Supreme Court New South Wales Medium Neutral Citation: Doyle v NSW Commissioner of Police (No 3) [2019] NSWSC 1787 Hearing dates: 29-30 April, 28-29 May and 22 July 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (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) 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. Catchwords: CRIMINAL LAW – procedure – search warrant – whether decision to make application for a search warrant invalid – whether decision to issue a search warrant invalid – whether insufficient connection between items named in warrant and searchable offences listed in warrant – whether police should be restrained from accessing items seized ADMINISTRATIVE LAW – prerogative writs and orders Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW), s 91FB, 91H Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 46, 46A, 47, 47A, 48, 49, 49A, 62, 63, 65, 67, 75A, 75B, 218, 219 Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Cases Cited: Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 Parker v Churchill (1985) 9 FCR 316 Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 72 A Crim R 278 Category: Principal judgment Parties: Phillip William Doyle (First Plaintiff) Mark Barbeliuk (Second Plaintiff) NSW Commissioner of Police (First Defendant) Detective Tiffany O'Neill (Second Defendant) Deputy Registrar Cally D'Arcy (Third Defendant) Representation: Counsel: J V Agius SC (First and Second Plaintiffs) P Singleton (First and Second Defendants) Submitting appearance (Third Defendant) Solicitors: Uther Webster & Evans (First and Second Plaintiffs) Makinson d'Apice Lawyers (First and Second Defendants) Crown Solicitor's Office (Third Defendant) File Number(s): 2018/266913 Publication restriction: Nil Judgment 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. 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. 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. 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. 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. 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. 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. 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. 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. In May 2018, DS Karras was assigned to investigate the further allegations by AA. 3. 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. 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: "[8] Phil began to invite my family to movie nights at his place. We would go to his house at [REDACTED], Sans Souci. This was a two-storey big brick house with a maroon roof. It had three bedrooms and a study. They were all upstairs. Downstairs was the garage, walkway and an organ and a white leather chair. It had an in-ground pool in the backyard. He lived there by himself. [9] It started off as movie nights. We would sit in his room that had been converted into a movie theatre. This room was upstairs and second door on the left. It had like a projection screen, massive sound system and automatic curtains. It felt like it was better than the movies. This really impressed me and my brothers. He would give us unlimited soft drinks, hot dogs, lollies, beers for mum and dad. It felt like we were living like kings. I knew Phil was from America and he used to bring back American chocolates. Phil had a slight American accent. When he used to say words like apparently his accent was more prominent. There were peanut butter cups, butterfingers, babe Ruth's and tootsie rolls. He used to give us these to take home. This would occur once a month or once every two months. [10] This progressed to ongoing there for Chinese dinner nights. Phil always paid for us to go out to dinner with him. He would always take us to [REDACTED] Chinese Restaurant on [REDACTED], Sans Souci. We would all get a dish each with mixed entrees and share them. This went on for about twelve or eighteen months. [11] On one occasion [AB] and I were invited to stay at Phil's house. I am not sure how this came about to being with him without my other brothers but I remember he was really convincing about getting my parents to let us stay over. [AB] slept in Phil's bed with him. I slept on a mattress on the floor. I remember there were no other furniture or beds in the other rooms in the house. I think we stayed over about four times. Around this time [AB] got a girlfriend and he would go to her house so it would leave me alone with Phil. I trusted Phil as I had been over to dinners at his house and he was friends with my parents. I looked at him as an Uncle. I thought of him as a close family friend and this was how my family looked at him. [12] About August 2007 I was at Phil's house with him by myself. I was 12 years and 5 months old at this time. Earlier my brothers, mum and I went to dinner with Phil at the Chinese Restaurant. We all had dinner then back to Phil's so he could talk to mum. They talked for a while. Whilst I was waiting I fell asleep on the chair. When everyone else was leaving about midnight I woke up and didn't want to leave. Phil convinced my mum to let me stay over. I stayed over there all weekend from Saturday night and then Phil dropped me off at school on the Monday morning." 