Davies v Smith

Davies v Smith - [2019] NSWSC 700 - NSWSC 2019 case summary — Zoe

[3]

Relevant legislative provisions

The long title of the Act is as follows: "An Act to make provision for the declaration of premises and the closure of premises on which certain illegal activities are suspected of being carried on; and for purposes connected therewith."
Section 3 provides: "3 Declaration by Supreme Court or District Court in relation to premises (1) On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say: (a) that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or (b) that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or (c) that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, or (d) that any of the persons having control of or managing or taking part or assisting in the control or management of the premises: (i) is a reputed criminal or an associate of reputed criminals, or (ii) has been concerned in the control or management of other premises which have been the subject of a declaration under this Part, or (iii) is or has been concerned in the control or management of premises which are or have been frequented by persons of notoriously bad character or of premises on or from which liquor or a drug is or has been unlawfully sold or supplied, . . . the Supreme Court or the District Court may declare such premises to be premises to which this Part applies. (2) Such declaration shall be in force until rescinded. (3) The appropriate Court may, in declaring premises to be premises to which this Part applies, state that the reason (or the predominant reason) for the declaration is that: (a) reputed criminals have attended or are likely to attend the premises, or (b) a reputed criminal has, or takes part or assists in, the control or management of the premises. Any such declaration is a reputed criminal declaration for the purposes of this Act."
Section 2 defines "reputed criminal" as follows: "reputed criminal includes (without limitation) a person who: (a) has been convicted of an indictable offence (including an offence under section 93X of the Crimes Act 1900), or (b) is engaged in an organised criminal activity within the meaning of section 46AA of the Law Enforcement (Powers and Responsibilities) Act 2002, or (c) is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012."
A "senior police officer" is defined in s 2 as meaning "a police officer of or above the rank of sergeant".
The effect of a declaration under s 3(2) or s 3(3) is that a search warrant is not required before police officers can enter premises. Further, after a notice under s 6 of the making of a declaration is served on the owner or occupier of the premises, the owner is guilty of an offence if any of the conditions referred to in s 3(1) apply to the premises while the declaration is in force: s 8(1). Because of its importance to the consequences of a s 3 declaration, s 8 is set out in full. It provides: "8 Offence by owner of premises (1) After the service of a notice under section 6 on the owner of premises of the making of a declaration, the owner is guilty of an offence if any of the conditions referred to in section 3 (1) apply to the premises while the declaration is in force. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both. (2) An owner of premises is not guilty of an offence under subsection (1) if the owner proves that he or she has taken all reasonable steps to prevent the conditions referred to in section 3 (1) applying to the premises. (2A) After the service of a notice under section 6 on the owner of premises of the making of a reputed criminal declaration, the owner is guilty of an offence if, while the declaration is in force, a reputed criminal: (a) attends the premises, or (b) has, or takes part or assists in, the control or management of the premises. Maximum penalty: 150 penalty units or imprisonment for 3 years, or both. (2B) An owner of premises is not guilty of an offence under subsection (2A) if the owner proves that he or she has taken all reasonable steps to prevent a reputed criminal: (a) attending the premises, or (b) having, or taking part or assisting in, the control or management of the premises. (2C) A person is not liable to be convicted of an offence under both subsections (1) and (2A) in respect of essentially the same facts. (3) An owner of premises that are occupied by a person other than the owner is not guilty of an offence under this section if the owner proves that he or she has taken all reasonable steps to evict the occupier from the premises."
The term "indictable offence" is defined by s 3 of the Criminal Procedure Act 1986 (NSW) as "an offence (including a common law offence) that may be prosecuted on indictment". A "summary offence" is an offence that is not an indictable offence: s 3 of the Criminal Procedure Act. Sections 5 and 6 of the Criminal Procedure Act have the combined effect that an indictable offence is one for which the maximum penalty is imprisonment for more than two years.
A declaration may be rescinded under s 4 on the application of the owner or occupier of the premises if the Court is satisfied that the conditions referred to in s 3(1) have ceased for a period of 12 months before the application is made and are unlikely to reoccur at the Premises. A senior police officer may apply for a declaration to be rescinded on proof that there is no reasonable ground for suspecting that any of the conditions referred to in s 3(1) obtain in relation to the premises.

