Davies v Smith

By summons filed on 11 May 2018, Detective Sergeant Evan Davies (the plaintiff) seeks a declaration under s 3 of the Restricted Premises Act 1943 (NSW) (the Act) that certain premises at Castle Hill (the Premises) are premises to which Part 2 of the Act applies, for the predominant reason that reputed criminals have attended or are likely to attend the Premises, and that a reputed criminal has control of, and takes part in, the management of the Premises. The plaintiff also seeks other associated relief.

The defendant, Malcolm Smith, is the registered proprietor of the Premises and opposes the declaration.

All references to legislation in these reasons are references to the Act, unless otherwise stated.

The long title of the Act is as follows:

Section 3 provides:

Section 2 defines “reputed criminal” as follows:

A “senior police officer” is defined in s 2 as meaning “a police officer of or above the rank of sergeant”.

The effect of a declaration under s 3(2) or s 3(3) is that a search warrant is not required before police officers can enter premises. Further, after a notice under s 6 of the making of a declaration is served on the owner or occupier of the premises, the owner is guilty of an offence if any of the conditions referred to in s 3(1) apply to the premises while the declaration is in force: s 8(1). Because of its importance to the consequences of a s 3 declaration, s 8 is set out in full. It provides:

The term “indictable offence” is defined by s 3 of the Criminal Procedure Act 1986 (NSW) as “an offence (including a common law offence) that may be prosecuted on indictment”. A “summary offence” is an offence that is not an indictable offence: s 3 of the Criminal Procedure Act. Sections 5 and 6 of the Criminal Procedure Act have the combined effect that an indictable offence is one for which the maximum penalty is imprisonment for more than two years.

A declaration may be rescinded under s 4 on the application of the owner or occupier of the premises if the Court is satisfied that the conditions referred to in s 3(1) have ceased for a period of 12 months before the application is made and are unlikely to reoccur at the Premises. A senior police officer may apply for a declaration to be rescinded on proof that there is no reasonable ground for suspecting that any of the conditions referred to in s 3(1) obtain in relation to the premises.

Detective Sergeant Davies has affirmed affidavits on 11 May 2018 (the first affidavit); 14 February 2019 (the second affidavit) and 18 April 2019 (the third affidavit). He deposed that he suspects, with respect to the Premises, each of the matters in s 3(1)(b), (c) and (d). In the first affidavit, Detective Sergeant Davies deposed as to the results of his searches of Computerised Operational Policing System (COPS) for relevant entries for the period to 11 May 2018, being the date on which the first affidavit was affirmed. The COPS records contain intelligence reports (being what has been reported to police) as well as reports of events. In the second affidavit, Detective Sergeant Davies deposed as to the results of his searches of COPS for relevant entries for the period from 11 May 2018 to 14 February 2019, being the date on which the second affidavit was affirmed. In the third affidavit, Detective Sergeant Davies deposed as to the results of his searches of COPS for relevant entries for the period from January 2019 to 18 April 2019, being the date on which the third affidavit was affirmed.

On 15 July 2015 the defendant, who was then aged 71, was convicted of an indictable offence against s 60(1) of the Crimes Act 1900 (NSW) (intimidate police officer in execution of duty without actual bodily harm), which carries a maximum penalty of 5 years’ imprisonment. He was fined $500 in the Local Court. This offence is in Part 1 of Table 2 of Schedule 1 of the Criminal Procedure Act. Table 2 offences are those which are to be dealt with summarily unless the prosecutor elects otherwise. He has also been convicted of resist officer in execution of duty (s 546C of the Crimes Act), which carries a maximum penalty of 12 months’ imprisonment and/or 10 penalty units, for which he was also fined $500 and allow premises to be used as drug premises (s 36Y of the Drug Misuse and Trafficking Act 1985 (NSW)), which carries a maximum penalty of 50 penalty units or imprisonment for 12 months (or both), for which he was fined $1,000 with a bond under s 9 of the Crimes (Sentencing Procedure) Act. These latter two offences are summary offences within the definition referred to above and are therefore not indictable.

Although the defendant’s criminal history could reasonably be described as minor, the circumstance that he has been convicted of an indictable offence (albeit one which was dealt with summarily) is sufficient to make him a reputed criminal for the purposes of the Act.

The Premises comprise a four-bedroom, two storey, brick veneer house with a double garage in a residential area.

