Commissioner of Police v Raed Hariz (No 2)

[2019] NSWSC 904

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Commissioner of Police v Raed Hariz (No 2) [2019] NSWSC 904
Hearing dates:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Continue the stay made on 29 May 2019 until the conclusion of the Local Court proceedings relating to Court Attendance Notice H69181511. (2) The stay is subject to the following conditions: (a) The New South Wales Police are to return all property seized on 23 November 2018 by 5pm on Monday, 3 June 2018 with the exception of: (i) an Apple MacBook Pro laptop serial number CO2F84KUG3QD with police exhibit number X0002570542; (ii) a black mobile telephone that has exhibit number X0002570540. (b) New South Wales Police are to make the laptop and telephone referred to in order (i) available for inspection by Mr Hariz, his lawyers and any expert retained on his behalf, such inspection to take place at the State Electronic Evidence Bureau by arrangement between the officer in charge of the investigation and the lawyers representing Mr Hariz in the criminal proceedings. (c) New South Wales Police are to provide Mr Hariz or his lawyers with a copy of the hard drive which has copied the data on the laptop referred to in order (i) by 5pm on Monday, 3 June 2019. (3) The summons is adjourned until Tuesday, 11 June 2019 at 9.30am before the Registrar for directions.
Catchwords:	CIVIL LAW – stay of orders made in Local Court – orders to return personal property seized during police investigation – society that places great stock in private property interests – pending criminal proceedings – procedural fairness
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW)
Category:	Principal judgment
Parties:	Commissioner of Police, New South Wales Police Force Raed Hariz
Representation:	Solicitors: N Regener (Plaintiff)
File Number(s):	2019/00169320

EX TEMPORE Judgment

1. HAMILL J: On Wednesday evening, 29 May 2019, at some time between 5pm and 6pm, I ordered a stay on orders made by the Local Court at Parramatta compelling the New South Wales Police to return certain personal property that had been seized by the police in the course of an investigation into various alleged criminal offences.

2. The orders were made ex parte in circumstances of some urgency and without all the information relevant being available either to the lawyers for the New South Wales Police or the Court. The orders were to remain in force until 12pm today and have since been extended until later this afternoon. The orders required the police to notify Mr Hariz that the order had been made and that I would consider whether to extend the orders or the stay today commencing at 9.30am.

3. It seems that the police were late in notifying Mr Hariz of the order. I had said to do it by 2pm yesterday, whereas it was closer to 3pm when they were in fact able to be communicated to Mr Hariz. Nothing turns on that as Mr Hariz appeared today, originally unrepresented, and then represented (possibly as amicus) by Mr Juweinat, a solicitor.

4. More information is now available and a great deal of evidence was tendered on the application. It is not possible, nor necessary, to deal with all of that evidence in the limited time available in today's duty list. What I will do is to attempt, in a pithy way, to articulate the reasons for the orders that I am about to make.

5. Since Wednesday night the New South Wales Police have given clear instructions that an appeal under the Crimes (Appeal and Review) Act 2001 (NSW) should be pursued in this Court against the impugned orders of the Magistrate.

6. An amended summons was filed and the grounds set out in the summons sought review based on what can shortly be described as a lack of procedural fairness. That arises because, on the plaintiff's case, the police were not given notice of the hearing and the Magistrate unreasonably refused an adjournment to enable the police prosecutor to present the other side of the story.

7. Based on the evidence in exhibit B, which includes the hearsay version of events provided by the Police Prosecutor, I am satisfied that the plaintiff has an arguable case for the relief sought in the summons. In saying that, I am conscious of the fact that there is a dispute between the police and Mr Hariz as to precisely what he did to notify the police of the hearing. However, for the purpose of this application, I am satisfied that there is at least an arguable case that there was an absence of procedural fairness in what went on before the Magistrate.

8. There are currently criminal proceedings pending in the Local Court. The parties are in dispute as to when those proceedings will finally be resolved. The plaintiff, that is to say the New South Wales Police, were of the understanding that the matter is to be resolved by way of a defended hearing on 11 July 2019, whereas Mr Juweinat's instructions are that that date relates to one of four charges and the remaining charges were to be heard later in the year.

