Commissioner of Police, New South Wales Police Force v Hariz

HIS HONOUR: The Commissioner of Police, NSW Police Force, filed a summons in this court on 29 May 2019 in respect of orders made by his Honour Magistrate Funston in the Local Court at Parramatta on 23 and 24 May 2019. An amended summons was filed on 31 May 2019.

The proceeding involves an appeal pursuant to s 70(1)(c) of the Local Court Act 2007 (NSW) and Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW), or alternatively an application for review pursuant to s 69 of the Supreme Court Act 1970 (NSW).

Criminal proceedings were commenced in 2018 against the first defendant, Mr Raed Hariz, by the NSW Police Force. A range of items were seized from Mr Hariz at the time of his arrest. The property is said to include laptop computers, mobile phones, a multitude of USBs, and sundry other items. The proceedings before the learned magistrate relate to an attempt by Mr Hariz to have the property returned to him.

Mr Hariz attended the Local Court at Parramatta on 6 May 2019 and filed an application for an order pursuant to s 219 of the Law Enforcement (Powers and Responsibilities) Act 2001 (NSW) for the return of the property. There appears to be an issue as to whether a copy of the application was served on the NSW Police Force.

The application was listed before the Local Court on 23 May 2019. Mr Hariz appeared in person and a Police Prosecutor was present in the court. Mr Hariz outlined to the magistrate his claim for the return of the property. In short, he claimed that he had been served with the brief of evidence relating to the criminal proceedings, and he asserted that the property seized by the police was irrelevant to the prosecution. The magistrate heard this argument developed by Mr Hariz and then the following exchange with the Police Prosecutor occurred:

A moment later, Mr Hariz sought some specification as to the property:

The following day, Mr Hariz appeared before Funston LCM again. The same Police Prosecutor happened to be present. The following occurred:

There are a number of grounds of appeal upon which the Commissioner of Police relies. For present purposes, they include that the magistrate erred by not allowing the Police Prosecutor to have a proper opportunity to be heard. Mr Hariz has received some legal advice through the pro bono legal assistance scheme and has indicated that he now concedes that the appeal should be allowed on the basis that the magistrate did err in that particular respect.

From the extract of the proceedings quoted above, I am satisfied that the prosecutor who happened to be present in the court on each of the days in question had no prior knowledge on each occasion of the matter being listed before the court, and did not have any notice that the matter might be determined. I note in particular that the prosecutor explicitly indicated that she had no instructions, and that she had offered to make enquiries if the magistrate was prepared to stand the matter down. However, the magistrate proceeded to determine the matter based solely upon what he’d been told from the floor of the court by Mr Hariz, without any real opportunity for anything to be said against the application.

In these circumstances, it is appropriate to make the following orders which are made with the consent of the plaintiff and the first defendant.