[6]

The Premises

The Premises comprise a four-bedroom, two storey, brick veneer house with a double garage in a residential area.
On 18 February 2014, which was his seventieth birthday, the defendant revoked his implied consent for police or anyone else to approach or knock on his front door by erecting signs on the Premises, apparently intending to avail himself of the principles in Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5. The signs were vandalised and subsequently replaced. As at 3 March 2018 the signs were in place around the Premises, according to a COPS event record made on that date.
On 4 January 2018, police attended the Premises to execute a search warrant (referred to below). The schedule of intelligence reports in COPS exhibited to the first affidavit relevantly recorded: "Police approached the Premises and an audible alarm attached to a motor [motion] sensor began beeping. Police began to breach the front door and it was found that the front door was fortified from the inside of the Premises. Once the door was breached and access was gained, and once Police were in the residence Police noticed that the door had 6 hinges and a bar affixed across the door and a couch placed behind the door. As Police were leaving the Premises, Damien Smith Jnr has yelled out to Police "I will make it even harder for you to break my door next time."
In cross-examination, the plaintiff explained that such warning systems were consistent with premises being operated for the purposes of supply of prohibited drugs because the warning system would notify any occupants of any person on approach. The warning would enable those inside the Premises to get rid of any incriminating substances (in the case of an approach by police) or to prepare themselves against an impending attack (in the case of an approach by rival criminals) or be ready to take a drug order (in the case of an approach by a drug user or client), which would be filled at the front door and not require the purchaser or vendor to enter the Premises.
The defendant gave evidence that he arranged for CCTV cameras to be installed outside the Premises so that he could make himself aware of who was coming to the Premises in his absence during the weekly periods of three-four days spent at the Central Coast between 2011 and 2017 (referred to below).
On 25 February 2019, police received information from CrimeStoppers regarding sale of drugs by the Occupants to persons who came to the Premises. As part of that report, police were informed that there were three visible CCTV cameras at the front of the house on the Premises. The defendant gave evidence that such cameras are no longer operational and had been disassembled on 4 January 2018.

[8]

As referred to below, the defendant's evidence, which I accept, is that Damien Smith Snr and Damien Smith Jnr have resided, but no longer reside, at the Premises.
The plaintiff deposed that, based on his review of COPS reports exhibited to his affidavits, he suspects that prohibited drugs, primarily cannabis and methylenedioxy-methamphetamine (commonly known as MDMA or ecstasy) are, or have been, unlawfully sold or supplied on or from the Premises and are likely to be sold again on or from the Premises. He also suspects that reputed criminals have resorted to the Premises and are likely to again and that the defendant, who has control of the Premises, is a reputed criminal within the meaning of s 2.
The reports include information anonymously reported to CrimeStoppers that cannabis is grown at the Premises and sold by the defendant and the Occupants from the Premises, Castle Towers Shopping Centre and Castle Hill Public School. There are also reports of police having stopped, searched and questioned persons leaving the Premises after short periods of time, who have admitted purchasing cannabis from the Occupants of the Premises and on whom small amounts of cannabis have been found.
On one such occasion a substantial amount of Australian currency was found on a person, which led to Damien Smith Snr being convicted in April 2018 of possession of a prohibited drug and dealing with the proceeds of crime. In June 2018, when he was on bail pending sentence, he was arrested by police and charged with possession and supply of a prohibited drug, of which he was also convicted. He was sentenced to a fixed term of imprisonment commencing on 11 June 2018 and expiring on 10 March 2019 and subsequently, for the later offences, to a term of imprisonment of 12 months commencing on 11 June 2018 and expiring on 10 June 2019 with a non-parole period of 9 months, expiring on 10 March 2019.
The plaintiff also deposed that police have observed numerous bags of fertiliser, as well as numerous empty bags of fertiliser within the boundary of the Premises. On such occasions, the police officers involved have been unable to detect the odour of fertiliser, leading the plaintiff to infer that fertiliser was being used inside the Premises to cultivate prohibited drugs there.
The COPS reports also include Risk of Significant Harm reports made in relation to those of the defendant's grandsons who were Occupants and were, at the relevant time, under 18 years of age. Such reports indicated that those persons were at risk of neglect or harm in relation to drug use at the Premises in an environment which normalised criminal conduct.

