Harland v Murphy

These proceedings for judicial review concern the validity of a search warrant. By amended summons filed on 22 March 2022, the plaintiff, Gregory Harland, seeks, inter alia, a declaration that the search warrant executed on his premises in Blacktown on 8 April 2019 is invalid. The applicant for the search warrant was Senior Constable Ashlea Murphy, the first defendant. The search warrant was issued by Ms Adele Andrews, the second defendant.

The second defendant was, at the material time, the Registrar at Blacktown Local Court and thus an authorised Justice within the meaning of the Law Enforcement (Police Responsibilities) Act 2002 (NSW) (“LEPRA”). She filed a submitting appearance in these proceedings save as for costs. The first defendant, SC Murphy, was the active contradictor.

The background to these proceedings can be shortly stated. On 3 February 2019, Mr Harland rang triple-0 to report a neighbour who had physically threatened him. For reasons that will be explained in this judgment, not only did police fail to take any immediate action over his complaint, they in turn investigated Mr Harland for lying in his subsequent application for an Apprehended Personal Violence Order (“APVO”) against the neighbour. As part of that investigation, SC Murphy sought, obtained and executed a search warrant at Mr Harland’s home to seize his computer and any hard drive or USB storage device on belief of him having committed an offence contrary to s 314 of the Crimes Act 1900 (NSW).

No charge was ever laid against Mr Harland. An offence contrary to s 314 of the Crimes Act could never have been proved for two reasons: there was never an evidentiary basis and, as a matter of law, the elements could never have been established. Although a number of particulars of invalidity were relied upon by Mr Harland, the central issue was whether SC Murphy had reasonable grounds to believe that there would be on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA; and the associated question of whether the issuing officer had reasonable grounds to grant the warrant under s 48(1). Before turning to consider the summons, it is pertinent to look at the relevant statutory scheme.

The key provisions of LEPRA in this case are in Pt 5 Div 2. Part 5 is entitled “Search and seizure powers with warrant or other authority” and Div 2 is entitled “Police and other law enforcement officers’ powers relating to warrants”. Section 47(1) is in these terms:

Section 46 defines “eligible issuing officer” as follows:

Sub-section (a) is clearly the applicable definition in this case as “authorised officer” is defined in s 3 as:

There was no dispute that Ms Andrews was an authorised officer.

The term “searchable offence” is defined in s 46A(1)(a)(i) as, relevantly, an indictable offence.

The requirement for “reasonable grounds” is found in both s 47(1) of LEPRA as to the applicant’s state of belief and also in s 48(1) of LEPRA as to the issuing officer’s satisfaction:

I shall consider the principles derived from the relevant authorities as to the requirement of “reasonable grounds” below.

Section 49 of LEPRA provides:

Section 60 of LEPRA provides that applications, other than telephone applications, must be in person and is in these terms:

The Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (“the regulation”) prescribes various forms in connection with search warrant applications.

Section 62(1) of LEPRA sets out the information that must be included in an application for a search warrant:

Section 62(3) of LEPRA then provides:

Section 65 of LEPRA provides:

I also note ss 76 and 77 of LEPRA:

Given that s 77 abolishes common law search warrants, the provisions in LEPRA and the regulation cover the field for the valid issue and execution of search warrants in NSW.

The summons was filed on 2 September 2021. It identified eight particulars of invalidity relied upon by Mr Harland. The first particular alleged that SC Murphy provided the issuing officer with information that she knew was “false or misleading in a material particular”. The remaining seven particulars pertained to the actions of the issuing officer.

At the conclusion of the first day of the hearing on 3 March 2022, it became apparent that the plaintiff’s case was not that SC Murphy had intentionally provided false information but, rather, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I granted the plaintiff leave to apply to amend the summons to reflect this and adjourned the hearing to 22 March 2022.

On 8 March 2022, the plaintiff emailed a draft amended summons suggesting three additional particulars of invalidity to paragraph 1(a) of the summons, in the following terms:

The amendments were opposed by the first defendant. In brief written submissions, the first defendant contended that there was no merit in the amendments set out in subparagraphs (a)(i) and (a)(iii), as these allegations could not in themselves lead to the invalidity of the warrant but rather went to the question of reasonable grounds in subparagraph (a)(ii). In respect of (a)(ii), the first defendant submitted that the evidence going to this issue had been adduced “on the plaintiff’s terms” (in cross-examination) and that the first defendant would be prejudiced by the amendment at that (late) time. It was submitted that the first defendant would need to adduce further evidence to address the new particular, especially from police information technology experts. It was also submitted that the amendment was not necessary as the Court could examine the particulars of invalidity in relation to the issuing officer.

I heard the parties’ submissions on 22 March 2022. On that day, I refused leave to make two of the three amendments but granted leave to add subparagraph (a)(ii), which became particular 1(a)(i), namely, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I was satisfied that the proceedings had been conducted on that basis and that any prejudice to the first defendant could be cured by affording her the opportunity to file further evidence, which she subsequently did.

The matter was adjourned for a further two days of hearing on 26 and 27 April 2022. The amended summons filed on 22 March 2022 upon which the plaintiff now moves is in these terms:

At the conclusion of the hearing, counsel for the plaintiff accepted that he could not establish 1(a), only faintly pressed 1(h) and accepted that particular 1(e) did not add anything to particulars 1(f) and (g). Despite this concession, I proceeded on the basis that there were four general grounds for invalidity relied upon by the plaintiff:

The plaintiff requires leave to commence these proceedings for judicial review out of time. The search warrant was issued on 8 April 2019. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 59.10(1) provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision. Under UCPR r 59.10(2), the court may, at any time, extend the time for commencing proceedings. Such a decision is discretionary.

The first defendant opposed an extension of time being granted. Ms New of counsel submitted that the defence of these proceedings has been prejudiced by the passage of time and that the police officers have had to turn their minds to this matter by relying upon COPS (Computerised Operational Policing System database) event entries, written statements and correspondence, with little independent recollection. It was submitted that had the proceedings been commenced within time SC Murphy may have recalled what was said between her and the issuing officer at the time of the search warrant application. She could no longer remember that conversation. It was further submitted that the police investigation into Mr Harland was never properly prepared because no charges were ever laid.

On behalf of the plaintiff, Mr Skinner of counsel submitted that the COVID-19 lockdown and difficulty in trying to obtain Legal Aid were major factors leading to the delay.

UCPR r 59.10(3) is in these terms:

I have had regard to these factors. I am satisfied that the delay was adequately explained. I also accept that the delay caused some prejudice to the first defendant but there were contemporaneous documents to assist recollection. I am satisfied there is a public interest in the issues raised in this matter.

In Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed) identified (at [65]) two further factors to which it is necessary to have regard: the length of the delay and whether the plaintiff has a “fairly arguable case”. Despite the position taken by the first defendant, I do not consider the length of the delay to be significant. The remaining question is whether the plaintiff has a “fairly arguable case.” It was agreed between the parties that the question of the merits of the application were relevant to the question of leave and that I would determine both at the same time.

For reasons provided in this judgment, I granted an extension of time to bring these proceedings.

This matter was set down for one day. Two affidavits were relied upon by the plaintiff and (initially) five affidavits were relied upon by the first defendant. The plaintiff required all of the first defendant’s witnesses for cross-examination. It is difficult to understand why such an unrealistic time estimate was provided for the hearing. As it happened, the hearing proceeded over four days.

The plaintiff relied on the affidavits of Gregory William Harland sworn on 1 December 2021 and Patrick John Latham sworn on 1 December 2021 with annexures. Mr Latham is Mr Harland’s solicitor. Neither of these witnesses were required for cross-examination.

The first defendant relied on the affidavits of: Detective Sergeant Michael Herps affirmed on 13 January 2022, Detective Senior Sergeant Adam Wilson sworn on 21 December 2021 (acting crime manager at Blacktown police station in April 2019), Senior Constable Aaron Gleaves sworn on 15 January 2021, Senior Constable Ashlea Murphy sworn on 17 January 2022, and Emma O’Brien sworn on 17 January 2021. An additional affidavit of Ashlea Murphy sworn on 13 April 2022 and an affidavit of Adam Catto-Pitkin sworn on 13 April 2022 were also subsequently filed on behalf of the first defendant following the amendment of the summons. All six witnesses relied upon by the first defendant gave evidence and were cross-examined.

Annexed to the affidavits were various COPS entries, police statements, the APVO documents, interviews, transcripts, emails and other contemporaneous documentation upon which the witnesses were cross-examined.

I propose to summarise the evidence chronologically.

Mr Harland gave his account of what occurred on 3 February 2019 in the notes he made that night, his telephone calls to triple-0, his application for an APVO, his police statement on 4 March 2019 and his affidavit dated 1 December 2021. As stated above, he was not required for cross-examination. His account of what occurred on 3 February 2019 can be summarised as follows.

As at 3 February 2019, Mr Harland was living in a Housing Commission unit in Blacktown with his then partner Aaron Warnecke. Mr Harland parked his car in the carpark of his block of units at approximately 3.00pm. He was in the company of Mr Warnecke. As he approached the lift, he noticed his neighbour, Charles Zerafa, who was in the company of a female and a female child of approximately two years of age. When the child ran towards him, he heard Mr Zerafa yell out to her, “[k]eep away from the faggot cunt”. When Mr Harland responded with, “I beg your pardon”, Mr Zerafa ran up to him with clenched fists whilst shouting, “I’ll punch you in the head you cunt you faggot cunt”.

Mr Harland described how Mr Zerafa continued to intimidate and harass him while he put his arms out to stop Mr Zerafa coming too close. Mr Harland attempted to walk away but Mr Zerafa stood in front of him whilst saying, “I could smash you right now if I fucking wanted to”. Mr Harland stated that Mr Zerafa was “frothing from his mouth, his saliva spittle hit my face as yellow and black teeth came right up to my nose”. Mr Harland described that he tried to “de-escalate” by not moving and asking, “[a]re you finished?” and, “[c]an I leave?”. He described how it was not possible for him to get away from Mr Zerafa as each time he made a step Mr Zerafa would move in the same direction. He was fearful that he would be physically assaulted and stated that Mr Zerafa continued to “shout obscenities and threats” when he was finally able to walk away.