1. This was followed by a description of sexual assaults upon AA by Mr Doyle in August and September 2007: "[13] About midday on the Sunday Phil and I were at a service station and got petrol. Inside the service station I saw Coca Cola flavoured Hubba Bubba chewing gum. I asked Phil if he could buy me some. At this time Phil was eating very cleanly and not eating sugar. He was trying to drop weight. He had told us all at the dinner that he was eating well. Phil drove us back to his house and he drove into the garage. I was chewing the Hubba Bubba chewing gum as I was getting out of the car. Phil approached me and said "Can you breathe it into my face". I breathed into his face. Phil kissed me on the lips and then began to kiss me passionately. Phil put his tongue in my mouth and opened my mouth. I was just a little shorter than him at this point. I was confused about what he was doing and I didn't know what was going on or what to do about it. [14] Phil took me upstairs to his bedroom. He kept kissing me on the lips and was using tongue. It stopped for a bit. We went out and got Chinese for dinner at [REDACTED] Chinese Restaurant. We went back to the house and I had a shower. I didn't have any clothes to change into because it wasn't a pre-arranged sleep over. Phil had two sets of drawers in his bedroom. In the set of drawers closest to his bathroom he had a drawer full of various colours of boy's underwear. There were blue, red and green underwear. After my shower he gave me a set of undies to wear. I don't remember what colour I wore but it was the only thing I was wearing. [15] Phil walked me towards his bed and began kissing me and pulled me onto his chest. This was a passionate type of kiss. He was laying on his back on the bed. He pulled me on top of him so my stomach was against him. Phil was thrusting against me. I kept thrusting up and down. I don't remember feeling that his penis was erect. Phil stopped and we went to sleep in his bed. Phil was only wearing underpants as well. They were sky blue and regular budgie smuggler type underwear. [16] I didn't understand what was going on and I was really confused. We both acted like nothing happened and I thought it was like a dream. I did have a red rash around my mouth. Phil told me that if anyone asked me about the red rash "Just tell them it was wind burn". When I got home from school mum asked me about the rash on my face and I told her it was wind burn. Mum didn't say anything else and I think she believed me because August is a windy month. I have drawn a diagram of Phil's bedroom, see Annexure A. [17] Around September 2007 a month or so later I went back to Phil's house. My family and I went over to Phil's house the night before and had Chinese. I then stayed the night. The next day it was warm and I began to swim in his pool all day. Phil's house had two neighbours to the side of him. The fence near the pool Phil had built it up high. The fence was about two metres tall with palings but he extended it up to three metres and wrapped flowers at the top. It was to stop anyone from looking into the pool. I was swimming in the pool by myself and as a joke I went skinny dipping in the pool. Phil saw this and said "You are more than welcome to walk around my house naked". Phil started walking around his house naked. I followed him and began walking around his house naked. I have drawn a diagram of Phil's house and backyard, see Annexure B. [18] Phil went to his bedroom to his drawer that he kept the underpants and got some swimmers. He brought them down to where I was in the pool. He told me to put on the swimmers, like budgie smugglers. Phil had some sun beds around the outside of the pool. Phil made me lie on the bed and told me to pull down the swimmers to my pubic bone level. They were low. Phil took some photographs on a professional type camera which had a big lens of me lying down on the sun bed. Phil made me do a whole series of model type shots on my back and side. He made me pose with my legs and arms. He would assist me to go into those positions. He took a series of photographs of me in these poses. After the posed photographs he took some of my head and printed these out. Phil gave copies of the photos of my head shots to my mum. I am not sure if mum still has a copy of these photographs. [19] On this occasion Phil took me out to Sydney Speedway to watch Valvoline race cars around a dirt track. I was hungry and I wanted to get