Gibbons v Evans & Anor - [2008] NSWSC 495

CITATION: Gibbons v Evans & Anor [2008] NSWSC 495

HEARING DATE(S): 14 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 14 May 2008

DECISION: Summons dismissed. Plaintiff to pay the second defendant's costs.

CATCHWORDS: Search warrant - innocent but careless - mistake in alleged facts - warrant would still have been issued - warrant valid.

LEGISLATION CITED: Crimes Act 1900 s 91H(3)

CATEGORY: Principal judgment

CASES CITED: Connell v Miller & Ors (unreported, NSWSC, Latham J, 12 February 2007
Vincent v Randall [1999] NSWSC 833

PARTIES: Christopher GIBBONS (Plaintiff)
Rory EVANS (First defendant)
Detective Senior Constable Patricia JONES (Second defendant)

FILE NUMBER(S): SC 2007/10515

COUNSEL: Mr R Johnson (Plaintiff)
Mr L Babb SC with Ms A Mitchelmore (Second defendant)
(No appearance for first defendant)

SOLICITORS: Edwards Legal Service (Plaintiff)
I V Knight (First and second defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Wednesday, 14 May 2008

10515/07 – Christopher GIBBONS v Rory EVANS & Anor

JUDGMENT

1 HIS HONOUR: On 20 June 2005 Detective Senior Constable Jones was on duty at Blacktown Police Station and applied for a search warrant following an interview that she had conducted on that day with a Ms Rosemaree Rich. The relevant offence specified in the application was that of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900.

2 Ms Rich told Senior Constable Jones that she had discovered on the plaintiff's computer a link to a child pornography website which, when accessed, showed images plainly falling within the definition of child pornography in s 91H(1). The link was identified by her when she went to the history saved by Windows Explorer. Ms Rich’s statement, which is an extensive one, is susceptible of some ambiguity, in that on one reading it might have been taken to suggest that Ms Rich had seen, or believed she had seen, images already saved on the computer as distinct from images which were displayed by accessing the link.

3 I think that any careful reading of the statement would have led inevitably to the conclusion that Ms Rich had not in fact accessed images stored on the computer but had seen the images on the website, which she believed for good reasons had been earlier accessed by the plaintiff.

4 Ms Rich also told the officer that, immediately before the plaintiff had loaned the computer to her, he had deleted a number of files in circumstances that raised her suspicions about the nature of the files, though she did not for one moment think that they might have been files containing images of child pornography. When she later confronted the plaintiff, she asked about the files being deleted and he answered, in substance, that they contained adult pornography. She then said to him that she saw the images of the young girls and the plaintiff responded that he was curious and had only accessed the site once.

5 I think…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibbons v Evans & Anor

Details

AGLC: Gibbons v Evans [2008] NSWSC 495
Case: [2008] NSWSC 495
Decision Date: 14 May 2008

CaseChat Overview and Summary

Gibbons v Evans & Anor involved a challenge to the validity of a search warrant issued by a magistrate under the Crimes (Search Warrants) Act 1992 (NSW). The applicant, Gibbons, sought to have the warrant declared invalid on the grounds that the magistrate had made an error in the facts of the application. Gibbons contended that the warrant should be quashed because the magistrate had incorrectly believed certain facts which were not actually present, and that if these facts had been correctly identified, the warrant would not have been issued. The respondent, Evans, along with the police, argued that the warrant was valid despite the factual errors, as the errors were not so fundamental as to render the warrant invalid.

The court was required to determine whether the warrant was valid given the factual errors in the magistrate's decision-making process. This involved assessing whether the magistrate's error in the alleged facts was such that it would have affected the decision to issue the warrant, and if the warrant would still have been issued based on the correct facts. The court also had to consider whether the errors were so significant as to undermine the magistrate's decision-making process to such an extent that the warrant was invalid.

The court found that the magistrate's errors in the alleged facts were not of such a nature as to invalidate the warrant. The court held that the magistrate would still have issued the warrant even if the errors had not occurred, as the correct facts were not fundamentally different from those presented. The court reasoned that the magistrate's errors did not affect the overall decision-making process and the warrant was issued based on sufficient evidence. The court concluded that the warrant was valid, and the challenge by Gibbons was dismissed.

The court's final order was that the application by Gibbons to have the warrant declared invalid was dismissed, and the warrant remained valid. The court found no merit in Gibbons' argument that the warrant should be quashed due to the magistrate's errors in the alleged facts.

Orders