Following this altercation, Mr Harland called triple-0 at 3.35pm. Police did not respond. Mr Harland called police again at 5.18pm, 8.19pm, 8.51pm and 9.39pm. Police arrived at about 9.50pm. It is not necessary to set out the contents of all of those calls, but it is relevant to identify the occasions on which Mr Harland complained of being assaulted by Mr Zerafa.

In the first call, Mr Harland stated the following in describing what Mr Zerafa had done:

In his second call, Mr Harland repeated the allegations in these terms:

In his third call, Mr Harland described the event in these terms:

In the fourth call, Mr Harland stated:

In the final, fifth call, Mr Harland said:

Two police officers finally attended Mr Harland’s unit at about 9.50pm, DS Michael Herps and SC Aaron Gleaves.

Mr Harland’s account is that when police attended his unit, he told them what Mr Zerafa had done and that he and Mr Warnecke feared for their safety. He had been writing notes of what occurred on his laptop and showed DS Herps those notes. Mr Harland described that DS Herps “glanced” at the screen but then had to move outside to take a telephone call. SC Gleaves also “briefly glanced” at the laptop for a few seconds. According to Mr Harland, DS Herps did not make a copy of the document, photograph it, or ask for a copy. He told Mr Harland that he would go and “have a word to” Mr Zerafa. He also said, “if you want to take the matter further you are welcome to go to the court to obtain an AVO but in my experience AVOs can make matters worse”.

In his police statement dated 2 April 2020, DS Herps described his conversation with Mr Harland in these terms:

On DS Herps’ account Mr Harland complained at the outset that Mr Zerafa’s spittle hit him during the incident.

In his affidavit of 13 January 2022, DS Herps provided a similar account. He recalled reading a two-page document and asking Mr Harland some questions to be satisfied that the offence of intimidation had not been committed. He stated that Mr Harland responded that Mr Zerafa came towards him yelling, “[s]tay away from my family you faggot cunt” but that he did not state that Mr Zerafa came within his personal space nor that there was any physical altercation (save that spittle came from Mr Zerafa’s mouth due to the way he spoke).

Significantly, DS Herps stated that Mr Harland informed him that he only wanted an AVO against Mr Zerafa and he did not want him to be charged. DS Herps stated that he informed Mr Harland of his satisfaction that the offence of intimidation had not occurred as well as the advice on how to obtain an APVO from the Local Court given that police did not get involved unless there was an imminent threat of serious violence. At the request of Mr Harland, police went to speak to Mr Zerafa but he was not there. They spoke to his partner instead who was told that she should tell Mr Zerafa to stay away from Mr Harland and his partner.

In his police statement of 4 June 2019, SC Gleaves stated that on 3 February 2019 he attended at the premises of Mr Harland with DS Herps. Mr Harland showed them a laptop with a Word document opened on the screen that outlined an incident with a neighbour. He recalled the document stating that there was a verbal argument with Mr Zerafa swearing at Mr Harland but containing no details of any physical threats or altercation.

In his affidavit of 15 January 2022, SC Gleaves repeated that he recalled reading the contents of the document on Mr Harland’s laptop screen detailing a verbal argument between him and Mr Zerafa, that there were no threats of violence in the document and that DS Herps asked questions directed at whether a charge should be laid or there should be an application for an APVO on behalf of Mr Harland. SC Gleaves stated that he did not make any detailed entry in his notebook about the attendance at Mr Harland’s residence.

Although Mr Warnecke did not file an affidavit in these proceedings, in his police statement on 7 March 2019 he described what occurred on 3 February 2019 in these terms. On that day, he and Mr Harland parked their car in the basement of their unit block. He saw Mr Harland walking towards the lift as Mr Zerafa, his girlfriend and her little daughter were walking away from the lift. There were no other people present. He saw the little girl walking towards Mr Harland when Mr Zerafa yelled out, “[k]eep away from those fucking faggot cunts” and Mr Harland saying, “[d]on’t speak to me like that”. He then saw Mr Zerafa walking aggressively towards Mr Harland with clenched fists and saying, “I’m going to smash your fucking head in you dog cunt” with his face only centimetres away from Mr Harland’s face. He then saw Mr Zerafa preventing Mr Harland moving towards the lift by moving in front of him and invading his personal space. He heard Mr Harland saying to him, “[a]re you done?” and Mr Zerafa walking away mumbling something like, “I’m going to smash your head in”. He stated that Mr Zerafa’s behaviour was getting worse and that he was concerned that that he would assault them or damage their property.

Early the following morning, at 12.20am, DS Herps created COPS entry E69012060 detailing his attendance at Mr Harland’s residence. The narrative includes that Mr Harland reported that Mr Zerafa called him a fag and told his children to stay away from Mr Harland, that he found Mr Zerafa physically confronting, and that Mr Harland made “a number of disparaging remarks about Zerafa’s hygiene and physical appearance”. He noted that Mr Harland was advised that he could obtain an AVO from the court. He also noted that Mr Zerafa’s partner was spoken to and indicated that she would tell him to stay away from Mr Harland and his partner.

On that day, Mr Harland saw Registrar Adele Andrews in chambers at Blacktown Local Court. She told him to send her the document he prepared on the night (which on Mr Harland’s account was the document police looked at on his laptop that night).

At 1.29pm, Mr Harland sent an email to Registrar Andrews attaching a Word document entitled “neighbour second incident unit 6”. The subject was “Gregory Harland” and the body of the email read “[p]lease see attached copy of my request for an avo”.

In the attachment, Mr Harland set out the nature of the altercation with Mr Zerafa on 3 February 2019 (mistakenly put as “Sunday 4th February 2019”) in similar terms to his affidavit, but with more detail: Mr Harland stated that Mr Zerafa appeared to be under the influence of drugs or alcohol, had “foul body odour and nicotine breath” and looked “unhinged”. After the confrontation, Mr Harland described going to shower as Mr Zerafa’s saliva had landed on him. Mr Harland said he did not feel safe at his home and had requested to relocate. It was the second time “this man has physically threatened to assault me and threatened to damage my vehicle”. He had previously lodged a complaint to the Department of Housing (Blacktown) after the first incident.

At 3.28pm, Blacktown Local Court issued an APVO application (2019/000392864) for Gregory Harland and Aaron Warnecke against Charles Zerafa returnable on 20 February 2019.

At 3.35pm, Mr Harland emailed Blacktown Local Court seeking an urgent provisional APVO on the basis that he held serious concerns for his safety as Mr Zerafa’s behaviour had escalated.

At 10.19am, Blacktown Local Court replied to Mr Harland that the police could make provisional APVOs if the situation escalated or alternatively that he would need to attend the court registry and request re-listing of the application.

At the first listing of the application for the APVO at Blacktown Local Court, Magistrate Miller considered the application and queried why police were not involved given that Mr Zerafa had potentially committed an offence. The police prosecutor that day, Sergeant Lisa Clemence from Blacktown prosecutors, indicated that police would take over carriage of the matter. An interim APVO was granted that day and the matter was adjourned until 13 March 2019.

At 9.40am, Sergeant Clemence emailed DS Herps advising that the police prosecutors had taken over carriage of Mr Harland’s application for an APVO. She asked him to obtain a statement from Mr Harland and lay charges against a person of interest (Mr Zerafa) if there was enough evidence. DS Herps was on leave at that time.

DS Herps returned from leave and read Sergeant Clemence’s email. He spoke to her and obtained a copy of the APVO application. He maintained his view that the document that he read on Mr Harland’s computer on 3 February did not disclose offences warranting police intervention. He was satisfied that there were parts in the APVO application that did not exist in the notes he had seen that night on the laptop.

DS Herps saw SC Gleaves in the muster room at Blacktown police station and showed him Mr Harland’s application for an APVO. He asked him to accompany him to Mr Harland’s residence in order to put to him the allegation that he had altered his APVO application to include false information.

At 2.54pm, DS Herps and SC Gleaves attended at Mr Harland’s residence. DS Herps activated his body worn camera.

The transcript of the body worn camera recording on 26 February 2019 does not include a time stamp when it was activated and when it was deactivated. It records DS Herps putting to Mr Harland that his APVO application included a section that was not in the two-page Word document he and SC Gleaves had read on the night. The transcript of the body worn video includes the following:

DS Herps then took Mr Harland to the paragraph in question noting that the reference to the child running towards him and Mr Zerafa shouting to keep away from that “faggot” was in the original version he saw. He then stated:

The recording was paused for DS Herps to take a call and did not resume.

Mr Harland’s account of this conversation is consistent with the body worn video. He stated that DS Herps did not ask for a copy of the document he sent to the Local Court on 5 February 2019 or the accompanying email. Mr Harland was unaware whether DS Herps ever contacted Blacktown Local Court to obtain a copy of the document. After the body worn video recording ended, Mr Harland deposed that DS Herps accused him of changing the statement and he responded, “I made minor changed [sic] to spelling and syntax and grammar” only. Mr Harland described DS Herps as looking “intimidating and aggressive” at this time, and he kept probing as to what had been changed. Mr Harland also deposed that DS Herps “looked confused” and said, “I’m sorry, but I thought it looked different”.

Mr Harland’s evidence was that DS Herps had only glanced at the statement for a few seconds on the night in question and had told Mr Harland “to leave out descriptors and be more factual”. Mr Harland denied ever saying to DS Herps during this second visit that he copied and pasted the contents of the original Word document into a new document or into the APVO application. I pause to note that it seems credible that DS Herps would have suggested to Mr Harland that he “leave out descriptors” as Mr Harland’s account as emailed to the registrar was replete with colourful descriptions of Mr Zerafa.

Both police officers gave a different account to Mr Harland as to what occurred during this conversation.

In his police statement dated 2 April 2019, DS Herps described the following:

In his affidavit on 13 January 2022, DS Herps stated that when he returned from his telephone call, he thought he had activated the camera for the continuation of his conversation with Mr Harland but did not, so there was no further recording. He did not make any notebook entries about that discussion. He stated that Mr Harland took him to his laptop but could not produce the document saying that the only thing he saved was the APVO application into which he copied and pasted the unsaved original document with some “grammar and syntax” changes. DS Herps stated that he left the room numerous times.

In cross-examination, DS Herps agreed that his body-worn video recorded for approximately three minutes before it was turned off when he needed to take a call. He stated that Mr Harland told him that he emailed an APVO application to the Registrar, not the document that he had read on the night. He agreed that he relied on his memory when he recalled that conversation and that he also made a COPS entry about three hours later. He maintained his evidence that, after the recording stopped, Mr Harland told him that he “copy/pasted” the content of the document into the APVO application.