food at the speedway. Phil wanted to take me out to dinner at [REDACTED] Blakehurst so we went there instead on the way home. After dinner Phil took me back to his house. I was too tired from all the swimming and action at the speedway and I fell asleep at dinner. I went straight to sleep in his bedroom in his bed." 1. There were further assaults described: "[20] On the next occasion that I stayed over at Phil's house. This was around 8:00pm at night after dinner. Phil began to watch me when I was having a shower. I was having a shower in the ensuite to his bedroom. Phil walked in on me having a shower. I was naked having a shower. When Phil walked in he was also naked. He didn't do anything in the shower. I didn't think too much of it at this point because we were walking around the house naked. [21] Phil and I got out of the shower and dried ourselves. I put on a set of underwear from his drawer and Phil put on some underwear, the budgie smuggler type. We walked over to the bed and lay down on our sides. Phil turned on the television in his bedroom and we began to watch the TV show Two and a Half Men. Whilst we were watching the show Phil started kissing me on the mouth. It was a passionate type kiss. He started playing with is penis. I know this is masturbation. I copied Phil and began playing with my penis. This was the first time that I had played with my penis to pleasure myself. This went on for about ten minutes. Phil was kissing me at the same time as he was touching himself. I knew what ejaculation was at this time but it had never happened to me and I had never seen it. Phil didn't ejaculate on this occasion and neither did I. [22] Over the next couple of months, I was over Phil's house by myself on three occasions. I would be having a shower. After the shower I dried off and went into his bed. On some occasions he would have a shower and then I would or vice versa. We would be both end up in his bed naked. Phil would start kissing me. I was on my side closest to the veranda. On one occasion Phil rolled me on top of him. We were lying side to side. He picked me up and rolled me on top of him. I would classify this as the missionary position where we were chest to chest. Phil started thrusting his penis up towards me and my stomach. I remember it rubbing on my belly button. His penis was erect. We were kissing and then we both rolled onto our backs on the bed. He was masturbating himself. I began playing with my penis, I was erect at this point. I felt this weird feeling come over me that I had never felt before. I stopped touching myself. I said "I don't know what's happening". [23] Phil rolled on to his side and started kissing me. Phil put his right hand on my penis. He started stroking my penis up and down. This was for about twenty seconds or so and I ejaculated for the first time. It went on my stomach on my chest. It seemed like a lot. Phil handed me some tissues to clean up. Phil seemed like he was amazed by the fact that he helped me to come for the first time. Phil said "Was that your first time?" I said "Yes" Phil said "Jump in the shower" I went and had a shower and cleaned myself". [24] I have taken a photograph from my nan and pop's place at Kurnell. This is a height chart where all our heights were measured growing up. I have attached this photograph to show how tall I was at 13 years of age, see Annexure C. [25] On the other occasions when I was over Phil's house. We would be in his bed naked. Phil would be touching himself. I would touch myself but I was so shocked about what had happened on the previous occasion I didn't want that to happen again. After that occasion I started staying over less at Phil's house. [26] I went and stayed over a couple more times at Phil's house by myself. On these occasions it would involve kissing and playing with ourselves on his bed. We were doing that to ourselves, but we didn't play with each other as I did not want Phil to touch me again." 1. AA went on to describe other events and grooming activities on the part of Mr Doyle that occurred after AA was 13 years old: "[27] When I turned 13 I still went with my family for Chinese and movie nights at Phil's but stopped staying over by myself. I would just get in the car with my family and avoid any confrontation about staying over. I know Phil would never say anything about wanting me to stay over because it would raise some suspicions with mum. Mum would go up during the week when we were at school and go walking with Phil. She would do this regularly and most weeks. [28] When I was about 13 or 14 years of age, the movie Bruno came out at the movies. This movie had Sasha Baron COHEN in it. I loved the movie Borat and Phil knew this. Phil invited me to watch Bruno at the movies with him. Phil bought me a Formula One Challenge X box game after we watched the movie. I am not