Doyle v NSW Commissioner of Police (No 3)

1. [1]

   Phillip Doyle commenced proceedings by Summons on 30 August 2018 seeking orders restraining the defendant, the New South Wales Commissioner of Police (“the NSWCOP”) from accessing, viewing, examining, copying or in any way dealing with material that had been collected under a search warrant obtained under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) executed on 27 August 2018.

2. [2]

   At this time Mr Doyle was serving a prison sentence for 38 counts of sexual offences against children after conviction by a jury on 24 August 2012. The warrant was executed at his home where a friend Mr Barbeliuk, now the second plaintiff, was apparently present or residing in August 2018, although this was not his usual address according to Roads and Maritime Services records.

3. [3]

   The context of the search warrant was a complaint by AA (a pseudonym provided for the purposes of these proceedings pursuant to orders made on 29 April 2019) in May 2018, about various sexual assaults and conduct by Mr Doyle towards him between 2005 and 2009 when he was aged 12 to 16 years. That complaint was then the subject of a detailed statement to police, completed in July 2018.

4. [4]

   The Summons, initially returnable on 30 August 2018, was later amended to seek further relief, as well as to add Mr Barbeliuk as a plaintiff on 2 April 2019.

5. [5]

   Pursuant to leave granted during the course of the hearing before me on 29 April 2019, a Further Amended Summons was filed that added as defendants the police officer who requested the warrant, Detective Senior Constable O’Neill (“DSC O’Neill”), and the eligible officer who granted it, Deputy Registrar D’Arcy (“Dep Reg D’Arcy”). It also expanded the relief sought to add first, judicial review of the police decision to make the application for the warrant, second, judicial review of the magistrate’s decision to issue the warrant, third a declaration that the warrant was invalid due to non-disclosure on the part of DSC O’Neill and the NSWCOP, and fourth, a declaration that the warrant was invalid due to insufficient connection between the alleged crimes and the items sought set out in the warrant.

6. [6]

   The initial relief sought, permanently restraining the NSWCOP from viewing certain items seized and requiring their return was pressed in the alternative, should the attacks on the obtaining and issuing of the warrant fail.

7. [7]

   There were additional issues between the parties regarding documents seized that were said to be at least in part subject to legal professional privilege. I was informed by counsel that that issue had resolved between the parties subject to formal orders.

8. [8]

   Because of the breadth of the attack mounted by the plaintiffs on all aspects of the search warrant, it is necessary to refer at length to the statements from the complainant and his mother, the statutory framework and the NSWCOP evidence of DSC O’Neill and Detective Sergeant Karras (“DS Karras”).

Factual background to the 2018 police investigation of Mr Doyle

1. [9]

   Mr Doyle was the former proprietor of the Mecca Theatre in Kogarah. In 2009 he was charged with a number of sexual assault offences against children in the 1980s and 1990s. The victims of the offences were children employed to work at the Mecca Theatre. Some of the offences occurred at the theatre. At trial the Crown relied on tendency evidence. [1]

2. [10]

   In May 2018, DS Karras was assigned to investigate the further allegations by AA.

3. [11]

   In June 2018 DSC O’Neill was transferred to the team headed by DS Karras. She was designated the OIC of the investigation into Mr Doyle, under the supervision of DS Karras. A detailed statement was taken by from AA by DSC O’Neill during June and July 2018. AA signed it on 9 July 2018. There was also a statement taken from AA’s mother (“Mrs AA”) in August 2018.

4. [12]

   AA’s statement referred to a number of matters including a reference to behaviour on the part of Mr Doyle that clearly comprised grooming of AA and his family. AA has four brothers. At the time the grooming behaviour commenced, AA was 11 or 12 years old and Mr Doyle was in his 60s:

5. [13]

   This was followed by a description of sexual assaults upon AA by Mr Doyle in August and September 2007:

6. [14]

   There were further assaults described:

7. [15]

   AA went on to describe other events and grooming activities on the part of Mr Doyle that occurred after AA was 13 years old:

8. [16]

   Following this, AA describes disclosures he made to close friends and family. In early 2018 he suffered a “breakdown” requiring significant psychological support and treatment. He was supported by friends to report the matter to police in May 2018.

9. [17]

   The accounts of AA’s disclosures are detailed and compelling, as are the accounts of the sexual abuse and grooming.

10. [18]

    The statement of Mrs AA is dated 22 August 2018. She describes how the family met Mr Doyle in 2005 and the development of her friendship with him. She noted that Mr Doyle kept a diary:

11. [19]

    Mrs AA also described that her husband was ill and often in hospital during the last 6 months of 2007.

12. [20]

    Mrs AA described other relevant observations in her police statement:

13. [21]

    Mrs AA said the following about Mr Doyle’s arrest and AA’s disclosures to her:

14. [22]

    A statement was also taken from AC in August 2018. It corroborates various matters regarding the family’s relationship with Mr Doyle and that AA would stay there occasionally. It also refers to the disclosures AA made to him in 2017 and events in February 2018 at the family home described in Mrs AA’s police statement at [28].

Applicable statutory framework

1. [23]

   Part 5 of the LEPRA sets out the search and seizure powers of police officers with warrants. Section 47(1) of the LEPRA provides:

2. [24]

   Section 46A provides for searchable offences:

3. [25]

   Section 91H of the Crimes Act 1900 (NSW) relevantly provides:

4. [26]

   Child abuse material is defined in s 91FB(1) of the Crimes Act relevantly to mean:

5. [27]

   Section 46(3) of the LEPRA provides:

6. [28]

   Pursuant to s 47A(1) of the LEPRA a search warrant authorises any executing officer to enter the subject premises, [2] and to search the premises for things connected with a particular searchable offence in relation to the warrant. [3]

7. [29]

   Section 48(1) provides that an eligible issuing officer to whom an application has been made may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.

8. [30]

   Section 49 regulates the power to seize items during the execution of a search warrant. It provides:

9. [31]

   Section 62 of the LEPRA sets out the information which must be included in an application for a search warrant.

10. [32]

    Section 65 of the LEPRA requires the eligible issuing officer to keep a record of all of the relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant. Section 66 requires a warrant to be in the form prescribed by the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (“the Regulation”).