In his statement of 4 June 2019, SC Gleaves stated that he observed DS Herps turn on his body worn camera upon knocking on Mr Harland’s door. He then stated the following:

In his statement of 15 January 2019, SC Gleaves recounted that when DS Herps returned to the residence from the phone call he continued speaking to Mr Harland and noticed no argument or disagreement by Mr Harland. In his estimate they were there for about 15 minutes in total.

In his cross-examination on 3 March 2022, SC Gleaves agreed that it appears from the transcript of the body worn camera that Mr Harland did not produce his laptop before DS Herps took the call and left the room. He disagreed that that did not happen. He also disagreed that Mr Harland did not look through the laptop files stating that the transcript only recorded the verbal discussion and that he stood by what he said in his statement.

Neither police officer appeared to have had access to the transcript of the body worn camera when making their statements. Their recollections cannot be correct to the extent that it is suggested that the first thing that occurred was that Mr Harland was asked to show them the computer and identify the document. That is not reflected in the transcript of the body worn camera footage. On that basis, I accept that what occurred is reflected in the body worn camera transcript. As for the suggestion that the versions in their statements must reflect what occurred after the body worn camera stopped recording, that does not explain the initial conversation about the document in the terms recorded in the footage. I accept that when police asked Mr Harland where the document they saw on the night of 3 February 2019 was, he responded in the way recorded in that footage, namely, that the only Word document he had was the one that he emailed to the Blacktown Local Court. He told them that he did not have the “blank Word document” they saw in the night.

Significantly, the body worn camera records that Mr Harland clearly told police that he emailed the document he was working on that night to the Blacktown Local Court. Neither police officer referred to that in their police statements. Nor did either police officer ever attend Blacktown Local Court to get a copy of that document. Neither police officer suggested that Mr Harland told them he had “deleted” the document he showed them that night.

When police returned to Blacktown police station they discussed the matter with a police prosecutor, Senior Constable Nathan Blatch. DS Herps sent him an email at 5.25pm regarding police involvement in Mr Harland’s APVO:

DS Herps attempted to serve Mr Zerafa with the APVO application but was informed that it had been served on him already. Mr Zerafa admitted at that time that he called Mr Harland a “faggot cunt” and told him to stay away from his children. He denied any threats and intimidation.

At 4.47am, DS Herps updated the COPS record regarding the events of 26 and 28 February 2019.

Mr Harland attended Blacktown police station and spoke to Sergeant Kneipp who instructed Constable Battye-Smith to take his statement for the APVO application/possible charges against Zerafa. This was in response to the request by Sergeant Clemence that such a statement be taken.

At 1.19pm, Mr Harland emailed Blacktown Local Court seeking to vary the interim APVO conditions.

At 1.59pm, DS Herps updated the COPS record after being informed that Mr Harland had attended on 4 March 2019 and provided a statement.

DS Herps later read Mr Harland’s statement for the APVO application.

Mr Harland contacted DS Herps to check what was happening and whether there was anything he and Mr Warnecke could do. DS Herps indicated that he would take a statement from Mr Warnecke the next day.

Mr Warnecke attended Blacktown police station and made a statement that was witnessed by DS Herps. He described the assault by Mr Zerafa in the terms I have summarised above at [56].

At 11.54am, Mr Harland filed an application at Blacktown Local Court to vary the interim APVO returnable on 13 March 2019.

At 7.50pm, DS Herps updated his COPS entry.

Mr Harland contacted police to report a breach of the APVO by Mr Zerafa in that Mr Zerafa stood in the carpark and stared at him which intimidated him. DS Herps and Acting Inspector Middlebrook told Mr Harland that the APVO is ambiguous and that police will seek to amend it on 13 March 2019.

At 9.00pm, Mr Zerafa attended Blacktown police station for his electronically recorded interview of suspected person (“ERISP”) with DS Herps. That interview went for 31 minutes. (It had not been transcribed by the time that SC Murphy subsequently applied for the search warrant.)

Mr Zerafa made a number of admissions in his ERISP in relation to the initial incident on 3 February. He agreed that he was in the carpark when he heard his partner Tonni-Jo Henley-Kelly call out his name, so he ran to her assistance. He described the man he now knows as Mr Harland to be approaching his baby and he yelled out, “[f]uck off, you faggot cunt. Keep away from my family”. He then grabbed the baby, grabbed his partner and walked back to the car.

Mr Zerafa agreed that there had been a prior incident when Mr Harland had made a complaint to the Housing Department about him for creating diesel fumes in the carpark.

Significantly, Mr Zerafa agreed with the following parts of Mr Harland’s complaint. He agreed that he yelled out, “[f]uck off, you fucking faggot cunt. Keep away from my family”. He did this because his partner yelled out his name and he “ran” towards her and his daughter in a “protective way”. He grabbed the baby and told his partner “[l]et’s go”. He denied saying, “I’ll punch you in the head, you fucking faggot cunt” or that he blocked Mr Harland’s ability to walk to the lift. Specifically, he explained how he ran towards Mr Harland as he yelled at him as follows:

Mr Zerafa denied threatening to harm Mr Harland and stated that the incident finished after he collected his children and returned to his vehicle. But he did admit that he was running towards Mr Harland in a “protective” way at the time he was yelling out the words described above. His version is that he got to only 2.5 metres away from Mr Harland and Mr Warnecke. He explained to police that he thought that Mr Harland was picking on him and that “they” wanted a quick transfer to a different Housing Commission complex.

At 5.03am, DS Herps sent an email to Acting Inspector Middlebrook with subject, “Gregory harland”. In this email, DS Herps set out the background to the matter, and his view (along with the view of SC Gleaves) that the plaintiff had “altered the PVO from his original version”. In relation to the initial incident on 3 February, DS Herps wrote, “I told [Harland] if he felt intimidated he could apply for a PVO.” He also stated that, “[a]s discussed with you in person I have told HARLAND that I am going to fully investigate the matter and take statements from all parties involved and interview ZERAFA”. DS Herps concluded his email:

At 8.57am, Acting Inspector Middlebrook replied:

At 1.12pm, SC Blatch emailed DS Herps, following up on the latter’s email from 26 February, asking: “How did this progress after we last spoke? Did you get a chance to speak with the boss?”

At the listing of the APVO application at Blacktown Local Court, the interim APVO was varied by consent by Registrar Andrews and the matter was adjourned until 3 April 2019.

A statement was taken from Tonni-Jo Henley-Kelly, Mr Zerafa’s partner, witnessed by DS Herps. She stated that she had met Mr Harland prior to 3 February 2019. He had complained to her over the intercom that Mr Zerafa’s truck was leaking diesel on the floor of the garage, so she went to try and clean it up. When she got to the carpark there was no mess there. She told Mr Zerafa that Mr Harland had yelled at her over the intercom which made her scared. She then described what happened on 3 February 2019 in these terms:

Ms Henley-Kelly gave a similar version to Mr Zerafa. She accepted that at the time when Mr Zerafa was yelling out the aggressive words he was running towards Mr Harland.

DSS Adam Wilson commenced acting in the role of crime manager at Blacktown police station. He took over from the Acting Inspector Middlebrook. DSS Wilson was aware who Mr Harland was, insofar as he knew that in 2010-2011 Mr Harland had successfully sued police and received an apology over inaction in a previous matter. However, since starting in Blacktown in 2011 up until the time of the current matter, DSS Wilson had heard nothing further of Mr Harland.

DS Herps signed his police statement for the investigation into Mr Harland to which I have already referred.

At 7.19pm, DS Herps sent an email to DSS Wilson with the subject heading “report zerafa”. Again, he outlined the background to the matter and wrote, “I was approached by prosecutors today regarding a PVO matter that is going to court tomorrow”. And further:

At 7.29pm, DS Herps sent a second email to DSS Wilson attaching two PDFs entitled “Zerafa report” and “herps brief”. The body of the email stated:

In the report, DS Herps wrote:

These emails confirm that it was not DS Herps’ intention to take any further action against Mr Harland for what DS Herps believed was a change in his account of what occurred with Mr Zerafa on 3 February 2019. His only suggestion was that police should not represent Mr Harland on his APVO.

At 9.09am, DSS Wilson responded to DS Herps’ email. He stated, “[b]ased on our conversation this morning I am satisfied that police should withdraw from the PVO application”.

In DSS Wilson’s affidavit dated 21 December 2021 he referred to this email and stated that he had had a telephone discussion with DS Herps in similar terms to what was contained in the emails.

Significantly, DSS Wilson took a contrary view at that time to DS Herps as to whether there was any basis to prosecute Mr Harland for changing his statement. He explained this in his affidavit as follows:

At the listing of the APVO application at Blacktown Local Court, the interim APVO was continued by Registrar Andrews and the matter was adjourned to 17 April 2019.

SC Murphy first came into the matter on or about 3 April 2019. She had a poor recollection of the events giving rise to these proceedings at the time she gave her evidence before me. By that time, she was on maternity leave and had a young baby. I have taken into account the fact that she was undoubtedly distracted by that and understandably disengaged with her work commitments. Despite this, she could not remember significant details including the circumstances of her coming into the matter. She accepted that at about this time she had a conversation with DSS Wilson about taking carriage of the investigation into Mr Harland for possible offences of conspiracy to pervert the course of justice or making false allegations. Her evidence was derived almost solely from the contemporaneous documents.

DSS Wilson had a telephone conversation with SEEB (State Electronic Evidence Branch now known as the Digital Forensics Unit) in order to understand the nature of any forensic examination that could be carried out on Mr Harland’s computer and associated hardware. The details of what DSS Wilson discussed with SEEB were not entirely clear. In his affidavit of 21 December 2021 he deposed that SEEB “explained … what searches they could do”. When asked in cross-examination why a search warrant was needed, part of DSS Wilson’s answer was as follows:

And then the re-examination of DSS Wilson in its entirety was:

At 11.10am, DSS Wilson sent a handover email to SC Murphy, subject, “report zerafa”. He wrote:

In his evidence, DSS Wilson clarified what he meant by a number of the matters included in his email.