On 18 February 2014, which was his seventieth birthday, the defendant revoked his implied consent for police or anyone else to approach or knock on his front door by erecting signs on the Premises, apparently intending to avail himself of the principles in Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5. The signs were vandalised and subsequently replaced. As at 3 March 2018 the signs were in place around the Premises, according to a COPS event record made on that date.

On 4 January 2018, police attended the Premises to execute a search warrant (referred to below). The schedule of intelligence reports in COPS exhibited to the first affidavit relevantly recorded:

In cross-examination, the plaintiff explained that such warning systems were consistent with premises being operated for the purposes of supply of prohibited drugs because the warning system would notify any occupants of any person on approach. The warning would enable those inside the Premises to get rid of any incriminating substances (in the case of an approach by police) or to prepare themselves against an impending attack (in the case of an approach by rival criminals) or be ready to take a drug order (in the case of an approach by a drug user or client), which would be filled at the front door and not require the purchaser or vendor to enter the Premises.

The defendant gave evidence that he arranged for CCTV cameras to be installed outside the Premises so that he could make himself aware of who was coming to the Premises in his absence during the weekly periods of three-four days spent at the Central Coast between 2011 and 2017 (referred to below).

On 25 February 2019, police received information from CrimeStoppers regarding sale of drugs by the Occupants to persons who came to the Premises. As part of that report, police were informed that there were three visible CCTV cameras at the front of the house on the Premises. The defendant gave evidence that such cameras are no longer operational and had been disassembled on 4 January 2018.

Detective Sergeant Davies deposed to the results of his searches of COPS in respect of suspected criminal activity at the Premises. These searches disclosed that during the period from September 2012 to March 2018, 26 “event reports” (separate entries in COPS) related directly to persons known to reside at the Premises relating to suspected use and/or supply of cannabis. From February 2013 to February 2018 there were 134 intelligence reports in COPS relating to persons known to reside at the Premises regarding the suspected supply of prohibited drugs from the Premises. During the period from May 2018 to January 2019, there were 13 further intelligence reports of this kind.

The COPS entries referred to above indicate that the defendant resides, or has resided, with five other male occupants at the Premises (the Occupants), being his two sons and three grandsons, whose names, dates of birth and relationship to the defendant are set out in the table below.

As referred to below, the defendant’s evidence, which I accept, is that Damien Smith Snr and Damien Smith Jnr have resided, but no longer reside, at the Premises.

The plaintiff deposed that, based on his review of COPS reports exhibited to his affidavits, he suspects that prohibited drugs, primarily cannabis and methylenedioxy-methamphetamine (commonly known as MDMA or ecstasy) are, or have been, unlawfully sold or supplied on or from the Premises and are likely to be sold again on or from the Premises. He also suspects that reputed criminals have resorted to the Premises and are likely to again and that the defendant, who has control of the Premises, is a reputed criminal within the meaning of s 2.

The reports include information anonymously reported to CrimeStoppers that cannabis is grown at the Premises and sold by the defendant and the Occupants from the Premises, Castle Towers Shopping Centre and Castle Hill Public School. There are also reports of police having stopped, searched and questioned persons leaving the Premises after short periods of time, who have admitted purchasing cannabis from the Occupants of the Premises and on whom small amounts of cannabis have been found.

On one such occasion a substantial amount of Australian currency was found on a person, which led to Damien Smith Snr being convicted in April 2018 of possession of a prohibited drug and dealing with the proceeds of crime. In June 2018, when he was on bail pending sentence, he was arrested by police and charged with possession and supply of a prohibited drug, of which he was also convicted. He was sentenced to a fixed term of imprisonment commencing on 11 June 2018 and expiring on 10 March 2019 and subsequently, for the later offences, to a term of imprisonment of 12 months commencing on 11 June 2018 and expiring on 10 June 2019 with a non-parole period of 9 months, expiring on 10 March 2019.

The plaintiff also deposed that police have observed numerous bags of fertiliser, as well as numerous empty bags of fertiliser within the boundary of the Premises. On such occasions, the police officers involved have been unable to detect the odour of fertiliser, leading the plaintiff to infer that fertiliser was being used inside the Premises to cultivate prohibited drugs there.

The COPS reports also include Risk of Significant Harm reports made in relation to those of the defendant’s grandsons who were Occupants and were, at the relevant time, under 18 years of age. Such reports indicated that those persons were at risk of neglect or harm in relation to drug use at the Premises in an environment which normalised criminal conduct.

Search warrants have been executed at the Premises, details of which appear in the table set out below.