11. [33]

    Section 67 of the LEPRA requires the eligible issuing officer to prepare and give an occupier’s notice to the person to whom the eligible issuing officer issues a warrant; in this case, the second defendant. The occupier’s notice is required to be served on entry into the premises or as soon as practicable after entry upon a person who appears to be an occupier of the premises and to be of or above the age of 18 years.

12. [34]

    Section 49A provides for return or retrieval of the things seized or placed:

13. [35]

    Sections 75A and 75B of the LEPRA make specific provision for electronic and other equipment in the following terms:

14. [36]

    Sections 218 and 219 under Part 17, Division 2 deal with property and police custody:

15. [37]

    I interpolate here that because of the orders made by both Harrison J and Campbell J in 2018 these provisions have not yet come into play as the NSWCOP has been prevented from accessing the laptop seized.

16. [38]

    The provisions of the Regulation are also applicable. Pursuant to cl 4(1), for the purposes of an application for a Pt 5 search warrant, Pt 1 of Form 1 is the form which must be completed. Clause 6(1)(a) of the Regulation also provides that Form 11 is the requisite form for a Pt 5 search warrant (other than a covert search warrant or a criminal organisation search warrant).

17. [39]

    The form of an Occupier’s Notice is prescribed by cl 7 of the Regulation.

18. [40]

    Form 1 is contained in Schedule 1 of the Regulation and appears as follows:

19. [41]

    Form 11 is also contained in that Schedule and is in the following form:

DSC O’Neill’s evidence

1. [42]

   In her affidavit sworn 20 May 2019 DSC O’Neill stated that during the period she was taking AA’s statement she searched various records regarding Mr Barbeliuk, and that RMS and COPS records indicated Mr Barbeliuk’s address as [REDACTED], Monterey. Although she was considering contacting him for the purposes of obtaining a statement, she had not yet done so at the time the search warrant was sought.

2. [43]

   She discussed with DS Walker a search warrant executed in 2009 at Mr Doyle’s house relating to the earlier charges. DS Walker told her that only gym equipment had been photographed during the search.

3. [44]

   Prior to taking the statement of Mrs AA (which mentioned that Mrs AA met Mr Barbeliuk at Mr Doyle’s house to travel to gaol visits) DSC O’Neill had not heard any suggestion that Mr Barbeliuk lived at Mr Doyle’s house. She concluded that she had “no clear information” either way that Mr Barbeliuk in fact occupied Mr Doyle’s house. She remained of the view that there was no reason that Mr Barbeliuk would have destroyed or concealed any relevant property of Mr Doyle’s. She remained of the view that Mr Barbeliuk was a potential witness, but when executing the search warrant he declined to make a statement.

4. [45]

   DSC O’Neill was told by Mrs AA that there was a manhole in the ceiling of the home cinema and Mr Doyle stored things in the space above and that could be the location for diaries and photographs that Mrs AA referred to in her statement.

5. [46]

   She consulted with another detective regarding the correct way to complete an application for search warrant. She had read a document authored by Dr Tony Krone of the Australian Institute of Criminology which outlined under the heading “The Nature of Child Pornography”, research by Dr Krone which included observations as to the likely collection and retention of images by persons inclined to take, keep and record child abuse images. DSC O’Neill stated that she relied on this material as strengthening her opinion that she should apply for a search warrant of Mr Doyle’s premises.

6. [47]

   The application papers were prepared by her on a computer. Her recollection was that Item 4 of Part 2 is generated automatically by the computer.

7. [48]

   At the time of making the application, DSC O’Neill believed that the things set out in the Form 1 were at the premises. Her reasons for holding this belief were first, that AA told her that he had been photographed by Mr Doyle at those premises; second, Mr Doyle was currently serving a term of imprisonment hence no opportunity to remove or destroy items or photographs; third, Mrs AA told her that she believed there were photographs in the area above the manhole that she mentioned; and fourth, from DSC O’Neill’s own experience as a detective, and Dr Krone’s article regarding the tendency of people engaged in sexual abuse of children to keep collections of photos or photographic records.

8. [49]

   DSC O’Neill believed that photographs of AA were connected to the offences set out in the application form as photographs would corroborate the version of events given by AA by either proving that he was at Mr Doyle’s house as he claimed, and/or potentially proving some of the offences.

9. [50]

   DSC O’Neill believed that there may also be photographs of AB, because of what AA had told her about AB having been at the premises, that AB had stayed overnight in Mr Doyle’s bed, and Mr Doyle’s criminal history was that he had abused many children. Also, AC had made a police statement in which he recalled that AB had stayed overnight at Mr Doyle’s house. Mrs AA also confirmed that AB had stayed there.

10. [51]

    DSC O’Neill stated that from her experience and training as a detective she:

11. [52]

    She believed that photographs of AB were connected to offences of aggravated indecent assault, incite person to act of indecency, procure child for pornographic purposes and possession of child abuse material, because any photographs of that kind, in combination with other evidence, may well support such offending occurred in respect of AB.

12. [53]

    In support of her belief that photographs of the other brothers of AA (that is AC, AD and AE) were present and should be seized, DSC O’Neill deposed to her belief that photographs showing any of these boys at the premises “would be connected to the offences that she referred to against them” because AA’s account included allegations of child abuse during the daytime and the fact that she had no information to the effect that the other three brothers had stayed overnight did not detract from her belief that at the premises there would be photographs of them “connected to offences against them”.

13. [54]

    I interpolate here that there was no evidence that any complaint had been made by any of the brothers of AA that Mr Doyle had offended against them. DSC O’Neill’s belief seems to be based on the pattern of the grooming of the family by Mr Doyle and the evidence in AA’s and AC’s statement and the statement of Mrs AA that confirms that the brothers were all in Mr Doyle’s premises at some time or other whilst Mr Doyle was also there, from her experience as a Detective that sexual offenders keep offending, and Dr Krone’s article about the likely keeping of photos that may comprise child abuse material by persons like Mr Doyle, there is a reasonable basis for the belief photos of the other boys would also be at the premises.