First, he explained that when he told SC Murphy to “work up a job for Conspiracy to Pervert the Course of Justice and Make False Allegation” on “Warnecke & Harland” he meant that he wanted her to “investigate” this. Secondly, when he told SC Murphy in the email that he had spoken to SEEB, it was to receive preliminary advice on how they could forensically examine the computer. Thirdly, when he told SC Murphy that “we will be looking for the deleted word document”, he was simply relaying to SC Murphy guidance he had received from SEEB. And fourthly, when he told SC Murphy in the last paragraph of the email that she “would need to get a search warrant for the computer”, that was a “suggested course of action” based on his “preliminary view”. It was “not a direction to SC Murphy” which would “override” her own need to form a view as to whether there were reasonable grounds for a search warrant. DSS Wilson’s evidence was that he had formed the view there were such grounds, but he did not communicate this to SC Murphy.

DSS Wilson also stated that “[t]he statements in my email of 5 April 2019 were only for the purpose of allocating the matter, providing guidance as to how to confine the search warrant and how to instruct SEEB”.

That same day SC Murphy approached DS Herps at Blacktown police station and informed him that she was investigating Mr Harland for offences relating to his APVO application and required the police file and his statement. She has no recollection of any discussion that they had at that time. She stated that if DS Herps told her anything when she obtained the file from him, she could not remember it. Despite this, she disagreed in cross-examination that officers who briefed her gave her any details of what they had seen or heard. She had their statements and other evidence such as computer added dispatch (“CAD”) narratives from the triple-0 calls on 3 February 2019, the body worn footage, and the application for the APVO.

DS Herps’ recollection of the handover to SC Murphy was that he was copied into an email from DSS Wilson to SC Murphy on 5 April 2019 indicating that the plaintiff was to be investigated for “making a false statement”. He had a conversation with SC Murphy on 5 April 2019. He could not remember the conversation but agreed in cross-examination that he might have expressed an opinion. He also disagreed that SC Murphy included in the search warrant application things he told her. He stated that what she included was her interpretation of everything that was before her including the documents from his report to DSS Wilson. He stated that he had “no input in the search warrant application” and that the “first [he] knew about an investigation was when SC Murphy asked for [his] statement”.

At 4.13pm, SC Murphy recorded her first entry in the COPS system in relation to Mr Harland; it read, “Further investigation is to be undertaken in relation to the possibility of HARLAND making false accusation with intent subject other to investigation”. On this day, she also created an iASK request for the audio recording of Mr Harland’s triple-0 calls. That request was authorised by inspector Paul Tickner on 10 April 2022. She did not wait to get those audio recordings before applying for the search warrant. She only had the CAD narratives available to her at that time which recorded, inter alia, the following entries:

SC Murphy reviewed material regarding the investigation into Mr Harland. She had no independent memory of this, but it is consistent with the contemporary documentation.

SC Murphy applied for a “Part 5 search warrant/record” to Registrar Andrews at the Blacktown Local Court. On the form, she indicated that the “searchable offence” in question within the meaning of s 46(1)(a) of LEPRA (with which “the things” were connected, being the laptop and hard drive/USB) was: “Section 314 Crimes Act 1900 – Make false accusation with intent subject other to investigation”.

The application was in the following terms:

On the same document, the issuing officer recorded the application in these terms (the italicised portions are her handwritten entries):

The eligible issuing officer’s record of the application states that she received the application at 11.02am and issued a search warrant at the same time.

The “searchable offence” was defined as an offence contrary to s 314 of the Crimes Act. I will consider the elements of that offence below.

SC Murphy gave evidence that she has no independent recollection of seeking that search warrant. She cannot recall if she said anything to the issuing officer at that time or whether she was asked any questions. Nor could she recall whether she provided any additional information at that time. She made no contemporaneous note about the circumstances of the application. In her affidavit, she identified the following documents as forming the basis of her reasonable grounds:

There was no doubt in SC Murphy’s evidence that she was investigating Mr Harland for “making a false accusation in his statement in support of the Personal Violence Order application with the intent of bolstering that application”.

At 4.02pm, the warrant was executed, and a search conducted. Ten police officers attended Mr Harland’s unit. At 4.24pm, Mr Harland’s laptop computer and a number of USBs were seized.

At 8.36am, SC Murphy submitted a request to SEEB for examination of the laptop. The following note appears at the end of the document, “Version: 12.0 Created at 9/04/2019 8:36 by Ashlea Murphy”. Relevantly, the following information was also included:

Section 179(1) of the Criminal Procedure Act 1986 (NSW) provides for a 6-month time limit for the commencement of summary prosecutions. There is no statutory time limit for commencing the prosecution of indictable offences such as s 314 of the Crimes Act, which SC Murphy stated she was investigating.

Next to the heading “Investigation Background Detail”, SC Murphy noted the occurrence of a “verbal dispute” on 3 February 2019 and that police “view[ed] a two page document on HARLAND’S computer where he had outlined what had occurred”. The narrative also included:

I will consider the significance of the use of the word “resulting” below.

SC Michael Jordan of the Sydney Radio Operations Centre processed SC Murphy’s request and produced the triple-0 calls made by Mr Harland that night. They revealed that, contrary to what was included in the application for the search warrant, Mr Harland had complained of an assault to the triple-0 operators (see above at [43]-[47]). The police suspicion that he fabricated such an account for the first time after speaking with them that night could not be sustained on the basis of the triple-0 calls.

At 8.41am, DS Herps emailed SC Gleaves requesting that he provide a statement to SC Murphy pertaining to possible charges against Mr Harland. At 8.43am, DS Herps emailed SC Murphy attaching his statement dated 2 April 2019. SC Murphy confirmed receipt at 11.50am.

At Blacktown Local Court, police withdrew from Mr Harland’s APVO application and the interim APVO was continued by Registrar Andrews. The matter was adjourned to 1 May 2019.

There was no further investigation into Mr Harland until August 2019. Mr Harland was without his computer during that time and had to defer his university studies. Evidence was adduced regarding Mr Harland’s attempts to get his computer back during that time. Most of this evidence was not relevant to the validity of the search warrant but I will briefly summarise what occurred.

A letter was sent by the Redfern Legal Centre to Blacktown police station requesting the return of Mr Harland’s property. By that date, SC Murphy had the triple-0 calls but no result from SEEB. In the letter, reliance was placed on s 219 of LEPRA:

Section 216 of LEPRA provides that “property to which this division applies” refers to property that is in the police custody in connection with an offence, whether or not proceedings have been commenced, and property that is lawfully in police custody other than in connection with an offence.

At the listing of the APVO application at Blacktown Local Court, the applicant represented himself and the matter was adjourned to 15 May 2019.

Following Mr Harland’s request for the return of his property, at 5.30pm, SC Murphy updated the COPS record. The entry read:

It is not entirely clear what SC Murphy meant by the italicised portion in the third paragraph above. It was not new information. It was consistent with what Mr Harland told police as recorded in the body worn camera footage which SC Murphy stated she had viewed before seeking the warrant. She was not cross-examined about this. There was no reference to the triple-0 calls in this update.

At the listing of the APVO application at Blacktown Local Court, Mr Zerafa indicated that he would be defending the application. The interim order was continued. Orders were made as to the service of statements and the matter was adjourned until 19 June 2019.

Mr David Shoebridge MLC wrote a letter to the NSW Police Commissioner complaining about Mr Harland’s treatment. He noted Mr Harland’s concerns in the context of the background that Mr Harland had previously successfully sued Blacktown police in a civil action for failing to “adequately investigate” a “gay hate crime assault” that left Mr Harland’s partner with a permanent brain injury. In particular, complaint was made that Mr Harland’s computer had been seized and not returned.

There having been no return of the laptop following the letters from Redfern Legal Centre and Mr Shoebridge, Mr Harland filed an application at Blacktown Local Court for the return of his seized property under s 219 of LEPRA. The application was received by Registrar Andrews and listed on 6 June 2019.

DS Herps emailed SC Gleaves regarding the status of his statement.

SC Gleaves signed his statement.

At the listing of Mr Harland’s s 219 application at Blacktown Local Court, police sought an eight-week adjournment. The application was adjourned for hearing on 23 August 2019.

At Blacktown Local Court, Mr Harland’s APVO application was adjourned for hearing to 5 September 2019.

At 1.14pm, SC Murphy made a COPS entry recording that Mr Harland had requested the return of the hard drive for his university studies.

SC Sfarjalani from SEEB collected Mr Harland’s Acer laptop for data copying onto a USB and returned it with the USB.

SEEB conducted an examination of the Acer laptop and found that Mr Harland had created the document “in his personal violence order application and that there were artifacts linked to the file and temporary saved versions”, which police were unable to view. Sergeant Catto-Pitkin advised that further analysis (requiring a further request) would be needed to view these items. SC Murphy updated the COPS case narrative in relation to this and other matters on 27 August 2019. The document described by SEEB was the one that Mr Harland emailed to Blacktown Local Court on 5 February 2019.

The hearing of Mr Harland’s s 219 application at Blacktown Local Court was adjourned to 22 November 2010. Police sought this lengthy adjournment to provide time to obtain the results of the laptop analysis. At 3.41pm, police prosecutor William Jarboue sent an email update to SC Murphy about this.

SC Murphy submitted a second request for assistance to SEEB which was approved by Inspector Goddard. She indicated that it was required by 22 November 2019. The alternative contact was noted as being “Michael HERPS”.

At 6.15am, SC Murphy emailed prosecutor Jarboue confirming her (expedited) request to SEEB. Later that day, SC Murphy sat down with SEEB.

SEEB examined the file again and were unable to recover any temporary saved versions of the document because the amendments had occurred “within the same file and had been saved as the same file, instead of further files that had since been deleted as once thought” (emphasis added). “Of interest” was that the file (the APVO document) was created at 4.40pm on 3 February 2019 and had undergone “19 hours of editing prior to its last amendment before being seized by police”. The narrative recorded by SC Murphy in COPS about this concluded:

At 8.54pm, SC Murphy updated the COPS case narrative detailing the findings of SEEB’s investigations on 15 and 27 August.

At 6.00am, SC Murphy emailed the plaintiff’s solicitor and noted that she had sat down with SEEB the day before and was able to expedite the process. She confirmed that the laptop and all the other seized items could be returned, that there was insufficient evidence to charge Mr Harland and that the case against him was to be suspended.

At 2.31pm, Mr Harland’s solicitor emailed SC Murphy to arrange a date for collection.

