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Supreme Court 30 September 2026

Sharp v Tacko

[2026] NSWSC 1182

Public order & justice offences
ADMINISTRATIVE LAW JUDICIAL REVIEW POLICE POWERS SEARCH WARRANT WHETHER INVALID DUE TO NON DISCRETIONARY NATURE OF JUDICIAL REVIEW

Citation: Sharp v Tacko [2026] NSWSC 1182
Court: Supreme Court of New South Wales
Date: 30 September 2026
Judge(s): Roberts J

Background

A plaintiff, acting for himself, commenced judicial review proceedings in the Supreme Court challenging a search warrant issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) on 26 August 2025. The warrant authorised police to enter and search his home and named, among the objects of the search, a motor vehicle identified by registration number DN33ZX. When police executed the warrant the following day, they searched a white Mitsubishi Triton bearing the plates DO22TK, which was parked in a nearby street rather than on the plaintiff's premises. Transport for NSW records showed the vehicle's registration had changed from DN33ZX to DO22TK on the very day the warrant was issued.

Following the execution of the warrant, the plaintiff was charged with offences including picking and dealing with protected plants under the Biodiversity Conservation Act 2016 (NSW). He sought in the Local Court to have the charges dismissed on the basis that the warrant was invalid, but his Notice of Motion was summarily dismissed by an Acting Magistrate without any oral submissions being heard. The plaintiff then brought proceedings in the Supreme Court seeking, among other things, a declaration that the warrant was invalid, an order preventing police from relying on evidence seized, and the return of seized property including a USB drive and mobile phones.

Before the Supreme Court hearing could proceed, the plaintiff's criminal charges were resolved through a negotiated plea in the Local Court on 11 May 2026. The plaintiff pleaded guilty to some charges and others were withdrawn. Despite this, he pressed his Amended Summons, primarily seeking the invalidity declaration and return of the USB drive, which police had retained and appeared to be further investigating.

Legal Issues

  • Whether the search warrant was invalid on its face because it nominated a motor vehicle by a registration number (DN33ZX) that did not correspond to the vehicle actually searched (DO22TK)
  • Whether identifying a vehicle only by registration number without additional descriptors (make, model, colour) satisfied the requirement under section 62(1)(d) of LEPRA for a "full description" of a particular thing to be searched for
  • Whether a motor vehicle nominated as a search object constitutes "premises" to be searched rather than an object of search, such that nominating a non-existent vehicle would vitiate the warrant
  • Whether the Acting Magistrate's summary dismissal of the plaintiff's Notice of Motion without hearing oral submissions constituted a breach of procedural fairness amounting to jurisdictional error
  • Whether any relief remained practically available given the resolution of the plaintiff's criminal charges before the Supreme Court hearing concluded

Decision

Issue 1: Procedural fairness by the Acting Magistrate

The defendant ultimately conceded that the Acting Magistrate had denied the plaintiff procedural fairness by dismissing his Notice of Motion without allowing him to make oral submissions. However, by the time this concession was formalised, the plaintiff's charges had been fully resolved in the Local Court. Roberts J held that quashing the decision of the Acting Magistrate would produce no legal consequences and there was no utility in granting the relief. Prayers 1, 4 and 5 of the Amended Summons, which concerned this ground, were dismissed (at [41]).

Issue 2: Invalidity of the warrant on its face: vehicle as premises

The plaintiff argued that a motor vehicle falls within the definition of "premises" in section 3 of LEPRA, and that by nominating a vehicle that "did not exist" (because the registration had changed), the warrant purported to authorise the search of non-existent premises. Roberts J rejected this characterisation. The warrant authorised entry and search of the plaintiff's home address to search for particular objects, including the vehicle identified by registration DN33ZX. The vehicle was an object of the search rather than the premises to be searched (at [54]). Nominating a vehicle that was not ultimately found did not, without more, constitute a material defect in the warrant (at [53]).

