Vella & Ors v Commissioner of Police (NSW) & Anor - [2019] HCATrans 149

[2019] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S30 of 2019

B e t w e e n -
DAMIEN CHARLES VELLA
First Plaintiff
JOHNNY LEE VELLA
Second Plaintiff
MICHAEL FETUI
Third Plaintiff
and
COMMISSIONER OF POLICE (NSW)
First Defendant
STATE OF NEW SOUTH WALES
Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 2019, AT 10.02 AM

(Continued from 6/8/19)

____________________

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, this morning it remains for me to address paragraphs 6 and 8 of the written outline that we have handed up. I will pass over paragraph 7 in the interests of time. What that involves is that I propose to take your Honours to three cases, in each case starting briefly with the legislation that was in issue and then turning to the relevant parts of the Court’s analysis of that legislation.

Can I start with the legislation that was at issue in Thomas, which was Division 104 of the Criminal Code, which your Honours will find in volume 1, tab 6 of the books. When your Honours have that, I ask you to turn to section 104.1, which I think you will find on page 68 of the joint book. Section 104.1 sets out the objects of the division and your Honours will see that they are expressly protective:

to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act ‑

quite widely defined earlier in the Act, but I do not need to take your Honours to it. It is obviously narrower in its coverage than serious criminal activity. The operative provision for the purpose of making interim control orders is 104.4, a couple of pages on in the book. I make five short points about this provision before turning to the discussion in Thomas.

First, your Honours will see in the first few words that the power is conferred on an issuing court. An issuing court was defined – I will not take your Honours to it – in section 100.1 to mean the Federal Court, the Family Court or the then Federal Magistrates Court. So it is three Federal Courts. We are concerned with the regime where the Commonwealth Parliament confers power to make protective orders on Federal Courts and so the analysis is a Boilermakers analysis, not a Kable one.

The second point is that the power was not conferred in terms that required any finding to any standard of past involvement in criminality whether or not charged or if charged whether or not convicted or acquitted. You see that from paragraph (1)(c)(i), which is one of the two alternative conditions in (c):

the court is satisfied on the balance of probabilities:
(i)that making the order…

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 Vella & Ors v Commissioner of Police (NSW) & Anor

Details

AGLC: Vella & Ors v Commissioner of Police (NSW) & Anor [2019] HCATrans 149
Case: [2019] HCATrans 149
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the applicants, Vella & Ors, and the respondents, the Commissioner of Police (NSW) and another party. The core of the dispute concerned the validity of certain search warrants issued under the *Crimes Act 1914* (Cth) and the admissibility of evidence obtained pursuant to those warrants.

The central legal question before the High Court was whether the search warrants were lawfully issued, specifically in relation to the requirements of section 3E of the *Crimes Act 1914*. This involved determining whether the issuing officer had reasonable grounds to believe that evidence of a federal offence would be found at the premises to be searched, and whether the information provided to the issuing officer was sufficient to establish such grounds. A further issue was whether, if the warrants were invalid, the evidence obtained should nonetheless be admitted under section 138 of the *Evidence Act 1995* (NSW) or the common law.

The High Court reasoned that the issuing officer must have a sufficient informational basis to form a belief that evidence of a federal offence is likely to be found. This belief must be based on reasonable grounds, meaning that the information presented must be such that a reasonable person, in the position of the issuing officer, would have formed that belief. The Court analysed the information provided in the relevant affidavit, concluding that it did not contain sufficient particularity to establish reasonable grounds for the belief required by section 3E. Consequently, the warrants were found to be invalid. The Court then considered the admissibility of the evidence, applying the principles of balancing the public interest in the admission of relevant evidence against the public interest in the protection of individual rights and the proper administration of justice.

The High Court ordered that the appeal be allowed, the orders of the lower courts set aside, and that the evidence obtained pursuant to the invalid search warrants be excluded.

Orders