[9]

Search warrants

Search warrants have been executed at the Premises, details of which appear in the table set out below. No of search warrant Date Items found in connection with supply of drugs Items seized in connection with the supply of drugs Consequences relating to drugs on Premises 1288 of 2015 13 May 2015 210g cannabis within 6 rooms 200g dried cannabis leaf, clear resealable bags, several mobile phones, several syringes No charges laid as neither the defendant nor the Occupants made admissions as to possession. 107 of 2015 17 July 2015 42.6g cannabis leaf and 5 small cannabis plants being grown in the wardrobe of a bedroom 42.6g cannabis leaf, several mobile phones, a large white lamp and white transformer power supply; and 5 cannabis plants Damien Smith Snr was charged with cultivate prohibited plant: Drug Misuse and Trafficking Act 1985, s 23. 1772 of 2015 30 December 2015 Not executed as Damien Smith Snr approached police shortly prior to execution. 1685 of 2016 15 December 2016 35 cannabis plants ranging in size from seedlings to fully mature plants 8 cannabis plants, cannabis leaf and seedlings; several light globes, shades and transformers; a machete; 7 mobile phones; numerous capsules, white powder, a vial of testosterone, expandable batons, spiked knuckle duster and 14 .22 calibre ammunition No one charged regarding cannabis because of issues regarding proof of possession. 79 of 2017 14 July 2017 31g cannabis in resealable bags 31g cannabis in resealable bags; several plastic bags containing green vegetable matter and 7 mobile phones No one charged regarding cannabis because of issues regarding proof of possession. 1004 of 2018 4 January 2018 72.6g cannabis 72.6g cannabis, 4 x 10ml vials of steroids; several mobile phones; and a Centralian Carpet Python No one charged regarding cannabis because of issues regarding proof of possession. 1179 of 2019 8 March 2019 Drug paraphernalia such as numerous bongs, numerous weight scales, cannabis grinders and small glad wrap bags known as "saddle bags" Three mobile phones and knuckle dusters

[12]

Summary

The plaintiff deposed that since 2015, several police operations have been conducted at the Premises. There has been no indication that the sale of prohibited drugs has slowed or ceased. The plaintiff believes that warrants have proved to be an ineffective tool and have resulted in a waste of valuable police resources because of their lack of utility.
The plaintiff has concluded, from his review of the COPS reports exhibited to his affidavits that Damien Smith Snr and his son, Kobi, are the persons principally involved in the supply of drugs from the Premises.
When asked in cross-examination to identify the basis for his belief that prohibited drugs are, or have been, unlawfully sold or supplied on or from the Premises and are likely to be sold again on the Premises, the plaintiff said: "The entirety of the events, intelligence reports, search warrants, weapons, prohibition order searches. There is just such an extensive amount of people stopped coming out of that house with drugs on them. Numerous of those persons have stated to police that they've purchased them from persons within the house. Unfortunately it has not risen to a level of evidence where we've been able to convict yourself or persons within the house, and that's partly why we're here."
The plaintiff also said in cross-examination: "There's been extensive seizures of drugs, weapons, there's been searches of vehicles where drugs have been located immediately after surveillance which has put those people coming and going from your front door for a short period of time. I've been doing drug work for, for a number of years. It precisely fits with a pattern of offending where people attend a premises, purchase drugs and leave within a short period of time. There's been a number of text messages and phone messages that have been observed also by myself and written into the events and intelligence reports which show that it's been purchased from a person known and a phone number as Coby or whoever. Unfortunately we haven't been able to meet the threshold which would sustain charges of supply."

[16]

Ground in s 3(1)(d): a reputed criminal has control of, or is assisting in managing the Premises

