Davies v Smith [2019] NSWSC 700

Davies v Smith [2019] NSWSC 700

The Court was satisfied that the plaintiff had shown that a senior police officer had reasonable grounds for suspecting the matters in s 3(1)(b), (c) and (d)(i) of the Restricted Premises Act 1943 (NSW). The evidence provided ample material to suspect unlawful drug sale or supply on or from the premises and likely recurrence, and it was not controversial that the defendant and current occupants were reputed criminals. However, because a declaration in the form sought appeared likely to make the defendant criminally liable under s 8 merely by continuing to live at the premises or allowing current family occupants who were reputed criminals to live there, the Court deferred making...

Jurisdiction
Australia
Judgment Date
12 June 2019
Procedural Posture
Application by Summons for Declaration Under S 3 of the Restricted Premises Act 1943 (nsw) / Principal Judgment After Hearing on Whether Declaration Should Be Made
Outcome
Substantive declaration not made at this stage; plaintiff directed to provide a draft form of declaration and costs reserved.
Legal Topics
['restricted Premises Declaration' 'reasonable Grounds for Suspicion' 'reputed Criminals' 'drug Supply From Residential Premises' 'effect of Declaration on Residential Occupation' 'police Entry and Search Powers']
['criminal Law' 'administrative Law' 'police Powers'] ['restricted Premises Declaration' 'reasonable Grounds for Suspicion' 'reputed Criminals' 'drug Supply From Residential Premises' 'effect of Declaration on Residential Occupation' 'police Entry and Search Powers']

Case Brief

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Procedural Posture

Application by Summons for Declaration Under S 3 of the Restricted Premises Act 1943 (nsw) / Principal Judgment After Hearing on Whether Declaration Should Be Made

Legal Issues

  1. 1 ['Whether a senior police officer had shown reasonable grounds for suspecting that drugs were unlawfully sold or supplied on or from the premises and were likely to be sold again on or from the premises under s 3(1)(b) of the Restricted Premises Act 1943 (NSW).' 'Whether reputed criminals or associates of reputed criminals were to be found on or resorted to the premises, or had resorted and were likely to resort again, under s 3(1)(c) of the Restricted Premises Act 1943 (NSW).' 'Whether a reputed criminal had control of, managed, or took part in managing the premises under s 3(1)(d)(i) of the Restricted Premises Act 1943 (NSW).' 'Whether the Court should exercise its discretion to make a declaration where the effect of s 8 might criminalise the continued residence of the defendant and family members at the premises.']

Ratio Decidendi

The Court was satisfied that the plaintiff had shown that a senior police officer had reasonable grounds for suspecting the matters in s 3(1)(b), (c) and (d)(i) of the Restricted Premises Act 1943 (NSW). The evidence provided ample material to suspect unlawful drug sale or supply on or from the premises and likely recurrence, and it was not controversial that the defendant and current occupants were reputed criminals. However, because a declaration in the form sought appeared likely to make the defendant criminally liable under s 8 merely by continuing to live at the premises or allowing current family occupants who were reputed criminals to live there, the Court deferred making...

Court Disposition

Substantive declaration not made at this stage; plaintiff directed to provide a draft form of declaration and costs reserved.

Orders

  • ['Direct the plaintiff, if he is so able, to prepare a draft form of declaration to be made under ss 3(1) and 3(3) of the Restricted Premises Act 1943 (NSW) (the Act) which does not have the effect of making the defendant criminally liable to prosecution for an offence under s 8 of the Act merely by continuing to...