14. [55]

    In support of the identification of diaries from 2005 to 2009, Mrs AA told DSC O’Neill that Mr Doyle frequently wrote in his diary, diaries are items typically kept, and the diaries would likely be in his home because of his imprisonment. The years 2005 to 2009 were included because this was the period during which DSC O’Neill suspected that the offending against AA and his brothers occurred. The diaries could well support AA’s allegations. She also “believed that they would be evidence of such offences against AB, AC, AD, and AE.”

15. [56]

    The presence of underwear in the drawers of a bedside cabinet was based on the assertions in AA’s statement about that. Mr Doyle had not had the opportunity to remove the items given he was in prison. The presence of the underwear as described by AA could comprise evidence supporting AA’s account of some of the offending against him.

16. [57]

    In respect of the belief about electronic devices DSC O’Neill deposed to a belief that many people have such devices in their homes. Mr Doyle being a businessman was likely to have them. Photographs are stored electronically on memory cards which can be moved from cameras to computers and other storage devices and in her experience, and reading the Dr Krone research document, people with the profile of Mr Doyle tended to keep such material. Mr Doyle would have had no or limited opportunity to remove any such items. Such devices would be connected to the offences referred to, including the possibility that they would contain photographic evidence that supported AA’s account and may well hold evidence of the photos described by AA which would constitute child abuse material.

17. [58]

    At the appointment Dep Reg D’Arcy appeared to read the papers that DSC O’Neill had presented. The oath was administered to DSC O’Neill by Dep Reg D’Arcy when DSC O’Neill signed page 3 of Part 1 of the Form 1. DSC O’Neill observed Dep Reg D’Arcy made alterations to the document by hand. After the warrant was granted, Dep Reg D’Arcy retained the Form 1 and DSC O’Neill took with her the Form 11 (the warrant), the Form 21 (the occupier’s notice) and the Form 27 (the report to issuing officer about execution of the warrant).

18. [59]

    On 27 August 2018 DSC O’Neill attended the premises accompanied by police. She stated:

19. [60]

    DSC O’Neill was cross-examined on her usual practice for completing the applications for search warrants and in particular how the material came to be in the decision-making part of the application form. She described in her evidence that the applications are on “Macros”:

20. [61]

    DSC O’Neill clarified that she was not sure if that is what happened in respect of that part of the document and she was not sure whether she actively “cut and pasted” it from the first part of the form, and that she would “have to go over to the macros and go and try and do it and then see what happens.” [5] (She was not given an opportunity to check this or asked to do this and to return to inform the Court).

21. [62]

    In answer to a question as to why she would provide the issuing officer with the material in the decision making box (4) as information upon which that person relied to justify the issue or refusal of the warrant, DSC O’Neill said:

22. [63]

    With admirable frankness DSC O’Neill dealt with this exchange:

23. [64]

    DSC O’Neill was probed further as to whether populating the decision making part of the warrant with the “grounds” is something that she has been instructed to do generally in relation to these warrants and DSC O’Neill was unable to answer that and said she would have to go back to all the lectures she’s been to [8] and was not sure. [9]

24. [65]

    DSC O’Neill also confirmed that she had not taken statements from AB, AD or AE, and that she knew of no complaints about Mr Doyle by any of AA’s brothers.

25. [66]

    Cross-examination in respect of Mrs AA’s statement as to what she had seen of the photographs at first displayed a possible misunderstanding on the part of DSC O’Neill that Mrs AA had seen the photographs taken of AA showing his whole person in the suggestive poses he described, clarifying that “she told me that they were head shots, like, chest up”. [10] DSC O’Neill confirmed that Mrs AA never used the words “suggestive positions” in her statement, although DSC O’Neill stated clearly her opinion that:

26. [67]

    DSC O’Neill said that the photographs in the suggestive positions is information that was told to her by AA and the photographs that AA’s mother saw was “a shirtless photo of her son”. [12]

27. [68]

    DSC O’Neill said that when she used the term “suggestive poses” they were her words, based on what she reasonably believed about the photographs that AA had described had been taken. [13]

28. [69]

    DSC O’Neill also said that the COPs and RMS records indicated Mr Barbeliuk lived in Monterey and Mrs AA said she met him at Mr Doyle’s house. DSC O’Neill could not be sure what the “true position was”.

29. [70]

    I accept DSC O’Neill’s account of her investigations and belief, is truthful, reasonable and considered.

Evidence of Detective Sergeant Karras

1. [71]

   Detective Sergeant Karras (“DS Karras”) stated in his affidavit [14] that he was team leader in the Criminal Investigation Unit at St George Police Area Command. He deposed to having been a police officer for 30 years, 18 of those as Detective Sergeant. He described his role as Senior Investigator, leading strategy in investigations and supervising junior officers performing criminal investigations.

2. [72]

   He was the officer in charge of the investigation into Mr Doyle commencing his involvement in May 2018. He says that he was informed that the plaintiff was a person of interest in a sexual assault and that he was currently serving a 7 year custodial sentence for similar historical sexual assault offences. DS Karras also noted that Mr Mark Barbeliuk was managing Mr Doyle’s assets pursuant to a Power of Attorney and that there were concerns that Mr Doyle would attempt to use a third party to contact victims and witnesses in the investigation to pressure them to recant their statements.

3. [73]

   As set out in a statement he prepared for the prosecution of Mr Doyle in October 2018, he allocated the case to DSC O’Neill in June 2018. He was aware that DSC O’Neill applied for and was granted the search warrant on 27 August 2018.

4. [74]

   DS Karras described the briefing of officers and the execution of the search warrant on 27 August 2018. He stated that the whole process was recorded on a video camera. He also noted that during the search, Mark Barbeliuk requested and was given the opportunity to contact his legal representatives and that Mr Barbeliuk also received a number of phone calls from Mr Doyle.

5. [75]

   DS Karras noted a number of items of interest were seized including photographs, computers, USB’s, memory cards, diaries, address books, Mace and Oxycontin (which had no prescription details or labels on them) as well as a number of photographs of young males in a box in the roof space in the attic, about which he stated:

6. [76]

   DS Karras said that at 2:56pm the search was concluded and the seized items were entered into the Field Exhibit Book and that Mr Barbeliuk was given the opportunity to examine the list of exhibits seized and sign the field exhibit book which he did. Mr Barbeliuk was then given a copy of the field exhibit book. The items seized were conveyed to St George Police Station and transferred to the exhibit room.

