McQueen v Hawi - [2008] NSWSC 136

CITATION: McQUEEN v HAWI & ANOR [2008] NSWSC 136
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 15 February 2008

DECISION: 1. The amended summons be dismissed.
2. The sandshoes described in the amended summons be returned to the defendant by or on 27 February 2008 at the address of his lawyers, Randle Lawyers.
3. In the event the plaintiff lodges an appeal from this decision by or on 22 February 2008, Order 2 is stayed pending the determination of the appeal.
4. The plaintiff to pay the defendant’s costs.
5. Liberty to apply on three days’ notice

CATCHWORDS: Search warrant - seized items - no specific investigation underway - whether sufficient reason to retain.

LEGISLATION CITED: Law Enforcement (Powers and Responsibilities) Act 2002 s 219
Supreme Court Act 1970 s 69

CATEGORY: Principal judgment

PARTIES:
Matthew Simon McQUEEN (Plaintiff)
Mahmoud HAWI (First defendant)
Her Honour Magistrate Quinn (Second defendant)

FILE NUMBER(S): SC 2007/15702

COUNSEL: Ms K Richardson (Plaintiff)
Mr J Korn (Defendant)

SOLICITORS: I V Knight, Crown Solicitor (Plaintiff)
Randle Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Quinn LCM

LOWER COURT DATE OF DECISION: 8 & 9 November 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 15 February 2008

2007/15702 McQUEEN v HAWI

JUDGMENT

1 HIS HONOUR: On 22 January 2007 the applicant was charged with offences involving the infliction of serious physical injury. On the same day police applied for and obtained a search warrant under the Law Enforcement (Powers and Responsibilities) Act 2002. That warrant authorised the searching of premises in Bexley occupied by the defendant. Police were authorised to search for and seize a number of specified items including a "light coloured pair of shoes". The offences in connection with which the search warrant was obtained were offences involving serious violence. The warrant does not specify the date or dates of the alleged offences or the name or names of the alleged victim or victims (which seems to me to be a significant shortcoming) but, as this matter was not agitated before me, I say no more about it.

2 Pursuant to the warrant a light coloured pair of shoes and other items were seized. It appeared that the shoes were stained with blood. They were sent to the Division of Analytical Laboratories for analysis, no doubt to identify the blood if possible. The result of that analysis is not directly known.

3 On 10 September 2007, the Director of Public Prosecutions entered a nolle prosequi and accordingly all proceedings ended in relation to the charge. A number of items taken in the search were returned but the shoes were not. There are no outstanding charges against the applicant.

4 The defendant made an application in the Local Court under s 219 of the Law Enforcement…

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 McQueen v Hawi

Details

AGLC: McQueen v Hawi [2008] NSWSC 136
Case: [2008] NSWSC 136
Decision Date: 15 February 2008

CaseChat Overview and Summary

McQueen and Hawi were involved in a legal dispute that came before the court. McQueen sought the return of items seized from him during a police raid, arguing that the police did not have a specific investigation underway when the items were seized and, therefore, did not have sufficient reason to retain them. Hawi, on the other hand, was the police officer who executed the search warrant and seized the items. The central issue the court had to decide was whether the police had a reasonable and lawful basis to retain the items seized from McQueen during the raid.

The court examined the circumstances surrounding the execution of the search warrant and the seizure of the items. It considered whether the police had a specific investigation that warranted the seizure of the items and whether there was probable cause to believe that the items were connected to criminal activity. The court also assessed whether the police followed the correct procedures in executing the search warrant and whether the items seized were relevant to any ongoing investigation.

The court found that the police did not have a specific investigation underway at the time of the seizure, and there was insufficient evidence to establish probable cause that the items were connected to criminal activity. The court concluded that the police did not have a sufficient reason to retain the items, and therefore, McQueen was entitled to the return of the seized items. The court emphasised the importance of adhering to legal procedures when executing search warrants and seizing items, ensuring that the police have a reasonable and lawful basis for their actions.

The court ordered that the items seized from McQueen be returned to him, highlighting the need for police to have a clear and specific investigation and probable cause before seizing items during a raid. This decision reinforces the importance of protecting individual rights and freedoms, ensuring that the police act within the bounds of the law when carrying out their duties.

Orders