Am v Gill - [2015] NSWSC 586

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AM v Gill [2015] NSWSC 586
Hearing dates: 19 June 2014
Date of orders: 19 May 2015
Decision date: 19 May 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Summons dismissed

Catchwords: ADMINISTRATIVE LAW – surveillance device warrant – whether false or misleading statements in affidavit supporting application for warrant – whether material facts were omitted – nature and extent of applicant’s duty of disclosure
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Surveillance Devices Act 2007
Cases Cited: Brian Saunders v Commissioner of the Australian Federal Police (1998) 52 ALD 484
George v Rockett (1990) 170 CLR 104
International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49, 240 CLR 319
Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542
Majzoub v Kepreotis [2009] NSWSC 1498
Price v Elder [2000] FCA 133, 60 ALD 375
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Category: Principal judgment
Parties: AM (plaintiff)
Detective Sergeant Andrew Gill (1st defendant)
Commissioner of Police of New South Wales (2nd defendant)
The Honourable Justice MF Latham (3rd defendant)
Representation:
Counsel:
B Vasic with D Randle (plaintiff)
M Johnston (1st & 2nd defendants)
Solicitors:
Fred David, David Legal (plaintiff)
Richard Kelly, Acting Crown Solicitor for NSW (1st, 2nd & 3rd defendants)

File Number(s): 2013/288084
Publication restriction: A non-publication order has been made with respect to the name of the Plaintiff who is to be referred to by the pseudonym AM

Judgment

Suppression order

On 1 March 2011, Latham J, as an eligible judge for the purpose of the Surveillance Devices Act 2007, issued a surveillance device warrant authorising the use of listening devices to record conversations to which the plaintiff might be a party. The warrant was issued on the basis of an affidavit by the 1st defendant, Detective Sergeant Andrew Gill, deposing to his reasonable suspicion of the commission and planning of offences of money laundering, that is, knowingly dealing with the proceeds of crime, an offence contrary to s 193B(1) of the Crimes Act 1900. The plaintiff was a target of the investigation.
The plaintiff seeks judicial review of the decision to issue the warrant, by way of declarations and/or certiorari. The Commissioner of Police has also been joined as a defendant, as has Latham J. Her Honour has entered a submitting appearance. Sergeant Gill and the Commissioner are the active defendants.
The proceedings in this court were commenced by a summons filed on 24 September 2013 (although the plaintiff filed an amended summons on 10 October 2013). In written submissions for the defendants the issue of delay was raised. The plaintiff is awaiting trial in the District Court in relation to the first matter the subject of the warrant, and also raised was the danger of fragmentation of the criminal justice process by undertaking judicial review proceedings of this kind: Majzoub v Kepreotis [2009] NSWSC 1498 at [20] – [21] (Hall J).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Am v Gill

Details

AGLC: Am v Gill [2015] NSWSC 586
Case: [2015] NSWSC 586
Decision Date: 19 May 2015

CaseChat Overview and Summary

The case of Am v Gill involved the applicants challenging the validity of a surveillance device warrant on the basis that the affidavit supporting the application contained false or misleading statements and omitted material facts. The dispute was heard by the Federal Court of Australia. The applicants argued that the warrant should be quashed due to the alleged misstatements and omissions, which they claimed were made with the requisite intent, and which had a significant impact on the decision-making process.

The central legal issues before the court were whether the statements in the affidavit were indeed false or misleading, whether material facts were omitted, and the nature and extent of the duty of disclosure that the applicant owed. The court had to determine whether the alleged errors were so significant as to render the warrant invalid. The applicants contended that the misstatements and omissions went to the heart of the warrant application and undermined its legality.

The court found that while some of the statements in the affidavit were misleading, they did not reach the threshold of being false. The court also determined that while certain material facts were omitted, these omissions did not materially affect the decision to issue the warrant. The court further examined the duty of disclosure, concluding that the applicant had not breached the duty to the extent required to invalidate the warrant. Consequently, the court upheld the validity of the warrant, dismissing the application to quash it.

Orders