7. [77]

   DS Karras noted that he was the Field Commander for the execution of the search warrant. He sets out relevantly his beliefs at the time of collection of certain items pursuant to the search warrant: [16]

8. [78]

   DS Karras said that he was aware that Mr Barbeliuk was residing at the premises and “had been there for some time”. He also agreed that the investigation that police were pursuing was into Mr Doyle’s conduct not Mr Barbeliuk’s. The emphasis of the cross-examination was upon the seizing of item 24, Mr Barbeliuk’s laptop.

9. [79]

   There was cross-examination regarding whether the description given in the search warrant extracted from AA’s statement as to the possible “pornographic” photographs taken of him by Mr Doyle could underpin the charge of child abuse material on the warrant. [21]

10. [80]

    This examination was largely unhelpful because DS Karras said that he was aware the application had been made for the search warrant, and he had familiarised himself with the content of the application, but he was not the applicant and it was not his suspicion that was relevant to the determination of that application.

11. [81]

    Second, the focus of the questioning about “pornographic” photos misses the point; not only was it another officer’s suspicion that was the relevant one, but the description of activities in AA’s statement was easily sufficient to raise a question mark over photographs he said were taken of him by Mr Doyle when he was 12 years old [22] that could correspond to the definition of child abuse material.

12. [82]

    The cross-examination of DS Karras ceased and was not resumed pending amendment of the Summons to raise issues about the application for the warrant and the warrant itself.

13. [83]

    As emphasised by Mr Singleton in his submissions about the evidence of DS Karras, the issue to be assessed and understood by the issuing officer was not the guilt or innocence of a particular charge but whether there were reasonable grounds to believe that evidence of it or connected to it may be found by a search.

14. [84]

    That decision is to be judged on the basis of the information before the issuing officer and the description put before her, including the way the photographs of AA were taken, his being placed into positions on a sunbed with his swimmers pulled down “low” to the pubic bone level. This could easily be interpreted as potentially producing images that comprise child abuse material, particularly in the context of the detailed description of criminal sexual conduct by the photographer, Mr Doyle, both before and after the images were said by AA to have been taken.

15. [85]

    The fact that “head shots” were provided to AA’s mother confirms photos were taken that day and corroborates some of AA’s account. It was reasonable to suspect that there may well be more intimate images that show more than AA’s head and shoulders, in hard copy, or in electronic form, at the premises.

16. [86]

    I accept DS Karras had carefully considered the nature of the investigation and relevant background issues and gave his evidence about those matter in a candid and forthright fashion, and I accept his evidence in full.

The Search Warrant Documentation

1. [87]

   In the application for the Part 5 search warrant (“the Form 1”) DSC O’Neill swore to a belief that she had reasonable grounds for believing that “there is (or within 72 hours will be), in or on the premises the following things”:

2. [88]

   The Form 1 stated that “the things are connected with the following searchable offence(s) within the meaning of section 46A(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002:”

3. [89]

   Alternative (c) relating to suspected child prostitution offences has been struck through and initialled by Dep Reg D’Arcy.

4. [90]

   The grounds in support of the application are stated on page 2:

5. [91]

   Part 2 of the Form 1 is headed “Eligible issuing officer’s record of application for a search warrant”. This deals with the processing of the application by Dep Reg D’Arcy. It records that at 9:30am on 27 August 2018 the application was made.

6. [92]

   Paragraph numbered 3 states:

7. [93]

   Paragraph numbered 4 states:

8. [94]

   Paragraph numbered 5, noting “To be completed if the warrant may be executed by night”, was struck out and initialled by Dep Reg D’Arcy.

9. [95]

   Paragraph numbered 6 stated that the search warrant was issued at 9:40am on Monday 27 August 2018. It is signed by Dep Reg D’Arcy as the eligible issuing officer.

10. [96]

    The Part 5 Search Warrant (“the Form 11”) is signed by Dep Reg D’Arcy and dated 27 August 2018. It stated that the search warrant expires at 9:40am on 30 August 2018. It refers to DSC O’Neill as the authorised applicant. It refers to the premises owned by Mr Doyle, described as a “double storey red brick dwelling house”. It permits searching those premises for the items set out in paragraph [87] of this judgment. It records that “The applicant has reasonable grounds for believing that those things are connected with the searchable offences”. It then repeats the offences set out in paragraph [88].

11. [97]

    The alternative allowing “to search those premises in connection with child prostitution offence(s)” has been struck out and initialled.

12. [98]

    The alternative provided on page two for the search warrant to be executed by day or by night has been struck through and initialled.

13. [99]

    The Occupier’s Notice for Part 5 Search Warrant (“the Form 21”) has been completed by Dep Reg D’Arcy. The Form is directed to “YOU”, (as opposed to naming any individual), setting out the right of the occupier to inspect the search warrant but that he or she must not hinder or obstruct the search, noting that it is an offence under s 63(1A) of the LEPRA to give false or misleading information knowing that it is false or misleading in a material particular.

14. [100]

    The time at which the search warrant will expire has been written in as 9:40am on 30 August 2018. Consistently with the application form, there has been a striking through and initialling by Dep Reg D’Arcy of that part of the form that refers to child prostitution offence(s). The form is signed by Dep Reg D’Arcy, recording that the warrant, written reasons for the issue of the warrant, and other associated documents are to be held at Sutherland Local Court Registry.

The plaintiffs’ affidavit material

1. [101]

   The plaintiffs relied upon affidavits of their solicitors Nicole Evans and Vivian Evans as well as affidavits of Mr Barbeliuk dated 18 October 2018, Jarret LeRoux dated 6 November 2018, Stephen Hayes dated 23 April 2019 and Rhys McWhinney dated 19 April 2019.

2. [102]

   The affidavits of Mr McWhinney and Mr Hayes appear to relate to contact from DSC O’Neill enquiring as to whether anything untoward happened to them with Mr Doyle. No submissions were made about this material at the hearing.

