Lee v NSW Commissioner of Police (No.2)
[2017] NSWSC 1789
•01 December 2017
Supreme Court
New South Wales
Medium Neutral Citation: Lee v NSW Commissioner of Police (No.2) [2017] NSWSC 1789 Hearing dates: 1 December 2017 Date of orders: 01 December 2017 Decision date: 01 December 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) Declare that the search warrant issued by the third defendant on 21 February 2017 is invalid.
(2) Order that the decision of the third defendant to issue that warrant be quashed.
(3) Declare that the search of the plaintiff's premises on 22 February 2017 and the seizure of items from those premises was not authorised by the search warrant purportedly issued by the third defendant on 21 February 2017.
(4) Order that at 10 am on Tuesday 5 December 2017 the defendants, or their servants or police officers, are to deliver up to the plaintiff at Unit 416, 4 Neild Street, Rushcutters Bay, New South Wales 2011, all goods, papers, items and things seized from the plaintiff or her premises on 22 February 2017.
(5) Order the defendant to pay the plaintiff's costs of and incidental to the proceedings.Catchwords: ADMINISTRATIVE LAW – search warrant – where search warrant has been quashed – whether orders should be made in relation to seized property- parties ordered to return property – any further conduct left to parties Legislation Cited: Not Applicable Cases Cited: Lee v NSW Commissioner of Police [2017] NSWSC 1594 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Denise Lee (P)
New South Wales Commissioner of Police (D1)
Meegan Peebles (D2)
Tim Henderson (D3)Representation: Counsel:
Solicitors:
Mr M Robinson SC / Ms L Bewsher (P)
Mr M Spartalis (D1, D2)
Lenz Legal (P)
Makinson D’Apice Lawyers (D1, D2)
Crown Solicitors (D3)
File Number(s): 2017/60246 Publication restriction: Not Applicable
EX TEMPORE Judgment
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On 23 November 2017 I delivered judgment in these proceedings: Lee v NSW Commissioner of Police [2017] NSWSC 1594.
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On the issues which I was then asked to determine, I concluded that the search warrant issued by the third defendant on the application of the second defendant was invalid. It follows that items seized were not authorised by that warrant and the execution of the warrant itself was not authorised.
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An issue has arisen between the parties as to the proper orders which ought now be made. The defendants submitted that no orders should be made because, in the exercise of its discretion, the Court should not fragment existing criminal proceedings which are presently before the Local Court. They submit that the proceedings should be dismissed.
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Undoubtedly such a discretion exists. However, it seems to me that, in the particular circumstances of this case, to refrain from making an order and in effect to dismiss the proceedings would result in a significant waste of time and funds. It may allow the Local Court to make a conflicting order and reach an opposite conclusion to that reached in this Court which is not in the interests of justice. It is appropriate to make orders with respect to the search warrant broadly in accordance with the way the plaintiff proposes in orders 1 and 2 of its proposed orders of 27 November.
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Another issue has arisen as to what should happen to the property which was seized, purportedly pursuant to the warrant. There are a number of issues surrounding that property. One is whether it was all seized pursuant to the warrant or whether some were seized legitimately on the authority of another basis; a second is whether part of the material is legally professionally privileged; and a third is whether there is any ready mechanism by which the seizure of the property can be in effect reversed but that a properly sworn and issued warrant, could nevertheless be issued.
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In the absence of any agreement between the parties which might reasonably resolve this issue, it seems to me that the most expedient and rational course is to fix a time for the return of the items that were seized, and to leave to the parties themselves such conduct as they may wish to engage in.
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I make the following orders and declarations:
Declare that the search warrant issued by the third defendant on 21 February 2017 is invalid.
Order that the decision of the third defendant to issue that warrant be quashed.
Declare that the search of the plaintiff's premises on 22 February 2017 and the seizure of items from those premises was not authorised by the search warrant purportedly issued by the third defendant on 21 February 2017.
Order that at 10 am on Tuesday 5 December 2017 the defendants, or their servants or police officers, are to deliver up to the plaintiff at Unit 416, 4 Neild Street, Rushcutters Bay, New South Wales 2011, all goods, papers, items and things seized from the plaintiff or her premises on 22 February 2017.
Order the defendant to pay the plaintiff's costs of and incidental to the proceedings.
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Decision last updated: 18 December 2017
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