The defendant owns and has exercised some control over the Premises. He is an associate of reputed criminals since he lives in the same household as other members of his family who are also reputed criminals. I accept that the plaintiff, by reason of the contents of the COPS entries, has reasonable grounds to suspect that the defendant has exercised some control over the drug activity conducted there since 2016 and as recently as 23 February 2018.
On 11 April 2017 the defendant was charged with being the owner or occupier of premises and knowingly allowing the premises to be used as drug premises pursuant to s 36Y of the Drugs Misuse and Trafficking Act 1985 (NSW) (DMTA). He was convicted and was fined $1,000. A conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made.
The plaintiff and other police officers believe that the defendant's act of posting the signs to revoke his implied consent for police to approach or knock on his front door constitutes an attempt to conceal criminal activities on the Premises.
The plaintiff deposed in both his first and second affidavits as to the following opinion: "62. Due to Malcolm Gordon SMITH [the Owner] having a familial association with majority of the Occupants at the Premises, it is inevitable he will maintain his revocation of implied consent. I am of the opinion that Malcolm Gordon SMITH will allow reputed criminals and their associates to reside at the Premises to conceal the Occupants' criminal activities. The Occupants include his son and grandchildren. The Owner will continue to have criminal associations, associate and permit reputed criminals to attend the Premises. 63. I am of the opinion, that the only way to stop the presence of reputed criminals, and the illegal sale and supply of drugs from the Premises is with the assistance of a Restricted Premises Order. I believe there are reasonable grounds for suspecting that the following conditions subsist with respect to the Premises. That being: (a) The unlawful sale and supply of drugs has been sold or supplied on the Premises and is likely to be so sold again on the premises. (b) That reputed criminals or associates [of] reputed criminals have resorted to the Premises [or] are likely to resort again to the Premises. (c) That the Owner, Malcolm Gordon Smith, who controls and manages the Premises, is a reputed criminal and also an associate of other reputed criminals, who also reside at the Premises."

[17]

The defendant's evidence and the defendant's cross-examination of the plaintiff

The defendant swore two affidavits and also cross-examined the plaintiff.
The defendant's evidence is that he has lived at the Premises for "48 to 50 years" and that the first time the police had occasion to come to that address was in 2003 when he called them concerning a sawn-off shot gun on the Premises. The plaintiff accepted in cross-examination that from 2003 until 2015 there was a "lull" in criminal conduct at the Premises and said that this was because the defendant's two sons, Damien Smith Snr and Darren Smith were not living there during that period but were "continuing their criminality elsewhere". The defendant, in oral evidence, said that he "mainly lived alone until 2015, 2016".
The defendant's evidence is that between February 2011 and January 2017 he was away at Erina on the Central Coast from Thursday to Saturday or Sunday every week, looking after his grandchildren. During that period, he was neither in control of, nor aware of, who came to and went from the Premises. The defendant admitted in cross-examination that persons who visited the Premises in his absence "could have put drugs on the premises, could have put anything on the premises".
The defendant's evidence was that the only persons presently living at the Premises are himself, his son, Darren, and his grandsons, Kobi and Callum. He said that Aaron Carpenter has not been on the Premises since November 2015 and Simon Singh had not lived at the Premises since late 2015 or early 2016. The plaintiff's evidence is consistent with this as the last record of Mr Singh being present on the Premises is dated 23 October 2015 when he was seen leaving the Premises with Darren Smith.
The defendant said that Damien Smith Snr, who had left the Premises following the imposition of a custodial sentence referred to above which commenced on 11 June 2018, was now living with his sister (the defendant's daughter) at Erina following his release from custody. According to the defendant, Damien Smith Snr continues to visit the Premises almost every day except on days when he is required to report to parole and, when he comes, he mows the lawn and helps to maintain the Premises. The defendant's evidence was that Damien Smith Jnr, who moved out in early 2017, was now living at Quakers Hill with his girlfriend, Alyssa Edwards. He said that both Damien Smith Snr and Damien Smith Jnr were welcome to return to live with him at the Premises because they were "family" but that Ms Edwards was not welcome as Darren had "barred" her from the Premises.
The defendant's evidence was that neither he nor any of the Occupants of the Premises had been charged with supply or possession of a drug associated with the Premises. It is apparent from the plaintiff's evidence that the reason for this is that, although prohibited drugs and drug paraphernalia have been found on the Premises, charges have not been laid because the police have not been able to establish that any one person has exclusive control for the purposes of proving possession: Filippetti v R (1978) 13 A Crim R 335. Nonetheless the defendant's conviction for allowing the Premises to be used as drug premises and Damien Smith Snr's conviction referred to above are both related to, or occurred in the vicinity of the Premises. The defendant maintained that Damien Smith Snr's conviction related to supply from a vehicle located in the area of the Premises but not within its boundaries.
The defendant cross-examined the plaintiff about the amount of cash that was seized from the Premises in the course of searches undertaken by police officers. He put to the plaintiff that there had been several instances of the police having to return the seized cash to the defendant or another of the Occupants. The plaintiff denied being aware of the circumstances or reasons for the return of such cash.
The defendant cross-examined the plaintiff about the CrimeStoppers reports. The plaintiff, who accepted that many of the reports had been made by anonymous sources, explained that he took into account the anonymity of the sources when deciding what weight to give to each report. The plaintiff said, in his cross-examination: "I concede that they're anonymous. As a factor in my decision‑making as to bringing this affidavit to court, I placed less weight in my mind on the anonymity of the source. But reading each report individually, dependent on the information contained within the detail and so forth, then it may increase my suspicions. The overall package of information that has sources attached to it - the anonymous sources, the vehicle stops, the search warrants - is where I've developed my overall suspicion and belief that the drugs are sold from the premises."
The plaintiff also accepted in cross-examination that none of the persons who were searched for drugs after they had left the Premises had been searched before they arrived at the Premises.