There was no appearance by Mr Zerafa at the hearing at Blacktown Local Court for his APVO. The order was granted for a period of two years.

I shall make some findings regarding the inferences to be drawn from the contemporaneous documents in my consideration below. However, there is one aspect of the evidence that I need to summarise before doing so: how was it that SC Murphy arrived at the relevant searchable offence?

SC Murphy was cross-examined on the fact that the COPS case report (under which the event narratives are entered) indicates that the offence Mr Harland was being investigated for was “public mischief” which is a summary offence and thus not a “searchable offence” within the meaning of s 47(1). Her evidence was that she did not enter that description, Sergeant Kniepp did. Further, although she accepted that she had read all of the COPS entries when she took over the investigation, she was unable to recall whether she ever noticed that the offence was described in that way. As referred to above, on 5 April 2019, SC Murphy described the offence in the narrative of her first COPS entry as, “making false accusation with intent subject other to investigation”. That language is taken from DSS Wilson’s email extracted above at [119].

Although it seems somewhat suspicious that the investigation was at all times “entitled” as “public mischief”, a full list of categories that an officer can choose from for “case title” was tendered by SC Murphy. It revealed that the categories do not correspond to specific provisions of the Crimes Act; they are simply descriptors at a broader level of generality. Significantly, there did not appear to be any option that more aptly fit the case than “public mischief”.

Counsel for the plaintiff cross-examined SC Murphy at length as to how she arrived at the s 314 offence being the “searchable offence”. That offence is in the following terms:

SC Murphy was also provided with copies of s 547B of the Crimes Act and s 49A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“Crimes (DPV) Act”). Section 547B provides for the offence of public mischief and is in these terms:

Section s 49A of the Crimes (DPV) Act is specifically concerned with false statements in APVO application and is also a summary offence. It provides:

SC Murphy was also asked about the offence of perverting the course of justice, which was one of the two offences suggested by DSS Wilson in his email. Section 319 of the Crimes Act is in these terms:

After SC Murphy was taken to these provisions, she was asked the following questions:

SC Murphy’s answer that she believed an offence contrary to s 314 of the Crimes Act was the “most suitable offence at the time” is the high point of the evidence is to why she did so.

On 9 April 2019, in her request to SEEB for examination of the laptop, SC Murphy indicated that “[p]olice would like the laptop examined in an attempt to recover the document as police as [sic] investigating HARLAND for making a false allegation resulting in police investigation” (emphasis added). As stated above, the “primary offence” field was recorded as “public mischief”. She could not recall how that offence was entered. She could not recall if there were categories to choose from on the pro-forma document on the computer or if anything could be typed in the fields, “primary offence” and “date required reason” (where “matter will reach statute of limitations” was recorded). Nor could she recall why she had suggested a time limit for prosecution of five months (relevant to a summary offence, not an indictable offence).

It was suggested to SC Murphy in cross-examination that one of more of the other police officers had suggested that offence to her but she denied it. In the event, there is insufficient evidence for me to find that DS Herps suggested to SC Murphy that the appropriate offence was one contrary to s 314 of the Crimes Act. SC Murphy could not recall what she discussed with DS Herps when the matter was handed over to her and that there was no documentation of that conversation. And going further, in none of his emails or COPS entries does he ever make any reference to s 314 of the Crimes Act.

I have already summarised the email from DSS Wilson to SC Murphy on 5 April 2019 suggesting that an offence contrary to s 314 is what she should “work up”. There is no other reference to that offence in the contemporaneous documentation. For reasons I will explain below, I am satisfied that the only inference is that she accepted what had been suggested to her by DSS Wilson.

The plaintiff relied on written submissions filed prior to the hearing and oral submissions made at the conclusion of the evidence.

Mr Skinner accepted in his final submissions that he could not establish to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336) that SC Murphy deliberately supplied information in her application that she knew to be false. The focus of his submissions was on the lack of requisite “reasonable grounds”.

He confirmed that the particulars in support of the contention that SC Murphy did not have reasonable grounds to believe that there was a thing on the premises that was connected with the searchable offence were those enumerated at [62] of his written submissions (paraphrased) as follows:

As for the particulars of invalidity pertaining to the issuing officer, it was submitted in writing that Ms Andrews took less than one minute to consider and issue the search warrant. She also failed to consider the appropriateness of determining the application in circumstances where she had issued the interim APVO for Mr Harland. Further, it was contended that she did not record sufficient reasons as to her decision to grant a search warrant as required by s 65(1) of LEPRA.

In closing submissions, Mr Skinner’s focus was as to why the Court would be satisfied that SC Murphy did not have reasonable grounds to believe that there was a thing connected with the searchable offence contrary to s 314 of the Crimes Act. Significant reliance was placed on the evidence concerning how the searchable offence was arrived at, what investigations SEEB could have done in any event, the circumstances of the handover to SC Murphy, the triple-0 calls, the interview with Mr Zerafa and inconsistencies between what is recorded in the body worn camera and what was included in the police statements.

It was noted that there was no transcript of Mr Zerafa’s ERISP at the time of the application, although SC Murphy states that she listened to it or watched it. It was submitted that SC Murphy put the wrong indictable offence on the warrant, but it was conceded there was no evidence to find that she did so deliberately. Reliance was placed on SC Murphy’s evidence that she did not know how “public mischief” came to be included in the police records.

It was accepted that DSS Wilson denied that police were exercising their powers to teach Mr Harland a lesson for being a nuisance, but, it was put, the question for the Court was whether the grounds were reasonable. It was submitted that if I was satisfied that the power had been misused that was relevant to the validity. It was submitted that DSS Wilson’s state of mind was relevant because of the “chain of command”; it was realistic to conclude that a junior constable told by her crime manager that he believed getting a computer would be useful that she would not resist that. DSS Wilson had asked her to “work up” a case for an indictable offence when she was never charged to investigate anything other than the making of a false APVO application.

It was submitted that there has to be the “connection” with the offence as defined in s 46(3) of LEPRA. Police appear to have been looking for a previous draft of the document emailed to the Registrar but that was not how it was described in the application.

In relation to defects in the search warrant application, it was submitted that Mr Harland had never said that he deleted the document. Nor was it accurate to state that in the application that “both parties” (Mr Harland and Mr Warnecke) made reference to the computer in their police statements as Mr Warnecke’s statement mentions nothing about the computer. Further, the effect of saying “both parties” would convey an undertone of concoction to the issuing officer. The application also omitted to note that Mr Zerafa (and Ms Henley-Kelly) admitted that at least he ran near Mr Harland saying in purported protection of his children.

It was submitted that the “kicker” (in the misleading application) was the reference to “fabrication” at the end. It would have led the issuing officer to conclude that Mr Harland had fabricated evidence based on material which was wrong or misleading. The issuing officer was presented with an indictable offence which never happened and given supporting information suggesting a s 314 offence about police statements when the question was what he said in his APVO application.

Referring back to the amended summons, it was submitted that if the plaintiff was successful on particular 1(a)(i) (SC Murphy’s reasonable grounds), then he would also be successful on 1(d) (the Registrar’s reasonable grounds), and the reverse was also the case.

As for particular 1(e), reliance was placed on Doyle v Commissioner of Police [2020] NSWCA 11; 285 A Crim R 349 (“Doyle”) (considered below at [238]-[241]). It was submitted that if the issuing officer received and issued the warrant at 11.02am on 8 April 2019 she could not have been satisfied that there were reasonable grounds to issue the search warrant (or indeed, consider this question in any meaningful way).

As for particular 1(f), it was submitted that the issuing officer should have directed her mind to how reliable DS Herps and SC Gleaves’ memories were.

Finally, it was conceded that there was insufficient evidence to advance the particular that the issuing officer did not comply with s 65(1) of LEPRA.

Detailed written submissions were filed on behalf of the first defendant prior to the commencement of the hearing. They were supplemented by oral submissions at the conclusion of the hearing.

Much of the written submissions addressed the initial assertion that SC Murphy had deliberately supplied misleading material; a matter that was not ultimately pressed on behalf of the plaintiff.

It was submitted in relation to the investigation for an offence contrary to s 314 of the Crimes Act that the alleged conduct may have constituted such an offence. It was submitted that although the internal documentation refers to the offence of public mischief, there was no evidence that it was SC Murphy who had recorded it in those terms. It was submitted that it was not SC Murphy’s role to assess matters of credibility and reliability. It was submitted that the evidence cogently shows that SC Murphy had reasonable grounds as alleged.

Reliance was placed on the decision of Doyle. In particular, it was submitted that this case was very different factually and that there was a cogent inference that the issuing officer had turned her mind to the nature of the allegation and found the application was not broadly “fishing” for an offence. It was submitted that she did give real attention to the legislative considerations and did not simply “rubberstamp” the application.

As for the suggestion that the issuing officer took less than one minute to read the application, it was submitted that there was a strong inference available that she took more than one minute to consider the application given that she handwrote detailed reasons which would have taken more than a minute to write. It was submitted that if, by way of example, she had received the application at 11.02am and issued the warrant at 11.04am that would be evidence that she only spent two minutes on it which would have been insufficient time. The fact that she has written the same time just shows that she must have made a simple error.

In oral submissions in response to my concern that there was no evidence as to how SC Murphy arrived at an offence contrary to s 314 of the Crimes Act, Ms New referred to the SC Murphy’s evidence that she was investigating whether Mr Harland had made a false statement to police and also to the Registrar. SC Murphy knew that Mr Harland had provided a juratted statement and his application for an APVO. There was a suggestion that what was contained in both of those documents was different from what was seen by police. It was submitted that that was an insight into why she was investigating an offence contrary to s 314 of the Crimes Act.

As to the reference to the six-month statutory limitation in the 9 April 2019 request to SEEB, it was accepted that SC Murphy’s evidence was that she could not recall which were the pre-filled categories, but that did not establish that SC Murphy had formed a view that it was a summary offence; that evidence needs to be considered in the context of the other evidence that she was investigating a s 314 false accusation. I indicated at the time that I was satisfied on the balance of probabilities that SC Murphy must have entered those details herself because of the coincidence of that date being five months (February to July) from the date of the alleged offence. Ms New submitted that it would not be open to me to infer that SC Murphy provided a five-month date to put some pressure on SEEB because the witness had no recollection to this effect. It was submitted that given the other evidence that she has consistently maintained that she is investigating for a s 314 offence, I would not infer that she had entered the time limit because she knew she was investigating a summary offence.

