Commissioner of Police, NSW Police Force v WX Fortune Pty Limited

[2017] NSWSC 1632

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of Police, NSW Police Force v WX Fortune Pty Limited [2017] NSWSC 1632
Hearing dates:	24 November 2017
Date of orders:	24 November 2017
Decision date:	24 November 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   That the application be dealt with ex parte. (2) I declare under s 3(1) of the Restricted Premises Act 1943, that the premises being Lot X of DPXXXX, known as XX XXXXX XXX Road, Marrickville in the State of New South Wales, are premises to which Pt 2 of that Act applies. (3)   There will be no order as to costs.
Catchwords:	RESTRICTED PREMISES – ex parte – application under s 3(1) of the Restricted Premises Act 1948 (NSW) – necessary emergency established – declaration sought made
Legislation Cited:	Restricted Premises Act 1943 (NSW)
Cases Cited:	Lisafa Holdings Pty Limited v Commissioner of Police (1988) 15 NSWLR 1
Category:	Procedural and other rulings
Parties:	Commissioner of Police, NSW Police (Plaintiff) WX Fortune Pty Limited (Defendant)
Representation:	Solicitors: Makinson d'Apice Lawyers (Plaintiff)
File Number(s):	2017/358476
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: This is an application for orders under the Restricted Premises Act1943 (NSW), which is brought ex parte by way of summons filed in Court today, following a fourth search of the premises the subject of the application, after the Local Court granted an application for a search warrant in terms annexed to an affidavit sworn by Detective Acting Sergeant Oliver, on 24 November 2017.

2. Annexed to that affidavit are a host of documents, including the results of analysis of substances located in the premises, during earlier searches. The affidavit refers to the business operated at XX XXXXX XXX Road, Marrickville, being a brothel operating under the name Spring House brothel, as well as the identity of the registered proprietor of the premises and those who lease them.

3. The nature of the premises are described in the affidavit, as is the circumstances in which the search warrants have come to be executed there, by both New South Wales Police and Australian Border Force officers.

4. The affidavit describes how it was that on such searches, entry was gained to the premises and the inspections were then undertaken and what was located there, including what turned out to be prohibited drugs and drug use paraphernalia, including paraphernalia used in the consumption of ice, as well as that drug itself, as well as other drugs. These items have now been repeatedly found in the premises in different rooms, sometimes concealed, sometimes not, and sometimes amongst employees' belongings.

5. The Detective deposes to holding suspicions that despite repeated searches of the premises and what has been found there, the premises will continue to be a place at which drugs are supplied to clients of the brothel, notwithstanding that the premises have come to the on-going notice of law enforcement and courts have repeatedly granted search warrants.

6. The Commissioner of Police accepts that the test which applies to an application such as this, being dealt with ex parte under this legislative scheme, is that discussed in relation to predecessor legislation in Lisafa Holdings Pty Limited v Commissioner of Police (1988) 15 NSWLR 1 at 24 to 25, namely that an emergency exists. That onus is sought to be met by what is dealt with in the Detective's affidavit and revealed by the documents attached to it.

7. Most notably, the most recent application for a search warrant and the results of earlier drug analysis have established that the most recent warrant application granted by the Local Court resulted in a further search which commenced last night and concluded this morning. The Local Court was convinced to grant that application on the material that appears in the application, where reference is made to the joint Police/Border Force operation which led to the warrant applications; what was found on earlier searches, which included methylamphetamine, cocaine and cannabis, as well as ice paraphernalia, some of it obviously used, found in unattended rooms in the brothel, with the on-duty manager claiming to have no knowledge of drugs which he said were brought in by customers.

8. Yet again, on last evening's search, further drugs, subject to confirmation by testing, as well as further drug paraphernalia, have been located.

9. In all of those circumstances, I am well satisfied that the necessary emergency has been established.

10. There is what seems to be an on-going drug supply operation being conducted in this brothel, despite police surveillance and repeated searching, which presents considerable risks to the safety of the community and not only to the customers and employees of the brothel who might be involved in the supply and consumption of such drugs there. There is no need to explain the considerable risks posed by the consumption of the drug ice with which judgments of this Court and the Court of Criminal Appeal are replete.

11. In those circumstances I am satisfied that the Court's discretion to permit the application under s 3(1) of the Act to be heard ex parte should be exercised.

12. I am also satisfied, on the basis of the material I have discussed, that the declaration sought by the Commissioner under s 3(1) of the Act, that the premises the subject of the application, are premises to which Pt 2 of the Act applies, should be made. The effect of that declaration is under s 10, to enable police to enter the premises, whileever the declaration remains in force, without further warrant. That reflects the statutory test specified in s 3, that a senior police officer must show reasonable grounds for suspecting all or any of the conditions specified in the section as obtaining with respect to the premises.

13. The Commissioner in this case relies on the conditions specified s 3(1)(a) and (b) which respectively provide:

“3   Declaration by Supreme Court or District Court in relation to premises

(1)    On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say:

(a)    that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or

(b)    that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or”

14. A senior police officer is defined in s 2 to mean a police officer of or above the rank of sergeant. I am satisfied that Detective Acting Sergeant Oliver falls within that definition.

15. In addition, I am also satisfied that the requirements of s 3(1)(a) and (b) have been satisfied on the evidence and that in the emergency situation which has presented itself, that the Court should exercise its discretion to make the declaration sought, so as to enable the police to enter these premises without warrant, in order to deal with what is plainly on-going serious and dangerous supply of prohibited drugs.

16. In coming to these conclusions I have taken into account that s 4 of the Act permits the Court to rescind its declaration on terms that it thinks fit, on an application being made either by the owner or the occupier of the premises the subject of the declaration, on proof that the owner or occupier has not at any time allowed any of the conditions the subject s 3(1) to obtain in relation to the premises.

17. I note that a rescission application can also be made by a senior police officer on proof that there is no reasonable grounds for suspecting that any of the conditions referred to in s 3(1) still obtain in relation to the premises.

18. It is in all of those circumstances that I make the following orders.

1. That the application be dealt with ex parte.

2. I declare under s 3(1) of the Restricted Premises Act 1943, that the premises being Lot X of DPXXXX, known as XX XXXXX XXX Road, Marrickville in the State of New South Wales, are premises to which Pt 2 of that Act applies.

3. There will be no order as to costs.

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Decision last updated: 17 April 2018