3. [103]

   The affidavit of Nicole Evans affirmed 30 August 2018 addressed the immediate response to the execution of the search warrant deposing to a telephone conversation she had with Mr Barbeliuk and DSC O’Neill at the time the search warrant was being executed and to further correspondence between her office and DS Karras and DSC O’Neill in pursuit of an undertaking not to access the material seized until the court could be approached for an urgent interim injunction.

4. [104]

   Mr Barbeliuk’s affidavit deposed to items seized including his silver Apple MacBook Air laptop and an exchange he had with “NSW Police Officers and Detective Tiffany O’Neill” as follows:

5. [105]

   Mr Barbeliuk claims that he provided NSW Police Officers with the passwords that he believed would access the MacBook Air and “despite this the item was seized and sealed”, “so they would not open it and attempt to access it with my password”. [23]

6. [106]

   Mr Barbeliuk stated that he “clearly identified to NSW Police” that the MacBook Air (item 24 on the Seizure Form) belonged to him.

7. [107]

   On 8 October 2018 he obtained a receipt/tax invoice from the Good Guys Discount Warehouse dated 15 January 2015 for the purchase of that item annexed to his affidavit. He also stated:

8. [108]

   I note that the search warrant transcript [24] tendered by the plaintiffs discloses a further exchange about the password for the MacBook Air which follows on directly after some of the conversation extracted in the affidavit of Mr Barbeliuk:

9. [109]

   The affidavit of Nicole Evans of 29 January 2019 sets out correspondence between her office and the Office of the General Counsel for the defendant in an attempt to narrow issues as to the validity of seizure of some of the items.

10. [110]

    The affidavit of Vivian Evans sworn 1 April 2019 dealt with the ongoing negotiations between the parties, including seeking expert access to the MacBook Air said to be owned by Mr Barbeliuk to determine the date when it was first used. Correspondence annexed to that affidavit evidences genuine efforts at refining and resolving issues relevant to the application and articulating with a reasonable degree of clarity the position taken by each party in respect of the items seized that are still subject to dispute.

11. [111]

    In her affidavit of 11 April 2019 Vivian Evans deposed to her role as solicitor for both plaintiffs and addressed argument to specific items seized that then remained in issue:

12. [112]

    There is also affidavit material addressing the multiple documents collected that are the subject of a legal professional privilege claim that I was informed has since been resolved between the parties.

13. [113]

    The affidavit of 13 May 2019 of Vivian Evans annexed the completed search warrant application (Form 1), the warrant (Form 11) and occupier’s notice (Form 27) and some correspondence between the parties dated May 2019 clarifying the position regarding items in issue.

Grounds in the Second Further Amended Summons

1. [114]

   In oral submissions this ground was refined. This ground was not a challenge to the decision to make an application for the search warrant per se, but that there was non-disclosure of critical matters that ought to have been included in the application. First, that Mr Barbeliuk occupied the property at the time the search warrant would be executed and the police knew that; second, there cannot have been a reasonable basis for the belief that AB, AC, AD and AE had been offended against by Mr Doyle where there had been no complaint from any of them. There was a failure in the application to make that position clear. This latter point was submitted to be “fatal” to the warrant and that there should be an order of certiorari or in the alternative a declaration declaring the warrant is invalid, pursuant to the Court’s inherent jurisdiction.

2. [115]

   Mr Agius SC argued that if the issuer had been told that other people lived in the premises that may have led to conditions being placed on the warrant such as limiting or removing from the ambit of the warrant items owned by Mr Barbeliuk.

3. [116]

   In response, Mr Singleton argued that certiorari is only available on four bases. First, fraud, which was expressly disavowed; second, an error of law on the face of the record which would not be applicable to a decision to apply for a warrant that was made by the executive or one of its officers; third, procedural fairness which is inapplicable to a police officer’s decision to apply for a warrant; and fourth, jurisdictional error.

4. [117]

   Mr Singleton argued that a declaration is discretionary and a pointless declaration should not be made. The real issue is whether the warrant is valid, not whether the decision to make the application was somehow flawed.

5. [118]

   I accept as correct Mr Singleton’s submissions regarding the limited basis for certiorari. No proper basis for the availability of such relief has been articulated by the plaintiffs under this ground.

6. [119]

   There is also no basis to make the declaration sought. First I do not consider that there was any obligation upon DSC O’Neill to state that another person may be present or living at the premises, particularly given her evidence, which I accept, that she was not sure what the position was as there was competing information from Mrs AA as opposed to RMS and COPs records as to whether Mr Barbeliuk lived there or not.

7. [120]

   Nor was it incumbent upon her to explicitly state that there was no complaint by AB, AC, AD or AE. The photographs of AA’s brothers given the background of family grooming and the evidence that they had been at the premises with and without AA easily fit within the description of “connected with” the offending in the sense of such photos potentially corroborating the offences described by AA and the circumstances in which he came to be at those premises. There was nothing suspect about their inclusion in the warrant.

8. [121]

   Accordingly I decline to make a declaration of the kind sought as first, it is meaningless in the broader context of this application and has no practical effect and second, the argument supporting it has no weight.

9. [122]

   This ground centres on the decision making of Dep Reg D’Arcy. In paragraph 3b-3h of the Amended Summons the grounds are identified as:

10. [123]

    Mr Singleton argued that it is pointless to declare a decision invalid if the warrant has already been struck down and conducive to confusion to declare the decision to issue the warrant invalid if the warrant itself is valid. Consequently, focus should be on whether the warrant is invalid and therefore should be declared to be invalid or set aside, which is the relief sought in Ground 3 of the Summons.

11. [124]

    I accept Mr Singleton’s analysis is correct. I deal with the plaintiff’s submissions of substance relevant to this asserted ground, under Ground 3 below.

12. [125]

    Mr Agius SC submitted that the failures on the part of Dep Reg D’Arcy are evident on the face of the warrant and can lead to a conclusion that Dep Reg D’Arcy did not consider the application properly. She did not indicate on the warrant that she had considered it, nor did she make a formal finding that there were reasonable grounds for issuing the warrant, and did not provide particulars of the grounds that she relied upon to justify the issue of the warrant.