[18]

Consideration

The defendant opposes the declaration on several grounds, the principal of which is that the plaintiff has not "proved" the matters in the COPS reports and has not established the matters in s 3(1)(b), (c) and (d). He submitted that none of the police officers who conducted the searches of the Premises or otherwise been involved in the events and information recorded in the COPS records had been called to give evidence to substantiate the records or to subject themselves to cross-examination by the defendant. He also relied on the concession by the plaintiff that the persons searched had not been searched before they had visited the Premises.
It is evident from the wording of s 3 that "proof", whether on the balance of probabilities or beyond reasonable doubt, is not required. All that is required to be shown is that a senior police officer shows "reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises". In other words all that the plaintiff has to show is that Detective Sergeant Davies has shown reasonable grounds for suspecting at least one of the conditions in s 3(1)(b), (c) or (d). Suspicion on reasonable grounds may be based on hearsay material which, when viewed objectively, would reasonably found the suspicion: Ex parte Fergusson; Re Olah Pty Ltd [1970] 1 NSWLR 713.
The question of what amounts to reasonable grounds for suspecting was addressed by the High Court in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said, at [14]: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam (1970) AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303): 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.'"
The reasonableness of the grounds is to be adjudged at the time the summons is filed or the time when the affidavits are sworn or affirmed: Re Application of Shepard [1983] 1 NSWLR 265 at 266D-E (Hunt J).
I am satisfied that the plaintiff has shown that a senior police officer has reasonable grounds for suspecting the matters in s 3(1)(b), (c) and (d)(i). As to 3(1)(b) there is ample material to constitute reasonable grounds for suspecting that drugs have been unlawfully sold or supplied on and from the Premises. There are also reasonable grounds for suspecting that it is likely that they will be sold again on and from the Premises, if not by the current occupants, by Damien Smith Snr and Jnr whenever they return to the Premises. The matters in s 3(1)(c) and s 3(1)(d)(i) are not controversial since the defendant accepts that he is a reputed criminal and that the other three occupants, Darren Smith, Kobi and Callum are also reputed criminals and that the Premises is presently the home of each of them. As referred to above, the defendant would welcome Damien Smith Snr and Damien Smith Jnr if they wanted to return to live at the Premises.

[19]

Discretion

Ms Rogers, who appeared for the plaintiff, submitted that, although I had a discretion whether to make the declaration, there was no relevant factor that weighed against the making of the declaration. When I enquired of Ms Rogers whether the defendant would commit an offence if those family members who presently live in the Premises continued to reside there, she informed me that the plaintiff does not intend to disturb the rights of those living at the Premises to continue to reside there as long as there are no prohibited drugs or drug paraphernalia present on the Premises. In other words, the plaintiff does not intend any declaration I make to have the effect of causing the defendant, his son, Darren, or grandsons, Callum and Kobi, each of whom meets the definition of "reputed criminal" to be evicted from the Premises.
However, I am concerned that, if I make orders as set out in the summons, the effect of s 8 would be to make the defendant guilty of an offence if any of the conditions in s 3(1) apply to the Premises while the declaration is in force.
Even if no crime is committed on the Premises and no further activity involving prohibited drugs takes place on the Premises, the Premises will inevitably be in breach of the conditions in s 3(1)(c) and s 3(1)(d)(i), thereby rendering the defendant liable to prosecution. The defendant will be in breach of the condition in s 3(1)(c) merely by going home since he is a reputed criminal. He will also be in breach if he does not stop his son Darren and grandsons Kobi and Callum from going home as they, too, are reputed criminals within the definition, having been convicted of at least one indictable offence each. Their status as "reputed criminals" can, by reason of the definition, never be altered. If a declaration is made, the defendant will also be in breach of the condition in s 3(1)(d)(i) since it is not in issue that he has control of the Premises and that he is a reputed criminal. I have been unable to discern any proper basis to distinguish between persons being "found" on, or "resorting" to, premises on the one hand, and "residing" on premises, on the other, such as would exempt the defendant and the other present occupants from fulfilling the conditions in s 3(1)(c) and s 3(1)(d)(i) by their presence.
The consequences that would flow from a declaration under s 3 have been aptly described by courts as "drastic" and include the conferral on police the power to enter and search the Premises without a warrant and the liability of the defendant as owner and occupier of the Premises to prosecution under the Act: Commissioner of Police v Tanos (1958) 98 CLR 383 at 390 (Dixon CJ and Webb J); [1958] HCA 6; Greig v Irmak [2018] NSWSC 1058 at [4] (Latham J) and Beeche v Smith Street Investments Pty Ltd [2018] NSWSC 544 at [19] (McCallum J). Unlike the present Act, the version of the Act considered in Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 98, referred to "disorder" in the context of a declaration under s 3. The present Act contains no such reference, which was removed by the Disorderly Houses Amendment (Commercial Supply of Prohibited Drugs) Act 2002 (NSW) and substituted with the words "such premises to which this Part applies".
In Sibuse Pty Ltd v Shaw Street CJ (in dissent) considered that the element of "disorder" constituted an additional matter which required adjudication and said at 102-103: "The making of such a declaration is plainly no light step. It does not followmandatorily upon proof that one of the conditions in pars (a) to (e) of s 3(1) isestablished; the judge has, and must decide whether or not to exercise, a discretion in making a declaration: Commissioner of Police v Tanos (1958) 98CLR 383 at 390. I construe the section as requiring an adjudication upon theelement of disorder, within the ordinary sense of this word, which may ormay not exist in relation to premises proved to fall within one of theconditions in pars (a) to (e). . . . As to par (c) [of s 3(1)] all that I need ask is whether the Wayside Chapel and halfway houses are exposed to being declared as disorderly houses without proof of anything more than that reputed criminals resort to them. Here again the element of disorder is relevant to be considered before a declaration is made. Turning to par (d) [of s 3(1)] I ask whether it is in line with modern notions of the rehabilitation of ex-prisoners, on the basis merely of the stain on theircharacter of the criminal conviction, to shut them out from taking any part atall in assisting in the management of any premises under pain of thosepremises being declared a disorderly house. Again the element of disordershould plainly be recognised as relevant to be considered before a declaration is made. To those who say that I have chosen rather extreme examples and that itcould reasonably be expected that the police would exercise some discretionbefore setting the Act in motion, I would reply that it is better for the exerciseof discretion to be in judicial hands when it comes to so drastic a step. Indeedthis is a further reason to support the need for a judge to examineindependently the issue of disorder."
By contrast, the majority in Sibuse Pty Ltd v Shaw said that proof of one of the conditions in s 3 would, in effect, require a declaration to be made. Their Honours reasoned that this consequence flowed in part from the wording of s 4, which sets out the circumstances in which a declaration will be rescinded: at 114 (Priestley JA) and at 119-120 (McHugh JA).
The legislature can be taken to have removed any implication (if there ever were one) that any additional adjudication on element of disorder is required or that the question of "disorder" is relevant. The plaintiff has established the basis for the discretion to be exercised.
However, there is one matter which is of sufficient importance to defer determining that the discretion ought be exercised in the plaintiff's favour. By reason of the wording of s 8(1), I have found it impossible to devise a form of declaration that will have the desired effect, as far as the plaintiff is concerned and will avoid the consequences which the plaintiff contends he does not seek. To make an order in the form as sought in prayer 2 of the summons would appear to render the defendant criminally liable to prosecution for an offence under s 8 merely by stepping over the threshold of the Premises or by permitting any of the other three family members who presently reside there to do so. Accordingly, I will not make any substantive orders until the plaintiff has had an opportunity to provide me with a draft form of declaration which, in accordance with the position he has taken in these proceedings, does not criminalise the continued occupancy of the Premises by the defendant, Darren Smith, Kobi Smith and Callum Smith.

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Judgment (21 paragraphs)

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Legislation Cited (9)

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