The defendant took issue with the legality of the documentation provided to him following the execution of some of the search warrants. However, he accepted that the items seized were correctly recorded in the documentation included in the plaintiff’s evidence.

On 25 May 2017, Detective Inspector Kehoe issued a Weapons Prohibition Order (also known as a Firearms Prohibition Order, or FPO) (WPO) pursuant to s 33(1) of the Weapons Prohibition Act 1998 (NSW) against the defendant. The WPO was served on the defendant on 30 May 2017.

On 4 July 2017 a WPO search was conducted on the Premises. Police seized a quantity of cannabis and $860 in cash from Callum Smith’s bedroom. A further WPO search was conducted on the Premises on 7 September 2017. Police seized two small re-sealable bags each containing white powder believed to be cocaine and a tablet believed to be MDMA, four vials of clear liquid, believed to be anabolic steroids and a bowl containing green vegetable matter, which Damien Smith Snr admitted was cannabis. As no person present admitted to possession of any of these items, no charges were laid.

The plaintiff deposed that since 2015, several police operations have been conducted at the Premises. There has been no indication that the sale of prohibited drugs has slowed or ceased. The plaintiff believes that warrants have proved to be an ineffective tool and have resulted in a waste of valuable police resources because of their lack of utility.

The plaintiff has concluded, from his review of the COPS reports exhibited to his affidavits that Damien Smith Snr and his son, Kobi, are the persons principally involved in the supply of drugs from the Premises.

When asked in cross-examination to identify the basis for his belief that prohibited drugs are, or have been, unlawfully sold or supplied on or from the Premises and are likely to be sold again on the Premises, the plaintiff said:

The plaintiff also said in cross-examination:

The plaintiff has annexed the criminal histories of the defendant and each of the Occupants of the Premises and of Simon Singh, who lived at the Premises in the past when he was a minor. As each of the persons in the table has been convicted of at least one indictable offence, each is a “reputed criminal”. Their histories include the offences set out in the table below.

The COPS reports also record that the following people have been shown to have either regularly attended the Premises to obtain drugs or regularly been found with drugs in their possession having attended the Premises.

The plaintiff deposed in his affidavit of 18 May 2018 as to his inference that the Premises are still being used as a meeting place for reputed criminals, and others, to buy or use prohibited drugs. The plaintiff opined that a declaration under s 3 is required to assist police to stop the presence of reputed criminals and the illegal sale and supply of prohibited drugs from the Premises. He also deposed as to his suspicion which amounts to a belief that reputed criminals currently reside at, and resort to, the Premises.

The defendant owns and has exercised some control over the Premises. He is an associate of reputed criminals since he lives in the same household as other members of his family who are also reputed criminals. I accept that the plaintiff, by reason of the contents of the COPS entries, has reasonable grounds to suspect that the defendant has exercised some control over the drug activity conducted there since 2016 and as recently as 23 February 2018.

On 11 April 2017 the defendant was charged with being the owner or occupier of premises and knowingly allowing the premises to be used as drug premises pursuant to s 36Y of the Drugs Misuse and Trafficking Act 1985 (NSW) (DMTA). He was convicted and was fined $1,000. A conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made.

The plaintiff and other police officers believe that the defendant’s act of posting the signs to revoke his implied consent for police to approach or knock on his front door constitutes an attempt to conceal criminal activities on the Premises.

The plaintiff deposed in both his first and second affidavits as to the following opinion:

The defendant swore two affidavits and also cross-examined the plaintiff.

The defendant’s evidence is that he has lived at the Premises for “48 to 50 years” and that the first time the police had occasion to come to that address was in 2003 when he called them concerning a sawn-off shot gun on the Premises. The plaintiff accepted in cross-examination that from 2003 until 2015 there was a “lull” in criminal conduct at the Premises and said that this was because the defendant’s two sons, Damien Smith Snr and Darren Smith were not living there during that period but were “continuing their criminality elsewhere”. The defendant, in oral evidence, said that he “mainly lived alone until 2015, 2016”.

The defendant’s evidence is that between February 2011 and January 2017 he was away at Erina on the Central Coast from Thursday to Saturday or Sunday every week, looking after his grandchildren. During that period, he was neither in control of, nor aware of, who came to and went from the Premises. The defendant admitted in cross-examination that persons who visited the Premises in his absence “could have put drugs on the premises, could have put anything on the premises”.