9. The criminal proceedings in very short form arise out of a dispute between the defendant and a school in the Eastern Suburbs where his children attend. There is a lengthy narrative of the alleged facts. At this stage I note again that they are only allegations. [in exhibit D] Mr Hariz has been charged with the following offences:

1. Harass or intimidate a school staff member;

2. Recruiting a child to carry out or assist a criminal activity;

3. Harass and intimidate a school staff member; and

4. Assault a school staff member. The first, third and fourth charges also in their short form involve attendance at the school.

10. It is unnecessary to recount what are disputed allegations made by the police and it would seem by certain members of staff at the school. As I have said, it appears that there is a lively dispute between the parties as to exactly what happened and what is right and what is wrong.

11. On 23 November 2018, investigating police seized a number of items. This included at least one laptop computer and a telephone. There is a dispute about whether there was a second laptop. It is impossible to resolve that dispute today. It may well be, as was discussed in argument, the subject of separate civil proceedings.

12. For reasons which are unimportant, it took the State Electronic Evidence Bureau (‘SEEB’) many months to do its electronic interrogation of the laptop. It seems the case received reasonably low priority and even though the officer in charge had asked for a report some months earlier, the report did not become available until, as I understand it, 15 May 2019.

13. The SEEB have yet to have success in examining the telephone. That is, as I understand it, again because the PIN number of the telephone is not available.

14. The investigating police and, therefore, the New South Wales Police Force, wish to keep custody of those two items until the hearing in order to maintain the integrity of the evidence and possibly to undertake further examination of the two items. In the meantime, the SEEB have created a hard drive upon which is copied all of the data stored on the laptop and made available in readable form.

15. The New South Wales Police are happy to return all of the items of property except for the nominated laptop and the telephone.

16. Mr Hariz wants all of his property back. That is why he brought the proceedings in the Local Court and he convinced the Magistrate that he should have his property back. He has very valid reasons for this which I will summarise in three items:

1. It is his property. He paid for it, he has had use of it and it is, when all is said and done, his.

2. The laptop is an important tool for his business. It has, I am told, vital information on it that he needs to conduct his business which I am told involves dealing with and selling things to foreign military or defence forces.

3. There is material stored on the laptop which may assist him in his defence of the criminal charges.

17. The second and third of those considerations can be met by the imposition of conditions requiring the police to provide him with a copy of the hard drive and other conditions to ensure that Mr Hariz is able to conduct his business, examine the laptop and conduct those inquiries that he needs to prepare himself to defend himself in the criminal proceedings.

18. The first consideration is both valid and fundamental in a society that places such stock in personal property interests. However, the hearing is only some months away and ordinarily, at least, evidence to be used in criminal proceedings is maintained and kept by the prosecuting authority. I am told, and I must for present purposes accept, that the laptop and telephone may be tendered as exhibits in the hearing. Maintenance of the exhibits may also be important if there is any suggestion at the hearing that the laptop or telephone had been tampered with whilst in police custody.

19. While I have considerable sympathy for Mr Hariz's position, I am satisfied that the balance of convenience favours continuing the stay until the conclusion of the Local Court hearing. That continuance, however, will be subject to various conditions which were discussed in the course of argument.

20. For those reasons, I make the following orders:

1. Continue the stay made on 29 May 2019 until the conclusion of the Local Court proceedings relating to Court Attendance Notice or CAN H69181511.

2. The stay is subject to the following conditions:

1. The New South Wales Police are to return all property seized on 23 November 2018 by 5pm on Monday, 3 June 2018 with the exception of:

1. an Apple MacBook Pro laptop serial number CO2F84KUG3QD with police exhibit number X0002570542;

2. a black mobile telephone that has exhibit number X0002570540.

2. New South Wales Police are to make the laptop and telephone referred to in order (i) available for inspection by Mr Hariz, his lawyers and any expert retained on his behalf. Such inspection is to take place at the State Electronic Evidence Bureau by arrangement between the officer in charge of the investigation and the lawyers representing Mr Hariz in the criminal proceedings.

3. New South Wales Police are to provide Mr Hariz or his lawyers with a copy of the hard drive which has copied the data on the laptop referred to in order (i) by 5pm on Monday, 3 June 2019.

21. [FOR SUBMISSIONS (after judgment) SEE TRANSCRIPT]

1. The summons is adjourned until Tuesday, 11 June 2019 at 9.30am before the Registrar for directions.

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Amendments

21 February 2024 - Publication restriction removed

Decision last updated: 21 February 2024