Commissioner of Police v Pecover

The appeal before the court involved a matter where the Commissioner of Police sought the forfeiture of two computer drives containing child pornography. The applicant argued that the drives belonged to the respondent, Pecover, and should be forfeited to the Crown. The case was initially heard by a magistrate, who made certain orders, which were subsequently appealed. The appeal was heard in the NSW Court of Criminal Appeal. The primary legal issue before the court was whether the magistrate had erred in law by misapprehending the onus of proof in relation to the respondent's entitlement to possession of the computer drives. The court also considered whether the magistrate had failed to provide adequate reasons for the decision and whether the magistrate had taken into account matters that were not of common knowledge.

The court held that the magistrate had misapprehended the onus of proof. The onus of proof was on the respondent to establish a lawful entitlement to possession of the computer drives. The court found that the magistrate had incorrectly placed the onus on the police to disprove the respondent's entitlement. The court also found that the magistrate had failed to give any reasons for the decision and had taken into account matters that were not of common knowledge. The court held that the magistrate's orders should be set aside and the matter should be remitted to the Local Court for rehearing. The court emphasised the importance of ensuring that the onus of proof is correctly applied and that adequate reasons are provided for any decision made. The court also noted that the magistrate should not take into account matters that are not of common knowledge without providing adequate reasons for doing so.