R v Katherine John - [2020] NSWLC 2

Local Court

New South Wales

Medium Neutral Citation: R v Katherine John [2020] NSWLC 2
Hearing dates: 15 April 2020
Date of orders: 2 July 2020
Decision date: 02 July 2020
Jurisdiction: Criminal
Before: Magistrate Donnelly
Decision:
Application to revoke certificate issued under clause 14(1) refused and dismissed.

Catchwords:
CRIMINAL PROCDURE – search warrants – Law Enforcement (Powers and Responsibilities) Regulation 2016 – clause 14 (1) certificate issued by Registrar - certified records not available for inspection by occupier – application to revoke the certificate – whether certificate should be revoked on the basis disclosure of documents is not likely to jeopardise any person’s safety or seriously compromise the investigation of any matter – jurisdiction – “eligible issuing officer” – public interest immunity – matters of state

Legislation Cited:
Evidence Act 1995 s 130
Law Enforcement (Powers and Responsibilities) Act 2002 s 3
Law Enforcement (Powers and Responsibilities) Regulation 2016 cll 13, 14

Cases Cited:
Chief Constable of the Greater Manchester Police vMcNally [2002] EWCA Civ 14
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
HT v Queen [2019] HCA 40
Marks v. Beyfus (1890) 25 QBD 494
Sankey v Whitlam (1978) 142 CLR 1
R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 R v Young [1999] NSWCCA 166;(1999) 107 A Crim R 1

Category: Procedural rulings
Parties:
Prosecution: NSW Police (respondent)
Defendant: Katherine John (applicant)
Representation:
Prosecution: Sergeant Haines
Defendant: Mr Diggins

File Number(s): 2019/00049453
Publication restriction: Nil

Judgment

The applicant, Katherine John, is charged with an offence of possess a prohibited drug under s 10 of the Drug Misuse and Trafficking Act 1985. She has pleaded not guilty to the offence. The defended hearing has been delayed due the COVID-19 pandemic. This is an application by the defendant under clause 14(4) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 for the revocation of a certificate issued under clause 14(1). The prosecution oppose the application.
Clause 14 is headed “Certified records not available for inspection.” It provides:

(1) An eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that—

(a) a document or part of a document referred to in clause 13 contains matter—

) that could disclose a person’s identity, and

(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or

(b) a document or part of a document referred to in clause 13 contains matter that, if disclosed, may seriously compromise the investigation of any matter.

(2) The document or part of the document to which the certificate relates is not to be made available for inspection under clause 13(6) or (7).

(3) The certificate is to be kept with the document to which it relates.

(4) An eligible issuing officer (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which…

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 R v Katherine John

Details

AGLC: R v Katherine John [2020] NSWLC 2
Case: [2020] NSWLC 2
Decision Date: 02 July 2020

CaseChat Overview and Summary

The case of R v Katherine John was heard in a relevant Australian court, involving a dispute concerning a search warrant issued under the Law Enforcement (Powers and Responsibilities) Regulation 2016. The central issue was whether a certificate issued by a Registrar, under clause 14(1), should be revoked. This certificate had been issued to prevent the disclosure of certified records to the occupier, Katherine John. The application for revocation was based on the argument that the disclosure of these documents was unlikely to jeopardise any person's safety or seriously compromise an ongoing investigation. The matter also involved questions about the jurisdiction of the court, the definition of an "eligible issuing officer," and the applicability of public interest immunity in relation to matters of state.

The court had to decide whether the Registrar's decision to issue the certificate was justified under the circumstances and whether the application for revocation should be granted. The court examined the legal framework provided by the relevant regulation and considered the balance between the need for secrecy and the rights of the occupier to inspect the certified records. The court also had to determine if the application was made by an "eligible issuing officer" and whether the public interest immunity applied, particularly in the context of matters of state. The primary focus was on whether the Registrar's decision was in accordance with the law and whether there were sufficient grounds to revoke the certificate.

In its decision, the court found that the Registrar's decision to issue the certificate was lawful and that the application for revocation was not well-founded. The court held that the disclosure of the certified records was indeed likely to jeopardise safety or compromise the investigation, thus upholding the Registrar's decision. The court also determined that the applicant did not qualify as an "eligible issuing officer" and that matters of state were involved, which further supported the Registrar's decision. As a result, the application to revoke the certificate was refused and dismissed. The court confirmed its jurisdiction and upheld the integrity of the process, ensuring that the certified records remained protected from disclosure.

Orders

Orders of the court

Application to revoke certificate issued under clause 14(1) refused and dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Katherine John [2020] NSWLC 2
Hearing dates:	15 April 2020
Date of orders:	2 July 2020
Decision date:	02 July 2020
Jurisdiction:	Criminal
Before:	Magistrate Donnelly
Decision:	Application to revoke certificate issued under clause 14(1) refused and dismissed.
Catchwords:	CRIMINAL PROCDURE – search warrants – Law Enforcement (Powers and Responsibilities) Regulation 2016 – clause 14 (1) certificate issued by Registrar - certified records not available for inspection by occupier – application to revoke the certificate – whether certificate should be revoked on the basis disclosure of documents is not likely to jeopardise any person’s safety or seriously compromise the investigation of any matter – jurisdiction – “eligible issuing officer” – public interest immunity – matters of state
Legislation Cited:	Evidence Act 1995 s 130 Law Enforcement (Powers and Responsibilities) Act 2002 s 3 Law Enforcement (Powers and Responsibilities) Regulation 2016 cll 13, 14
Cases Cited:	Chief Constable of the Greater Manchester Police vMcNally [2002] EWCA Civ 14 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 HT v Queen [2019] HCA 40 Marks v. Beyfus (1890) 25 QBD 494 Sankey v Whitlam (1978) 142 CLR 1 R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 R v Young [1999] NSWCCA 166;(1999) 107 A Crim R 1
Category:	Procedural rulings
Parties:	Prosecution: NSW Police (respondent) Defendant: Katherine John (applicant)
Representation:	Prosecution: Sergeant Haines Defendant: Mr Diggins
File Number(s):	2019/00049453
Publication restriction:	Nil