Commissioner of Police v Raed Hariz

[2019] NSWSC 903

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Commissioner of Police v Raed Hariz [2019] NSWSC 903
Hearing dates:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1)   Stay of the order made by the Local Court at Parramatta (Magistrate Funston) on 23 and 24 May 2019 in proceedings 2019/00140971 known as Raed Hariz v the New South Wales Police, ordering the New South Wales Police to return property including two Apple Mac laptops, two mobile phones, 64 USBs, 136 printed papers in manila folders and other items; (2)   Order the New South Wales Police Force to serve a sealed copy of this order on Raed Hariz by 2pm on Thursday 30 May 2019; (3)   The stay is to remain in force until Friday 31 May 2019 at 12pm or until further order of this court; (4)   Adjourn the proceedings until 9.30am on Friday 31 May 2019 for further hearing before me; (5)   Any affidavits or submissions, the submissions to be of no greater than five pages, to be filed with my Associate by 9am on Friday 31 May 2019.
Catchwords:	CIVIL LAW – urgent application for stay – procedural fairness – return of property to be used as evidence in criminal proceedings – ex parte hearing – short stay granted
Legislation Cited:	Local Court Act 2007 (NSW)
Category:	Principal judgment
Parties:	Commissioner of Police Raed Hariz
Representation:	Solicitors: N Regener (Plaintiff)
File Number(s):	2019/169320

EX TEMPORE Judgment

1. HAMILL J: It is 5.30pm on Wednesday 29 May 2019, and a little over half an hour ago the legal representatives of the New South Wales Police Force approached my Associate in order to make an urgent application for the stay of an order made by the Local Court at Parramatta on 23 and 24 May 2019. Because of the urgency of the matter, the legal representatives of the Commissioner of Police do not have a great deal of information about it. However, there is sufficient information to proceed to make orders on a very limited and temporary basis, and the circumstances of urgency will become clear from what I am about to say.

2. Attempts were made to notify the other affected party, that is, Raed Hariz, of the fact that this application was going to be made. Those attempts were not successful, and I determined that it was appropriate in the circumstances to deal with the matter on an ex parte basis.

3. The summons was filed in Court along with an affidavit of the Commissioner's lawyer, Nicholas Scott Regener, which attaches three annexures that give at least some background to the court case. The proceedings in the Local Court were, it seems, commenced by Raed Hariz against the New South Wales Police Force and were directed to obtain orders involving the return of certain personal property which is detailed in the application to the Local Court under s 45 of the Local Court Act 2007 (NSW).

4. That property consisted of, as described: two Apple Mac laptops, two mobile phones, 64 USB’s, 136 pages of printed papers in multi-manila folders, multiple power cords, chargers and accessories, official documents, stationery, business cards and business proposals.

5. The circumstances in which that property came to be in the possession of the New South Wales Police Force is not presently known. However, the officer in charge of the criminal proceedings to which I presently refer indicated that they were part of a criminal investigation, and an intention was to use some or all of those items in evidence in criminal prosecution. The nature of the criminal prosecution, again due to the urgency of the matter and Mr Regener's difficulty in obtaining information, is not known. What is known is that the offences for which Mr Hariz is charged are listed for hearing at the Downing Centre Local Court on 11 July 2019.

6. The information Mr Regener has received, as set out in his affidavit, is that while the application by Mr Hariz for the return of the property was filed or dated on 6 May 2019, it was not served on New South Wales police, perhaps at all, but definitely not until the matter was listed for hearing or was about to be heard on 23 May 2019. At that stage a Police Prosecutor who knew nothing about the matter was presented with the paperwork and sought an adjournment from the learned Magistrate on the basis that he knew nothing about the matter.

7. The information presently before the court is that that application was refused, that is, the adjournment application was refused and the Prosecutor proceeded with no knowledge of the case at all, as far as I can tell. It is not known at this stage what went on before the Magistrate or what interest Mr Hariz identified as making it necessary to return material that was thought to be evidence in the criminal proceedings. The Magistrate, however, made orders on 23 May 2019 that the property be returned, and that is recorded in an entry on JusticeLink. The following day, in circumstances which are as mysterious as all other aspects of the case, the Magistrate made a variation to the order in which the result is recorded on JusticeLink as:

"Application granted, all property to be returned to owner within seven days."

8. All I can do at this stage, in the absence of any submission from Mr Hariz, is to accept what are essentially hearsay statements in the evidence that I have. And, importantly, that includes accepting that the items subject of the order to return are items intended to be used in criminal proceedings. They may be significant, they may not be, I simply do not know. But in order to maintain the potential integrity of the prosecution case and the police investigation, and for a short period, it is appropriate that I stay the orders of the Magistrate until the police are in a better position to present to me their case as to why the property ought not to be returned; and Mr Hariz is notified of the present proceedings and has an opportunity to present to me his arguments as to why he should get the property back or, perhaps more correctly, why the Magistrate's order should stand.

9. At this stage the Police Commissioner has invited Mr Regener to advise on the prospects and wisdom of an appeal against the decision of the Magistrate. Potentially that appeal would become a futile exercise unless a stay is ordered, at least in the short term. What I propose to do is to order the stay now but only have it in force for about two days. And I will then give the parties the opportunity to present more evidence, and address anything further on the appropriate resolution on Friday morning at 9.30am. I will make orders to that effect, including orders that will facilitate Mr Hariz being served with this notice and notified of the date that the matter will proceed.

10. So the orders of the court are these:

1. I order a stay of the order made by the Local Court at Parramatta (Magistrate Funston) on 23 and 24 May 2019 in proceedings 2019/00140971 known as Raed Hariz v the New South Wales Police, ordering the New South Wales Police to return property including two Apple Mac laptops, two mobile phones, 64 USBs, 136 printed papers in manila folders and other items;

2. Order the New South Wales Police Force to serve a sealed copy of this order on Raed Hariz by 2pm on Thursday 30 May 2019;

3. The stay is to remain in force until Friday 31 May 2019 at 12pm or until further order of this court;

4. Adjourn the proceedings until 9.30am on Friday 31 May 2019 for further hearing before me;

5. Any affidavits or submissions - the submissions to be of no greater than five pages - to be filed with my Associate by 9am on Friday 31 May 2019.

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Amendments

21 February 2024 - Publication restriction removed

Decision last updated: 21 February 2024