Commissioner of Police v Cole (No. 3)

[2018] NSWSC 1617

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of Police v Cole (No. 3) [2018] NSWSC 1617

Hearing dates:

25 October 2018

Date of orders:

25 October 2018

Decision date:

25 October 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order pursuant to s 12(1)(a) of the Crimes (Serious Crime Prevention Orders) Act 2016 (Act) that serious crime prevention order 1(b) imposed on the defendant in Commissioner of Police v Cole [2018] NSWSC 517 on 27 April 2018 be varied from:

 

b. Travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency;

 

to instead read:

 

b. Travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency except that the defendant is permitted to travel at night solely for the purpose of driving or being driven to or from lawful employment when rostered to perform lawful employment at night and during the course of his employment provided that he:

 i. provide a copy of any work roster to a police officer nominated by the plaintiff, prior to the journey, and at the earliest opportunity after such roster becomes available and;
ii. have in his possession when travelling at night a copy of such roster and;
iii. travel to and from the lawful employment only by the most direct available.

Catchwords:

CRIMINAL LAW – application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – application to vary orders already made – where no change of circumstances since original orders – where defendant omitted to seek exception to restrictions to enable him to pursue lawful employment – further application made by police where satisfied that variation was legitimate

Legislation Cited:

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 12

Cases Cited:

Commissioner of Police v Bowtell (No 2) [2018] NSWSC 520
Commissioner of Police v Cole [2018] NSWSC 517

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Commissioner of Police (Plaintiff)
Mitchell Alexander Cole (First Defendant)

Representation:

Counsel:
N Regener (Plaintiff)
A Taleb (Defendant)

  Solicitors:
Makinson d'Apice Lawyers (Plaintiff)
Oxford Lawyers Parramatta (Defendant)

File Number(s):

2018/96624

Publication restriction:

Nil

Judgment

1. I gave judgment on 27 April 2018 on an application by the Commissioner of Police under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW). One of the defendants in that application was one Mitchell Cole. The restrictions I imposed on the defendants, including Mr Cole, are set out at para [63] of the judgment: Commissioner of Police v Cole [2018] NSWSC 517.

2. At the time the application was heard, none of the defendants made any application to be permitted, for example, to travel in a vehicle between the prohibited hours by reason of their employment commitments. It has subsequently emerged that Mr Cole needs the restrictions that I imposed to be lifted to some extent to satisfy his employment needs. I have in that regard an affidavit of Philip Baker, who is the director of a company called Opalescent Group Pty Ltd, for which company Mr Cole works. It is apparent that it is necessary for the restrictions that I imposed to be qualified to some extent if Mr Cole is to continue working for this company.

3. Section 12 of the Act enables a variation to be made by either the applicant, that is the Commissioner of Police, or the person against whom the order is made. If an application is made by a defendant, leave to make such an application is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made. That does not appear to be the case here. There was simply an omission to seek that the restrictions be appropriately modified to enable Mr Cole to work. For that reason the Commissioner has made application by summons dated 23 August 2018.

4. There is no restriction on the Court's ability to vary the orders on an application by the Commissioner. The Commissioner has quite properly done so because he accepts that it is appropriate that the orders be varied in the way that Mr Cole seeks.

5. In my opinion, the purposes of the Act can only be furthered by persons against whom restrictions are imposed continuing to work in their employment. Indeed, it is likely to be inimical to those purposes if restricted persons cannot continue with, or seek, lawful employment. It was for that reason that I imposed some modified restrictions in an associated matter of the Commissioner of Police v Bowtell (No 2) [2018] NSWSC 520.

6. Accordingly, I will make an order in terms of paragraph 1 of the summons filed by the Commissioner on 23 August 2018.

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Amendments

26 October 2018 - Title sheet amended re solicitors details.

26 October 2018 - Title sheet amended re solicitors details.

Decision last updated: 26 October 2018