SIDDIQUE V MARTIN AND ANOTHER (2016) 51 VR 564

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Introduction and Factual Background of the Case

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

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

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

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

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

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

Articulation of the legal context of the decision

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

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

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