Lawrence v NSW Police Service - [2004] NSWSC 59

Reported Decision:
144 A Crim R 396

Supreme Court

CITATION: LAWRENCE v. NSW POLICE SERVICE & ANOR [2004] NSWSC 59

HEARING DATE(S): Monday 16 February 2004

JUDGMENT DATE:
16 February 2004

JURISDICTION:
Civil

JUDGMENT OF: Greg James J at 1

DECISION: Both warrants quashed. Declare that both warrants at the time of their issue did not comply with the requirements of the Act, as to be warrants under s.16 having the lawful effect the Act would have conferred upon valid warrants. Second defendant to pay the plainitff's costs of the proceedings.

CATCHWORDS: Administrative law - listening device warrants - necessary compliance with statutory requirements for issue - sufficient description of prescribed offence - definition of prescribed offence - inability to relate terms used in warrant referring to prescribed offence as referring to any partciular offence known to the law.

LEGISLATION CITED: Controlled Substances Act (SA) 1984
Listening Devices Act 1984
Business Franchise Licenses (Tobacco) Act 1987
Criminal Appeal Act 1912
Supreme Court Act 1970
Crimes Act 1900
Telecommunications (Interception) Act 1979
Telecommunications (Interception) Amendment Act 1989

CASES CITED: Ousley (1997) 192 CLR 69
Commissioner of Police v. Barbaro [2001] NSWCA 57
Haynes v. Attorney General for NSW (James, J., unreported 9 February 1996)
Eade [2000] NSWCCA 369
Bayeh v. Taylor & Ors (Grove, J., unreported 4 February 1998)
Eid & Ors [1999] NSWCCA 59
Tillett; ex parte Newton [1969] 14 FLR 101
Coward v. Allen (1984) 52 ALR 320

PARTIES :
LAWRENCE, Mark Homelsdale v.
NEW SOUTH WALES POLICE SERVICE & ANOR

FILE NUMBER(S): SC No. 13130 of 2003

COUNSEL: Plaintiff: M. Abbott
Defendant: P.J. Saidi

SOLICITORS: Plaintiff: Patsouris & Associates
Defendant: I.V. Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

MONDAY 16 FEBRUARY 2004

No. 13130 of 2003

MARK HOMELSDALE LAWRENCE v. NEW SOUTH WALES POLICE SERVICE & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff by summons sought orders that two listening device warrants issued by judges of this court, the first by Barr, J. on 1 August 2002, the second by Buddin, J. on 22 August 2002, were void and had no legal effect. Also sought were orders that the use of listening devices by certain named persons were not authorised by either of the warrants and orders that each of the warrants be quashed. The warrant issued by Barr, J. was designated UC02/46(b) and that by Buddin, J., UC02/52(a). Orders were also sought that the second defendant pay the plaintiff’s costs. No issue arises as to my jurisdiction to make those orders. The first defendant submits to such order as the court might make. The second defendant opposes the making of the orders sought.

2 An affidavit of the plaintiff’s instructing solicitor has been filed and read. That affidavit referred to the plaintiff having been charged with certain criminal offences in respect of which a committal proceeding is listed in the Adelaide Magistrates Court on 24 February 2004. Although the affidavit does not directly say so, the proceedings before me…

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.

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Details

Case: [2004] NSWSC 59
Decision Date: 16 February 2004

CaseChat Overview and Summary

In Lawrence v NSW Police Service, the respondent, a police officer, applied for a warrant to place a listening device on the appellant's home. The application was granted by a magistrate who had been provided with an affidavit outlining the reasons for the application. The magistrate did not know the specific offence for which the warrant was sought, but the affidavit described the prescribed offence as an offence under the Crimes Act 1900 (NSW) punishable by imprisonment for more than 12 months. The appellant was subsequently convicted of drug-related offences and challenged the validity of the warrant on the basis that it was issued without sufficient description of the prescribed offence. The court was required to determine whether the warrant was validly issued, specifically whether the magistrate was provided with sufficient information about the prescribed offence.

The court held that the magistrate must be provided with sufficient information to enable them to determine whether the statutory requirements for the issue of a warrant have been complied with. The court considered whether the description of the prescribed offence was sufficient to enable the magistrate to determine whether the statutory requirements had been met. The court noted that the Crimes Act did not define "prescribed offence" and therefore the term could not be interpreted by reference to any particular offence known to the law. The court held that the terms used in the warrant referring to the prescribed offence could not be related to any particular offence known to the law and were therefore insufficient. The court held that the warrant was invalid as it did not contain a sufficient description of the prescribed offence.

The court quashed the conviction and ordered that the evidence obtained by the listening device be excluded from any future trial. The court held that the invalidity of the warrant meant that the evidence obtained as a result of the warrant was inadmissible. The court held that the evidence was obtained as a result of the invalid warrant and was therefore inadmissible. The court held that the conviction was quashed and ordered that the evidence obtained by the listening device be excluded from any future trial.

Orders