Greer v Commissioner of NSW Police and Anor [2002] NSWSC 356

New South Wales Supreme Court

CITATION : Greer v Commissioner of NSW Police and Anor [2002] NSWSC 356 FILE NUMBER(S) : SC 10122/02 HEARING DATE(S) : 18/4/02 JUDGMENT DATE : 26 April 2002

George Greer (Plaintiff) PARTIES : New South Wales Police (1st Defendant) Tod Maxwell Barden (2nd defendant) JUDGMENT OF : Bell J at 1

COUNSEL : In Person (Plaintiff) Ms Roberts (Solicitor) SOLICITORS : In Person (Plaintiff) I.V. Knight LEGISLATION CITED : Search Warrants Act 1985 Donnelly v Amalgamated TV Services (1998) 45 NSWLR 570 Ghani v Jones [1970] 1 QB 693 CASES CITED : Gollan v Nugent (1988) 166 CLR 18 Regina v Jiminez [2000] NSWCCA 390 Tye v Commissioner of Police (1995) 84 A Crim R 147 DECISION : Summons dismissed; Plaintiff is to pay the defendant's costs as agreed or assessed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE list

BELL J

26 April 2002

10122/02 Greer v Commissioner of NSW Police & Anor

JUDGMENT 1 BELL J: These proceedings were commenced by summons filed on 16 January 2002. The plaintiff claims orders including an order to return to him, or an order for the destruction of, certain documents, photographs and videotape recordings held by the first defendant. The proceedings arise out of the execution by the second defendant of a search warrant on premises at 17 Rodd Road, Five Dock on 12 December 2001. The premises were occupied by the plaintiff and his mother. 2 The relief sought in prayers 1 to 3 of the summons was not pressed. It is common ground that the items referred to therein were returned to the plaintiff in the period between 16 January and 21 February 2002. 3 In the proceedings before me the plaintiff claimed the following relief: (i) that any and all photographs of item (06) (1 Collins one page per day diary) that have been made by and are in the possession of the defendants be returned to the plaintiff; (ii) that any and all photographs and/or negatives taken of the plaintiff on Wednesday, 12 December 2001, to include any and all video footage be returned to plaintiff or destroyed; (iii) that any and all questions asked by the defendants and any or all answers given by the plaintiff as a result of the plaintiff's detention at 17 Rodd Road, Five Dock on Wednesday 12 December 2001 that have been recorded in any way, be either destroyed or given to the plaintiff. 4 The plaintiff read two affidavits sworn by him on 16 January and 8 April 2002. He deposed to being spoken to by persons, apparently members of the New South Wales Police, some time after 1:30 pm on Wednesday 12 December 2001 in a lane at the rear of 17 Rodd Road, Five Dock. He was handed an Occupier's Notice issued pursuant to the Search Warrants Act 1985. A copy of that Notice is annexed to his first affidavit. 5 The plaintiff stated that his personal/business Collins diary for the year 2001 had been seized by police during the execution of the search warrant. A number of other documents and things were also seized pursuant to the warrant but it is not necessary to refer to these. 6 The defendants' relied on the affidavit of Todd Maxwell Barden sworn on 21 March 2002. Detective Barden was required for cross examination. 7 Detective Barden deposed that he applied to the clerk of the Local Court, Downing Centre, Liverpool Street, Sydney for a search warrant on 12 December 2001 in respect of premises at 17 Rodd Road, Five Dock. A warrant was issued upon that application and executed on that day. The execution of the warrant was recorded by means of a video recorder. Items were seized and listed in a Property Seizure/Exhibit Form. Subsequently a number of items had been returned to Mr Greer's solicitor, Mr Tony Barber. 8 Detective Barden went on to state in his affidavit: "A photocopy of the plaintiff's 2001 diary, as referred to in Property Seizure/Exhibit Form A35174 was made and retained to assist with ongoing police investigations into the $391,900.00 found at 19 Rodd Road, Five Dock on 13 December 2001." 9 In cross-examination Detective Barden was shown the original of the Collins diary and invited to identify entries in it said to be relevant to the ongoing police investigation into the finding of the money. He referred to entries contained on the pages marked 6, 7 and 9 December 2001 as significant in this regard. Photocopies of those entries were tendered. The entries identified by Detective Barden concern references to the police. In particular, the entry for 6 December appears to record that uniformed police were on that day observed by the author in the immediate vicinity of the premises at 17 Rodd Road. One officer was described as peering through the front window of the bedroom occupied by the plaintiff's mother. Some time later the author recorded that the police drove off in a marked white police vehicle. 10 The proceedings were conducted upon the basis that the entries in the Collins diary were made by the plaintiff. 11 Detective Barden said that the day following the execution of the search warrant at 17 Rodd Road the police discovered the sum of $391,900.00 in cash wrapped in some form of packaging lying on the ground in a location within one metre of the common boundary with 17 Rodd Road. There was no access to the location at which the parcel was found from either the front or the back of the dwelling at 19 Rodd Road. The parcel appeared to have been lying in these exposed conditions for some time. 12 The New South Wales Police and the New South Wales Crime Commission are jointly investigating the finding of this sum of money. Detective Barden considered it to be of relevance to that investigation that in the days leading up to the execution of the search warrant the plaintiff could be shown to have been aware of police interest in his premises. I understand the inferences that Detective Barden considers open include (i) that the sum of cash was unlawfully obtained, (ii) that the plaintiff had possession or control of it and (iii) that he stowed it on the neighbouring property when he became aware of the high level of police interest in his premises. 13 Detective Barden readily conceded that many entries in the Collins diary had no relevance to any ongoing police investigation. He did not confine himself to an assertion that the entries for 6, 7 and 9 December were the only relevant entries. He said it had been a while since he had read the diary and he believed there may be other notations of significance to the police in connection with the subject investigation. Principally reliance was placed on the entry for 6 December 2001. 14 Detective Barden photocopied the diary prior to returning the original to the plaintiff. Generally it was Detective Barden's account that he copied the whole of the diary because it may be appropriate to view individual entries by reference to their context in the entire text.