MALCOLM v SELBY and ORS [1994] NSWCA 192

MALCOLM v SELBY and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 3 June 1994, 3 June 1994 [1994] NSWCA 192

WARRANT ISSUED UNDER LISTENING DEVICES ACT by order of judge — alleged failure by judge to comply with s17(2) of the Act — onus of proof on claimant — no shift of evidentiary onus — applicant for prerogative relief bears onus of proof — evidence before court not entirety of material — insufficient evidence to show grounds for granting relief.

A warrant was issued under the Listening Devices Act on 27 March 1992 pursuant to an order of Grove J. The warrant was acted on and evidence was obtained and used in committal proceedings. Five persons were subsequently committed for trial on a charge of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug. Early in the trial it was submitted to the trial judge that evidence obtained pursuant to the warrant was inadmissible because the warrant was invalid by reason of failure to comply with s17(2) of the Act, that is, failure to afford proper notice, or an opportunity to be heard, to the Attorney General before the order for the issue of the warrant was made. The trial judge found that he did not have jurisdiction to review the validity of the order for the issue of the warrant or the warrant itself. An application was then made to this court seeking that the warrant be quashed.

Assuming, without deciding, that the court had power to review the challenged order: HELD, (1) the words of s17 of the Listening Devices Act show that the onus of proving the failure to fulfil its requirements lies upon the claimant. Apart from this, there is abundant authority to the effect that an applicant for prerogative relief bears the burden of clearly establishing the facts which show an absence or excess of jurisdiction: (2) it is not the case that because the claimant tenders some, insufficient, evidence of a fact necessary to be proved to show non compliance with s17(2), the evidentiary onus will shift to the opponent because of the state the evidence has reached: (3) there is no reason to assume that the evidence put before the court was the entirety of the material before Grove J when the warrant was issued. Hence, the evidence is insufficient to show that Grove J could not have been satisfied that the requirements of s17(2) had been met, and consequently the claimant has failed to demonstrate that there are grounds for granting relief.