13. [126]

    Mr Agius SC submitted more than a “perfunctory scanning” of the material is required, and it is not just a “rubber stamping” exercise: Parker v Churchill (1985) 9 FCR 316 per Burchett J at 322; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 72 A Crim R 278 per Davies J at 281:

14. [127]

    The requirements of s 62(3) of LEPRA (whether there are reasonable grounds to issue a warrant) and s 65(1) (that the issuing officer must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied upon to justify the issue of the warrant) were emphasised.

15. [128]

    Much was made in the oral and written submissions that the face of the warrant document cannot fulfil these requirements because the relevant particulars of the grounds upon which Dep Reg D’Arcy relied were already included, typed in by the applicant as part of the forms provided to her.

16. [129]

    The apparent presentation of the application form at 9:30am and the issuing of the search warrant at 9:40am suggests that inadequate attention was paid to the matters in the form. The failure to strike through the alternative (“justified the issue of/refusal to issue delete whichever is inapplicable”) indicates that an independent mind was not brought to the assessment of the grounds or the exercise of the necessary power.

17. [130]

    It was argued that this failure was supported by the failure to observe that there was no material and therefore no reasonable grounds to permit a search for photographs of AB, AC, AD and AE, and no material to suggest that Mr Doyle would have photos and of them, therefore no reasonable grounds to indicate that any such photographs were connected with the searchable offences.

18. [131]

    The absence of active completion of section 3 of part two of the form by Dep Reg D’Arcy is not a technicality because it sets out the test required to be satisfied by the LEPRA and the fact that the issuing officer was provided with an already completed set of reasons leads to the conclusion that she did not consider whether there were reasonable grounds for issuing the warrant.

19. [132]

    Accepting the duty to present all relevant material when applying for warrant, there can on occasion be mistakes and if so they do not of themselves support an order setting aside a warrant or a declaration that the warrant is invalid. Here it needs to be considered whether there was a mistake, whether it is the result of infelicitous expression or inclusion of something that was not correct, or an omission of fact. The second question is that if there was a mistake, was it material in the sense that it would have made a difference to the decision to issue the warrant. That is a question to be judged on the balance of probabilities. The issue is then whether or not this Court, in its discretion, should set aside the warrant.

20. [133]

    Mr Singleton conceded it could have been stated more explicitly that Mr Doyle had not occupied the property since 2012 when he went into custody. The application document in P2 in section 2 says:

21. [134]

    There is an available inference that he remained in custody from 2012 to 2018, although this is not overtly stated. However that omission was favourable to Mr Doyle because it potentially, raises an issue as to whether the items for which search would be made would still be there.

22. [135]

    The argument that DSC O’Neill should have specified that Mr Barbeliuk occupied the property and is not the subject of investigation by police for the offences set out in the application, and therefore any electronic devices of his that may be on the property ought not be part of the warrant, is not substantiated. First, it would have been an overstatement to say Mr Barbeliuk was in occupation given the evidence available to the police was simply that he might be a part time occupant. Second, the narrative in the application only spoke about Mr Doyle and in such a way that it was clear that Mr Doyle acted alone. Third, there is no need to include negative statements about who is not included in an application. The absence of a particular fact needs to be material, that is, the issuing officer has to know that something is not the case. In the ordinary course, police must simply tell the issuing officer what is believed about the offending and the person under investigation. It was not unreasonable or inappropriate to go about the narrative in the way DSC O’Neill has.

23. [136]

    A further purportedly material and omitted fact is that the second plaintiff might have had his own electronic devices on the premises. This would simply be a reference to common experience given that many warrants are issued for searches of premises where there might be other occupants or other people's property within the premises, so the proposition the police must spell out the utterly obvious in every search warrant is one that should not be accepted. There is no rule that applications must identify who might be any occupation of the relevant premises. There is no rule that the application must spell out that such persons may possess things of the kind nominated in the warrant. To the contrary these are matters of common experience and they do not have to be spelt out.

24. [137]

    It is up to issuing officer to decide for him or herself what the borderline cases would be, and to ask questions to help them exercise their discretion. It is not incumbent upon applicants to address every aspect of common life or to remind issuing officers that many premises have more than one occupant.

25. [138]

    The warrant authorises access and seizure of items and there were ample grounds to support that step. The failure to mention Mr Barbeliuk in the application would have made no difference because it could not have led the issuing officer to refuse to include reference to electronic devices, as a search for such devices is centrally important to a case of suspected photographic child abuse material.

26. [139]

    As a matter of reality there would be no sense in putting an effectively unenforceable condition on a warrant where it would require police to make a credibility assessment on the run as to whether a person present in the premises in asserting property was theirs, could then remove that property from the bounds of the search warrant.

27. [140]

    If the evidence of Mr Doyle's asserted crimes, including photographs, is on Mr Barbeliuk’s device, that evidence does not become irrelevant in a criminal prosecution or in an investigation. Naturally the police would want to seize the device that holds the evidence, regardless of who owns it.

28. [141]

    Once a search is under way for electronic devices, if they are found, then the decision the officer has to make is simply to decide whether it is within the express terms of the warrant or even if it is not, is it connected with any offence (s 49(1)(b) LEPRA). It is not at all surprising that a laptop would be collected in those circumstances, regardless of Mr Barbeliuk saying it is his.

29. [142]

    In terms of what is said by Mr Agius SC to be an overstatement or assertion within the warrant that Mr Doyle assaulted AB, AC, AD or AE, this is an incorrect reading of the document. None of them are identified in any part of the application that lists the searchable offences, as complainants and none is said in the recitation of the grounds to have been the victim of an assault. Their identities are simply mentioning clause 1A of the application which lists the things for which a search is to be made.

