Statutory interpretation: when is an item seized ‘under’ a search warrant?

In Siddique v Martin, handed down on 18 November 2016, the Victorian Court of Appeal considered whether s 78(6) of the Magistrates’ Court Act 1989 (Vic) authorised the Magistrates’ Court to direct police to return items that were seized during the execution of a search warrant but that were not actually described in the search warrant. The central issue in the case was whether seized items that do not fall within the terms of a search warrant are nevertheless items seized ‘under’ the warrant for the purposes of s 78(6).

The Court held that s 78(6) authorises the Magistrates’ Court to direct the return of seized items falling outside the terms of a warrant, and did so on both a broad and a narrow basis. Narrowly, the Court considered that where items are lawfully seized pursuant to the incidental power conferred by a search warrant to seize evidence discovered by chance of offences other than those to which the warrant relates, the items are seized ‘under’ the warrant because the warrant provides lawful authorisation of the seizure.

More broadly, however, the Court emphasised that even commonly used statutory expressions like ‘under’ must be interpreted in their context. While the preposition ‘under’ is often used in statutes as a synonym for ‘in reliance on’, the Court observed that cases considering the meaning of the word ‘under’ in the context of judicial review and federal jurisdiction do not ‘lay down universal criteria for determining whether one thing might be said to have been done “under” another thing.’ Rather, the word ‘under’, like such other commonly used relational expressions as ‘for’, ‘in respect of’ and ‘because of’, must be given a meaning that accords with the relevant legislative purpose. In the context of a provision that was intended to create a convenient method for seeking the return of items seized by police executing a search warrant, the Court held, an interpretation of the word ‘under’ that drew a distinction between seized items that fell within the actual or incidental scope of a warrant and seized items that did not would compound the interference caused by the execution of a search warrant, not alleviate it. The case is thus a useful reminded that even the most commonly used statutory expressions have to be interpreted in light of their broader context.