Commissioner of Police, New South Wales Police Force v Hariz

[2019] NSWSC 988

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of Police, New South Wales Police Force v Hariz [2019] NSWSC 988
Hearing dates:	On the papers
Date of orders:	05 August 2019
Decision date:	05 August 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	1. Judgment and orders of Magistrate Funston on 23 and 24 May 2019 set aside. 2. Remit the matter to the Local Court of NSW for hearing in accordance with law by a magistrate other than the second defendant. 3. The first defendant is to pay the plaintiff’s costs of the appeal. 4. The first defendant is granted a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	APPEAL – appeal from the Local Court to the Supreme Court – error of law – magistrate did not allow prosecutor proper opportunity to be heard – error conceded by defendant – appeal allowed – consent orders made
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), Pt 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 219 Local Court Act 2007 (NSW), s 70(1)(c) Suitors’ Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 69
Category:	Principal judgment
Parties:	Commissioner of Police, New South Wales Police Force (Plaintiff) Raed Hariz (First defendant) Local Court Magistrate Richard Funston (Second defendant)
Representation:	Counsel:     Solicitors: Makinson d’Apice Lawyers (Plaintiff) Raed Hariz (Self-represented)
File Number(s):	2019/169320
Decision under appeal	Court or tribunal: Local Court Date of Decision: 23 and 24 May 2019 Before: Funston LCM File Number(s): 2019/140971

Judgment

1. HIS HONOUR: The Commissioner of Police, NSW Police Force, filed a summons in this court on 29 May 2019 in respect of orders made by his Honour Magistrate Funston in the Local Court at Parramatta on 23 and 24 May 2019. An amended summons was filed on 31 May 2019.

2. The proceeding involves an appeal pursuant to s 70(1)(c) of the Local Court Act 2007 (NSW) and Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW), or alternatively an application for review pursuant to s 69 of the Supreme Court Act 1970 (NSW).

3. Criminal proceedings were commenced in 2018 against the first defendant, Mr Raed Hariz, by the NSW Police Force. A range of items were seized from Mr Hariz at the time of his arrest. The property is said to include laptop computers, mobile phones, a multitude of USBs, and sundry other items. The proceedings before the learned magistrate relate to an attempt by Mr Hariz to have the property returned to him.

4. Mr Hariz attended the Local Court at Parramatta on 6 May 2019 and filed an application for an order pursuant to s 219 of the Law Enforcement (Powers and Responsibilities) Act 2001 (NSW) for the return of the property. There appears to be an issue as to whether a copy of the application was served on the NSW Police Force.

5. The application was listed before the Local Court on 23 May 2019. Mr Hariz appeared in person and a Police Prosecutor was present in the court. Mr Hariz outlined to the magistrate his claim for the return of the property. In short, he claimed that he had been served with the brief of evidence relating to the criminal proceedings, and he asserted that the property seized by the police was irrelevant to the prosecution. The magistrate heard this argument developed by Mr Hariz and then the following exchange with the Police Prosecutor occurred:

“HIS HONOUR: Sergeant, I am prepared to grant this application. Did you want to be heard on it?

FERGUSON: It’s only the fact I have no instructions, your Honour.

HIS HONUR: No, that’s right. I don’t want to put you on the spot.

FERGUSON: Yes. I could make a phone call over morning tea, if your Honour’s willing to put it over to morning tea, I can make some inquiries and see if this officer’s working. There’s a big brief to go through to try and see if any of the computers, so I’m in your Honour’s hands.

HIS HONOUR: I hear the nature of the charges, and it seems under the circumstances it would be highly unusual for the Apple laptops or mobile phones to have anything related to this matter.

SO, UNDER THE CIRCUMSTANCES, I AM PREPARED TO GRANT YOUR APPLICATION.” [1]

1. Tcpt, 23 May 2019, p 3(16)-(33).

6. A moment later, Mr Hariz sought some specification as to the property:

“APPLICANT: Your Honour, can you put “All property?” There’s my USBs, my laptop, my phones—

HIS HONOUR: All property to be returned.

APPLICANT: --my cards, my money, my lottery ticket, everything.

HIS HONOUR: All property to be returned to owner.

APPLICANT: Please.

HIS HONOUR: All right, I’ve done that.” [2]

2. Tcpt, 23 May 2019, pp 3(50)-4(11).

7. The following day, Mr Hariz appeared before Funston LCM again. The same Police Prosecutor happened to be present. The following occurred:

“HIS HONOUR: Can I just mention one matter, if we could go on the record, it will only take one moment. It’s the matter of Raed Hariz, and Mr Hariz is in Court now. It was a matter that was before me; I just want to go on the record for this. It was a matter before me yesterday. It was an application for disposal of property in police custody, and the application was appropriate, and I was of the view that he needs to have his property back. What was then decided; that the application was granted, and I wrote, “All property to be returned to owner.” Mr Hariz went to see the officer in charge of the matter yesterday after Court, and the officer suggested that it wasn’t clear within the time frame; I didn’t stipulate in my order yesterday, that it needed to be within a certain time. I suspect things were perhaps, being made a little difficult.

FERGUSON: What sort of property are we talking about?

HIS HONOUR: It is property that had nothing to do with the offence. So, it is his own work computers and two Apple laptops; two mobile phones, USBs.

FERGUSON: Okay. And is the issue where they’re actually stored at the moment?

HIS HONOUR: No, they are at the Police Station. So, all I needed to do today is to have the matter listed before me, which the court staff have kindly done. I’ve said APPLICATION GRANTED, ALL PROPERTY TO BE RETURNED TO OWNER WITHIN SEVEN DAYS. I have just added within seven days. That is all he wanted. And then my understanding is he’s prepared to give you the property.” [3]

3. Tcpt, 24 May 2019, p 1(17)-(42).

8. There are a number of grounds of appeal upon which the Commissioner of Police relies. For present purposes, they include that the magistrate erred by not allowing the Police Prosecutor to have a proper opportunity to be heard. Mr Hariz has received some legal advice through the pro bono legal assistance scheme and has indicated that he now concedes that the appeal should be allowed on the basis that the magistrate did err in that particular respect.

9. From the extract of the proceedings quoted above, I am satisfied that the prosecutor who happened to be present in the court on each of the days in question had no prior knowledge on each occasion of the matter being listed before the court, and did not have any notice that the matter might be determined. I note in particular that the prosecutor explicitly indicated that she had no instructions, and that she had offered to make enquiries if the magistrate was prepared to stand the matter down. However, the magistrate proceeded to determine the matter based solely upon what he’d been told from the floor of the court by Mr Hariz, without any real opportunity for anything to be said against the application.

10. In these circumstances, it is appropriate to make the following orders which are made with the consent of the plaintiff and the first defendant.

Orders

1.   Judgment and orders of Magistrate Funston on 23 and 24 May 2019 set aside.

2.   Remit the matter to the Local Court of NSW for hearing in accordance with law by a magistrate other than the second defendant.

3.   The first defendant is to pay the plaintiff’s costs of the appeal.

4.   The first defendant is granted a certificate under the Suitors’ Fund Act 1951 (NSW).

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Endnotes

Decision last updated: 06 August 2019