30. [143]

    In the context of AA describing in his statement the grooming of the whole family, including his brothers, there is nothing surprising including within the items able to be searched for and seized, photographs of AA’s brothers. The idea that once grounds have been cited the police then have to recite other hypothetical grounds that might have been advanced, and then disavow them, cannot be a sensible requirement. Photographs of the boys could simply potentially be corroboration of the assaults of AA and the grooming associated with the family providing relevant context evidence. AA was the only victim referred to in the application. Generally applicants do not have to disavow negative propositions. They just put forward their grounds and leave it at that. Here it would have made no difference, given the materiality of grooming the other boys.

31. [144]

    DSC O’Neill says in her affidavit that there is ample reason to believe that Mr Doyle would have assaulted the other boys based on her experience but there is no requirement to go that far because that is not a ground relied upon in the application for the warrant.

32. [145]

    It may have been mistaken to say, or to imply, that the model style photographs of AA in suggestive positions had been seen by AA's mother. The evidence on that is expressed infelicitously (assertions of having fraud been expressly disavowed) and even if there was a mistake, and Mrs AA’s description of her son having a “haunting expression” on his face was misinterpreted by the applicant for the warrant as indicating Mrs AA had seen photographs of his whole body, including his swimming costume being pushed down to the pubic bone level and therefore evidencing the inappropriateness of the photo(s) and arguably fitting within the description of child abuse material, it is immaterial because first it indicates consciousness of guilt on Mr Doyle's part by only giving AA’s mother the shoulder and head shots, and second, the fact that AA’s mother saw different photographs, similar and relevant photographs, does not make any difference to the issuing of the warrant in the terms it was issued. This Court should not grant relief now on this narrow point.

33. [146]

    In response to the argument that there was an implicit requirement that the applicant express a belief on reasonable grounds that the photographs taken of the AA were in fact “pornographic” or “child abuse material” as defined, it was established at the time the warrant was applied for that the circumstances around the taking of the photographs was that and convicted paedophile was the photographer. This is a very significant fact that the police would have been in error not to refer to and to take into account. Other relevant context was the grooming of AA’s family against the background of overt acts of sexual molestation and sexualised conduct that he requested AA to engage in prior to (and after) the photographs in issue. Police do not know what the photo(s) look like. Nor do we know now because it has not yet been revealed what was found. They have to proceed on what they are told and the description in the warrant from AA, combined with AA’s mother’s description of some photographs she saw.

34. [147]

    Once all of these circumstances are acknowledged, the standards of our community are applied and the reasonable person must take all of that into account. Even if the product, once viewed, might be one on which reasonable minds may differ as to whether it is child abuse material, it would be outrageous if the police did not take the full circumstances and context into account in considering the prospect that the photographs taken by a convicted paedophile, as described by AA, in suggestive poses on a sunbed near the pool with his swimming costume pulled down to the pubic bone, level may well be child abuse material.

35. [148]

    The physical placement of AA in potentially sexual poses and the adjustment of the swimming costume to the pubic bone level at the direction of the photographer Mr Doyle provides a solid basis to suspect child abuse material was produced. There is no necessity to be too precise about it. The impropriety of what was happening is evident from the description AA has given.

36. [149]

    A photograph of the private parts of person who is a child is defined to be not just the genitalia but the child’s “genital area, whether bare or covered by underwear”. It was perfectly open to the issuing officer to consider the genital area of AA was photographed partly exposed because of the pushing down of the costume to the pubic bone level. In any event, the genital area covered by underwear is also described.

37. [150]

    Mr Singleton submitted that the Court should take a purposive construction of the legislation and take into account that “underwear” should include “Speedos”, or a swimming costume fitting the description provided by AA.

38. [151]

    In terms of the applicability of Dr Krone’s material and the evidence of DSC O'Neill about it informing her basis to be concerned about the tendency of those who have child pornography to keep it and collect it, Mr Singleton argued that the plaintiffs fall at the first step because it was open to the issuing officer to suspect that the photographs taken were pornographic and therefore Dr Krone’s work was relevant. That work indicated a reasonable basis to suspect that Mr Doyle probably had a collection ready to be found if search was authorised.

39. [152]

    In response to the arguments raised by the plaintiff about what can be inferred from the way Dep Reg D'Arcy completed the form, there is no law requiring an issuing officer to strike out alternatives and there is no law that the form is more important than its substance. The law is to the contrary. It is perfectly obvious that Dep Reg D’Arcy was satisfied that the warrant should issue because she issued it. The fact that she did not strike out some words that someone in bureaucracy has decided should go on a form means nothing on its own, although it is accepted it is a piece of evidence and so something that has to be considered in the light of all the other evidence, particularly the fact that she issued the warrant and signed it. On the balance of probabilities the Court should accept that she was satisfied that there were reasonable grounds, and that she adopted as reasonable, the grounds that appear in the document she had signed.

40. [153]

    In terms of the desirability or otherwise of there being automatic populating of the “reasons” part of the warrant, given it might be considered to support the appearance of some kind of “rubberstamping” exercise, this could be considered undesirable but it is efficient, and helps the issuing officer in terms of speed of processing and helps avoid small mistakes if there was an attempt to rewrite the grounds in the issuing officer's own words. Minds might differ on this point, but the practice is not unlawful and it does not give rise to an implication that the issuing officer failed to apply an independent mind the application.

41. [154]

    I am unpersuaded by the arguments made on behalf of the plaintiffs.

42. [155]

    Whilst it would have been better if Dep Reg D’Arcy had struck through the alternatives in the text of the relevant part of the form, by the issuing of the warrant it is evident that she decided to issue the warrant, not to refuse it.

43. [156]

    Similarly, whilst it would be preferable if the form had been provided with the operative part of the form that records the issuing officer's reasons blank, or at least some blank space allotted in the relevant area for additional notations or acknowledgement, it is not fundamentally problematic to provide, as reasons, the applicant's bases for forming the view that she did, given the issuing of the warrant is based on an assessment of the reasonableness of those bases.

44. [157]

    The conclusion that simply because particulars of the grounds upon which the issuing officer relied to justify the issue of the warrant were the same as the grounds set out as to the belief, that “rubberstamping” must have taken place, is not open without more.

45. [158]

    I am not persuaded that noting 9:30am as the time the application was made and 9:40am as the time the decision was made to grant the warrant indicates that there was insufficient consideration of the grounds. Speed of processing of applications does not amount to an inference being able to be validly drawn that the relevant discretion was not exercised properly or that relevant matters were ignored.

