Supreme Court New South Wales Medium Neutral Citation: Sayer-Jones v Bell [2015] NSWSC 1094 Hearing dates: 5 August 2015 Decision date: 06 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The Crown Solicitor's Office is to place the items seized as a result of warrant number XXXX of 2015 issued at Downing Centre (and any copies or photographs made of that material) into the custody of my Associate for transfer to the Registrar of the Supreme Court of New South Wales by 12 midday on 6 August 2015. (2) The matter is listed before the Common Law Registrar for directions at 9 am on 13 August 2015. (3) The criminal prosecution against the plaintiff is stayed until further order of this Court. Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction – plaintiff charged with obtaining property by deception and using a carriage service to make threats – search warrant executed –property seized – declaration sought that search warrant was executed unlawfully – whether seized property should be entered into the custody of the Supreme Court until proceedings determined Legislation Cited: Crimes Act 1914 (Cth), s 3H Evidence Act 1995 (NSW), s 138 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Category: Procedural rulings Parties: Robert Sayer-Jones (Plaintiff) Brent Bell (Defendant) Representation: Counsel: Solicitors: In person (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2015/211638 Judgment Introduction 1. Before the Court is, in effect, an application for a mandatory interlocutory injunction. It has been brought by the plaintiff, Mr Sayer-Jones, against the New South Wales Police. He appeared unrepresented, though it is clear from the affidavit material that he read, along with his oral submissions, that he has some familiarity with legal principle. The police were represented by Mr Harris of the Crown Solicitor's Office. 2. At any early stage of the proceedings, I raised with the parties my long acquaintanceship with the plaintiff arising from his attendance at criminal courts as a spectator over many years. They were content for me to hear the matter; as my earlier judgment shows, so was I. Background 1. The background of the application is as follows. On 15 May 2015, the police executed a search warrant at the home of the plaintiff and took possession of a number of items. The plaintiff was not present, but his sister, who lived there, was. The position of the plaintiff is that the police failed to comply with s 3H of the Crimes Act 1914 (Cth), in that they did not provide the sister of the plaintiff with a copy of the search warrant. 2. Over the ensuing weeks, it seems there were some unhappy interactions between the plaintiff and the police. Eventually, he commenced proceedings in another court founded upon the alleged unlawfulness of the execution of the search warrant, but it was accepted that that court lacked jurisdiction. 3. Before me, the matter having come into the Duty List, he pressed only order 1 in an amended summons filed in this Court on 3 August 2015; namely: An order for mandamus directing the New South Wales police through its servants or agents to place the items seized as a result of warrant number 871 of 2015 issued at the Downing Centre (and any copies made of that material) into the custody of the Supreme Court forthwith. 1. The plaintiff has been charged with Commonwealth offences of, in short, using a carriage service to harass, and State offences of, in short, obtaining property by deception. I was told that the matter is next in the Local Court on 14 August 2015, on which date an application for diversion from the criminal justice system pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) may well be made. Submissions 1. The position of the plaintiff, in a nutshell, was that the authorities show that superior courts are prepared to grant declarations about the unlawfulness of actions of investigators. That is so even though the litigation leading up to the making of such declarations inevitably leads to fragmentation of criminal prosecutions. And it is also the case even despite the fact that merely because evidence is declared to have been unlawfully obtained by no means precludes its subsequent admission in support of the prosecution case, in light of the discretion to admit unlawfully or illegally obtained evidence contained in s 138 of the Evidence Act 1995 (NSW). 2. He submitted that the hearing of the declaration could occur in a matter of weeks, not months or years, subject of course to the convenience of the Court. 3. He also expressed the concern that any declaration could be rendered otiose if the police can simply continue to use material that he claims was unlawfully obtained to investigate the matter and possibly bolster the case against him. 4. He submitted in short that it can hardly be the case that, once a real question about the lawfulness of the compulsory acquisition of evidence has been raised in this Court, the police should simply be permitted to continue to analyse the evidence and perhaps use it to derive further inculpatory material. 5. In able submissions to the contrary, Mr Harris submitted that I should analyse the application for an injunction in the orthodox way, placing substantial emphasis on the balance of convenience. 6. He explained that the material has been in the possession of the police for quite some weeks, and in that sense the application is arguably too late to be effective, because the police have already had an opportunity to consider it. 7. He also submitted that there is a substantial public interest in the police not being forestalled from investigating material that has come into their possession. He pointed to s 138 of the Evidence Act in support of the proposition that mere illegality cannot have that forestalling effect, because it does not lead to automatic inadmissibility. 8. Whilst accepting that the plaintiff has a reasonably arguable case (though not, of course, conceding its correctness), he submitted that the only point at which prejudice will accrue to the plaintiff is some time in the future, when it could be that the prosecution will seek to tender the evidence, or evidence derived from it. In other words, he submitted it would be precipitous for me to restrict the investigatory powers of the police now. Determination 1. There is force in much of what the solicitor for the defendant has said. I am well aware that for many years the High Court has firmly counselled against the fragmentation of criminal proceedings. I am also aware that any declaration as to unlawfulness, even accepting that it will be binding upon the ultimate trial judge or magistrate, by no means determines the separate question of admissibility. 2. Having said that, the fact is that both Federal and State Courts have made declarations of the nature sought by the plaintiff, albeit rarely. That shows that considerations of avoiding fragmentation do not "trump" all others. 3. It is true that there has been some delay on the part of the plaintiff, and nothing could or should be done by me with regard to investigations and analyses already undertaken by the police. But in his affidavits the plaintiff explained that he has been very badly emotionally affected by all of these events. And in any event, he did seek redress in a court some time ago; it merely turned out to be the wrong one. I do not think that the fact that the application has been brought at a somewhat delayed stage should be fatal to it. 4. To my mind, ordering that the police surrender up all of the material (and any copies, photographs and so forth derived from it) for a period of a month or two is appropriate. Not to do so, whilst the plaintiff is pursuing the issue of unlawfulness in a superior court, and thereby permitting investigations of allegedly unlawfully obtained evidence to continue as if no impugning litigation were on foot, is counterintuitive. 5. Of course, there can be no question of the criminal proceedings being delayed for years or even many months. But for the time being, until the application for a declaration is heard and resolved, seeking to balance all that must be considered with regard to an interlocutory injunction, I consider that proposed order 1 should be made, with some mechanistic adjustments. 6. In terms of logistics, Mr Harris assured me that the materials could be effectively secured at his office. But the plaintiff would prefer the material to be secured at the Supreme Court, and enquiries by my staff show that that can readily be accommodated. 7. My order will commence a little over two hours from its delivery; I am told that all of the materials are at Paddington Police Station, and yesterday I asked Mr Harris to make contingent arrangements to ensure that they can be speedily surrendered if necessary. 8. Finally, I think it appropriate that the criminal prosecution against the plaintiff be stayed until the question of the declaration is resolved by the Court. Costs 1. The plaintiff, being self represented, has no entitlement to costs, and I do not propose to order them. Orders 1. I make the following orders: 1. The Crown Solicitor's Office is to place the items seized as a result of warrant number XXXX of 2015 issued at Downing Centre (and any copies or photographs made of that material) into the custody of my Associate for transfer to the Registrar of the Supreme Court of New South Wales by 12 midday on 6 August 2015. 2. The matter is listed before the Common Law Registrar for directions at 9 am on 13 August 2015. 3. The criminal prosecution against the plaintiff is stayed until further order of this Court. ********** Amendments 20 June 2024 - Publication restriction removed - judgment republished. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2024