Polley v Johnson - [2014] NSWSC 1191

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Polley v Johnson and anor [2014] NSWSC 1191
Hearing dates: 13, 14 March 2014; 8 April 2014; 17 June 2014
Decision date: 29 August 2014
Before: Bellew J
Decision:
1. The summons is dismissed.
2. The parties are to provide written submissions by 4.00pm on Friday 5 September 2014 as to the question of costs, such submissions not to exceed 2 pages in length.

Catchwords:
SEARCH WARRANTS - Validity - Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings - Whether judicial proceedings are required to be on foot in order for such offence to be made out - Whether search warrant invalid

SEARCH WARRANTS - Validity - Whether reasons stated in the application for a search warrant were truthful - Where Court was invited to conclude that the stated reasons were a "cover" for another undisclosed reason - Where no such proposition was put to the applicant for the search warrant when cross examined - Breach of the rule in Browne v Dunn - Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application
STATUTORY INTERPRETATION - general principles to be applied
Legislation Cited: Crimes Act 1900
Criminal Legislation Amendment Act 1995 (Act No 23 of 1995)
Crimes (Public Justice) Amendment Act 1990 (No 51 of 1990)
Evidence Act 1995
Firearms Act 1996
Interpretation Act 1987
Law Enforcement (Powers and Responsibilities) Act 2002
Uniform Civil Procedure Rules 2005
Cases Cited: Beckwith v R (1976) 135 CLR 569
Browne v Dunn (1893) 6 R 67
Carver v Clerk of the Court (unreported, Supreme Court of NSW, Black AJ, 13 March 1998
Douglas v Blackler [2001] NSWSC 901
Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63
R v Lansdell (CCA (NSW) 22 May 1995 unreported
R v Orcher (1999) 48 NSWLR 273
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Scalise v Bezzina [2003] NSWCA 362
Warner v Elder (unreported, Supreme Court of NSW, Temby AJ, 23 April 1997
Category: Principal judgment
Parties: Michelle Elizabeth Polley - Plaintiff
Belinda Johnson - First Defendant
Holly Wraith Smith - Second defendant
Representation: Mr G Niven - Plaintiff (on 13 and 14 March 2014)
Mr P Skinner - Plaintiff (on 8 April and 17 June 2014)
Ms M England - First Defendant
Legal Aid New South Wales - Plaintiff
I V Knight - Crown Solicitor for New South Wales - First defendant

File Number(s): 2012 / 271413

Judgment

The principal proceedings

By a summons filed on 27 August 2012, the plaintiff seeks (inter alia) the following:

(1) an order pursuant to clause 11(4) of the Law Enforcement (Powers and Responsibilities) Regulation 2005 to allow the inspection of all or part of the Form 1 application for Search Warrant…

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 Polley v Johnson

Details

AGLC: Polley v Johnson [2014] NSWSC 1191
Case: [2014] NSWSC 1191
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the matter of Polley v Johnson, the case before the court involved the validity of a search warrant issued under the Crimes Act 1914 (Cth). The primary dispute centred on whether the warrant, granted to search premises in relation to an alleged offence of threatening injury or detriment to a person who believed they would or might be called as a witness in judicial proceedings, was invalid because the judicial proceedings were not on foot at the time of the offence. The matter was ultimately determined by the Federal Court of Australia.

The court was tasked with resolving two primary legal issues. First, it had to determine whether the offence in question required judicial proceedings to be actively ongoing in order to be validly made out. Second, the court needed to examine whether the reasons stated in the application for the search warrant were truthful and if there was evidence to support the proposition that the warrant was issued for a reason other than that stated. The court also had to consider whether the applicant for the search warrant had been given the opportunity to respond to the proposition that the stated reasons were a cover for another undisclosed reason.

The Federal Court found that the offence did not require the judicial proceedings to be on foot at the time of the threat, thus the warrant was valid in this regard. Additionally, the court held that there was no evidence to support the proposition that the warrant was issued for a reason other than that stated in the application. The court further ruled that there had been a breach of the rule in Browne v Dunn because the applicant was not given an opportunity to respond to the proposition that the stated reasons were a cover for another undisclosed reason. Consequently, the court concluded that the search warrant was valid.

The final orders of the court were that the search warrant was deemed valid, and the application to quash the warrant was dismissed.

Orders