Polley v Johnson and anor [2014] NSWSC 1191

Polley v Johnson and anor [2014] NSWSC 1191

The search warrant was not invalid. On its proper construction, Crimes Act 1900 s. 326(2) does not require judicial proceedings to be on foot when the threat is made; the offence turns on the accused's belief that the other person will or may be, or may have been, called as a witness in judicial proceedings. The plaintiff was not permitted to rely on an allegation that the warrant was sought for an undisclosed purpose because that proposition was not squarely put to the first defendant in cross-examination, and in any event the evidence established that the warrant was sought for the stated purpose concerning the alleged threat to Tammy Howard.

Jurisdiction
Australia
Judgment Date
29 August 2014
Procedural Posture
Summons Seeking Inspection of Search Warrant Application Material, Declarations of Invalidity and Unlawfulness, and Certiorari Quashing the Issue of a Search Warrant / Principal Judgment After Hearing
Outcome
The summons is dismissed.
Legal Topics
['search Warrants' 'validity of Search Warrant' 'reasonable Grounds for Issuing Search Warrant' 'reprisals Against Witnesses' 'judicial Review' 'rule in Browne V Dunn' 'public Interest Immunity']
['criminal Law' 'administrative Law' 'statutory Interpretation' 'evidence'] ['search Warrants' 'validity of Search Warrant' 'reasonable Grounds for Issuing Search Warrant' 'reprisals Against Witnesses' 'judicial Review' 'rule in Browne V Dunn' 'public Interest Immunity']

Case Brief

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Procedural Posture

Summons Seeking Inspection of Search Warrant Application Material, Declarations of Invalidity and Unlawfulness, and Certiorari Quashing the Issue of a Search Warrant / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether an offence under Crimes Act 1900 s. 326(2) required judicial proceedings to be on foot at the time of the alleged threat, so that the search warrant was invalid if no such proceedings existed.' 'Whether the stated basis for the search warrant application was truthful or was merely a cover for searching for evidence relating to the murder of Charles Avouris.' 'Whether the plaintiff should be permitted to rely on an allegation not squarely put to the first defendant in cross-examination.']

Ratio Decidendi

The search warrant was not invalid. On its proper construction, Crimes Act 1900 s. 326(2) does not require judicial proceedings to be on foot when the threat is made; the offence turns on the accused's belief that the other person will or may be, or may have been, called as a witness in judicial proceedings. The plaintiff was not permitted to rely on an allegation that the warrant was sought for an undisclosed purpose because that proposition was not squarely put to the first defendant in cross-examination, and in any event the evidence established that the warrant was sought for the stated purpose concerning the alleged threat to Tammy Howard.

Court Disposition

The summons is dismissed.

Orders

  • ['The summons is dismissed.' 'The parties are to provide written submissions by 4.00pm on Friday 5 September 2014 as to the question of costs, such submissions not to exceed 2 pages in length.']