Paulo v Commissioner of Police [2021] NSWSC 517

Supreme Court New South Wales

Medium Neutral Citation: Paulo v Commissioner of Police [2021] NSWSC 517 Hearing dates: 8 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Jurisdiction: Common Law Before: Brereton JA Decision: (1) Pursuant to SCR, Pt 51B r 5(5), extend time to commence these proceedings to 21 September 2020; (2) Dismiss the summons; and (3) By consent, order that the defendant pay the plaintiff's costs. Catchwords: APPEALS – Leave to appeal – From Local Court – From committal proceedings – Where parties in agreement that magistrate erred in setting aside subpoena – Where documents have been produced to applicant – Where no practical utility in granting relief – Whether need to correct manifest error – Where not clear that subpoena had legitimate forensic purpose in context of committal proceedings – Where not clear whether Supreme Court able to grant relief sought – Leave refused STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a) – Whether setting aside subpoena within the meaning of "order" – Meaning of "any person" – Meaning of "against" – Meaning of "in relation to the person" – Use of extrinsic materials – Explanatory note and second reading speech CRIMINAL PROCEDURE – Committal proceedings – Whether legitimate forensic purpose in issuing subpoena in committal proceedings under new legislative scheme where no facility for defendant to adduce evidence APPEALS – Leave to appeal – Remedies – Scope of Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) – Whether orders for production to Supreme Court available APPEALS – Leave to appeal – Remedies – Alternative relief sought – Certiorari refused for discretionary reasons mirroring reasons for refusing leave to appeal – Declaration refused on basis that such relief would be an advisory opinion APPEALS – Procedure – Time limits – Extension of time – Where not opposed – Extension granted Legislation Cited: (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29(1)(e) (NSW) Courts Legislation Amendment Act 1999 (NSW) Crimes (Appeal and Review) Act 2001, ss 53(3), 55(3)(a) (NSW) Criminal Appeal Act, s 5F (NSW) Criminal Procedure Act 1986, ss 55, 58, 91, 93, 170, 222, 283C(5) (NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) Justices Act 1902, ss 104(3)-(4) (NSW) Supreme Court Rules 1970, Pt 51B r 5(5) Cases Cited: Application of the Attorney-General for NSW dated 4 April 2014 (2014) 246 A Crim R 150; [2014] NSWCCA 251 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8 Commissioner of Police v Chidgey [2007] NSWSC 417 DPP v SW [2009] NSWSC 524 Fantakis v Local Court of New South Wales [2020] NSWSC 931 Feeney v New South Wales Police [2016] NSWSC 1708 Franklin v Commissioner of Police [2018] NSWSC 310 Jolley v DPP [2020] NSWSC 1406 Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064 Mann v Commissioner of Police [2020] NSWSC 369 Murdoch v Petterson [2005] NSWSC 1359 Potier v Maloney [2005] NSWSC 336 R v Abdullah (1999) 6 Crim LN 54 [1025]; [1999] NSWCCA 188 R v Colby (1995) 84 A Crim R 125 R v Keeling (NSWCCA, Cole JA, Smart and James JJ, 060359/1996, 5 September 1996, unreported); (1997) 4 Crim LN 1 [647] R v Smith (1996) 86 A Crim R 308 R v Stig (Court of Criminal Appeal (NSW), Mahoney ACJ, Simpson and Barr JJ, 17 October 1996, unreported) Smithers v Beveridge (1994) 14 ACSR 197 Steele v Director of Public Prosecutions [2007] NSWSC 926 Thompson v DPP (2014) 21(11) Crim LN [3453]; [2014] NSWSC 522 Warburton v Director of Public Prosecutions (NSW) [2017] NSWSC 69 Williams v Cronin [2014] NSWSC 1578 Texts Cited: Explanatory Note, Courts Legislation Amendment Bill 1999 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 New South Wales Legislative Council, Parliamentary Debates (Hansard), 2 June 1999 Category: Principal judgment Parties: Fuaeka Paulo (Plaintiff) Commissioner of Police (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: G Lewer (Plaintiff) K Curry (Defendants)