ADMINISTRATIVE LAW — Judicial review — Police powers — Search warrant — Whether invalid due to non-compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — Where warrant nominated a motor vehicle with certain registration plates as a search object — Where a vehicle bearing different registration plates was searched — Warrant application material not placed before the Court — Invalidity of a search warrant not established by subsequent conduct by police in executing it — Discretionary nature of judicial review — Lack of practical utility where criminal charges have been resolved in the Local Court
COSTS — Party/Party — Exception to general rule that costs follow the event
Quick Take
1The inclusion in a search warrant of a search object that is not found or could never be found does not, without more, constitute a material defect rendering the warrant invalid; the invalidity of a search warrant is not established by the subsequent conduct of police in executing it.
2Where the underlying warrant application materials are not placed before the reviewing court, a plaintiff challenging warrant validity bears the onus of demonstrating non-compliance with statutory requirements and cannot discharge that onus by relying solely on what occurred during execution, unless invalidity is apparent on the face of the warrant itself.
3Judicial review relief is discretionary and may be refused where criminal proceedings founded on the impugned warrant have been fully resolved, removing practical utility — though utility may be preserved where seized property remains in police possession and its return is contested.
