argument in the instant appeal to the effect that the references in s 6 to ‘redress’ and ‘enforcement’ include, or at least may include, a right to damages as a form of relief.

n1 [1971] AC 972

Though the contrary was contested strongly on behalf of the respondent, I see no reason to differ from the majority conclusion in this. Unhappily, I am unable to see that this disposes of the matter. On the contrary, I find that Jaundoo’s case n1 aptly illustrates the difficulty that I feel. In Jaundoo v Attorney-General of Guyana n1 the applicant was seeking redress which would have had the effect of preventing the taking of her land for the making of a road. At the time of her application the land had not been taken. By the time of the appeal to the Privy Council, the land had been taken and the road built and no compensation paid. But the right to the enjoyment of landed property is, and for a long time has been, subject to the right of the state to acquire it compulsorily on payment of compensation. This is part of the statute law of virtually every civilised country. An attempt by the executive, or, under a written Constitution, by the legislature, to acquire compulsorily land without compensation is unlawful, and, if the applicant’s case in Jaundoo v Attorney-General of Guyana n1 were established, the act of the executive in doing so, whether or not under the purported authority of an act of the legislature contravening the Constitution, would, in the case of a written Constitution on the models we are discussing, be a trespass, giving a right to damages at common law. At the time of the appeal the lawfulness of the acquisition was not determined, and the case was therefore remitted to the court of first instance to determine the merits. A necessary consequence of the merits being determined in the applicant’s favour would have been a right of action for damages against the executive for trespass, that is in an ordinary action of tort. Since the Constitution provided what was intended as a speedy remedy by way of notice of motion, it was, so far as I can see, wholly appropriate for the Board to order compensatory damages as part of the redress in the event of the merits being determined in favour of the applicant. In my view it is quite another thing to contend that a section of essentially a procedural character which embraces the possibility of damages where damages have always been due (e g where a trespass has been committed) confers a right of damages against the state for a judicial error where damages have never been available, and, even if available, have not been available against the state.

n1 [1971] AC 972

I am, of course, not to be understood as suggesting that a notice of motion under s 6 was an inappropriate procedure insofar as it claims a declaration. It was in fact an alternative to the appeal to the Privy Council. It was not as beneficial to the appellant, as the appeal to the Privy Council ultimately proved, as the Privy Council has jurisdiction to declare (as the High Court probably would not have had) not merely that the appellant had been deprived of due process, but that he was actually innocent of the charge. I am simply saying that, on the view I take, the expression ‘redress’ in sub-s (1) of s 6 and the expression ‘enforcement’ in sub-s (2), although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge. This, in my view, must be so even though the judge has acted as the committing judge was held to have done in the instant case. Such a right of damages has never existed either against the judge or against the state and is not, in my opinion, conferred by s 6.

The third point I make on the majority construction of s 6 is that, in my view at least, it proves too much. Both parties, and, as I understood it, the majority in their conclusion, have shied away from the possibility that damages might equally have been claimed against the judge personally. But I do not at present understand why. If ss 1, 2 and 6 of the Constitution give a right of action for damages against the state for an action by the judge in circumstances in which the state would have had absolute immunity prior to the Constitution, it can only be no grounds equally applicable to the judge himself. These grounds are that the judge was guilty of a contravention of s 1, that he is not in the circumstances protected by s 3, that redress under s 6 must include damages in such a case, and that the prior rule of law giving immunity has in consequence no application. If this be correct, in order to save the judge’s immunity, further legislation would be urgently necessary, and, since this would involve an amendment to the Constitution, such legislation might not be particularly easy to obtain.

I must add that I find it difficult to accommodate within the concepts of the law a type of liability for damages for the wrong of another when the wrongdoer himself is under no liability at all and the wrong itself is not a tort or delict. It was strenuously argued for the appellant that the liability of the state in the instant case was not vicarious, but some sort of primary liability. But I find this equally difficult to understand. It was argued that the state consisted of three branches, judicial, executive and legislative, and that as one of these branches, the judicial, had in the instant case contravened the appellant’s constitutional rights, the state became, by virtue of s 6, responsible in damages for the action of its judicial branch. This seems a strange and unnatural way of saying that the judge had committed to prison the appellant who was innocent and had done so without due process of law and that someone other than the judge must pay for it (in this case the taxpayer). I could understand a view which said that because he had done so the state was vicariously liable for this wrongdoing, even though I would have thought it unarguable (even apart from the express terms of the State Liability and Proceedings Act 1966) that the judge acting judicially is a servant. What I do not understand is that the state is liable as a principal even though the judge attracts no liability to himself and his act is not a tort. To reach this conclusion is indeed to write a good deal into a section which begins innocently enough with the anodyne words ‘For the removal of doubts it is hereby declared’.

If I were at all of the opinion that s 6 did unambiguously confer a right of damages in circumstances like the present, I would not, of course, be deterred from saying so in view of any inconveniences of public policy which might ensue from this conclusion. But since I am not of this opinion, I feel that I am entitled to point to some of the inconveniences which I believe to exist.

In the first place, as I understand the decision of the majority it is that a distinction must be drawn between a mere judicial error and a deprivation of due process as in the instant appeal, and that the former would not, and the latter would, attract a right of compensation under the present decision, even though in each case the consequences were as grave. I have already touched on this. I do not doubt the validity of the distinction viewed as a logical concept, though the line might be sometimes hard to draw. But I doubt whether the distinction, important as it may be intellectually, would be of mucy comfort to those convicted as a result of judicial error as distinct from deprivation of due process or would be understood as reasonable by many members of the public, when it was discovered that the victime was entitled to no compensation, as distinct from the victim of a contravention of s 1 of the Constitution was would be fully compensated.

As a result of the majority decision the case will return to the High Court with a direction to assess damages. I doubt whether their task is as easy as might be supposed. We are told that this is not an action of tort. Indeed, if it were, the appellant would be out of court as the result of the provisions of the State Liability and Proceedings Act 1966, already noticed, unless, of course, that Act were itself to be attacked as violating the Constitution quoad torts which were also contraventions of the Constitution. But if it is not a tort, but something sui generis, the question arises on what principles are damages to be assessed. Are punitive damages availabe on the basis of Rookes v Barnard n1 and Cassell & Co Ltd v Broome n2, and if not why not? How far may aggravated damages be awarded, inasmuch as the judge is not a servant, and the state’s liability said not to be vicarious? Are damages to include an element for injured feelings or damage to reputation? No doubt all these questions are capable of solution, especially if tort is taken to be a sound analogy. But on what principle is it a sound analogy? At present the sea is an uncharted one, as no similar case has ever been brought, and the action is not in tort.

n1 [1964] 1 All ER 367 at 409, [1964] AC 1129 at 1223, 1224

n2 [1972] 1 All ER 801 at 830, 877, [1972] AC 1027 at 1078, 1134

There is, of course, nothing in the Constitution of Trinidad and Tobago to prevent the legislature from improving on the rights and fundamental freedoms guaranteed by the Constitution if they wish to do so and though I might well not be of their number I can well understand that the members of a legislature inspired by a zeal to compensate the victims of an injustice committed by judicial officers of the state might well wish to make such an improvement. What I venture to question is whether they have done so in Trinidad and Tobago by s 6 of the Constitution of 1962, and if they have not, as I feel myself constrained to believe, it would foolow that this appeal should be dismissed.

DISPOSITION:
Appeal allowed.

SOLICITORS:
Ingledew, Brown, Bennison & Garrett (for the appellant); Charles Russell & Co (for the respondent).

Accuracy of Scientific Instruments: Holt v Auckland City Council Court of Appeal, Wellington

“The presumption serves the important purpose of saving the time and expense of proving the obvious. At the same time, until it can be considered that the functioning and trustworthiness of a newly developed device is a matter of common knowledge, those who rely on the equipment must carry the responsibility of establishing its accuracy.”

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[1980] 2 NZLR 124; 1980 NZLR LEXIS 568, *

Copyright 1980 New Zealand Council of Law Reporting
New Zealand Law Reports
Holt v Auckland City Council
Court of Appeal, Wellington
[1980] 2 NZLR 124; 1980 NZLR LEXIS 568
17 July, 17 September 1980
DECIDED-DATE: 17 September 1980

CATCHWORDS:
[*1]

Transport and transport licensing — Proof of driver’s blood alcohol level — Admissibility of analyst’s evidence — Defendant required analyst to be called as a witness — Analyst’s evidence based on computer analysis of data — Analyst, a chemist, disclaimed any expertise in computer science — No expert gave evidence as to the functioning and reliability of the computer — Whether defendant’s blood alcohol level had been proved — Transport Act 1962, s 58B(9) and (14).

HEADNOTES:
On a charge under the blood alcohol provisions of the Transport Act 1962, the defendant required that the person who analysed his specimen of blood be called by the prosecutor as a witness at the hearing. A chemist gave evidence of the method of analysis she employed as head space gas chromatography. As part of the process of obtaining the blood alcohol level of a specimen, the chromatograph was connected to an integrator which was used in conjunction with a computer as a data analyser. The chemist was an expert in gas chromatography but was not an expert in relation to the programming and maintenance of the computer and integrator.

Held: There was a gap in the chain of proof of the validity of the blood alcohol [*2] reading in the computer print out relied on by the chemist. The chemist’s evidence of blood alcohol levels was critically dependent on the functioning and accuracy of the integrator and computer, and was inadmissible as incorporating hearsay data outside the field of her proven competence (see p 127 line 18, p 128 line 27). Appeal allowed.

R v Somers [1963] 3 All ER 808; [1963] 1 WLR 1306, Zappia v Webb [1974] WAR 15 and Mehesz v Redman (1979) 21 SASR 569 referred to.

NOTES:
Refer 6 Abridgement 194; 15 Abridgement 524.

CASES-REF-TO:
Other cases mentioned in judgment
Crawley v Laidlaw [1930] VLR 370.
Melhuish v Morris [1938] 4 All ER 98.
Porter v Kolodzeij [1962] VR 75.

INTRODUCTION:
Appeal
This was an appeal, with leave granted by the Supreme Court, from a judgment of Thorp J (Auckland, M 1047/79, 3 October 1979).

COUNSEL:
H F Murphy and J G F Bamford for the appellant.

R J Katz for the respondent.

JUDGMENT-READ: Cur adv vult

JUDGES: Richmond P, Richardson and McMullin JJ

JUDGMENT BY: RICHARDSON J.

JUDGMENTS: {125} RICHARDSON J. (Delivering the judgment of the Court). The appellant was convicted in the Magistrate’s Court at Auckland on 23 May 1979 on two charges brought under the Transport Act 1962. One was of [*3] driving a motor vehicle while the proportion of alcohol in his blood exceeded 100 milligrammes per 100 millilitres contrary to s 58(1)(a) of the Act. The other was of driving while under the influence of drink or drug to such an extent as to be incapable of having proper control of the vehicle contrary to s 58(1)(b). His appeal against conviction was dismissed by Thorp J. He now appeals to this Court pursuant to leave granted by the Judge.

The questions of law are stated as follows:

“1. Whether, if a traffic officer adds to a requirement that a driver accompany him a requirement that the driver submit to a clinical examination, the first requirement is rendered unlawful; and, if so, is evidence of a blood alcohol level consequently obtained inadmissible in proof of an offence or do the authorities relating to the admissibility of evidence unlawfully obtained, and in particular the principles deriving from Kuruma v R [1955] AC 197, apply to enable the Court nonetheless to receive evidence of the blood alcohol level?

“2. Whether in proving a blood alcohol level it is sufficient for an analyst as defined by the Transport Act 1962 to give the result of his or her analysis as obtained [*4] with the apparatus provided for the use of the analyst, without more?”

The questions are concerned with the statutory procedures for breath tests and blood tests under s 58A and s 58B of the Act. It is convenient to turn immediately to the second question. But it is not necessary for that purpose to refer in any detail to the circumstances which gave rise to the charges. It is sufficient to record that the car the appellant was driving collided with a parked car; that the appellant’s condition led a traffic officer called to the scene to conclude that the appellant was intoxicated; that, when the appellant declined to give a sample of his breath, he was requested by the traffic officer to accompany the latter for the purpose of giving a breath test and generally complying with the statutory procedures as to the giving of specimens of breath and blood, and also, so the Magistrate found, for the purpose of allowing a registered medical practitioner to make a clinical examination; and that the appellant complied with that request and, after the breath test was found to be positive, he supplied a specimen of blood and underwent a clinical medical examination. However, it is necessary [*5] to refer in greater detail to the oral evidence of the analyst, a scientist in the Chemistry Division of the Department of Scientific and Industrial Research, as to the analysis she made of the specimen of blood taken from the appellant.

The scientist, a Miss Campbell, described the method of analysis she employed as head space gas chromatography. That method is not explained in any detail in the evidence but it appears to be as follows. The specimen for analysis is placed in a phial and is heated to a temperature of 50 degrees C. Part of the head space vapour produced by the heating is measured in the chromatograph and the results are recorded in a print out chart which plots the peaks of the impulses given out in respect of the head space vapour. The chromatograph is connected to an integrator which is used in conjunction with a computer as a data analyser. The integrator measures the area beneath the peaks shown in the chart. The two sets of impulses, that is the impulses given out in respect of the vapour from the blood specimen and the impulses given out in respect of the vapour from the standard phials of ethyl alcohol, are compared. The computer, which is programmed  [*6] for that purpose, analyses that information. Miss Campbell’s evidence was that the computer print out of the analysis (which in this case was carried out in duplicate and repeated some days later with the mean {126} result of the four tests being taken and reduced by 6 points to allow for analytical variants) disclosed a blood alcohol level of 249 milligrammes of alcohol per 100 millilitres of blood.

The analyst was herself a chemist. She had a BSc (Honours) Degree and had examined 7000 samples in her two years in the Chemistry Division. Apparently there are many methods of blood alcohol analysis but head space gas chromatography had been the standard method used by the Chemistry Division for at least two and possibly three years. The ethyl alcohol standard solutions had been prepared by the Physical Chemistry Section but Miss Campbell had checked that standard and was satisfied with the results.

Having regard to the evidence of her qualifications and experience the Magistrate was well entitled to conclude that Miss Campbell was an expert in gas chromatography. It is equally clear that she was not an expert in relation to the setting up and use of the integrator and computer.  [*7] She freely acknowledged that, as she put it, she did not know a lot about integrators and that she was a chemist not a computer programmer. She said that the computer was programmed by two scientists in the Physical Chemistry Section; that she assumed it was checked quite regularly; and that, if something was wrong with it, she would notice and report it.

The admissibility of the results of tests carried out using scientific instruments turns on the application of settled principles of the law of evidence, except in so far as they have been affected by the relevant legislation. Mr Katz’s primary submission for the respondent Council was that, in providing for the laboratory analysis of the suspect’s blood specimen, the Transport Act reflected a legislative intention that the scientific instruments must be assumed to be infallible and accordingly there was no need to prove the veracity of the blood alcohol analysis or the use of any

Section 58B provides for the taking and analysis of specimens of blood. It does not prescribe or authorise any particular method of analysis or the use of any particular scientific equipment. What it does is to give prima facie evidentiary effect to [*8] the certificate of an analyst tendered in prosecutions for certain drinking-driving offences. As it read at the material time s 58B(9) provided that for the purpose of any proceedings for an offence under that part of the Act a certificate purporting to be signed by an analyst and certifying that: “(i) Upon analysis of a specimen of blood by an analyst specified in the certificate, a specified proportion of alcohol was found in the specimen . . . shall be sufficient evidence, until the contrary is proved, of the matter so certified . . .”. Subsection (14) went on to provide that, notwithstanding anything in subs (9), such a certificate should not be admissible in evidence where the defendant, by notice to the prosecutor, required that the person who made the analysis be called by the prosecutor as a witness at the hearing.

It follows that where the analyst’s certificate is inadmissible, the legislation does not accord any special status to the evidence given by the Government Analyst or to the method of analysis that was adopted or to the scientific instruments used in that analysis. In particular, it does not dispense with the need to establish the scientific basis for the test [*9] results, least of all in areas outside the particular analyst’s own field of expertise. Nor does it make any assumptions as to the functioning and reliability of the equipment used by the analyst. In short, the ordinary rules of evidence apply except where a certificate is admissible under subs (9), in which case the certificate has the evidentiary effect accorded by the subsection.

The computer print out of the blood alcohol analysis involved obvious hearsay. The role of the integrator and computer is not confined to the retrieval of information. The programming is by persons expert in that field and that is reflected in the computer print out. Miss Campbell had not programmed the computer and disclaimed any expertise in computer science. So there was no evidence from any expert in the field as to the functioning and reliability of integrators and computers in general and of the particular apparatus used in this case.

{127} In his classic work, The Science of Judicial Proof, Professor Wigmore observes, at p 450, that the correctness of the data obtainable from the use of instruments constructed on knowledge of scientific laws must depend on the correctness of the instrument [*10] in construction and the ability of the technical witness to use it. He goes on to suggest that the following three propositions apply to testimony based on the use of all such instruments:

“A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.

B. The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.

C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience.”

Miss Campbell was experienced in the use of the integrator and computer in association with the chromatograph. But she was not qualified in the computer field and she was reliant on computer programmers for the proper programming and maintenance of the apparatus. There was no qualified evidence as to those matters before the Court.  [*11] So there was a gap in the chain of proof of the validity of the blood alcohol reading recorded in the computer print out relied on by Miss Campbell.

Mr Katz submitted, however, that Miss Campbell was entitled to refer to and rely on the steps taken by her departmental colleagues in programming and maintaining the integrator and computer. He argued that her position was essentially the same as that of the doctor in R v Somers [1963] 3 All ER 808; [1963] 1 WLR 1306. In that case the doctor, who was giving evidence on a drunken driving charge, was held to be entitled to rely on tables published by the British Medical Association of the rates at which the body destroys alcohol and of the conversion of the proportion of alcohol in urine into the quantity of liquor consumed.

It is true that expert evidence, founded as it is on study and experience, necessarily involves the acceptance by the expert of the researches of others. In that sense his expertise and so his opinions are based to a significant extent on hearsay information. The expert rightly draws on the work of others in the same field. But he is no more entitled than any [*12] non-expert to give evidence relating to other fields of expertise of which he has no first-hand knowledge. And in R v Somers (ibid, 811; 1310), Lord Parker CJ emphasised that it was because the tables in question had been accepted by the medical profession and had become part of the medical knowledge of the day that the doctor was entitled to refer to them.

The remaining question is whether the evidence given by Miss Campbell falls within the evidentiary presumption as to the working accuracy of scientific or mechanical instruments. In a technology based society the user of scientific apparatus is not likely to have made the calculations on which the capability and accuracy of the machine depends. Indeed, he may lack any real understanding of the scientific principles on which it is based. But his experience of the machine may have satisfied him as to its reliability for his needs. It does not follow that his reliance on the machine will make it unnecessary to demonstrate its functioing and reliability before the results are admissible in evidence. The general principles applying in this field are shortly but comprehensively stated in the following passage from the judgment  [*13] of Jackson CJ in Zappia v Webb [1974] WAR 15, 17:

“It is well established that the courts will take judicial notice of the use, nature and purpose of many mechanical or scientific instruments in common use, such as watches, thermometers, barometers, speedometers and the like. {128} These instruments are of a class which by the general experience are known to be trustworthy, even if not infallible, so that there is a presumption of fact, in the absence of evidence to the contrary, that readings taken from such instruments are correct, and hence it is not necessary to show that at the relevant time the instrument had been tested and found to be working correctly. But the acceptance of a particular instrument without proof of its function, operation and accuracy depends upon the extent to which it is commonly used within the community, so that a mechanical or scientific device recently invented will usually require expert evidence to establish what it can measure or accomplish and whether it can be relied on. Later, as the device and its use becomes known, a stage may be reached where the courts will be sufficiently familiar with it not to require proof of what it is and what it  [*14] does, but may still require evidence of its accuracy at the relevant time.”

The Courts have tended to be cautions in extending the presumption to newly developed scientific devices. Three examples illustrate the point. As late as 1938 it was held in England that the accuracy of a speedometer must be established (Melhuish v Morris [1938] 4 All ER 98); in 1930 it was held in Victoria that there was no presumption of the accuracy of a loadometer (Crawley v Laidlaw [1930] VLR 370); and in 1962 it was held, again in Victoria, that breathalysers did not fall within the class of notorious scientific and technical instruments, the accuracy of which is presumed at common law (Porter v Kolodzeij [1962] VR 75). The presumption serves the important purpose of saving the time and expense of proving the obvious. At the same time, until it can be considered that the functioning and trustworthiness of a newly developed device is a matter of common knowledge, those who rely on the equipment must carry the responsibility of establishing its accuracy.

According to the evidence the equipment in question had been in use [*15] in the Department of Scientific and Industrial Research for two or possibly three years. It is not referred to in common parlance, its use has not been discussed in any reported decisions in this country and it comes within the category of recently invented devices referred to in Zappia v Webb. It cannot yet be said that data analysers of this kind have reached such a degree of usage and acceptability in this country that the instrument used by Miss Campbell should be presumed to have been functioning accurately at that time. Moreover, the apparatus differs in one important respect from many instruments which have been judicially noticed. It is not simply a calculator. It has to be programmed. The results obtained depend on the manner in which it is programmed. And there is no basis on which the Court could take judicial notice of the manner in which this equipment was programmed and maintained. Evidence was necessary to justify reliance on the computer print out of blood alcohol levels and Miss Campbell’s evidence of her use of the equipment was insufficient for that purpose.

As it happens a similar question of admissibility came before Zelling J in Mehesz v Redman (1979)  [*16] 21 SASR 569. The equipment connected to the gas chromatograph in that case was called an “auto-lab system 4B data analyser” but we were advised by Mr Katz that the method used was for all practical purposes the same method as was used by Miss Campbell in the present case and that that case is not distinguishable on the facts. Zelling J held that the analyst’s evidence as to the blood alcohol reading on the computer print out was inadmissible and further that the evidence was not admissible under certain statutory provisions of South Australia relied on by the prosecution. We have benefited considerably from his analysis of the evidentiary problems arising from the use of computer technology and from his discussion of the issues in this class of case.

For the reasons given we consider that the evidence of Miss Campbell as to blood alcohol levels, which was critically dependent on the functioning and accuracy {129} of the integrator and computer, was inadmissible as incorporating hearsay data outside the field of her proven competence. Accordingly the second question is answered in the negative. The evidence of the blood alcohol level was regarded by the Magistrate as weighty [*17] evidence on the charge of driving while under the influence of drink as well as on the blood alcohol charge itself. It follows that the appeal must be allowed in each case and the convictions quashed. The incident which gave rise to the charges occurred in 1978 and the appellant has already been subjected to hearings in three Courts. In all the circumstances we consider it is not in the interests of justice to order a rehearing.

In the result it is unnecessary to express any views on the other question of law raised on the appeal. However, before parting with the case we would add one comment. The evidentiary difficulty has arisen because the analysts in the Department of Scientific and Industrial Research have quite properly relied on developments in computer technology. In recent years there has been considerable discussion in other common law jurisdictions as to the proper evidential foundation for the admission of such computer based evidence and the United Kingdom and South Australia have enacted legislation to provide for the admissibility of computer output subject to appropriate safeguards. The various legislative approaches to the problem are discussed in Tapper, Computer [*18] Law (1978) pp 156-172. Consideration might well be given to the enactment of appropriate legislation in this field in New Zealand.

ORDER:
Appeal allowed.

SOLICITORS:
Solicitors for the appellant: Duggan & Murphy (Auckland).

Solicitors for the respondent: Butler, White & Hanna (Auckland). #020509M001USPENK#

PC Clock, Metadata and Timestamp Error: Director of Public Prosecutions v McKeown ; Director of Public Prosecutions v Jones HOUSE OF LORDS

“I have considered the matter on the assumption that the error in the clock display showed that the computer was not operating properly. I should say, however, that I am not satisfied that this conclusion should have been drawn. Computer clocks, like any others, have to be set to the correct time and the most obvious explanation for the 15-minute discrepancy was that someone had made a mistake when he last set the clock.”

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[1997] 1 All ER 737, [1997] 1 WLR 295, [1997] RTR 162, 161 JP 356, [1997] 2 Cr App Rep 155, [1997] Crim LR 522

Director of Public Prosecutions v McKeown ; Director of Public Prosecutions v Jones
HOUSE OF LORDS
[1997] 1 All ER 737, [1997] 1 WLR 295, [1997] RTR 162, 161 JP 356, [1997] 2 Cr App Rep 155, [1997] Crim LR 522
HEARING-DATES: 11, 12 NOVEMBER 1996, 20 FEBRUARY 1997
20 FEBRUARY 1997

CATCHWORDS:
Road traffic – Breath test – Device – Print-out produced by device – Inaccuracy of device – Malfunctioning of computer in way which was not relevant to accuracy of contents of print-out – Clock attached to computer producing print-out from device inaccurate – Whether print-out inadmissible in evidence of drink-driving charge – Police and Criminal Evidence Act 1984, s 69(1) – Road Traffic Offenders Act 1988, s 16.

HEADNOTE:
In two separate appeals the issue arose whether a document produced by a breathalyser device using a computer display and print-out was admissible as evidence of driving with an excessive proportion of alcohol in the breath and failing without reasonable excuse to provide a specimen of breath if the device did not accurately record the time of the breath test but in all other respects operated satisfactorily. In the first appeal the respondent was charged with driving with an excessive proportion of alcohol after a breath test showed her to be over the prescribed limit. However, the time shown on the print-out of the breathalyser device was 1 hr 13 mins slow, as was noted at the time. One hour of the discrepancy was accounted for by the fact that the device was set to Greenwich Mean Time, not to British Summer Time, which was an hour ahead. The remaining discrepancy was not accounted for. In the second appeal the respondent was tested on the same device a week later and failed to provide a proper test. He was charged with failing without reasonable excuse to provide a specimen of breath. The print-out showing the failure was noted to be 1 hr 15 mins slow. Both respondents were convicted by justices on the basis of print-outs produced by the device which were tendered in evidence by the prosecution under s 16 [a] of the Road Traffic Offenders Act 1988, which provided that evidence of the proportion of alcohol in a specimen of breath could be given by the production of a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured together with a certificate signed by a constable that the statement related to a specimen provided by the defendant at the date and time shown in the statement. The respondents appealed to the Divisional Court, which allowed their appeals on the ground that the inaccuracy of the timing mechanism in the device rendered documents produced by it inadmissible under s 69(1) [b] of the Police and Criminal Evidence Act 1984, which provided that a statement in a document produced by a computer was not admissible as evidence unless at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was ‘not such as to affect the production of the document or the accuracy of its contents’. The Director of Public Prosecutions appealed to the House of Lords.

a    Section 16, so far as material, is set out at p 740 e to h, post

b    Section 69(1) is set out at p 741 c d, post

Held – The appeals in both cases would be allowed for the following reasons-

(1) Section 69 of the 1984 Act was concerned with the way in which a computer dealt with information to generate the statement which was being tendered as evidence of a fact which it stated. The words ‘not such as to affect the production of the document or the accuracy of its contents’ in s 69(1)(b) of the 1984 Act were to be read subject to the overall qualification that para (b) referred to those aspects of the document or its contents which were material to the accuracy of the statement tendered in evidence. All that s 69 required as a condition of the admissibility of a computer-generated statement was positive evidence that the computer had properly processed, stored and reproduced whatever information it received. Accordingly, the malfunctioning of a computer in a way which was not relevant did not affect the admissibility in evidence of a statement generated by it. A malfunction was relevant if it affected the way in which the computer processed, stored or retrieved the information used to generate the statement tendered in evidence. Other malfunctions did not matter (see p 739 f g, p 744 c to f and p 746 f, post).

(2) In the first appeal there was evidence before the justices that the clock display did not affect the proper functioning of the computer in processing the information from the breath analyser and therefore the print-out from the breathalyser device was admissible evidence on which they were entitled to convict the respondent. In the second appeal the respondent was required to provide two specimens of breath for analysis by means of an ‘approved’ device. The fact that the clock on the device was inaccurate did not mean that it was no longer an ‘approved’ device, nor did that inaccuracy provide a ‘reasonable excuse’ for the respondent’s failure to provide a specimen, since there had to be some causal connection between the excuse and the failure to provide the specimen. The respondent’s failure to provide a specimen, as evidenced by the device, provided a proper basis for his conviction (see p 739 f g, p 744 j to p 745 b e h j and p 746 a to d f, post).

NOTES:
Notes

For breath tests in relation to driving with excess alcohol, see 40 Halsbury’s Laws (4th edn) para 489ff.

For the Police and Criminal Evidence Act 1984, s 69, see 17 Halsbury’s Statutes (4th edn) (1993 reissue) 222.

For the Road Traffic Offenders Act 1988, s 16, see 38 Halsbury’s Statutes (4th edn) (1995 reissue) 1062.

CASES-REF-TO:
Cases referred to in opinions

Castle v Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC.

R v Skegness Magistrates’ Court, ex p Cardy [1985] RTR 49, DC.

Statue of Liberty, The, Sapporo Maru (owners) v Statute of Liberty (owners) [1968] 2 All ER 195, [1968] 1 WLR 739.

INTRODUCTION:
Appeals

DPP v McKeown

The Director of Public Prosecutions appealed with leave of the Appeal Committee granted on 2 November 1995 from the decision of the Divisional Court of the Queen’s Bench Division (Kennedy LJ and Alliott J) delivered on 27 May 1994 allowing the appeal of Sharon Marie McKeown against her conviction by justices sitting for the petty sessional division of Halton, Cheshire, on 20 April 1993 on a charge of driving after consuming so much alcohol that the proportion in her breath exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath, contrary to s 5(1) of the Road Traffic Act 1988. The facts are set out in the opinion of Lord Hoffmann.

DPP v Jones

The Director of Public Prosecutions appealed with leave of the Appeal Committee granted on 2 November 1995 from the decision of the Divisional Court of the Queen’s Bench Division (Kennedy LJ and Alliott J) delivered on 27 May 1994 allowing the appeal of Christopher Gerrard Jones against his conviction by justices sitting for the petty sessional division of Halton, Cheshire, on 4 May 1993 on a charge of failing without reasonable excuse to provide a specimen of breath when required to do so, contrary to s 7(1) of the Road Traffic Act 1988. The facts are set out in the opinion of Lord Hoffmann.

COUNSEL:
Anthony Scrivener QC, Steven Everett and Andrew S R Clarke (instructed by the Crown Prosecution Service) for the Crown.; Michael Beloff QC and Renée Calder (instructed by Byrne Frodsham & Co, Widnes) for the respondent McKeown.; Nigel J Ley (instructed by Nyland & Beattie, Widnes) for the respondent Jones.

Their Lordships took time for consideration.

20 February 1997. The following opinions were delivered.

20 February 1997

PANEL: LORD GOFF OF CHIEVELEY, LORD MUSTILL, LORD STEYN, LORD HOFFMANN AND LORD CLYDE

JUDGMENTBY-1: LORD GOFF OF CHIEVELEY.

JUDGMENT-1:
LORD GOFF OF CHIEVELEY.

My Lords, I have read in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow the Director’s appeals in both cases.

JUDGMENTBY-2: LORD MUSTILL.

JUDGMENT-2:
LORD MUSTILL.

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives I would allow the Director’s appeals in both cases.

JUDGMENTBY-3: LORD STEYN.

JUDGMENT-3:
LORD STEYN.

My Lords, I have read in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow the Director’s appeals in both cases.

JUDGMENTBY-4: LORD HOFFMANN.

JUDGMENT-4:
LORD HOFFMANN.

My Lords, these two appeals concerning convictions under the Road Traffic Act 1988, one for driving with an excessive proportion of alcohol in the breath and the other for failing without reasonable excuse to provide a specimen of breath, both arise out of the fact that in late July 1992 the computer clock in the Lion Intoximeter 3000 in use at Widnes Police Station was displaying a time about an hour and a quarter slow. In neither case was there any dispute about the correct time at which the Intoximeter was used; in fact, the precise time was not a matter of any importance. In the one case the Intoximeter recorded that the motorist had twice the prescribed limit of alcohol in both specimens of her breath; in the other, the first specimen was more than four times the prescribed limit, after which the motorist deliberately refused to provide a second. Nevertheless the Divisional Court accepted that the inaccuracy of the clock reading vitiated both convictions and against that decision the Director of Public Prosecutions appeals to your Lordships’ House.

By s 5(1) of the 1988 Act it is an offence to drive a motor vehicle on a road after consuming so much alcohol that the proportion in his breath exceeds the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath. By s 7(1) a constable investigating whether a person has committed an offence under s 5 may require him to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State and by s 7(6) a person who without reasonable excuse fails to provide a specimen when required to do so pursuant to sub-s (1) is guilty of an offence.

The Lion Intoximeter 3000 is a device approved by the Secretary of State for the purposes of s 7(1). It consists of an analyser which measures the alcohol content of the breath by means of an electrical signal; a computer which converts the signal into digital form with a visual display on which the result of the test is shown and a printer on which it can be printed out; and a breath simulator which provides air containing a measured quantity of alcohol so that the constable operating the machine may check whether it is calibrating correctly. The standard procedure is for the machine to be tested before and after the analysis of the two specimens provided by the motorist.

The usual way in which evidence of the proportion of alcohol in the breath is proved in court is by certificate under s 16 of the Road Traffic Offenders Act 1988. This provides as follows:

‘(1) Evidence of the proportion of alcohol … in a specimen of breath … may, subject to subsections (3) and (4) below … be given by the production of a document or documents purporting to be … (a) a statement automatically produced by the device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement …

(3) Subject to subsection (4) below-(a) a document purporting to be such a statement or such a certificate (or both such a statement and such a certificate) as is mentioned in subsection (1)(a) above is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it either has been handed to the accused when the document was produced or has been served on him not later than seven days before the hearing …

(4) A document purporting to be a certificate (or so much of a document as purports to be a certificate) is not so admissible if the accused, not later than three days before the hearing or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing of the person by whom the document purports to be signed …’

The section is a specialised exception to the hearsay rule which, on compliance with its conditions, enables evidence which the constable could have given orally to be given instead by a certificate admissible on mere production. But the requirement that the certificate and statement be served on the accused and that they should not be admissible if the accused gives notice that he requires the constable who signed the certificate to attend the hearing means that the procedure is for practical purposes consensual. If such notice is given, or the prosecution is unable to comply with the conditions, the prosecution must prove its case by other admissible evidence.

This will in practice mean calling the officer who operated that Intoximeter to testify to the results of the test by reference to what he saw on the visual display and what the machine printed out. Such first-hand evidence of what was displayed or recorded on a mechanical measuring device is real evidence admissible at common law: see Castle v Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, applying The Statue of Liberty, Sapporo Maru (owners) v Statute of Liberty (owners) [1968] 2 All ER 195, [1968] 1 WLR 739. But when the measuring device, as in this case, includes a computer, the evidence is not admissible unless it satisfies the requirements of s 69 of the Police and Criminal Evidence Act 1984:

‘(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown-(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents …’

These provisions are supplemented by para 8 of Sch 3:

‘In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate-(a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters mentioned in subsection (1) of section 69 above; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the computer, shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.’

That is the statutory background to the two cases under appeal. Although both are concerned with the effect of the inaccuracy of the time display upon the validity of the conviction, the offences charged were different and the legal issues are not the same. I shall therefore consider first the case of Ms McKeown, who was convicted under s 5(1) and then that of Mr Jones, who was convicted under s 7(6).

Late on 21 July 1992 Ms McKeown was observed to be driving erratically in Liverpool Road, Widnes, arrested on suspicion of being over the limit and taken to Widnes Police Station. There she was required to provide specimens of breath for analysis. The Lion Intoximeter 3000 was operated by Sgt O’Dell. He tested the machine and it calibrated correctly. By this time it was about a quarter after midnight; the sergeant’s watch said 00.13 am. But the time display on the machine read 23:00. Part of the discrepancy was explained by the fact that, as the print-out made plain, the machine was set to GMT. But there was no explanation of the balance. Ms McKeown provided the required two specimens, both of which registered 78; well in excess of the prescribed limit of 35. Afterwards Sgt O’Dell tested the machine again and once more it calibrated correctly. He filled in the standard form of witness statement for use in such cases, attaching the print-out from the Intoximeter but noting on his statement ‘Time shown on print-out is 1 hr 13 mins slow’.

Ms McKeown was charged under s 5(1). She was served with the statement of Sgt O’Dell and also a statement of Dr Paul Williams, a director of Lion Laboratories Ltd, which supplies the Intoximeter to the police. It said that the alcohol analytical system and breath sampling system were separate from the circuitry which controlled the accuracy of the clock. Inaccuracy in the time display could have absolutely no effect on the accuracy of the readings obtained on breath samples.

On 27 November 1992, shortly before the case was due to be heard, Ms McKeown’s solicitors wrote to the Crown Prosecution Service (the CPS) saying that the statement of Dr Williams ‘cannot be accepted’. They also asked to be supplied with ‘all relevant design documents and the circuit diagram’. On 7 December 1992 the CPS wrote back saying that Dr Williams would give evidence but refusing to produce diagrams or documents. In the event the case did not come on till 20 April 1993, but there was no application until the hearing, when the defence applied for an order that Dr Williams should produce the documents and diagrams. The justices refused the application.

As the time inaccuracy meant that Sgt O’Dell was unable to certify, in accordance with s 16 of the Road Traffic Offenders Act 1988, that the statement automatically produced by the Intoximeter related to ‘a specimen provided by the accused at the date and time shown in the statement’, he was called to give evidence and testified to the conduct of the test and the readings on the visual display and print-out which I have described. Dr Williams also gave evidence. He said that he was not an electronics expert and did not understand the circuitry of the Intoximeter clock but that the clock had no bearing on the accuracy of the breath readings. The justices accepted this evidence and found, as later recorded in the case stated, that the Intoximeter was not affected by the clock and that the statements as to the breath readings it produced were accurate.

It is convenient at this stage to deal with two procedural questions which were raised by the justices in the case stated. The first was whether they were right to refuse the application for production of documents. The application was made under s 97(1) of the Magistrates’ Courts Act 1980:

‘Where a justice of the peace … is satisfied that any person … is likely to be able to … produce any document … likely to be material evidence … at the summary trial of an information … and that that person … will not voluntarily produce the document … the justice shall issue a summons directed to that person requiring him to attend before the court … to produce the document …’

It has repeatedly been said that there is no provision for discovery of documents for a summary trial in a magistrates’ court and that s 97(1) should not be used as a disguised attempt to obtain discovery: see R v Skegness Magistrates’ Court, ex p Cardy [1985] RTR 49. The circuit diagrams would have been meaningless without explanation and Dr Williams, who disavowed any expertise in electronics, would not have been able to explain them. The proceedings would have had to be adjourned for the documents to be examined by an expert on behalf of the accused. Whether they would then have had any relevance is entirely speculative: the defence made no attempt to lay a foundation for their application by evidence of how a circuit diagram might demonstrate that, contrary to Dr Williams’ empirical observations, the inaccuracy of the time reading did in fact have some effect on the breath analysis. I think that the justices were right to reject the application.

The second question is whether, given Dr Williams’ lack of expertise in electronics, his expert evidence was admissible on the question of the reliability of the device. In my view Dr Williams was entitled to give this evidence by reason of his familiarity with the working of the Lion Intoximeter 3000. It is notorious that one needs no expertise in electronics to be able to know whether a computer is working properly. Dr Williams was qualified to say that he was familiar with Intoximeters which displayed the time incorrectly but nevertheless produced correct breath analyses. Sgt O’Dell, who tested his Intoximeter to see whether it was calibrating correctly, was able to give evidence to the same effect. This was evidence on which the justices were entitled to make their finding that the statements produced by the device were accurate.

This brings me to the chief question in Ms McKeown’s case, which is whether the evidence of the Intoximeter’s breath analysis satisfied the requirements of s 69(1) of the 1984 Act. If it did not, there was no other evidence of the alcohol content in her breath and her conviction cannot stand. It will be recalled that s 69(1) deals with the admissibility of ‘a statement in a document produced by a computer’ as evidence of ‘any fact stated therein’. In order for the statement to be admissible, it must be shown, in accordance with sub-s (1)(b)-

‘that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents …’

A ‘statement’ has the same meaning as in s 10(1)(c) of Pt I of the Civil Evidence Act 1968, where it includes ‘any … device in which … data … are embodied so as to be capable … of being reproduced therefrom’. This would include the memory of a computer.

I shall for the moment assume that the inaccuracy in the time display meant that ‘the computer … was not operating properly’. The question is therefore whether that was ‘such as to affect the production of the document or the accuracy of its contents’. If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed-23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document.

In my view, however, the paragraph was not intended to be read in such a literal fashion. ‘[T]he production of the document or the accuracy of its contents’ are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule.

The first thing to notice is that s 69 is concerned solely with the proper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But s 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, s 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer.

The purpose of s 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that s 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states.

The language of s 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words ‘not such as to affect the production of the document or the accuracy of its contents’ must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.

Paragraph (a) of s 69(1), which deals with improper use of the computer, clearly has this meaning. The statement is inadmissible only if there are reasonable grounds for believing that the improper use has caused the statement tendered in evidence to be inaccurate. It was argued that because para (b) uses different language and speaks of the ‘production of the document or the accuracy of its contents’ rather than being concerned, as in para (a), with the accuracy of ‘the statement’, it must have a different meaning. I shall not speculate on the reasons why the draftsman thought it necessary to deal with improper use of the computer separately from the question of whether it was in proper working order. But there cannot have been any difference in the purpose of the two paragraphs: in both cases the legislature was concerned with the reliability of the statement tendered in evidence as a properly processed and reproduced piece of information. On the point now in issue I think it would be quite irrational if the effect of the two paragraphs was not the same.

The justices had before them a certificate signed by Sgt O’Dell under para 8 of Sch 3 stating that to the best of his knowledge and belief the requirements of s 69(1) had been complied with. In the absence of contrary evidence, they were entitled to accept this certificate as sufficient to satisfy s 69(1). The question is then whether they were obliged to regard the inaccuracy of the clock display as contrary evidence. The justices also had evidence from Dr Williams and Sgt O’Dell, which they were entitled to accept, that the clock display was not affecting the proper functioning of the computer in processing the information from the breath analyser. Having accepted this evidence, there was in my view nothing to displace the effect of Sgt O’Dell’s certificate.

I have considered the matter on the assumption that the error in the clock display showed that the computer was not operating properly. I should say, however, that I am not satisfied that this conclusion should have been drawn. Computer clocks, like any others, have to be set to the correct time and the most obvious explanation for the 15-minute discrepancy was that someone had made a mistake when he last set the clock. This would not have anything to do with the computer not operating properly. Furthermore, if the error lay in the clock mechanism itself, I doubt whether it would constitute part of ‘the computer’ for the purposes of s 69(1). The section, as I have said, is concerned with the processing and storage of information and not with the accuracy of the information supplied. The clock, although no doubt physically in the same box as the computer, is something which supplies information to the computer rather than being part of the processing mechanism. But I do not explore this question any further because there was no evidence about why the time was inaccurate and I prefer to base my decision on the construction of s 69(1). In my view, there was admissible evidence upon which the justices were entitled to convict Ms McKeown and the Director’s appeal in her case should be allowed.

Mr Christopher Jones was brought into Widnes Police Station about a week after Ms McKeown. He had driven his car onto a roundabout and appeared to be very drunk indeed. He provided one specimen of breath, which registered 148; more than four times the prescribed limit. He then did not blow hard enough to provide a second specimen. The visual display and print-out indicated that the test had aborted. The officer who operated the machine and gave evidence at the trial was Sgt Draycott. Like Sgt O’Dell, he noted that the time display was inaccurate by his watch; in his case, by an hour and 15 minutes, but the discrepancy of two minutes from the evidence in the earlier case is as likely to have been in the policemen’s watches as an indication that the computer clock had fallen further behind.

Mr Jones was charged under s 7(6) of the 1988 Act with failing without reasonable excuse to provide a specimen of breath when required to do so in pursuance of s 7(1). At the trial he gave evidence that he had tried his best but was overcome by a fit of coughing. The justices rejected his explanation, found that he had deliberately refused to blow into the machine as instructed and convicted.

It was submitted on behalf of Mr Jones that he could not lawfully be required to provide breath for an Intoximeter with an inaccurate clock. But s 7(1) says only that a constable may require a person under investigation to ‘provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State’. There is nothing about the approved device having to have an accurate clock. The Lion Intoximeter was an approved type of device and it seems to me impossible to argue that, by reason of the inaccuracy in its clock, the device at Widnes Police Station could no longer be described as a Lion Intoximeter. The point is reinforced by sub-s (3)(b), which says that a constable may not require a specimen of blood or urine to be provided at a police station except in specified circumstances, one of which is that ‘a device or a reliable device of the type mentioned in subsection (1)(a) … is not available at the police station …’ This clearly contemplates, as one would expect, that a device may be ‘unreliable’ and yet of the type approved by the Secretary of State.

Secondly, it was argued that the inaccuracy in the clock was a ‘reasonable excuse’ for Mr Jones’s failure to provide a specimen. The difficulty about this argument is that Mr Jones never claimed to have the slightest notion that there was anything wrong with the time on the clock. His defence before the justices, on which he was disbelieved, was that the inadequacy of the specimen had not been his fault. It is therefore hard to see how the clock could have been an ‘excuse’ for his failure to provide a specimen. I do not say that an excuse must be something which the accused had in mind when he failed or refused to provide the specimen. It would, for example, have been an excuse that he was unconscious when the request was made. But the concept of an excuse requires that it must have been a reason why the specimen was not provided. There must have been some causal connection between the excuse and the failure to provide the specimen. In this case, there was none.

In any case, even if Mr Jones had noticed that the clock was slow, I do not think that this would have been an excuse. If it was obvious that the device was in no state to analyse his breath correctly, he might reasonably have objected to going through a pointless exercise. But this would have been far from obvious and the evidence before the justices showed that it would have been wrong.

Finally, it was submitted for Mr Jones that the only admissible evidence that his second breath specimen was inadequate was the computer reading showing that the test had aborted. If this was inadmissible for failure to comply with s 69(1), he could not be convicted. The arguments against the admissibility of the computer evidence were the same as those which I have already rejected in the case of Ms McKeown. It follows that in my view this point also fails and the Director’s appeal in Mr Jones’s case should also be allowed.

JUDGMENTBY-5: LORD CLYDE.

JUDGMENT-5:
LORD CLYDE.

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives I would allow the Director’s appeals in both cases.

DISPOSITION:
Appeals allowed.

Search warrant – Validity – Duty of justice to satisfy himself – Reasonable grounds for belief – Reasonable grounds for suspicion – “Belief” – “Suspicion” – Adequacy of sworn complaint – (QLD) Criminal Code s 679(b): GEORGE v ROCKETT and ANOTHER HIGH COURT OF AUSTRALIA

93 A.L.R. 483 HIGH COURT OF AUSTRALIA

Copyright 1997 Reed International Books Australia Pty Ltd
trading as Butterworths

AUSTRALIAN LAW REPORTS
GEORGE v ROCKETT and ANOTHER
HIGH COURT OF AUSTRALIA
93 A.L.R. 483
11, 12 April, 20 June 1990 — Canberra
20 June 1990 — Canberra

CATCHWORDS:
Search warrant – Validity – Duty of justice to satisfy himself – Reasonable grounds for belief – Reasonable grounds for suspicion – “Belief” – “Suspicion” – Adequacy of sworn complaint – (QLD) Criminal Code s 679(b)

HEADNOTES:
The first respondent placed before the second respondent, a stipendiary magistrate, a statutory declaration relating to the existence of certain documents at the appellant’s office. He also answered some questions asked by the magistrate and swore a complaint before the magistrate. The sworn complaint contained an assertion by the first respondent that there were reasonable grounds for his belief that the documents swould afford evidence as to the commission of certain offences, but did not specify what those reasonable grounds were.

The magistrate issued the search warrant and certain documents were seized when the warrant was executed. The appellant obtained an order to review under s 209 of the Justices Act 1886-1989 (Qld) calling upon the first respondent to show cause why the warrant should not be reviewed. The order to review was returned before the Full Court which ordered that the order to review be disclosed. The appellant appealed.

Held, per curiam, allowing the appeal:

(i) When dealing with an application for a search warrant it is the duty of a justice, pursuant to s 679(b) of the Criminal Code (Qld) to satisfy himself that:

(a) there are reasonable grounds for believing that a specified thing will afford evidence as to the commission of an offence; and

(b) there are reasonable grounds for suspecting that the specified thing exists and is in any house, place, etc.

For there to be reasonable grounds for a state of mind — including suspicion or belief — there must exist facts which are sufficient to induce that state of mind in a reasonable person.

TVW Ltd v Robinson [1964] WAR 33;; Parker v Churchill (1985) 9 FCR 316;63 ALR 326;; R v Tillett; Ex parte Newton (1969) 14 FLR 101, applied.

(ii) The requirement that a sworn complaint must ground the issue of a search warrant carries the implication that the grounds for the issue of the warrant cannot be made to appear to the issuing justice from statements made by an applicant otherwise than by complaint on oath.

Feather v Rogers (1909) 9 SR(NSW) 192, applied.

(iii) A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is positive feeling of actual apprehension or mistrust amounting to a slight opinion, but without sufficient evidence. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, applied.

(iv) In the present case, the sworn complaint contained no facts which might have satisfied the magistrate, and was thus inadequate to found the magistrate’s conclusion that there were reasonable grounds for believing that the specified objects of the search would, if found, afford evidence as to the commission of an offence.

INTRODUCTION:
Appeal This was an appeal from a decision of the Full Court of the Supreme Court of Queensland discharging an order to review obtained by the appellant against whom a search warrant was issued. The facts appear sufficiently from the judgment of the court which follows.

COUNSEL:
J Clifford QC and T D O J North for the appellants. G L Davies QC, S-G and H Fraser for the first respondent.

JUDGES: MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON and MCHUGH JJ

JUDGMENTS: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. On 22 August 1989 the first respondent, Detective Sergeant Rockett, attended at the office of the second respondent, a stipendiary magistrate, and applied for the issue of a search warrant under the provisions of s 679(b) of The Criminal Code (Qld). Section 679 reads as follows:

If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft, or place:

(a) Anything with respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or

(b) Anything whether animate or inanimate and whether living or dead as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence; or

(c) Anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence;

he may issue his warrant directing a police officer or police officers named therein or all police officers to enter, by force if necessary, and to search such house, vessel, vehicle, aircraft, or place, and to seize any such thing if found, and to take it before a justice to be dealt with according to law.

Any such warrant is to be executed by day unless the justice, by the warrant, specially authorises it to be executed by night, in which case it may be so executed.

Where it appears on the complaint that an offence involving the safety of an aircraft has been is being or may be committed on board or in relation to the aircraft the justice may direct in his warrant that any person on board the aircraft or any person who is about to board the aircraft may be searched.

Detective Sergeant Rockett placed before the magistrate a statutory declaration relating to the existence of some documents allegedly in the handwriting of Sir Terence Lewis, a former Commissioner of Police, against whom two charges of perjury were pending. In addition to the statutory declaration, a form of complaint to ground the issue of a search warrant and a pro forma of a search warrant were produced to the magistrate. The magistrate asked Rockett some questions about the matter and these questions were answered. Then Rockett swore the complaint before the magistrate. The sworn complaint read as follows:

COMPLAINT TO GROUND SEARCH WARRANT

The complaint of Michael Daniel ROCKETT of the office of the Special Prosecutor, 15-23 Adelaide Street, Brisbane in the State of Queensland made this 17th day of August, 1989 before the undersigned, a Justice of the Peace for the said State, who says:

(1) that there are reasonable grounds for suspecting that there is in the rooms of QD George, Hillhouse & Company, Solicitors, situated at 9th floor, Bank of New Zealand building, 410 Queen Street, Brisbane in the said State certain property, to wit a bundle of A4 pages in the handwriting of Sir Terence LEWIS containing his comments on the evidence taken before the Commission of Inquiry conducted by Mr G E Fitzgerald QC and part of the transcript of the evidence taken before the aforesaid Commission of Inquiry and annotated in the handwriting of the said Sir Terence LEWIS all of which were in the possession of one Dr Joseph M SIRACUSA until the 11th day of August, 1989 when they were forwarded by the said Dr Joseph M SIRACUSA to Messrs QD George, Hillhouse & Company, Solicitors.

(b) as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of offences, namely

1. that on the 17th day of October, 1988 at Brisbane in the State of Queensland, the said Terence Murray LEWIS in a judicial proceeding, namely an inquiry by a Commission within the meaning of the Commissions of Inquiry Act 1950-1988, whilst giving evidence before the said Commission, knowingly falsely swore to the effect that he then had no idea what certain notations in his own handwriting in his 1980 and 1981 notebooks referred to, and that the said false evidence was material to a question then depending in the said proceedings.

2. that on the 11th day of October, 1988 at Brisbane in the State of Queensland, the said Terence Murray LEWIS, in a judicial proceeding, namely an inquiry by a Commission within the meaning of the Commissions of Inquiry Act 1950-1988, whilst giving evidence before the said Commission, knowingly falsely swore to the effect that he had never met in a private room at the Crest Hotel with Jack ROOKLYN, and that the said false evidence was material to a question then depending in the said proceedings.

(2) and that the grounds of his suspicion and belief are as follows: There is evidence that the bundle of A4 pages was in the handwriting of the said Sir Terence LEWIS and consisted of approximately 30 to 40 pages of comments on the evidence by the said Sir Terence LEWIS under specific headings and was in the possession of the said Dr Joseph M SIRACUSA on Friday, the 11th day of August, 1989 and was forwarded by the said Dr Joseph M SIRACUSA to the said QD George, Hillhouse & Company, Solicitors, on that day. There is further evidence that the annotated transcript also consisted of approximately 30 to 40 pages and was also in the possession of the said Dr Joseph M SIRACUSA on the 11th August, 1989 and that this was also forwarded by the said Dr Joseph M SIRACUSA on that same day to the said QD George, Hillhouse & Company, Solicitors.

“THEREUPON the said Michael Daniel ROCKETT prays that I, the said Justice, will proceed in the premises according to law.

Signature of Complainant

Sworn before me this 21st day of August, 1989 at Brisbane in the said State.

Signature of Stipendiary Magistrate

The magistrate issued a search warrant which, having recited substantially the whole of the complaint except for para (2), stated that it appeared to the magistrate that there were “reasonable grounds for so suspecting and so believing”.

The search warrant was executed and certain documents were seized at the office of Lewis’ solicitor who is the appellant in the present proceedings. The documents were sealed in an envelope without inspection by Rockett. Rockett and the solicitor attended before the magistrate and delivered the envelope to the magistrate for safekeeping. The solicitor, being a person against whom the warrant was issued, obtained an order to review under s 209 of the Justices Act 1886-1989 (Qld) calling upon Rockett to show cause why the warrant should not be reviewed. The order to review was returned before the Full Court which ordered that the order to review be discharged.

This appeal from the order of the Full Court turns on the construction of s 679 of the Code. Section 10 of the Crimes Act 1914 (Cth) and s 711 of The Criminal Code of Western Australia are in substantially the same terms. In reference to the procedure for issuing a search warrant under s 10 of the Crimes Act, Mason J said in Baker v Campbell (1983) 153 CLR 52 at 82;49 ALR 385 at 406:

For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorises the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation.

A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol 10, (1938), pp 668-72. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (1765) 19 State Tr 1001; ; Entick v Carrington (1765) 19 State Tr 1029 Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick, at 1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure, (1986), pp 1-2.

State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. It will be convenient to consider the relevant conditions prescribed by s 679 under three headings: the justice’s function, the material to ground the issue of a warrant and the facts to be established.