As for the relevant legal principles, Ms New submitted that material sufficient to provide reasonable grounds for the issue of a warrant may fall short of proof of the offence suspected. As for the nomination of the searchable offence, Ms New relied on Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; [1991] FCA 92 (“Beneficial Finance Corp”) and State of New South Wales v Corbett (2017) 230 CLR 606; [2007] HCA 32 (“New South Wales v Corbett”) (summarised in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [35]-[42]). I have considered these decisions below. Ms New submitted that an applicant applying for a search warrant is not tied to a specific offence and that, citing Corbett, “even in the face of the error of a section where there was no mistake about the object of the search or the boundaries of the search warrant, the search warrant was not invalid.”

On the issue of how other available (summary) offences might have impacted on SC Murphy’s reasonable grounds for the s 314 offence, and drawing on George v Rockett (1990) 170 CLR 104; [1990] HCA 26, Ms New submitted the relevant inquiry was whether there existed facts that to induce the relevant belief in the mind of a reasonable person and not whether there existed alternative facts which weighed against this (including other possibly applicable summary offences).

Ms New also relied upon the principle that the scheme for the application for search warrants has to have “practical workability”. This principle was said to be derived from the decision in Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Mason J (as his Honour then was) observed the following at 83:

It was submitted that the incorrect aspect of the application concerning there being no assaults in the “calls” was not necessarily misleading when the paragraph is read in its entirety. It was submitted that the Court would not declare the search warrant to be invalid on the basis of the error regarding the triple-0 calls as that would invite “a futuristic look as to the outcome of that line of investigation”. In response to whether there was any basis to seek the search warrant if the triple-0 calls had been available and listened to, Ms New submitted that the significance of the triple-0 calls was such that it still would have been reasonable to seek a warrant even after having regard to those calls.

It was submitted that SC Murphy was a reliable and a credible witness who gave thoughtful answers. In a response to a question as to why, if police were satisfied Mr Harland was verbally threatened, they did not charge Mr Zerafa with intimidation, Ms New accepted that was unclear.

It was acknowledged that SC Murphy now concedes there was no evidence that Mr Harland “deleted” the notes. That word appears to have come from DSS Wilson in his 5 April handover email, writing, “we will be looking for the deleted Word document.”

It was submitted that SC Murphy had a belief that there was a document on a laptop which, with SEEB’s help, could be examined to identify the original version, which was a line of objective evidence in her mind; she was trying to reconcile two stories and she was applying for a search warrant to try and find objective evidence to do so. It was submitted that there was no evidentiary foundation to suggest that SC Murphy was blindly guided by DSS Wilson.

As for the results of the examination by SEEB, reliance was placed on the fact that the first result was equivocal, so she went back a second time which confirms that she was after the document she described in her application.

An overriding principle in relation to search warrant law is the strictness with which the law pertaining to them is to be applied. In the oft cited words of Burchett J in Parker v Churchill (1985) 9 FCR 316 at 333:

Kirby J explained the necessity for strictness in approaching the law governing search warrants in New South Wales v Corbett at [16]-[19] (footnotes omitted):

The present case concerns whether the applicant had “reasonable grounds” to believe that there would be a thing connected with the searchable offence (s 314 of the Crimes Act) at Mr Harland’s premises and whether the issuing officer had reasonable grounds to issue the warrant. The leading case concerning the requirement for “reasonable grounds” is George v Rockett (1990) 170 CLR 104; [1990] HCA 26. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) considered the construction of the relevant search warrant provision in Queensland legislation at that time, which required both the applicant and the issuing officer to have “reasonable grounds” for issuing the warrant. In that context, the Court observed the following at 110:

Their Honours went on at 111 to observe the following in relation to the statutory powers to grant such warrants:

After noting that a warrant should express the justice's satisfaction that there are reasonable grounds for the suspicion and belief their Honours noted (at 111):

Their Honours went on at 112 to state:

I pause to note that the wording of LEPRA does not use the word “suspects” but rather the applicant’s state of satisfaction is one of belief. The relevant statutory provision in George v Rockett specified that it must appear to the Justice (issuing officer) that there were reasonable suspicions about some matters and reasonable beliefs about others. As for the difference between suspicion and belief, their Honours observed at 113-114:

Their Honours went on to observe the following at 115-116 (footnotes omitted):

More recently in Smethurst v Commissioner of Police (Cth) [2020] HCA 14 Kiefel CJ, Bell and Keane JJ observed the following in relation to search warrants generally, albeit in the context of the proper identification of the relevant offence and items being searched for at [23]-[25] (footnotes omitted):

As for the principles pertaining to the identification of the searchable offence, the first defendant relied upon the following observation of Burchett J (with whom Sheppard J agreed) in Beneficial Finance Corp at 533:

I have also considered the decisions of this Court, both the Court of Appeal and at first instance, in which the question of “reasonable grounds” has arisen in the relevant statutory context. I have found the following decisions to be of assistance.

In Carrol & Ors v Mijoivch & Ors (1991) 25 NSWLR 441, the Court of Appeal allowed an appeal against a decision of Finlay J. His Honour had upheld the validity of a search warrant despite the fact that the issuing officer had failed to cause a record of the grounds relied upon to justify the issue of the warrant. The Court (Kirby P and Handley JA (Meagher JA dissenting)) held, in reliance upon George v Rockett, that the failure of an authorised justice to record the grounds relied upon to justify the warrant renders such a warrant invalid.

In Vincent v Randall & Anor [1999] NSWSC 833, Hidden J considered a challenge to a search warrant where incorrect information had been provided to the authorised officer orally by the applicant during the application. In that case, a 14-year-old child had attended Redfern police station and reported that her parents had been selling cannabis from their home for some time and were receiving stolen property. The applicant obtained police intelligence reports which suggested the child’s parents were engaging in the supply of cannabis and heroin. Those intelligence reports appeared to have come from unnamed members of the public. During the application for the warrant, the authorised officer enquired of the applicant whether the occupants had any convictions for possessing cannabis and he replied that they did (from his recollection).

The suspects did not have any convictions for selling cannabis. That aspect of the report was incorrect. When the search warrant was executed, a small quantity of cannabis was found. In this factual context Hidden J noted at [14]:

His Honour went on at [16] to observe:

Significantly, his Honour was satisfied that putting the criminal histories to one side, the remaining material was sufficient to provide reasonable grounds for the issue of the warrant. In that context, Hidden J observed the following at [18]:

I note that Vincent v Randall turned on the statutory requirements in respect of the issuing officer, rather than the applicant.

In Rohozynsky v Holder & ors. [2005] NSWSC 868, a search warrant had been issued for a stolen “Bobcat” on specified premises. The applicant had frankly stated in the application “there is no evidence to connect the residents of these premises with the initial hirer of the machine”. Nor was the authorised officer told that the identity/identities of the occupant(s) of the dwelling house was/were unknown to police. Sully J quashed the search warrant on the basis, inter alia, that there were no “reasonable grounds” for believing that the property would be at the subject premises or even that it was stolen in the first place.

In Corbett & Anor v State of New South Wales [2006] NSWCA 138, one of the grounds of invalidity concerned the fact that the searchable offence was a provision of the Firearms Act which had been superseded. A police officer who was known to have firearms in his possession wrote a suicide note suggesting that police officers may be killed. His firearms licence was cancelled as a result of his poor mental health issues. A search warrant was then sought to seize his firearms on the basis that he was in possession of firearms whilst unlicensed under the superseded Act and section. The appeal was allowed on that basis and the warrant found invalid. That decision was overturned by the High Court who cited Burchett J’s statement of principle extracted above at [216] with approval at [99], [103], and then observed the following at [105]-[106]:

In Polley v Johnson [2015] NSWCA 256 the Court of Appeal considered an appeal against a decision by Bellew J to decline to declare a search warrant to be invalid. That case also concerned a warrant in relation to a public justice offence. A Mr Gillard, who was a member of the Rebels Outlaw Motorcycle Gang (“OMCG”), had approached a potential witness in a murder investigation whilst wearing his “colours”. She felt that he was threatening her in the event that she cooperated with the police investigation. He had told her that he hoped people were not talking to police about the death because if they did “bad things could happen to them”.

Application was made for a search warrant to search for clothing or insignia associated with the Rebels OMCG. The searchable offence was identified as “Reprisals against judges, witness, jurors etc – Crimes Act (1900) s 326(2)”. Following the execution of the search warrant Mr Gillard was charged with two offences, not under s 326(2) of the Crimes Act, but under s 315(1)(a) (hindering the investigation of a serious indictable offence committed by another person) and s 315A(1) (threatening or causing injury or detriment to another person intending to deter the provision of material information about an indictable offence to a police officer or appropriate authority).

It was contended before the primary judge that there were no reasonable grounds for believing that Mr Gillard had committed an offence against s 326(2) because there were no judicial proceedings at that time on foot. The issue turned on the proper construction of s 326 of the Crimes Act. As stated above, Bellew J dismissed the summons.

On appeal the two grounds of appeal were as follows:

Simpson AJA (with term Beazley P and McColl JA agreed) was satisfied that it is not a precondition for the valid issue of a warrant that the issuing officer was satisfied that the conduct attributed to Mr Gillard was capable of supporting a conviction under the relevant section. In that context, her Honour stated the following at [38]:

Relevantly to the present matter, her Honour went on to observe at [39]:

Her Honour went on at [40] to describe the statutory relationship between the reasonable grounds held by the applicant and the reasonable grounds held by the issuing officer as follows:

One of the difficulties in Polley v Johnson is that there were authorities pointing in opposite directions as to whether for the purposes of establishing an offence contrary to s 326 of the Crimes Act, judicial proceedings needed to be current in relation to the threat to be made; the question was not a straightforward one. Her Honour resolved the question in this way at [43]-[45]:

Her Honour went on to state:

In dismissing the first ground, Simpson JA noted the undesirability of committing the determination of complex legal issues to individuals exercising administrative functions: see [48]. Her Honour concluded by stating (at [51]):

The second ground of appeal asserted that the search warrant had been obtained for an ulterior purpose (investigation of the murder). That ground was dismissed on the basis that there was nothing in the evidence that was “remotely capable” of supporting it.

In Lee v NSW Commissioner of Police (No.3) [2019] NSWSC 694 Garling J considered a challenge to the invalidity of a search warrant on grounds including that the applicant relied upon material or information that was unlawfully obtained by police and thereby could not legally or reasonably have been satisfied that there were reasonable grounds within the meaning of s 47(1) of LEPRA. Garling J was not persuaded that that ground was made out given that there is an entitlement to admit evidence which is unlawfully obtained (see s 138 of the Evidence Act 1995 (NSW)): at [147].

Finally, both parties relied upon the decision of the Court of Appeal in Doyle v Commissioner of Police [2020] NSWCA 11; 285 A Crim R 349 (“Doyle”). The issue in that case was whether the issuing officer had complied with the requirements of ss 48 and 65 of LEPRA and whether the search warrant was invalid as a result. The Court was satisfied that the correct inference to draw was that the officer had not brought real attention to bear upon the application for the warrant and had not complied with s 65 of LEPRA, such that the warrant was invalid.

One of the problems in that case (which does not arise in the present matter) is that the applicant had pre-filled those aspects of the application that the issuing officer was required to complete including those pertaining to the reasonable grounds held by the issuing officer. There was no evidence given by the issuing officer. The only evidence as to what was before them was the application document and the warrant.

The Court of Appeal was satisfied that the question as to whether the statutory provisions of LEPRA, in this case ss 48 and 65, were complied with was a question of fact to be determined in light of all the relevant evidence: at [61]. It was common ground that the appropriate inference to draw was that the application for the warrant was heard, determined and documented in around 10 minutes: at [62]. The Court (Leeming and Payne JJA and Simpson AJA) observed the following at [63]-[64]:

After noting disagreement with the primary judge that considerations of efficiency justified the practice of pre-filling the form, their Honours went on to address whether the issuing officer properly considered the application. Their Honours noted at [72] that s 62(3)(a) required the issuing officer to have regard to the reliability of the information on which the application was based, including the nature of its source. Their Honours went on to conclude the following at [74]-[75]:

The plaintiff seeks declaratory relief and an order in the nature of certiorari quashing the search warrant. In doing so, the plaintiff invokes this Court’s supervisory jurisdiction, regulated by ss 69 and 75 of the Supreme Court Act 1970 (NSW).

In considering the validity of the search warrant, I have regard to the relevant terms of LEPRA and the principles derived from the decisions I have considered above. I have applied those principles to my factual findings. I shall consider each of the particulars of invalidity relied upon in turn.

I am not satisfied that the evidence supports a finding that SC Murphy provided information to the authorised officer that she knew was false or misleading in a material particular. The plaintiff accepted that as the evidence fell, he could not reach the Briginshaw standard in that regard.

I have considered SC Murphy’s evidence as to what she had regard to in forming the requisite belief. I have summarised her evidence as to the basis for her requisite belief above at [132]. It is to be accepted that there were a number of documents and recordings available to her that she had access to and, on her evidence, considered. But there are two difficulties with her application for a search warrant. The first difficulty is that although I am not satisfied that SC Murphy intentionally provided information in the application that was false or misleading, there was material in the application that did not reflect the true state of the evidence which SC Murphy appears to have acted upon. The second difficulty is that, viewed objectively, I am satisfied that SC Murphy did not turn her mind to the elements of the searchable offence. In light of these factors, I am satisfied that there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person: George v Rocket at 112.

I will consider these two problems with the application in turn.

There was a false representation in the application concerning the triple-0 calls. I have extracted the relevant portions above at [43]-[47]. They disclose that during the five calls Mr Harland made to police he repeatedly complained that he had been physically threatened by Mr Zerafa. Given that the entire basis for the investigation into Mr Harland turned on a belief that his complaint to the Registrar on 5 April 2019 that he had been physically threatened was a recent invention, the prior consistent statements made to the triple-0 operators are fatal to the police investigation. In that context, SC Murphy asserted the following in the application for the search warrant:

The suggestion to the issuing officer that none of the calls outlined any assaults was incorrect and was a significant error. I have had regard to the first defendant’s submission that it was not necessarily misleading because the application refers to the “computer aided dispatch jobs” prior to the assertion that none of the “calls” outlined any assaults. As stated above, I am not satisfied that SC Murphy deliberately misled the issuing officer, but I am satisfied that the issuing officer would have been left with the impression that SC Murphy was aware of the contents of the triple-0 calls and they did not record any threats, neither of which reflected the true position.

SC Murphy had access to the triple-0 calls two days after she applied for the warrant. It was never explained why she did not wait for them. It had already been over two months since police first attended Mr Harland’s home; a few more days would not have mattered. The calls established either that DC Herps and SC Gleaves were mistaken in their recollection of Mr Harland’s notes on his computer shown to them on the evening of 3 February 2019 or that (contrary to Mr Harland’s evidence) Mr Harland did add some further details after speaking to police, but they were not a recent invention as police suspected.

The next complaint made by the plaintiff regarding the application was the assertion that “Sergeant HERPS informed HARLAND there was no offences detected and he would create a record of the matter”. Mr Harland denied this was said and SC Gleaves gave no evidence about it. In the witness box, DS Herps could not remember whether he said it or not, but I am satisfied that in his police statement he included the words I have extracted above at [50]. On that basis, it could not be said there was no evidence this was said.

The real question about this aspect of the application is why SC Murphy omitted to include the uncontradicted evidence of DS Herps that Mr Harland had expressly told police that evening that he did not want anyone charged; he only wanted an APVO. Given that Mr Harland was being investigated for making a false statement with the intent of having Mr Zerafa subject to investigation, the omission of the fact that Mr Harland told police that night that he did not want anybody charged is significant given the searchable offence was s 314 of the Crimes Act.

The next difficulty with the application is the following inclusion:

It was common ground that none of Mr Harland, SC Herps or SC Gleaves ever gave an account of Mr Harland using the word “deleted” in relation to the notes he showed police on 3 February 2019. I have summarised the competing versions above. The only mention of that word in the contemporaneous documentation came from DSS Wilson who used that word in his email to SC Murphy on 5 April 2019. Although it appears to have been a slip on his part which SC Murphy adopted, it was a significant one for two reasons. First, I accept the plaintiff’s submission that the word “deleted” carries connotations of destruction of evidence. Secondly, it appears to have given rise to a misapprehension as to what SEEB would be able to recover.

The application for the search warrant suggested that there had been a document that had been “deleted”. The actual “thing” specified in the application was “his initial document outlining his initial complaint which did not include the allegation of assault”. SC Murphy was looking for a document that had been deleted before it had been saved, but there was no basis for believing that there was a “deleted” document. The ultimate SEEB examination showed that “the file” (which could only be the document sent to Blacktown Local Court by Mr Harland by email on 5 April 2019) was created at 4.40pm on 3 February and had undergone “19 hours of editing” prior to its last amendment before the laptop was seized by police.

The next slightly misleading aspect of the application was in these terms:

This passage suggests that Mr Harland and Mr Warnecke put their heads together to concoct a false version. The two men did not attend Blacktown Police Station together. Nor did both parties state they had recorded the incidents on a document on the computer; only Mr Harland did. On their own, these slight inaccuracies are of no moment, but they are relevant to note as part of the application overall. Further, to the extent that the allegation that Mr Zerafa spat on Mr Harland was relied upon as part of the “recent invention”, that fact was also misleading as DS Herps has always accepted that Mr Harland told him on the night that Mr Zerafa’s spittle landed on him (even if DS Herps’ recollection of it was that it was not an intentional spitting).

The next misleading aspect of the application is in the following passage:

The phrase “verbal altercation” significantly understates the nature of the homophobic abuse directed at Mr Harland by Mr Zerafa (which the latter admitted). As at the time of the application, SC Murphy did not have a transcript of Mr Zerafa’s ERISP but she stated that she listened it. It went for 31 minutes. It was not put to her that she had not listened to it, so I accept that she did. She had no recollection either way. That recording shows that although it is accurate to say that Mr Zerafa denied, inter alia, “threatening” Mr Harland, he agreed that he “ran” towards Mr Harland in a “protective” manner whilst yelling the words he did with no obvious provocation. These aspects of Mr Zerafa’s account which supported Mr Harland’s account were not included in the application.

The next misleading aspect of the application is this part:

There are at least two difficulties with this part of the application. First, it fails to mention that Mr Harland told police on the night that he did not want anybody charged. Secondly, the use of the word “fabricated” is a conclusion which ignores the fact that even if Mr Harland had added further matters (including the assault) to his notes on his computer after police left (which was denied), that does not necessarily mean those additional matters were fabrications. When witnesses make police statements or affidavits it is not uncommon for a draft to be prepared that might be changed a number of times until it is finally signed. It is not a criminal offence to make changes to a draft before it is finalised; and this document was not even a signed statement at a police station; it was simply some typed notes of what had occurred that day.

The final portion of the application was in these terms:

The “thing” sought by the warrant was the “initial document”. In her request to SEEB on 9 April 2019, SC Murphy stated that she wanted them to “recover” the “initial document”. But Mr Harland had told police that he did not have the unsaved Word document he showed them on the night, only the document he had emailed to the Local Court. As I have already concluded, I am satisfied on the evidence that the “initial document” became the document that was emailed to the Blacktown Local Court by Mr Harland on 5 February 2019. This is also consistent with the SEEB evidence. Despite this, SC Murphy appears to have proceeded on the basis that there was some other “deleted” document. It was never explained how SEEB could have located either an unsaved or a deleted document (even if it had existed) and been able to identify precisely when it was that Mr Harland inserted details of an assault after police left his premises.

The second problematic aspect of the application is that, although the searchable offence was described as an offence contrary to s 314 of the Crimes Act, there was no explanation in the application as to how that offence could be proved by seizing the plaintiff’s computer. Such an offence required proof that Mr Harland had:

There is nothing in the contemporaneous documentation to suggest that SC Murphy ever turned her mind to the elements of such an offence. I note that in her initial entry in the COPS record on 5 April 2019 and in the application, SC Murphy described the offence as “making false accusation with intent subject other to investigation” (emphasis added). However, in her subsequent request to SEEB on 9 April 2019 she described the offence as “making a false allegation resulting in police investigation” (emphasis added). The problem with that narrative is that it fails to acknowledge that for the offence to be an indictable offence contrary to s 314, as opposed to the summary offence of public mischief or a summary offence contrary to s 49A of the Crimes (DPV) Act, there has to be proof that Mr Harland made a false statement with a specific intention, namely, that Mr Zerafa be the subject of a police investigation. The use of “resulting” by SC Murphy more aptly describes the elements of public mischief.

Further, in her SEEB request, she referred to the six-month statutory time limit for a summary offence. SC Murphy was not able to explain why she instructed SEEB that a response was required within five months. The searchable offence she had executed a warrant in relation to only the previous day was an indictable offence with no statutory time limit. Although it was the plaintiff’s case that SC Murphy deliberately nominated s 314 of the Crimes Act as the searchable offence solely to obtain a warrant, I am not able to make that finding to the requisite standard. Rather, the SEEB request provides further support for my conclusion that SC Murphy did not turn her mind to the elements of the offence under s 314 and apply them to the evidence and what she was searching for.

Further, the use of the word “intent” by SC Murphy in the application (and SEEB request) was somewhat confusing. Did she mean that the intent was for something other than an investigation (which is what SC Murphy maintains she was investigating) or does it mean to subject another person to an investigation? SC Murphy’s evidence was that she was investigating Mr Harland for making a false representation in his application for an APVO. Although Ms New initially submitted that an offence contrary to s 314 could be proved if police relied on the police statement Mr Harland subsequently made on 4 March 2019, she accepted that there was no basis for that submission given SC Murphy’s evidence that that was not what she was investigating; her evidence was that she was specifically investigating the alleged falsity of what Mr Harland had put to the Registrar to obtain an APVO.

Not only am I satisfied that the searchable offence could never have been proved as a matter of law, I am satisfied that SC did not turn her mind to the elements of the offence. Her evidence as to how she arrived at the relevant searchable offence was unsatisfactory and went no further than that she thought it was the most “suitable offence”. Her inability to remember why she arrived at it did not assist her case. I have had regard to the delay in commencing these proceedings and the forensic disadvantage in that regard, but the delay was only a few years. Police officers routinely give evidence about matters years after the event with only their contemporaneous records, including their police statements, to refresh their memories.

As stated above, I have also had regard to the fact that SC Murphy was on maternity leave with a young baby when she gave her evidence. Nor did she have the assistance of a police statement made in 2019 when the events would have been fresher in her memory; that was because there was no basis to charge Mr Harland and thus no reason for her to ever make a police statement. The fact remains that her poor memory means that I have had to rely on inferences drawn from the contemporaneous documentation that do not always assist her case.

Having regard to all of the evidence before me I have come to the conclusion that the only available inference is that SC Murphy arrived at the searchable offence of s 314 of the Crimes Act because it was suggested to her by DSS Wilson in his email who told her to “work up” an offence of perverting the course of justice or “make false accusation”. There is no other conclusion open on the evidence other than that she proceeded on the basis that if her superior at the station, the acting crime manager, thought that was an appropriate offence then that was sufficient basis to act on it. In finding that SC Murphy adopted DSS Wilson’s suggestions in his email I expressly make no finding as to why DSS Wilson took the approach he did. It is not necessary for me to do so in order to reach my conclusion.

Given the cumulative effect of the factual inaccuracies in the application, the factual omissions in the application, the fact that the searchable offence under s 314 could never have been proved, the fact that there was no “deleted” document to search for and the fact that SC Murphy appears to have adopted the approach suggested to her by DSS Wilson to form her reasonable grounds, I have come to the conclusion that SC Murphy did not have reasonable grounds to seek Mr Harland’s computer and other hardware to establish an offence contrary to s 314 of the Crimes Act. There were insufficient facts to induce that state of belief in the mind of a reasonable person.

In so finding, I accept that there will be occasions when police officers identify a searchable offence which may not be able to be proved, and that fact alone may not invalidate a warrant: see Polley v Johnson. Nor will simply misnaming the section invalidate the warrant so long as it is otherwise properly described: New South Wales v Corbett. Nor will making factual errors in the application alone necessarily invalidate the warrant if there are otherwise sufficient facts to establish reasonable grounds: Vincent v Randall. It is to be accepted that police investigating indictable offences often need to act quickly and unintentional errors may be made as a result of time and resourcing pressures. But this case goes further than what occurred in any of those cases. I am satisfied that the plaintiff has established particular 1(a)(i) in the amended summons. The long history of the common law in protecting the rights of the individual cannot be ignored.

Particular 1(d) contended that the issuing officer should not and/or could not have been satisfied that there were reasonable grounds to issue the search warrant. It was the common position of the parties that particulars 1(a)(i) and (d) stood or fell together; that is, if I upheld particular 1(a)(i) then it followed that the issuing officer could not have been satisfied that there were reasonable grounds to issue the search warrant. As Simpson JA noted in Polley v Johnson at [40] (extracted above), the issuing officer’s satisfaction must be that of the applicant. I am satisfied that the issuing officer did not have reasonable grounds to issue the warrant given my finding in relation to particular 1(a)(i).

Particulars 1(b) and (c) collectively contend that the issuing officer spent less than a minute considering the warrant. There was thus a second basis upon which the plaintiff contended that the issuing officer could not have had reasonable grounds to issue the warrant under s 48(1) of LEPRA. On one view, it is unnecessary for me to consider this second basis for upholding particular 1(d) but I propose to do so in the event that I am wrong in my primary conclusion.

The issuing officer reported that she received the application at 11.02 am and issued it at 11.02 am. Both parties relied upon the decision in Doyle regarding the consequences of this. The first defendant distinguished the decision in Doyle on its facts, given that there was no suggestion in the present case that the issuing officer had been provided with a pre-filled application. Rather, it was submitted that the Court could be satisfied that the second defendant had properly considered the application. The plaintiff, on the other hand, submitted that given that the Court of Appeal in Doyle had considered 10 minutes to be an inadequate time to consider that warrant, it followed that the (less than) one minute reported on the search warrant application to have been taken in this matter was considerably more problematic.

If I was satisfied that the issuing officer had in fact spent less than one minute considering the application and issuing the warrant, then it would follow that I would also be satisfied that she could not have been satisfied that there were reasonable grounds to issue it; it could reasonably be inferred that she had simply “rubber-stamped” it. The plaintiff bears the evidentiary onus of establishing that the issuing officer spent less than a minute considering the application. I am unable to be so satisfied on the material before me. In particular, I am satisfied that it would have taken her longer than one minute to have handwritten her reasons and otherwise complete the paperwork in the way she did. Instead, I am satisfied that the issuing officer incorrectly completed the form; either the first or second entry of the time as being 11.02am is wrong.

The plaintiff’s challenge relied solely on the times of 11.02am entered by the issuing officer. I am not satisfied that he has discharged his evidentiary onus in establishing that less than a minute was spent considering and issuing the application, as opposed to an error in the way that the times were recorded.

I am unaware of any decision in which a search warrant has been declared invalid on the basis that the issuing officer has failed to properly record the time the application was received and the time that the warrant was issued. But I have had regard to the principles derived from the decisions I have referred to above, in particular, Doyle. In that decision the Court had regard to how long the issuing officer took to consider the warrant as part of the challenge to its validity.

The issue of search warrants is an administrative act amenable to judicial review by this Court in its supervisory jurisdiction. An issuing officer is statutorily required to provide the grounds upon which a warrant is issued. It seems to me that when this Court is asked to consider a challenge to the validity of a search warrant on a ground asserting that an issuing officer did not or could not have had the requisite reasonable grounds, it cannot perform that supervisory role if the issuing officer has failed to accurately record the time that the application was received and the time the warrant was issued. In the present matter there is simply no way of assessing how much time was spent considering the application.

It seems to me that if an issuing officer fails to properly record the time taken to consider a search warrant, this Court cannot properly exercise its supervisory jurisdiction in respect of that administrative decision. Despite this, it was not contended on behalf of the plaintiff that the mere failure to properly record the time was a ground for invalidity. As stated above, this particular of invalidity turned on the factual finding as to how much time was in fact taken.

I would not uphold particulars 1(b), (c) and (d) to extent that it was contended that the issuing officer took less than one minute to consider the warrant application.

Under s 62(3)(a) of LEPRA an issuing officer is required to consider the reliability of the information on which the application is based, including the nature of the source of the information, and under s 62(3)(b) of LEPRA an issuing officer is required to consider whether there is sufficient connection between the thing sought and the offence. Despite ambiguity in the form of the amended summons, as indicated above at [26], I understood that the plaintiff contended that there had been a failure to comply with both subsections.

Relying on s 62(3)(a), the plaintiff contended that there was an onus on the issuing officer to seek further documentary information as to the observations of the relevant police officers (DS Herps and SC Gleaves). I do not accept that there was anything on the face of the application that suggested that she needed to do so. There is no requirement for an issuing officer to do so and it would be a considerable burden should there be such a requirement in each case.

Under s 62(3)(b) the issuing officer is required to consider whether there is a sufficient connection between the thing sought and the offence. For the reasons stated above, I am not satisfied that there was such a connection in this matter.

Given the longstanding principles that an issuing officer is not to “rubber stamp” an application, the fact that I have found that there was no deleted document to search for and even if there had been it could not have established an offence contrary to s 314 of the Crimes Act, it follows that I am also satisfied that the issuing officer could not have complied with s 62(3)(b).

This complaint was ultimately only faintly pressed. Although I am satisfied that there were not reasonable grounds to issue the warrant, the issuing officer did cause a record of all relevant particulars of the grounds she relied upon to justify the issue of the warrant.

I am satisfied that the plaintiff has established one or more bases to declare the warrant invalid.

The relief sought is discretionary in nature. Although the summons was strongly defended, it was not contended that there were any discretionary reasons why, should the plaintiff be successful, the relief sought should not be granted.

A declaration would resolve the dispute as to the validity of the warrant but by itself it does not have an element of coercion. It is for that reason that the plaintiff also seeks consequential relief in the form of an order in the nature of certiorari quashing the decision to issue the warrant. In the present case, there was no agreement as to the consequences that would flow from the declaration sought. As Barwick CJ and Jacobs J observed in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307, it is generally undesirable that a court make a declaration without consequential orders in such circumstances. Accordingly, I would make an order quashing the decision as well.

No submissions were advanced to suggest that I would depart from the ordinary rule that costs follow the event.

Accordingly, I would make the following orders: