Commissioner of Police v Pecover [2014] NSWSC 1427

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Pecover [2014] NSWSC 1427 Hearing dates: 15 October 2014 Decision date: 20 October 2014 Jurisdiction: Common Law Before: Adamson J Decision: 1. An order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) setting aside the order of the second defendant made on 18 February 2014 ordering the return of specified goods in Police custody to the first defendant within 60 days (the decision); 2. An order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 remitting the decision to a Magistrate other than Magistrate Dr RA Brown to be dealt with according to law. 3. Order each party to pay his own costs. Catchwords: CRIMINAL LAW - application by police to have computer drives that were found to contain child pornography forfeited to the Crown - onus of proof on person claiming lawful entitlement to possession

APPEAL - Magistrate misapprehended s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - failure to give any reasons for decision - took account of matters of technical nature that were not "common knowledge" - Magistrate's orders set aside and remitted to Local Court Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 57, 59 Crimes Act 1900 (NSW), s 91FB Criminal Code Act 1995 (Cth), s 473.1 Evidence Act 1995 (NSW), ss 144, 177 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 216, 218, 219 Local Court Act 2007 (NSW), s 70 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Azzopardi v Tasmanian UEB Industries Limited (1985) 4 NSWLR 139 Carolan v State of New South Wales [2013] NSWSC 1593 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Farkas v The Queen [2014] NSWCCA 141 Parker v DPP (1992) 28 NSWLR 282 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Category: Principal judgment Parties: Commissioner of Police (Plaintiff) Simon Pecover (Defendant) Representation: Counsel: NJ Adams SC/ JE Davidson (Plaintiff) Solicitors: I V Knight, Crown Solicitor (Plaintiff) Mr Pecover (Unrepresented) File Number(s): 2014/82629 Publication restriction: Nil Decision under appeal Jurisdiction: 9109 Date of Decision: 2014-02-18 00:00:00 Before: Brown LCM