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Judgment handed down in Siddique v. Martin

18 November 2016

The Court of Appeal today allowed an appeal by Mohamed Siddique in connection with his application to a Magistrate for the return of items seized by police when they executed warrants at Mr Siddique’s home and business premises. The warrants authorised the police to break, 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 reference to ‘WHITELEY’ was a reference to the well-known Australian artist, Brett Whiteley. The items that were seized included several paintings attributed to renowned Australian artists, Charles Blackman and Howard Arkley.  

Mr Siddique asked a magistrate to return some of the items that were seized by police.  

The matter dealt with by the Court of Appeal today concerned whether a Magistrate had power under s 78(6) of the Magistrates’ Court Act 1989 to direct that some items that were seized in the course of executing the warrants but which were not listed in the warrants be returned to Mr Siddique. That section provides that the Magistrates’ 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 held that to the extent that the paintings and other items which Mr Siddique sought to recover were not listed in the warrant, he had no power to give a direction in respect of those items because they had not been seized ‘under a search warrant’. The Magistrate’s view was upheld by a trial judge.  

Contrary to the view of the Magistrate and the trial judge, the Court of Appeal has decided that the Magistrates’ Court can, at least in certain circumstances, direct the return of items seized by police during the execution of a search warrant, even where those items are not named or described in the search warrant.  

In reaching that conclusion, the Court of Appeal said that it is important to keep in mind that the purpose of s 78(6) is to set up a convenient, summary method for citizens to obtain the return of their own property after it has been taken from them against their will or without their consent by police entering their private homes or private business premises. With that in mind, the Court observed that s 78(6) serves to lessen the effect of interference by the State.

The Court of Appeal did not decide whether Mr Siddique’s property should be returned to him. Rather, that question will go back to the Magistrates’ Court to be decided by a Magistrate according to law.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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