R v Rebecca Cook

[2017] NSWLC 24

Local Court

New South Wales

Medium Neutral Citation:

R v Rebecca Cook [2017] NSWLC 24

Hearing dates:

10 March 2017 and 7 July 2017

Decision date:

24 August 2017

Jurisdiction:

Criminal

Before:

Magistrate D Heilpern

Decision:

See paragraphs 29 and 63

Catchwords:

CRIMINAL LAW – Procedure - Warrants, arrest, search, seizure and incidental powers - Validity of warrant – whether evidence improperly or illegally obtained

Legislation Cited:

Evidence Act 1995 (NSW) s 138
Interpretation Act 1987 (NSW) ss 34,35
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 36

Cases Cited:

DPP v Kaba [2014] VSC 52
George v Rockett [1990] HCA 26
Olmstead v United States (1928) 277 US 438
Plenty v Dillon [1991] HCA 5
R v Buddee [2016] NSWDC 422
R v Paul Kenneth Rowley (Unreported, Local Court of New South Wales, Grogin LCM, 22 January 2015)
R v Poulakis (No 1) [2015] ACTSC 189
R v Sibbraa [2012] NSWCCA 19

Category:

Procedural and other rulings

Parties:

NSW Police (prosecution)
Rebecca Cook (defendant)

Representation:

Solicitors:

 

Ms Batterson, police prosecutor

  Ms Lloyd, for the defendant

File Number(s):

2016/00295040

Publication restriction:

Nil

Judgment

1. The defendant has been charged with a series of offences and has entered a plea of not guilty to two sets of charges. The first set arises out of a series of events of 20 April 2016, and the second is a single charge arising out of events of 14 July 2016. I note that there is a drug driving charge arising out of events of 14 July 2016 to which the defendant has pleaded guilty.

2. These proceedings have been delayed considerably by successful Supreme Court action by the defence. The first set of charges arise out of the execution of a search warrant by the police at two addresses in northern NSW (which have been anonymised for the purposes of this decision). The defence challenged the validity of the search warrant and on 8 July 2017 the Supreme Court made orders that the search warrant with respect to ‘74 Smith Street’ was invalid and the decision to issue the search warrant was quashed. Further, the Supreme Court order declared that the search warrant did not authorize the search of premises at ‘72 Smith Street’. Costs were awarded in favour of the plaintiff, Ms Cook, in those proceedings.

The First Set of Charges

Facts

3. The police sought warrants from the registrar at Lismore Court for 74 (a house) and 76 (a café) Smith Street. When they arrived at the site ready to exercise the warrant the police first went to 76, and whilst there it became apparent that the house was in fact 72 not 74. The informant, Detective Pitt, organised for another officer to ring the registrar. The information that was conveyed to her was that the registrar had approved the change, and she altered the address from 74 to 72 on her paperwork. There is no issue that the informant believed that the process and the change were lawful, and she then executed the…