1. The justice’s function

The opening words of s 679 –”If it appears to a justice” — impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled. In TVW Ltd v Robinson [1964] WAR 33 Negus J (at 37) said:

It is the duty of a justice before issuing. . . a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in s 711 of the Criminal Code and that those grounds are reasonable.

When the justice is so satisfied and a warrant is issued, the warrant should express the justice’s satisfaction that there are reasonable grounds for the suspicion and belief: Morse v Harlock [1977] WAR 65 at 76-7. In ; Parker v Churchill (1985) 9 FCR 316;63 ALR 326, Burchett J said (FCR at 322; ALR at 333):

The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.

These observations accord with the language of the statute. Although it is implicit in s 679 that the applicant for the search warrant should entertain the suspicion and belief to which that section refers, it must “appear” to the issuing justice that there are reasonable grounds for entertaining the relevant suspicion and belief: see the phrase “that there are reasonable grounds for suspecting” and, in paras (b) and (c), the phrase “there are reasonable grounds for believing”. In Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263 the Full Court of the Supreme Court of Queensland held that the justice must not only be satisfied that there are reasonable grounds for suspicion and belief but the justice must also entertain the relevant suspicion and belief. The latter requirement is excessive, for the language of s 679 does not import it.

When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206: see ; Nakkuda Ali v MF De S Jayaratne [1951] AC 66 at 76-7; ; R v IRC; Ex parte Rossminster Ltd [1980] AC 952 at 1000, 1011, 1017-18; ; Bradley v Commonwealth (1973) 128 CLR 557 at 574-5;1 ALR 241; ; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169 at 180- 1;30 ALR 559 at 566-7. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, ; Attorney-General v Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. The principle was stated by Fox J in ; R v Tillett ; ; Ex parte Newton (1969) 14 FLR 101 at 106:

Section 10 requires that the justice himself be satisfied ‘that there is reasonable ground for suspecting. . .’. It is well established that on language such as this it is for the justice to come to his own conclusion on materials presented to him (Hope v Evered [(1886) 17 QBD 338]; ; Bridgeman v Macalister [(1898) 8 QLJ 151] ; Feather v Rogers [(1909) 9 SR(NSW) 192;26 WN (NSW) 27]; ; Bowden v Box [[1916] GLR(NZ) 443] ; Mitchell v New Plymouth Club (Inc) [[1958] NZLR 1070] ; TVW Ltd v Robinson [[1964] WAR 33]; ; Seven Seas Publishing Pty Ltd v Sullivan [[1968] NZLR 663]. In ; Bowden v Box the statute provided that a justice, if satisfied by information on oath that there was reasonable ground for belief as to certain matters, could grant a warrant. At 444 Edwards J said: ‘It is impossible to construe this enactment as an authority to a justice to issue a search warrant upon the oath alone of a constable or of any other person that “there is reasonable ground to believe that liquor is sold”, etc. So to hold would be to hold that the justice may discharge the judicial duty cast upon him by acting, parrot-like, upon the bald assertion of the informant.’ This expression of view was adopted by TA Gresson J in ; Mitchell v New Plymouth Club (Inc) .

It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.

2. The material to ground the issue of a warrant

The matters which must be made to appear to a justice must appear, as s 679 prescribes, “on complaint made on oath”. This requirement reflects the ancient view of the common law that a magistrate who issues a warrant otherwise than on an information on oath is liable to an action for false imprisonment or trespass: see, for example, Caudle v Seymour (1841) 1 QB 889 at 893, 894;113 ER 1372 at 1373, 1374. See Feldman, op cit, p 74. In ; TVW Ltd v Robinson Negus J, in the paragraph following that earlier cited, said (at 37) :

[The justice] cannot satisfy himself about those matters in accordance with the requirements of the Criminal Code unless the grounds are stated on oath preferably in the complaint.

A more stringent requirement was stated in Bridgeman v Macalister (1898) 8 QLJ 151, where a search warrant was issued in purported pursuance of the Towns Police Act (19 Vict No 24), which contained provisions similar in relevant respects to those in s 679(1). Griffith CJ, speaking for the Full Court of the Supreme Court, held that “the information must state the ground, the reasonable ground, for suspicion” and, finding that the information “merely contains a statement that the deponent suspects they are concealed, for which suspicion he gives no relevant foundation”, he declared that there was no ground for the exercise of the magistrate’s power to issue the warrant. This view has been followed in other jurisdictions (see ; Feather v Rogers (1909) 9 SR(NSW)192 and ; Mitchell v New Plymouth Club (Inc) [1958] NZLR 1070) and should now be accepted as correct.

The requirement that a sworn complaint must ground the issue of a search warrant carries the implication that the grounds for the issue of the warrant cannot be made to appear to the issuing justice from statements made by an applicant otherwise than by complaint on oath. In Feather v Rogers, at 196, Simpson ACJ said in reference to a requirement that the facts be shown “on oath before a justice”:

The statements made before the information was sworn were apparently not made on oath. They were therefore immaterial.

That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s 679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant.

In this case, the only material laid before the magistrate which answered the description of a sworn complaint was the document headed “COMPLAINT TO GROUND SEARCH WARRANT”. The other material placed before the magistrate was neither in affidavit form nor verified by oath or affirmation. The statutory declaration was not sworn: cf the Oaths Act 1867-1988 (Qld), ss 6,8. If the sworn complaint did not contain sufficient information to satisfy the magistrate that there were reasonable grounds for suspicion and belief, the magistrate exceeded his power in issuing the warrant. In the circumstances of this case, therefore, it is unnecessary to decide whether the complaint on oath required by the section must be in writing, although, as Fox J observed in R v Tillett; Ex parte Newton, at 109, and as Lockhart J observed in ; Crowley v Murphy (1981) 52 FLR 123 at 142-3;34 ALR 496 at 515, there is much to be said for the view that a written complaint is desirable. If the validity of a warrant is challenged and the court is ascertaining whether the complaint shows reasonable grounds for suspicion and belief, a written complaint is less open to controversy than an oral complaint. ; Bridgeman v Macalister , ; Montague v Ah Shen [1907] VLR 458 and ; Palethorpe v Nebbia [1937] QWN 33 are consistent with the view that a written complaint is needed, but the question does not have to be decided in this case and it is better to leave it for decision on another day.

The sufficiency of the sworn complaint by itself to satisfy the magistrate that there were reasonable grounds for suspicion and belief was not challenged in the Full Court. However, the question was raised in this court in the course of argument. In the Full Court, the case proceeded on the footing that the magistrate was entitled to have regard to all the material that was put before him or, at all events, to the complaint and to the statutory declaration. But, if the warrant is invalid by reason of the insufficiency of the sworn complaint, no evidence or argument which might have been proffered to the Full Court can save it. It will therefore be necessary to consider whether, on the material contained in the sworn complaint, the magistrate could have been satisfied that there were reasonable grounds for Rockettl’ suspicion and belief. If, on the material contained in the sworn complaint, the magistrate could not have been so satisfied, it is immaterial that he might have been satisfied on the material contained in the statutory declaration or in the answers which Rockett gave to his questioning.

3. The facts to be established

In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v Thorpe [1925] SASR 286 at 291; ; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 at 666) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there there are reasonable grounds for suspecting that “there is in any house, vessel, vehicle, aircraft, or place — Anything” and that there are reasonable grounds for believing that the thing “will. . . afford evidence as to the commission of any offence”.

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.”‘ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In ; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303):

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes — a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

It is necessary to identify the subject matter of suspicion and the subject matter of belief. At first reading, it may appear that the subject matter of suspicion is merely the location of the thing to which para (b) relates, while para (b) prescribes the subject matter of belief to be the nature of the thing (“will. . . afford evidence”). So to read the section is to omit the existence of the thing from the subject matter of either suspicion or belief. It is arguable that the requirement of reasonable grounds for believing that a thing “will afford evidence” imports a belief that a thing exists which has that capacity. Construed in isolation, that phrase does not suggest that the requirement is satisfied by reasonable grounds for believing that a thing will have that capacity if it exists. These considerations favour construing s 679 so that the existence of the thing is the subject not of suspicion but of belief. The protection of property and privacy would be advanced by a construction of s 679 that makes the existence of the thing the subject of belief rather than the subject of suspicion. On the other hand, the subject of suspicion as stated in the text is “that there is in any house, vessel, vehicle, aircraft or place — Anything” answering the description contained in one or other of the lettered paragraphs. If one substitutes “exists” for “is” in this clause — a substitution which seems legitimate — it is clear that the existence of the thing is the subject of suspicion. Moreover, it is unlikely that the legislature would have intended to require as a condition of a search warrant for a thing described in para (c) — that is, a thing which might be intended to be used for the purpose of committing an arrestable offence — reasonable grounds for more than mere suspicion of the existence of such a thing. Thus it seems that the better construction of s 679 is that the existence of the thing is the subject of suspicion.

So to hold does not deprive the requirement of “reasonable grounds for believing” in para (b) of significance. That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search. A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location. The point is probably best made by illustration.

Suppose that a person has been killed by a revolver bullet and that A, who is believed on reasonable grounds to be the killer, was seen burying an object wrapped in cloth in the backyard of his house. If application were made to a justice for a warrant to search for “an object wrapped in cloth” in A’s backyard, the fact that A had been seen burying something wrapped in cloth would obviously provide compelling grounds for suspecting that an object of that description was in that place. On the other hand, there may, depending on the circumstances, be difficulty in sustaining a conclusion that there were reasonable grounds for believing that any object which answered that general description (ie “an object wrapped in cloth”) “will”, if found, afford evidence as to the commission of an offence. Conversely, if the object of the proposed search was described as a revolver, the grounds for suspecting that it was hidden in A’s backyard would be much less compelling. There would, however, be little difficulty in satisfying the requirement of reasonable grounds for believing that the object so described would, if it was found in that place, afford evidence as to the commission of the particular offence.

It may be suggested that this emphasis upon description of the object of the search proposed to be conducted pursuant to a search warrant constitutes little more than a play on words. But that is not the case. The warrant, if issued, authorises entry to search for the described object and authorises the seizure of any object which comes within the particular description. In other words, the description of the object of the search is a reference point for delimiting the scope of the warrant. The wider and less specific the description of the object, the wider will be the powers of seizure which the warrant confers. On the other hand, as has been seen, the wider and less specific the description of the designated object, the more difficult will be the task of persuading the justice that there are reasonable grounds for belief that the object so described will, if found, afford evidence of the commission of the particular offence. Thus, the requirement of “reasonable grounds for believing” in para (b) performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms. Again, the point is best made by illustration.

Suppose the sworn complaint placed before a justice establishes reasonable grounds for suspecting that the books and records of a listed public company in respect of a particular financial year contain an entry which will afford evidence that an executive of the company has appropriated a sum of money to the credit of his personal account with a particular bank and the complaint shows that there is evidence that the executive had no authority so to apply the money. In such a case, the complaint would establish reasonable grounds for suspecting that the particular entry existed and reasonable grounds for believing that, if it did exist, it would (ie “will”) afford evidence of the commission of an offence. The complaint before the justice would, in those circumstances, be adequate to justify the issue of a warrant to search for and seize any written entry to the designated effect in the company’s books and records for the relevant year. It would, of course, be necessary that the suspected entry be identified with sufficient precision. On the other hand, the material before the justice could not justify the issue of a warrant authorising search for or seizure of all the books and records of the company for the particular year. First, if the object of the authorised search and seizure were described in terms of “all those books and records”, the material before the justice would not establish that the object so described would afford evidence of the commission of an offence. That material would only have established reasonable grounds for suspecting that the object (ie the books and records for the relevant year) contained an entry that would afford such evidence. Secondly, even if the material before the magistrate had gone so far as to establish reasonable grounds for believing that such an entry existed somewhere in those books and records, the description of the object of the authorised search and seizure would be unjustifiably wide. It would extend to authorising search for, and seizure of, records which were unrelated to the particular entry and which were not suggested to afford evidence of the relevant kind.

In the present case, Rockett identified the things for which he was seeking a search warrant as a bundle of A4 pages in Lewis’ writing and part of the transcript of the Commission hearings bearing Lewis’ handwritten annotations. It was not disputed that the sworn complaint contained sufficient material to satisfy the magistrate that there were reasonable grounds for suspecting that such documents were in the solicitor’s office. The critical question is whether there was sufficient material in the sworn complaint to satisfy the magistrate that there were reasonable grounds for believing that those documents “will. . . afford evidence as to the commission of” the two offences set out in the sworn complaint with which Lewis had been charged.

The phrase “will afford evidence as to the commission of [an] offence” appearing in s 10 of the Crimes Act was considered in Baker v Campbell . In that case, the plaintiff sought an order directed to a member of the Australian Federal Police, to whom a search warrant had been issued pursuant to s 10 of the Crimes Act, to restrain him from seizing documents which were the subject of legal professional privilege. The question in that case was not the general scope of the power to search and seize but whether there was a category of exemption of documents for which privilege might be claimed and maintained. Although the court divided on the availability of the privilege where there were no judicial or quasi-judicial proceedings in or by reference to which the admissibility of privileged documents might be tested, the case does not suggest that the only things for which a search warrant might be issued are things which are or will become admissible in evidence. The power to issue a search warrant is in aid of criminal investigation as well as in aid of proof at the trial, though it is necessary that the investigation should have reached the stage where reasonable grounds for the statutory suspicion and belief can be sworn to. An object will answer the description in para (b) if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters.

If, in the present case, the first of the two objects of the search warrant had been identified in the complaint as a bundle of A4 pages in the handwriting of Sir Terence Lewis containing either a statement or statements about the meaning of the notations in Sir Terence Lewis’ 1980-1981 notebooks or a statement or statements to the effect that Sir Terence Lewis had met the person called Jack Rooklyn at the Crest Hotel, a question would have arisen as to whether a warrant to search for the whole bundle of A4 pages, as distinct from a page or pages containing the relevant statement or statements, was wider than could be justified. The answer to that question would, no doubt, depend upon whether the complaint justified a conclusion that the bundle of pages should, in the circumstances, be seen as a single thing or upon whether pages in the bundle other than those containing relevant statements should be seen as part of the evidentiary context within which the relevant statements should be read.

In fact, neither of the objects of search (that is, the bundle of A4 pages and the part of the transcript of evidence) was identified in the complaint or the purported search warrant by a description which required that it contain some statement or statements relevant to the commission of one or other of the alleged offences. The sworn complaint was inadequate to found a conclusion that the identified bundle of documents would, if found, actually contain such a statement or statements. Consequently, the complaint was inadequate to found the magistrate’s conclusion that there were reasonable grounds for “believing” that the designated objects of the search would, if found, afford evidence as to the commission of an offence. It follows that the terms of the search warrant were not supported by the sworn material placed before the magistrate. In this court, counsel for the appellant attacked the reasoning of the Full Court on the footing that the court held that it would be sufficient if there were reasonable grounds for believing that the documents in question contained only exculpatory observations. The point would be well taken if the Full Court had held that the magistrate could not have been satisfied that there were reasonable grounds for believing that the documents mentioned in the complaint and search warrant contained anything more than exculpatory observations. Things which tend to show merely that no offence was committed are not things which will afford evidence as to the commission of an offence. But things may have a dual character, tending at once to establish an element of an offence and tending to exculpate one or more persons from criminal liability. Things which afford evidence of an element of an offence and which also tend to exculpate a person from criminal liability may nonetheless be things which “will. . . afford evidence as to the commission of any offence”. Connolly J (with whom Ambrose J agreed) appears to have approached the matter on the footing that the documents covered by the search warrant might ultimately prove to be capable of affording both inculpatory and exculpatory evidence:

If, on examination, they contained any observations, whether inculpatory or exculpatory, touching [Lewis'] notations in his own handwriting in his 1980 and 1981 pocket notebooks or touching a meeting at the Crest Hotel with a person who might, possibly by other evidence, be demonstrated to be the same person as the man named in the second charge, such notations were capable of affording evidence ‘as to the commission of the offences’ in the sense of being relevant to the proofs to be adduced by the prosecution as well the proofs which might be adduced by the defence.

His Honour did not analyse the material placed before the magistrate, but stated the opinion that “the material before him amply warranted the conclusion to which he came”, that is, “the requisite conclusion” under s 679. The material to which his Honour was referring was either all the material laid before the magistrate or at least the statutory declaration as well as the sworn complaint. Had it been open to the Full Court to look at all the material, it would be necessary now for this court to consider whether it revealed reasonable grounds for believing that the documents in respect of which the warrant was sought, or such of them as contained statements relevant to the two offences mentioned in the complaint, would afford evidence of the commission by Lewis of either of those offences. It would have been necessary to consider the nature of the evidence given before the Commission of Inquiry to which the charges of perjury related, the passages in the transcript of evidence on which Lewis’ handwritten notes had been made and the possibility that inculpatory inferences could be drawn from notes relating to events which had been said by Lewis to be unremembered. Had it appeared that there were no reasonable grounds for believing that those documents or any of them would afford anything more than exculpatory evidence, the warrant would have had to be set aside; but, had that material revealed reasonable grounds for believing that the documents would afford evidence of the commission by Lewis of either of the offences with which he had been charged, the order to review would have had to be discharged. However, the sworn complaint itself must be sufficient to satisfy the court on the return of an order to review that the warrant was properly issued. The sworn complaint in this case contains no facts which might have satisfied the magistrate that there were reasonable grounds for believing that the documents for which the search warrant was sought would afford evidence as to the commission of the offences set out in the complaint. It contains nothing save the assertion by Rockett that there are reasonable grounds for his own belief.

In the absence of information in the sworn complaint which might have satisfied the magistrate as to the existence of reasonable grounds for Rockett’s belief, the magistrate had no power to issue the warrant. The warrant was invalid. It follows that the appeal must be allowed, the order of the Full Court set aside and in lieu thereof the order to review should be made absolute. Having regard to the way in which the matter was argued in the Full Court, it does not seem appropriate to make any order as to costs in that court. However, the appellant should be at liberty to apply for an order for the costs of the order to review and of the hearing in the Full Court within 14 days. The application and the respondent’s answer should be in writing.

We were invited to adjourn the formal pronouncing of this order if we were of the view that the warrant was invalid. That course would allow the swearing of a fresh complaint which might ground the issue of a valid warrant and thereby preclude the possibility of the return of the documents to the appellant and their loss to the prosecution. But this is not a sufficient reason for withholding the relief to which the appellant is otherwise entitled.

ORDER:
Order Appeal allowed with costs.

Set aside the order of the Full Court of the Supreme Court and in lieu thereof order that the order to review be made absolute.

The appellant be at liberty to apply for an order for costs of the order to review and of the hearing in the Full Court within 14 days. Unless otherwise ordered, no order as to the costs of those proceedings.

SOLICITORS:
Solicitors for the appellant: Q D George, Hillhouse & Co. Solicitor for the first respondent: K M O’Shea, Crown Solicitor (Qld).