The defendant’s evidence was that the only persons presently living at the Premises are himself, his son, Darren, and his grandsons, Kobi and Callum. He said that Aaron Carpenter has not been on the Premises since November 2015 and Simon Singh had not lived at the Premises since late 2015 or early 2016. The plaintiff’s evidence is consistent with this as the last record of Mr Singh being present on the Premises is dated 23 October 2015 when he was seen leaving the Premises with Darren Smith.

The defendant said that Damien Smith Snr, who had left the Premises following the imposition of a custodial sentence referred to above which commenced on 11 June 2018, was now living with his sister (the defendant’s daughter) at Erina following his release from custody. According to the defendant, Damien Smith Snr continues to visit the Premises almost every day except on days when he is required to report to parole and, when he comes, he mows the lawn and helps to maintain the Premises. The defendant’s evidence was that Damien Smith Jnr, who moved out in early 2017, was now living at Quakers Hill with his girlfriend, Alyssa Edwards. He said that both Damien Smith Snr and Damien Smith Jnr were welcome to return to live with him at the Premises because they were “family” but that Ms Edwards was not welcome as Darren had “barred” her from the Premises.

The defendant’s evidence was that neither he nor any of the Occupants of the Premises had been charged with supply or possession of a drug associated with the Premises. It is apparent from the plaintiff’s evidence that the reason for this is that, although prohibited drugs and drug paraphernalia have been found on the Premises, charges have not been laid because the police have not been able to establish that any one person has exclusive control for the purposes of proving possession: Filippetti v R (1978) 13 A Crim R 335. Nonetheless the defendant’s conviction for allowing the Premises to be used as drug premises and Damien Smith Snr’s conviction referred to above are both related to, or occurred in the vicinity of the Premises. The defendant maintained that Damien Smith Snr’s conviction related to supply from a vehicle located in the area of the Premises but not within its boundaries.

The defendant cross-examined the plaintiff about the amount of cash that was seized from the Premises in the course of searches undertaken by police officers. He put to the plaintiff that there had been several instances of the police having to return the seized cash to the defendant or another of the Occupants. The plaintiff denied being aware of the circumstances or reasons for the return of such cash.

The defendant cross-examined the plaintiff about the CrimeStoppers reports. The plaintiff, who accepted that many of the reports had been made by anonymous sources, explained that he took into account the anonymity of the sources when deciding what weight to give to each report. The plaintiff said, in his cross-examination:

The plaintiff also accepted in cross-examination that none of the persons who were searched for drugs after they had left the Premises had been searched before they arrived at the Premises.

The defendant opposes the declaration on several grounds, the principal of which is that the plaintiff has not “proved” the matters in the COPS reports and has not established the matters in s 3(1)(b), (c) and (d). He submitted that none of the police officers who conducted the searches of the Premises or otherwise been involved in the events and information recorded in the COPS records had been called to give evidence to substantiate the records or to subject themselves to cross-examination by the defendant. He also relied on the concession by the plaintiff that the persons searched had not been searched before they had visited the Premises.

It is evident from the wording of s 3 that “proof”, whether on the balance of probabilities or beyond reasonable doubt, is not required. All that is required to be shown is that a senior police officer shows “reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises”. In other words all that the plaintiff has to show is that Detective Sergeant Davies has shown reasonable grounds for suspecting at least one of the conditions in s 3(1)(b), (c) or (d). Suspicion on reasonable grounds may be based on hearsay material which, when viewed objectively, would reasonably found the suspicion: Ex parte Fergusson; Re Olah Pty Ltd [1970] 1 NSWLR 713.

The question of what amounts to reasonable grounds for suspecting was addressed by the High Court in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said, at [14]:

The reasonableness of the grounds is to be adjudged at the time the summons is filed or the time when the affidavits are sworn or affirmed: Re Application of Shepard [1983] 1 NSWLR 265 at 266D-E (Hunt J).

I am satisfied that the plaintiff has shown that a senior police officer has reasonable grounds for suspecting the matters in s 3(1)(b), (c) and (d)(i). As to 3(1)(b) there is ample material to constitute reasonable grounds for suspecting that drugs have been unlawfully sold or supplied on and from the Premises. There are also reasonable grounds for suspecting that it is likely that they will be sold again on and from the Premises, if not by the current occupants, by Damien Smith Snr and Jnr whenever they return to the Premises. The matters in s 3(1)(c) and s 3(1)(d)(i) are not controversial since the defendant accepts that he is a reputed criminal and that the other three occupants, Darren Smith, Kobi and Callum are also reputed criminals and that the Premises is presently the home of each of them. As referred to above, the defendant would welcome Damien Smith Snr and Damien Smith Jnr if they wanted to return to live at the Premises.