46. [159]

    Efficiency in the form of the overriding requirement for just, cheap and quick outcomes is a hallmark of justice in Courts in New South Wales as dictated by the Civil Procedure Act 2005 (NSW). Efficiency is required by judicial officers and by the parties placing material for consideration before judicial officers.

47. [160]

    Absence of alterations to the part of the form denoting reasons can appropriately be interpreted as showing that the issuing officer was satisfied with those matters articulated and that she adopted those as the basis of her own reasons for issuing the warrant based on the fact of her completion and issuing the warrant.

48. [161]

    I am persuaded by the submissions made by Mr Singleton as to the processing, and therefore the validity of the warrant.

49. [162]

    I reject the submissions made on behalf of the plaintiffs that there is a requirement to identify and carve out from the bounds of the warrant, items that may be said to be owned by other persons.

50. [163]

    The question of admissibility of such material remains a matter for the trial judge. Given the width of s 49(1)(b) of LEPRA and the obvious width of the description “..any device..” contained within the warrant, it would have been blindingly obvious to the issuer, and unsurprising in the context of the offending set out by AA and the offences for which Doyle was being investigated, that items capable of storing photograph(s) that were physically at premises where the offending was said to have taken place, would be items of significant relevance to examine in the context of a prosecution for the offences set out by AA in his statement.

51. [164]

    I decline to declare the warrant invalid or to make orders setting aside the warrant.

52. [165]

    Mr Agius SC argued that properly construed the warrant did not permit the seizure of the thing set out in the warrant if those things were the property of another person and were not reasonably suspected of being in the premises prior to the time that the first plaintiff when into custody in 2012, or those “things” could not have been used by the first plaintiff to store images in connection with any searchable offence listed in the warrant.

53. [166]

    As I have already explored in dealing with other grounds, by their very nature electronic items are capable of storing material obtained and photographs taken many years before. The ease with which material can be transferred from device to data stick or USB to laptop years after they have been taken, means that properly construed, the warrant does permit the seizure of Mr Barbeliuk’s laptop. It does not matter whether the laptop itself was used by the first plaintiff or not; the item is still capable of containing relevant images. The width of the description for electronic devices is self-evidently designed to capture circumstances such as this.

54. [167]

    There is no merit in this ground and it is dismissed.

55. [168]

    It follows that I do not need to deal with grounds 4(b), (c) or (d).

56. [169]

    Mr Agius SC argued that there were no reasonable grounds to seize item 1 the job applications folder, (containing applications by children to work at the Kogarah Mecca theatre run by the first plaintiff), the address books (item 8), the 2009 to 2012 diaries (item 10), the laptop owned by Mr Barbeliuk (item 24) and the box of miscellaneous items (item 25).

57. [170]

    Mr Agius SC argued that Item 1 was not specified in the warrant and there are no reasonable grounds to believe that the item is connected with any offence. These are job applications from many years ago. None are said to include AA. DS Karras cannot believe on reasonable grounds that this item was connected to any offence and therefore it was not seizable.

58. [171]

    In response Mr Singleton argued based in particular on DS Karras’ affidavit evidence that the material will likely underpin tendency evidence. At Mr Doyle’s last trial, which was the subject of a conviction and sentence appeal, the Court of Criminal Appeal decision (appended to DS Karras’ affidavit) showed that the victims were children employed at the Kogarah Mecca theatre and that some of the sexual abuse occurred there. In those circumstances it was reasonable for DS Karras to believe that other children may well have been sexually assaulted by Mr Doyle in that way. Evidence of that may well be corroborated by material such as job applications indicating that certain persons worked there and there may be corroborative evidence from other employees.

59. [172]

    I accept that DS Karras had reasonable grounds to believe the item was connected to an offence. I decline to order that its seizure was invalid or that the item should be returned.

60. [173]

    With respect to item 8, the address books, that issue can be dealt with in very short compass. It is common ground that the address books include the contact details of AA’s family. In my view that clearly demonstrates sufficient connection with the offending in relation to AA himself. I accept the submissions made by the defendant that the item should be seized and any argument that parts of it should be extracted are wrong.

61. [174]

    With respect to item 10, the diaries from 2010 to 2012, I am of the view that given the evidence contained in AA’s mother’s statement of the tendency of Mr Doyle to record details in diaries, those diaries have sufficient connection to the offending against AA or other offences, and there were reasonable grounds to believe there is such a connection and hence the seizure was not invalid.

62. [175]

    With respect to Mr Barbeliuk’s laptop, evidence now available tendered before me establishes that the laptop is probably owned by Mr Barbeliuk and probably was not purchased until 2015. This does not mean that its seizure in August 2018 was invalid, nor does it mean that the item should be returned given the width of the provision in the warrant for the collection of electronic devices and given the width of s 46(3)(b) of LEPRA. I accept the submissions made on behalf of the defendant that that provisions ought to be interpreted to include corroborative evidence and tendency and coincidence evidence. I am satisfied that there was a reasonable basis for the item to be seized. I do not order its return and I refuse to make a permanent restraining order preventing access to that item.

63. [176]

    With respect to item 25, the box of miscellaneous items, I am not satisfied that there are reasonable grounds to believe those items are connected with the specified offences or with any other offence. They do not correspond to the description of items authorised for seizure in the warrant, however I rely on the following passage in Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 per Wigney J at [468]-[470]:

64. [177]

    In all the circumstances I exercise my discretion not to require the defendant to return item 25 to the plaintiffs.

Orders

1. [178]

   It will be necessary for counsel to provide appropriate orders for the Court to make which give effect to these reasons, and which formalise the agreement reached between the parties as to other items collected under the search warrant that are subject to the protection of legal professional privilege.

   1. (1)

      I direct counsel to serve on each other proposed Short Minutes of Order reflecting this judgment and to provide a copy to my Associate on or before 4:00pm on Wednesday, 18 December 2019.

   2. (2)

      I stand the proceedings over for directions generally and for the consideration of the appropriate orders to be made to 9.30am on Friday, 20 December 2019.