McQUEEN v HAWI & ANOR [2008] NSWSC 136

McQUEEN v HAWI & ANOR [2008] NSWSC 136

Although the Magistrate was technically mistaken to describe the proposed evidence as irrelevant, the proposed evidence, taken at its highest, could not justify police retention of the sandshoes because it amounted only to speculative retention for possible future connection with unidentified criminal activity. That did not constitute retention for the purposes of investigation under s 218 and was not a proper basis to refuse return under s 219, so the exclusion of the evidence was immaterial and the amended summons was dismissed.

Jurisdiction
Australia
Judgment Date
15 February 2008
Procedural Posture
Proceedings Under Supreme Court Act 1970 S 69 Seeking to Quash a Local Court Order Under Law Enforcement (powers and Responsibilities) Act 2002 S 219 for Return of Seized Sandshoes. / Supreme Court of New South Wales Common Law Division Ex Tempore Judgment on Amended Summons.
Outcome
Amended summons dismissed; the order for return of the sandshoes was not quashed.
Legal Topics
['search Warrant' 'seized Items' 'return of Seized Property' 'police Retention of Exhibits' 'relevance of Evidence' 'judicial Review of Local Court Order']
['criminal Procedure' 'administrative Law' 'evidence' 'property'] ['search Warrant' 'seized Items' 'return of Seized Property' 'police Retention of Exhibits' 'relevance of Evidence' 'judicial Review of Local Court Order']

Case Brief

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Procedural Posture

Proceedings Under Supreme Court Act 1970 S 69 Seeking to Quash a Local Court Order Under Law Enforcement (powers and Responsibilities) Act 2002 S 219 for Return of Seized Sandshoes. / Supreme Court of New South Wales Common Law Division Ex Tempore Judgment on Amended Summons.

Legal Issues

  1. 1 ['Whether police had sufficient reason to retain sandshoes seized under a search warrant when no specific investigation or charges were underway.' 'Whether the Magistrate erred by excluding evidence from the investigating officer about the reasons for retaining the sandshoes.' 'Whether any error in characterising the proposed evidence as irrelevant affected the correctness of the Local Court order for return of the sandshoes.']

Ratio Decidendi

Although the Magistrate was technically mistaken to describe the proposed evidence as irrelevant, the proposed evidence, taken at its highest, could not justify police retention of the sandshoes because it amounted only to speculative retention for possible future connection with unidentified criminal activity. That did not constitute retention for the purposes of investigation under s 218 and was not a proper basis to refuse return under s 219, so the exclusion of the evidence was immaterial and the amended summons was dismissed.

Court Disposition

Amended summons dismissed; the order for return of the sandshoes was not quashed.

Orders

  • ['The amended summons be dismissed.' 'The sandshoes described in the amended summons be returned to the defendant by or on 27 February 2008 at the address of his lawyers, Randle Lawyers.' 'In the event the plaintiff lodges an appeal from this decision by or on 22 February 2008, Order 2 is stayed pending the...