Sale v NSW Police

[2018] NSWLC 29

Local Court

New South Wales

Medium Neutral Citation:

Sale v NSW Police [2018] NSWLC 29

Hearing dates:

12 December 2018

Date of orders:

11 October 2018

Decision date:

11 October 2018

Jurisdiction:

Civil

Before:

LCM Brender

Decision:

See [27] - [28]

Catchwords:

CRIME — Warrant — Seizure and Forfeiture

Legislation Cited:

Disorderly Houses (Amendment) Act 1943

Restricted Premises Act 1943

Trade Mark Act 1995 (Cth)

Category:

Principal judgment

Parties:

Applicant: Brett Randall Sale
Respondent: NSW Police

Representation:

Prosecution: Sergeant Coombs
Solicitor for the defendant: Mr Cronin

File Number(s):

2016/00161699

Judgment

1. Mr Sale brings an application in his capacity as a director of the Black Uhlands motorcycle club Proprietary Limited for the return of items seized by police pursuant to a search warrant issued under s 13 of the Restricted Premises Act 1943.

2. Section 13 relevantly provides as follows:

(3) An authorised officer... may, … issue a search warrant authorising any member of the Police Force:

(a) to enter the premises, and

(b) to search the premises for, and to seize, any liquor or drug or any drinking glass, vessel, container or device referred to in section 10 (e) or any weapon or explosive.

3. The reference to s 10 (e) is a reference to the following sub paragraph:

(1) While any such declaration is in force with respect to any premises any member of the Police Force may, without warrant, do any of the following—

(e) search such premises for, and seize, any liquor and any drug in such premises and any drinking glass, vessel, container or device in such premises which is used or is capable of being used for or in connection with the storage, supply or consumption of any liquor or drug or the user or taking of any drug.

4. The application is brought pursuant to s 13A which provides as follows:

(1) Any article seized either before or after the commencement of the Disorderly Houses (Amendment) Act 1943 in any disorderly house by a member of the Police Force in pursuance of powers conferred on the member by section 10 shall be forfeited to the Crown.

(2) ….

(b) if such seizure was made after such commencement, within twenty-one days of such seizure

make application to a Magistrate for the return to the person of such article.

Such Magistrate shall inquire into the matter and if it appears to the Magistrate that at the time of the seizure any of the conditions mentioned in section 3 obtained on the premises where the seizure was made, the Magistrate shall order the forfeiture of such article, to the Crown.

If it appears to such Magistrate that at the time of the seizure any of the conditions mentioned in section 3 did not obtain on such premises, the Magistrate may order that the article so seized be handed over to the owner or occupier of such premises or to such other person as may appear to the Magistrate to be the rightful owner.

…

(5) In this section:

article means any liquor, drug, drinking glass, vessel, container or device or any weapon or explosive.

5. There is evidence and a concession that pursuant to a warrant some items meeting the description in s 10(e) were seized and forfeited.

6. The application however relates to items which it is said do not meet the description in section 10(e). The items sought to be returned are as follows:

• assorted chairs stalls and tables

• assorted lounges

• ledgers and papers

• Black Lands memorabilia

• industrial fridges

• CCT hard drive footage

• clubhouse documents

• donation money

• ledgers

• safe

• Victoria Bitter (‘VB’) can with coins

• domestic fridge from residence

• tables and chairs from residence

• lounges and couches from residence

• personal esky from residence

• sign from front gate

• posters forms and letters

7. There is no submission made that if I am not required to order forfeiture of the articles of the Crown under the first part of s 13A(2), that I should do anything other than order that the goods be handed over to Mr Sale pursuant to the second part of s 13A(2).

8. The application proceeded on two grounds. First it was said that I couldn’t be satisfied of the necessary basis to forfeit the articles to the Crown under s 13A (2) because there is no evidence that “at the time of the seizure” any of the conditions mentioned in s 3 obtained on the premises.

9. The second ground was that the power of seizure was not engaged because none of the items were a “drinking glass, vessel, container or device in such premises which is used or is capable of being used for or in connection with the storage supply or consumption of any liquor or drug or the user or taking of any drug”.

10. In my view the first ground cannot be made out due to the uncontested evidence of Senior Constable Binns. He demonstrated in his affidavit evidence that as at the date of execution of the warrant of there were hundreds of canisters of alcohol at the premises stored in commercial fridges, open cans, price lists, cash and paraphernalia (such as bar tables and stools) which all support the inference that alcohol is supplied, as well as documentary indicia of alcohol sales. There was evidence that several months prior to the warrant being executed there were 15 gang members inside the clubhouse with recorded criminal histories including named persons. There were also documents leading to an inference that reputed criminals were involved in control or management. And there was surveillance and direct evidence of criminals being present including at execution of the warrant. A development consent was tendered which demonstrated that there was approval for the use of the building as a Function Centre. This does not detract from the conclusion I have reached. It appears the functions included the supply of alcohol.

11. Objection was taken to 2 paragraphs of the affidavit which relate to events from 2011 and 2015 on the basis that they were not contemporaneous enough to be relevant to the determination about the position as at the time of seizure. I am comfortably satisfied that the first ground should be rejected even if the objection was upheld. Based on the same uncontested evidence it is also unnecessary to deal with the question as to whether or not the temporal condition in s 13A(2) (“at the time of the seizure”) should be expanded by reason of the wider timeframes referred to in s 3 ( e.g. “has taken place or is likely to take place again”). The section was engaged as at the date of the warrant being executed.

12. The second ground turns on the meaning of the language in s 10(e) and whether or not any of the items seized are capable of being described as a “vessel container or device” used or capable of being used for in connection with storage supply or consumption of liquor or drugs.

13. I know of no authority with respect to the meaning of the sections I am dealing with.

14. Section 13 provides a warrant power limited to:

(a) to enter the premises, and

(b) to search the premises for, and to seize, any liquor or drug or any drinking glass, vessel, container or device referred to in section 10 (e) or any weapon or explosive.

15. Section 13A (2) refers to the return of items seized and describes them as articles. Articles are defined at s 13A (5) as any “liquor, drug, drinking glass, vessel, container or device or any weapon or explosive”. In that respect it closely follows the language in ss 13, and 10 (e) and (f). It is not a broad power to seize anything or everything found in or associated with the restricted premises.

16. Given that focus it’s appropriate to construe the phrase “drinking glass, vessel, container or device” in its context and on the basis that each word is construed as part of the list i.e. on the noscitur a sociis principle. That is, that the meaning of a word may be known from accompanying words. Under the doctrine of noscitur a sociis, the meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it.

17. Drinking glass, vessel and container have well-established English meanings. Device also has a well-established meaning although it is broader potentially than the other words. It usually means:

A thing made or adapted for a particular purpose, especially a piece of mechanical or electronic equipment.

18. The phrase is also widened by the use of the words “in connection with” and the words storage supply or consumption (which in turn however return focus to the liquor or drugs being stored, supplied or consumed).

19. I have considered whether “device” might have the meaning it bears in trade mark legislation, namely that a trade mark is a sign of a particular, the latter word meaning as follows in s6 of the Trade Mark Act 1995 (Cth):

“sign” includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.

20. That is not its intended meaning given the context and apparent limited purpose of this legislation and these sections.

Conclusion

21. I am satisfied that the fridges both industrial and domestic and the esky fit within the proper meaning of the phrase. In particular they are describable as a container capable of being used for the storage of liquor.

22. The CCTV hard drive footage may be described as a device capable of being used in connection with the storage supply or consumption of liquor because it could be used to record for example the safe storage of liquor, or the supply or consumption of liquor, for reasons or in circumstances both legal and illegal.

23. A safe is a device capable of being used in connection with the supply of liquor or drugs because a safe is a device in the common meaning of that word and it could be used for example in connection with storing funds connected to the supply or consumption of liquor or drugs. So could a VB can with coins, which it was said was a money box type storage canister.

24. I cannot see how any of the other items could fit the description “vessel, container or device”. For example, sitting on a couch drinking alcohol does not make the couch a vessel, container or device.

25. Finally, I note that the definition of article refers to:

[A]ny liquor or drug or any drinking glass, vessel, container or device referred to in section 10 (e) or any weapon or explosive.

26. Thus, while any cash may be amenable to forfeiture under some other legislation, this legislation is relevantly limited to the articles seized, not any cash in them

27. For those reasons I will order the following items be forfeited to the Crown:

• two industrial fridges

• CCTV hard drive footage

• the safe (but not any money in it)

• domestic fridge from residence

• personal blue-and-white esky

• VB can (but not any coins in it)

28. I will order that the balance of the items seized be returned to the applicant.

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Decision last updated: 26 November 2021