Ms Rogers, who appeared for the plaintiff, submitted that, although I had a discretion whether to make the declaration, there was no relevant factor that weighed against the making of the declaration. When I enquired of Ms Rogers whether the defendant would commit an offence if those family members who presently live in the Premises continued to reside there, she informed me that the plaintiff does not intend to disturb the rights of those living at the Premises to continue to reside there as long as there are no prohibited drugs or drug paraphernalia present on the Premises. In other words, the plaintiff does not intend any declaration I make to have the effect of causing the defendant, his son, Darren, or grandsons, Callum and Kobi, each of whom meets the definition of “reputed criminal” to be evicted from the Premises.

However, I am concerned that, if I make orders as set out in the summons, the effect of s 8 would be to make the defendant guilty of an offence if any of the conditions in s 3(1) apply to the Premises while the declaration is in force.

Even if no crime is committed on the Premises and no further activity involving prohibited drugs takes place on the Premises, the Premises will inevitably be in breach of the conditions in s 3(1)(c) and s 3(1)(d)(i), thereby rendering the defendant liable to prosecution. The defendant will be in breach of the condition in s 3(1)(c) merely by going home since he is a reputed criminal. He will also be in breach if he does not stop his son Darren and grandsons Kobi and Callum from going home as they, too, are reputed criminals within the definition, having been convicted of at least one indictable offence each. Their status as “reputed criminals” can, by reason of the definition, never be altered. If a declaration is made, the defendant will also be in breach of the condition in s 3(1)(d)(i) since it is not in issue that he has control of the Premises and that he is a reputed criminal. I have been unable to discern any proper basis to distinguish between persons being “found” on, or “resorting” to, premises on the one hand, and “residing” on premises, on the other, such as would exempt the defendant and the other present occupants from fulfilling the conditions in s 3(1)(c) and s 3(1)(d)(i) by their presence.

The consequences that would flow from a declaration under s 3 have been aptly described by courts as “drastic” and include the conferral on police the power to enter and search the Premises without a warrant and the liability of the defendant as owner and occupier of the Premises to prosecution under the Act: Commissioner of Police v Tanos (1958) 98 CLR 383 at 390 (Dixon CJ and Webb J); [1958] HCA 6; Greig v Irmak [2018] NSWSC 1058 at [4] (Latham J) and Beeche v Smith Street Investments Pty Ltd [2018] NSWSC 544 at [19] (McCallum J). Unlike the present Act, the version of the Act considered in Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 98, referred to “disorder” in the context of a declaration under s 3. The present Act contains no such reference, which was removed by the Disorderly Houses Amendment (Commercial Supply of Prohibited Drugs) Act 2002 (NSW) and substituted with the words “such premises to which this Part applies”.

In Sibuse Pty Ltd v Shaw Street CJ (in dissent) considered that the element of “disorder” constituted an additional matter which required adjudication and said at 102-103:

By contrast, the majority in Sibuse Pty Ltd v Shaw said that proof of one of the conditions in s 3 would, in effect, require a declaration to be made. Their Honours reasoned that this consequence flowed in part from the wording of s 4, which sets out the circumstances in which a declaration will be rescinded: at 114 (Priestley JA) and at 119-120 (McHugh JA).

The legislature can be taken to have removed any implication (if there ever were one) that any additional adjudication on element of disorder is required or that the question of “disorder” is relevant. The plaintiff has established the basis for the discretion to be exercised.

However, there is one matter which is of sufficient importance to defer determining that the discretion ought be exercised in the plaintiff’s favour. By reason of the wording of s 8(1), I have found it impossible to devise a form of declaration that will have the desired effect, as far as the plaintiff is concerned and will avoid the consequences which the plaintiff contends he does not seek. To make an order in the form as sought in prayer 2 of the summons would appear to render the defendant criminally liable to prosecution for an offence under s 8 merely by stepping over the threshold of the Premises or by permitting any of the other three family members who presently reside there to do so. Accordingly, I will not make any substantive orders until the plaintiff has had an opportunity to provide me with a draft form of declaration which, in accordance with the position he has taken in these proceedings, does not criminalise the continued occupancy of the Premises by the defendant, Darren Smith, Kobi Smith and Callum Smith.

For the reasons given above, I make the following orders: