Lee v New South Wales Commissioner of Police [2017] NSWSC 1594

Lee v New South Wales Commissioner of Police [2017] NSWSC 1594

The warrant was invalid because the mere reference to "Section 13 – Crimes Domestic Violence and Personal Violence Act 2007" did not sufficiently describe the searchable offence. Section 13 contemplated alternatives of stalking, intimidation, or both, involving potentially different conduct, and the notice and warrant did not give an occupier sufficient knowledge of the object and limits of the search. However, the generic description of communication devices was not itself invalid because, given the alleged sending of large numbers of texts and emails, such devices could be things connected with the searchable offence within ss 46(3) and 47 of the Law Enforcement (Powers and...

Jurisdiction
Australia
Judgment Date
23 November 2017
Procedural Posture
Application by Summons for Prerogative Relief, Declarations, Injunctions and Return of Seized Material Concerning a Search Warrant / Reasons After Hearing; Proceedings Stood Over for Directions and for Consideration of Appropriate Orders
Outcome
The warrant was held invalid on the offence description point; the plaintiff's challenge on the items point was rejected; final relief was deferred pending submissions on appropriate orders.
Legal Topics
['search Warrants' 'validity of Warrants' 'description of Searchable Offence' 'description of Things to Be Searched For' 'seizure of Electronic Devices' 'prerogative Writs and Orders']
['criminal Law' 'administrative Law' 'police Powers'] ['search Warrants' 'validity of Warrants' 'description of Searchable Offence' 'description of Things to Be Searched For' 'seizure of Electronic Devices' 'prerogative Writs and Orders']

Case Brief

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Procedural Posture

Application by Summons for Prerogative Relief, Declarations, Injunctions and Return of Seized Material Concerning a Search Warrant / Reasons After Hearing; Proceedings Stood Over for Directions and for Consideration of Appropriate Orders

Legal Issues

  1. 1 ['Whether the description of the searchable offence in the warrant as "Section 13 – Crimes Domestic Violence and Personal Violence Act 2007" was sufficient to comply with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW).' 'Whether the things to be searched for, described as communication devices including mobile phone, laptop computer, desktop computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices, were adequately described and were things within the meaning of the statutory regime.' 'Whether the Court should grant relief affecting the seized material and pending Local Court proceedings.']

Ratio Decidendi

The warrant was invalid because the mere reference to "Section 13 – Crimes Domestic Violence and Personal Violence Act 2007" did not sufficiently describe the searchable offence. Section 13 contemplated alternatives of stalking, intimidation, or both, involving potentially different conduct, and the notice and warrant did not give an occupier sufficient knowledge of the object and limits of the search. However, the generic description of communication devices was not itself invalid because, given the alleged sending of large numbers of texts and emails, such devices could be things connected with the searchable offence within ss 46(3) and 47 of the Law Enforcement (Powers and...

Court Disposition

The warrant was held invalid on the offence description point; the plaintiff's challenge on the items point was rejected; final relief was deferred pending submissions on appropriate orders.

Orders

  • ['Direct counsel to serve on each other proposed Short Minutes of Order, and to provide a copy to my Associate on or before 4pm Wednesday 29 November 2017.' 'Stand the proceedings over for directions generally, and for consideration of the appropriate orders to be made until 9.30am on Friday 1 December 2017.'...