Doyle & Barbeliuk v NSW Commissioner of Police [2019] NSWSC 546

Supreme Court New South Wales

Medium Neutral Citation: Doyle & Barbeliuk v NSW Commissioner of Police [2019] NSWSC 546 Hearing dates: 29 April 2019 Date of orders: 29 April 2019 Decision date: 13 May 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The Notice to Produce dated 22 April 2019 is set aside Catchwords: PRACTICE AND PROCEDURE – Notice to Produce documents – whether document or thing referred to in pleadings or affidavits – whether document sought is relevant to fact in issue in the proceeding Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 46 Uniform Civil Procedure Rules 2005 (NSW) r 21 Cases Cited: Welker v Rinehart (No 8) [2012] NSWSC 588 Category: Procedural rulings Parties: Phillip William Doyle (First plaintiff) Mark Barbeliuk (Second plaintiff) NSW Commissioner of Police (Defendant) Representation: Counsel: Mr J V Agius SC (First and second plaintiffs) Mr P Singleton (Defendant)

Solicitors: Uther Webster & Evans (First and second plaintiffs) Makinson d'Apice Lawyers (Defendant) File Number(s): 2018/266913

Judgment 1. The plaintiffs have filed a Further Amended Summons seeking various orders in respect of identified items seized pursuant to a search warrant executed on 30 August 2018. The search warrant was executed at premises owned by the first plaintiff and occupied by the second plaintiff. 2. The first plaintiff is currently serving a sentence for sexual assault offences against children committed in the 1980s and 1990s. He has been in custody since 24 August 2012. 3. The search warrant was issued on 27 August 2018. 4. The searchable offences were identified as follows: 1. Aggravated Indecent Assault Person under 16 years of age, Section 61M (1), NSW Crimes Act 1900; 2. Incite person under 16 years to commit act of indecency, Section 61N (1), NSW Crimes Act 1900; 3. Procure child under 14 years for pornographic purposes, Section 91G (1) (b), NSW Crimes Act 1900; 4. Possess child abuse material – Section 91H (2), Crimes Act 1900. 1. Paragraph 2 of the search warrant identifies the specific things for which a search could be made as: 1. Photographs of (pursuant to pseudonym list provided Confidential MFI 1) "AA", "AB", "AC", "AD", "AE" 2. Diaries of Phillip DOYLE for 2005, 2006, 2007, 2008 and 2009 3. Boy's underwear in drawers of bedside cabinet 4. Any device or any electronically removable device that can store electronic photograph and videos [sic] data including hard drives, memory sticks, USB, SD cards. 1. The Further Amended Summons pursuant to which the plaintiffs proceed filed in Court on 2 April 2019 does not raise any issue as to the validity of the search warrant. 2. A Notice to Produce was served by the plaintiffs upon the defendant seeking production of "The Application for the Search Warrant, the subject matter of these proceedings." The defendant made an oral application to set aside the Notice on the basis of relevance. On 29 April 2019, I made an order setting aside the Notice. These are my reasons for that order.