McQUEEN v HAWI & ANOR [2008] NSWSC 136 | Case summary

1 HIS HONOUR: On 22 January 2007 the applicant was charged with offences involving the infliction of serious physical injury. On the same day police applied for and obtained a search warrant under the Law Enforcement (Powers and Responsibilities) Act 2002. That warrant authorised the searching of premises in Bexley occupied by the defendant. Police were authorised to search for and seize a number of specified items including a "light coloured pair of shoes". The offences in connection with which the search warrant was obtained were offences involving serious violence. The warrant does not specify the date or dates of the alleged offences or the name or names of the alleged victim or victims (which seems to me to be a significant shortcoming) but, as this matter was not agitated before me, I say no more about it. 2 Pursuant to the warrant a light coloured pair of shoes and other items were seized. It appeared that the shoes were stained with blood. They were sent to the Division of Analytical Laboratories for analysis, no doubt to identify the blood if possible. The result of that analysis is not directly known. 3 On 10 September 2007, the Director of Public Prosecutions entered a nolle prosequi and accordingly all proceedings ended in relation to the charge. A number of items taken in the search were returned but the shoes were not. There are no outstanding charges against the applicant. 4 The defendant made an application in the Local Court under s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 for an order returning the shoes to him. That application came on for hearing on 8 November 2007. On 9 November 2007 the Magistrate ordered the shoes to be returned. On 12 November 2007 proceedings were commenced in this Court under s 69 of the Supreme Court Act 1970 seeking an order that the order for the return of the sandshoes be quashed and a stay in the meantime. The stay was granted and, in due course, the summons came on for hearing before me. 5 The proceedings in the Local Court commenced with some debate about the identity of the person making the application for return. After that was resolved the question arose as to whether there was evidence that the defendant owned the shoes. This evidence was given by the defendant's wife. 6 In cross-examination of the defendant's wife the prosecutor asked her whether her husband was the President of the Commancheros. Of course, this is the name of a notorious motorcycle group. Objection was taken to the question and the Magistrate rightly inquired as to its relevance. The effect of the answer by the Police Prosecutor was that it was proposed to call evidence about background checks having been made in respect of the defendant which would explain "why the informant wants to keep these shoes so that he can conduct further investigations in relation to - which is still ongoing in relation to what we think these shoes may be involved with." 7 In further explanation the Prosecutor said that the Commancheros were "a criminal group", that there were a number of investigations on foot, although no charges were then being investigated, that DNA tests showed that the blood on the shoes is not that of the applicant, that the investigator has made inquiries "in relation to specific crimes", and that although it was not known whether the shoes might or might not relate to any crimes, or indeed any crime yet to be discovered, the shoes should be retained. 8 When the investigating officer, Detective Sergeant McQueen, was called he was asked early in his evidence by the prosecutor whether the shoes had been submitted for blood analysis. Objection was taken on the ground of hearsay - a somewhat doubtful objection I think, but in answer to the Magistrate's question about relevance the prosecutor said: "There can be evidence without charges...this is what I'll be leading from the officer. There are many circumstances where police come by property where no criminal charges are laid but will take the people's property for various reasons and retain it as an exhibit because of the way that they come into their possession and no criminal charges are laid. Now we live in a different society today where investigations can take 15 years. We only had a murder the other day solved fifteen years after the fact. Things come to light much later today than they [did] back in the sixties and seventies when some of these other decisions were made." 9 I assume by "other decisions" the officer was referring to other decisions not to prosecute. The prosecutor elaborated to some degree further by saying that he intended to call evidence as to the type of person the defendant is (I assume that he was a violent criminal or a associated with violent criminals), that there have been crimes where Commancheros have killed Commancheros, that this was the: "… types of key things that bikie gangs are involved in and the types of crimes, violent crime that they're involved in."

10 The prosecutor conceded that the discovery of the shoes was "quite fortuitous" in that it did not assist in the case that the relevant police officer was originally investigating but the fact that an unknown person's blood was on the shoes prompted inquiries to be made concerning "particular types of crime", although the fact that: "… we don't have a victim or a defendant at this stage doesn't mean that in a year...next year, a year after, a body turns up and there may be something...". In describing this as "speculative" the prosecutor was completely correct. 11 It is obvious that the Magistrate relied on the prosecutor's submission as an accurate outline of the evidence, which he proposed to lead from the investigator. It will be seen that the prosecutor did not suggest or even hint at any particular offence let alone any offence, which it was believed the defendant, had committed. For the purpose of determining whether the evidence was relevant, seems to me that the Magistrate was entitled to rely on the prosector's submission as to the evidence it was expected would be adduced. Had the prosecutor thought that further evidence might have been required he could have sought to call the detective on the voir dire. He did not take this course. 12 Questions of the admissibility of evidence are frequently determined on the submissions of counsel. If it were not done in this way a great deal of court time would be wasted by the pointless calling of evidence on the voir dire to determine questions of admissibility. In my view, the Magistrate was entirely justified in relying upon the prosecutor to conduct the matter appropriately and to bring to her attention the way in which it was contended the objected to evidence was relevant to the subject matter of the application. 13 The Magistrate concluded, giving brief but adequate reasons, that property could not be retained by police simply because a person belongs to a particular group that might be thought conducted criminal activities including criminal activities of violence. She described the retention as "anticipatory and purely speculative" and said that it was not permitted. This finding of the Magistrate was based upon an acceptance of what had been told to her by the prosecutor, taking that at its highest. Having ruled that the evidence was irrelevant in the sense that, even if true, it did or could not justify retention, the evidence was not adduced. 14 It is submitted in this Court by Ms Richardson of counsel for the investigating police officer that the Magistrate should have permitted the evidence to be given. It was submitted that the evidence was relevant to the exercise by the Magistrate of her discretion whether to order return. In the end, I think, Ms Richardson was bound to deal with the matter on the basis that the proposed evidence was of the kind, although perhaps not in precisely the same terms, as had been outlined to the Magistrate by the prosecutor. 15 The reason for retention was directly relevant to whether the order should be made and was, of course, capable of being given in evidence. The Magistrate's finding, in effect, was that the reason did not justify retention and, accordingly, accepted at its highest, did not assist the prosecutor's case. In this sense the evidence was held to be irrelevant. 16 On the assumption I have mentioned, this was a reasonable course to adopt but, as a matter of law it was not correct to say the evidence was irrelevant. Assume the absurd case that the officer had said "I was keeping the shoes because they looked like they were an interesting exhibit", that of course could not have justified retention but it would have been undoubtedly relevant to the exercise of discretion. It follows that, as a matter of law, the Magistrate's finding that the evidence was irrelevant was mistaken. But that does not mean that her Honour's order was wrong, because it was made upon the assumption that the prosecutor's outline of the proposed evidence was accurate, a reasonable, indeed a necessary, assumption in the circumstances, and that she, as it were, gave the respondent police officer the benefit of accepting. 17 The essential question that needs to be answered for present purposes is whether items of evidence having been lawfully obtained by virtue of a search warrant, the property can be held by police, against the demand for its return by its owner, for the purpose of investigating whether it might be implicated in some crime or other which had not been identified or indeed might not even yet have been discovered. 18 Were the shoes required for the purpose of investigating a specific crime it might well be that their retention would be justified. That, however, is very far from this case. In substance the respondent's argument amounts to this: the applicant is a criminal; he is involved in a criminal organisation; that organisation has committed a number of criminal offences; we suspect that the applicant also has but we do not know what they are; we are entitled to hold the shoes in case at some time it turns out that they might be relevant to a crime committed by him or his associates. 19 I do not regard this view as being at all unreasonable. To the contrary it strikes me as sensible. But it seems to me that a general wish to hold property belonging to someone else for the reason that it might turn out at some time or other to be material to some criminal activity about which we presently have no information is not a retention for the purposes of investigation within the terms of s 218 and it is not a basis for properly refusing an application for return of goods under s 219. The protection of the right of the citizen to his or her property is an important legal principle. 20 The form in which the proceedings have taken in this Court is that it is contended that the error of the Magistrate, in failing to allow evidence from the investigator as to the reasons for retention meant that her Honour's discretion miscarried, and that therefore her order should be quashed. 21 I have already said that the Magistrate's ruling on the question of the relevance of the evidence was mistaken but I also consider that her Honour was right in determining that that evidence, if given, could not have justified retention. In the sense, therefore, that it was not evidence that could influence the outcome of the proceedings in favour of the investigating officer, its exclusion was immaterial. However, these are legal niceties. The fundamental point is, as I see it, that the Magistrate was correct in characterising the proposed evidence as not justifying retention and that, although technically her Honour should have permitted the evidence to be given, it would not have changed the correctness of her order.

McQUEEN v HAWI & ANOR

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