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Local Court 2 July 2020

R v Katherine John

[2020] NSWLC 2

DrugsPublic order & justice offences
CRIMINAL PROCDURE SEARCH WARRANTS APPLICATION TO REVOKE THE CERTIFICATE JURISDICTION “ELIGIBLE ISSUING OFFICER” PUBLIC INTEREST IMMUNITY

Citation: [2020] NSWLC 2
Court: Local Court of NSW
Date: 2 July 2020
Judge(s): Magistrate Donnelly

Background

The defendant faced a charge of possessing a prohibited drug under the Drug Misuse and Trafficking Act 1985 and had pleaded not guilty. Police had obtained a search warrant over her premises through a Registrar of the Local Court at Singleton. When the warrant was issued, the Registrar also issued a certificate under clause 14(1) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (the Regulation), which had the effect of making the supporting records for the warrant application unavailable for inspection by the occupier.

The defendant applied to revoke the certificate before a Senior Registrar at Newcastle Local Court, but the application was refused. The Senior Registrar found that redacting parts of the documents would not adequately address the risk of jeopardising a person's safety. The defendant then brought a fresh application before a Magistrate as an eligible issuing officer under clause 14(4) of the Regulation.

Legal Issues

  • Whether the Magistrate had jurisdiction to determine a revocation application under clause 14(4) of the Regulation as an eligible issuing officer
  • Whether clause 14(4) confers an appeal right or a standalone statutory decision-making power
  • What the statutory test under clause 14(4) requires, particularly the meaning of "no longer likely to"
  • Whether the defendant had established that disclosure of the certified material was no longer likely to jeopardise any person's safety
  • Whether the High Court decision in HT v Queen [2019] HCA 40 applied to the clause 14(4) determination

Decision

Issue 1: Jurisdiction of the Magistrate

The Magistrate confirmed jurisdiction to determine the application. A Magistrate is an "authorised officer" within the definition of "eligible issuing officer" under s 3 and s 46 of the Law Enforcement (Powers and Responsibilities) Act 2002. Clause 14(4) expressly permits the eligible issuing officer to be a person other than the one who issued the certificate, and the exercise of the power does not involve judicial power (at [5]).

Issue 2: Nature of the clause 14(4) power

The court held that clause 14(4) does not confer an appeal right. It is not a mechanism for revisiting or reviewing the original decision to issue a certificate. Instead, it requires the decision maker to be satisfied of specific statutory criteria at the time of the application. The court drew on R v Ohar [2004] NSWCCA 83 in support of the proposition that the provision is not an appeal from one decision maker to another but a separate statutory exercise (at [8]-[9]).

Issue 3: The statutory test and the requirement for changed circumstances

The court found that the expression "no longer likely to" in clause 14(4) operates as the operative test and, by its terms, assumes that the original basis for issuing the certificate is not open to challenge (at [10]). The clause requires that the state of affairs existing at the time of the certificate has changed. A decision maker under clause 14(4) must consider the factual basis and material that was relied upon when the certificate was originally issued (at [10]).

Issue 4: Application to the facts

The factual basis for issuing the certificate was the likelihood that disclosure would jeopardise a person's safety (at [15]). It was accepted that the police investigation had ceased, removing one possible basis for maintaining the certificate. However, the defendant filed no evidence demonstrating a change in the circumstances that led to the certificate being issued on safety grounds. Because no material altered the state of affairs existing at the time of issue, the defendant failed to satisfy the statutory test. The court also found that redacting parts of the documents would not meet the preconditions for revocation (at [15]-[16]).

Issue 5: Relevance of HT v Queen

The court held that HT v Queen [2019] HCA 40 had no application. That case concerned procedural fairness in sentencing proceedings where an informer's counsel could not make submissions about a sentencing discount. The present application concerned only the proper construction and application of the statutory text in clause 14(4), and not a claim of public interest immunity or procedural fairness in sentencing (at [12]-[14]).

Orders Made

  • Application to revoke the certificate issued under clause 14(1) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 refused and dismissed.
  • No order as to costs.

Key Takeaways

  • Clause 14(4) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 is not an appeal mechanism. It is a standalone statutory power requiring a decision maker to be affirmatively satisfied that the conditions for revocation are met, assessed at the time of the application rather than by reviewing the original certificate decision (at [8]-[9]).

  • The expression "no longer likely to" in clause 14(4) sets an operative test that assumes the original certificate was validly issued. An applicant must demonstrate a change in the state of affairs since the certificate was granted, not merely challenge the initial decision (at [10]-[15]).

  • Where no evidence is filed or adduced to show that circumstances have changed since the certificate was issued, the statutory preconditions for revocation are not met (at [15]-[16]).

  • Partial redaction of the underlying documents does not, of itself, satisfy the clause 14(4) test if the fundamental basis for the certificate, such as the likelihood of jeopardising a person's safety, remains unaddressed (at [16]).

  • In dismissing the reliance on HT v Queen [2019] HCA 40, the court confirmed that the procedural fairness principles articulated in that sentencing case do not translate directly to a clause 14(4) revocation application, which is governed by its own statutory criteria (at [12]-[14]).

Legislation and Cases Referenced

Legislation
- 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
- Chief Constable of the Greater Manchester Police v McNally [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