Issue 3: Adequacy of description under section 62 of LEPRA

The plaintiff argued that identifying the vehicle only by registration number without specifying make, model or colour failed to satisfy the requirement in section 62(1)(d) of LEPRA for a "full description" of the particular thing sought. The defendant argued the warrant authorised a search for any motor vehicle. Roberts J rejected both positions. A vehicle registration number describes a specific vehicle with greater particularity than make and model alone, and the warrant authorised a search for a particular vehicle, not a kind of vehicle. The nomination by registration number was sufficiently particular to satisfy section 62 (at [56]).

Issue 4: Invalidity established and practical utility

Roberts J found that the plaintiff had not established any material defect in the warrant. The relevant time for assessing validity was the time of issue rather than the time of execution, and it remained possible that the registration information was accurate when the warrant application was prepared (at [52]). Even assuming in the plaintiff's favour that the registration had already changed at the time of issue, this did not render the warrant invalid on its face (at [52]-[57]). Although the court had some concern about whether any useful relief remained given the finalisation of the criminal proceedings, the unexpected change in the defendant's position regarding the USB during the hearing made it appropriate to determine the warrant arguments rather than dismiss purely on discretionary grounds (at [46]). The Amended Summons was dismissed in its entirety (at [63]).

Issue 5: Lawfulness of the search of the Triton

Whether the seizure of items from the Triton fell outside the scope of the warrant, because the vehicle was parked off the plaintiff's premises or bore different plates, was a question the plaintiff had attempted to raise in the Local Court. That was the appropriate forum. Because the criminal proceedings had been fully resolved before the Supreme Court could determine the procedural fairness ground, there was no outstanding Local Court decision on the lawfulness of the search that could be challenged by way of judicial review in the Supreme Court (at [60]).

Orders Made

  • The plaintiff's Amended Summons of 4 February 2026 is dismissed.
  • Each party to bear its own costs.

Key Takeaways

  • A search warrant that identifies a motor vehicle by registration number, without specifying make, model or colour, can satisfy the requirement for a "full description of that thing" under section 62(1)(d) of LEPRA, because a registration number describes a specific vehicle with considerable particularity (at [56]).

  • Under LEPRA, a motor vehicle nominated as an object of search in a warrant is not thereby converted into "premises" authorised to be searched. The structure of the warrant determines whether the vehicle is an object to be found or the place to be entered (at [54]).

  • The relevant time for assessing whether a search warrant is valid is the time of issue, not the time of execution. Conduct by police in executing the warrant does not itself establish invalidity (at [52]).

  • Where the underlying application materials and reasons of the issuing officer are not placed before the court, a plaintiff faces a high evidentiary burden in establishing invalidity. Invalidity based on what appears "on the face" of the warrant is available in principle but requires the defect to be apparent without reference to those materials, following Johnson v Commissioner of New South Wales Police [2025] NSWSC 21 (at [47]-[49]).

  • Departing from the general rule that costs follow the event, Roberts J ordered each party to bear its own costs, taking into account that the defendant's concession on procedural fairness came later than it should have, the defendant's inconsistent position regarding the seized USB created unnecessary uncertainty, and the plaintiff had meaningfully narrowed the issues after the concession and the resolution of his criminal charges (at [67]-[70]).

Legislation and Cases Referenced

Legislation
- Biodiversity Conservation Act 2016 (NSW)
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3 , 36, 47(1) , 48 , 62 , 65
- Supreme Court Act 1970 (NSW), s 69

Cases
- Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
- Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
- Coles v Wood [1981] NSWLR 723
- Colquhoun v District Court of New South Wales [2014] NSWCA 460
- Corbett v State of New South Wales [2006] NSWCA 138
- D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201
- Doyle v Commissioner of Police (No 2) [2020] NSWCA 34; (2020) 281 A Crim R 357
- Doyle v Commissioner of Police [2020] NSWCA 11; (2020) 285 A Crim R 349
- Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
- George v Rockett (1990) 170 CLR 104; [1990] HCA 26
- Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
- Johnson v Commissioner of New South Wales Police [2025] NSWSC 21
- JS v Secretary Department of Family and Community Services [2014] NSWCA 441
- Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 123
- State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32