sure which movie theatre he took me to. [29] This is when the gifts started rolling in. I never saw him give any gifts to my brothers when we were at his house. I could take the X box game home with me. [30] After the movie I stayed over at his house in his bedroom. He only kissed me on the lips on this occasion. [31] When Phil would take me out to Chinese for dinner there was the occasion that Phil's friend Mark BARBELIUK would come out to dinner with us. Mark picked us up and took us to the Chinese restaurant and then he would drop us back to Phil's. Phil always paid for dinner. I would describe Mark as about mid 30's, Australian, wore glasses, blond hair medium length. He used to have a television show called Mark My Words. It was like a chat show. Phil was in one of the episodes. Phil sent one of the tapes to mum. [32] Phil was going to take mum, [AD], [AE] and me on one occasion to Sizzler Kogarah for lunch. The night before I didn't want to go. I told mum in front of [AC] and [AB] that I didn't want to go to Phil's house. They started saying you always love going there. I said "He touches me and he does things to me". Everyone didn't believe me and they thought that I wanted attention. I thought that no-one believed me and felt like I had to go and see Phil. The next day Phil took mum, [AD], [AE] and I to Sizzler. I went home with them after lunch. [33] I started getting into skateboarding and I snapped my skateboard that I got for my birthday. It got thrashed and then it broke from all the use. I used to ride it all the time. I was 15 years old at this time. Mum told Phil about my broken skateboard. Phil gave mum $400 so I could get a new skateboard, skate shoes and clothes. Phil often said when I visited him he had put money in the stock exchange for me and [AB]. I think this is where that money came from. He told me that I could buy a car with the money he had put away for me, about $5,000 when I turned 16. [34] When I was about 16 years of age I stopped going to Phil's place. It didn't bother me that I couldn't go I didn't want to have any contact with him. Mum said he had been arrested and that people were after his money. It was too much for Phil to see us I was told. I later found out he had been charged for sexual assault offences." 1. 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. 2. The accounts of AA's disclosures are detailed and compelling, as are the accounts of the sexual abuse and grooming. 3. 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] Philip would always write everything down in his diary including when we would have Chinese. It was like a little notebook and he told me that he has these for years. Philip would write "Chinese" or "Went walking"." 1. Mrs AA also described that her husband was ill and often in hospital during the last 6 months of 2007. 2. Mrs AA described other relevant observations in her police statement: "[18] When [AB] got a girlfriend, he didn't go anymore to stay at Philip's. I think [AA] ended up going and staying over a few times to Philips' to stay by himself. [AA] never mentioned at the time what he did when he was a Philip's house. [19] I did know that Philip took some photographs of [AA]. Philip gave me a couple of these photographs that he had printed out for me. The photographs are of [AA] when he was about 12 years old. [AA] was shirtless and he had an old cap on his head. It was from inside the house. I just remember one of these photos in particular was very haunting to me that I couldn't stand to look at it and I threw it out. [AA]'s eyes look glassy and not normal. He looked spaced out. [20] One of the movie nights a friend of Philip's came over to the house. I was introduced to him as Mark BARBIELIUK. When Mark wasn't around probably overseas or gone to visit his mother was when Philip would have more contact with our family and the boys staying over. I don't know about Philip and Mark's relationship they told me they were great friends. [21] One day when I went walking with Philip during this period he mentioned that he had bought some shares for [AA] and [AB] to put into an account so they could buy a car. I never saw any paperwork or evidence that he had bought some shares. I didn't think he would do it I thought it was all talk. [22] Philip also brought the family a new television when ours broke and he also brought [AE] a bed once he was out of the cot. One Christmas Philip gave me $50 each for all the boys to go buy them a nice Christmas present from him. [23] I remember only one occasion when [AA] didn't want to go to meet Philip and that was when we were meeting him at Sizzler Restaurant at Kogarah. I think it was in the school holidays and it was just me, the boys and Philip. [AA] ended up coming but very reluctantly. 1. Mrs AA said the following about Mr Doyle's arrest and AA's disclosures to her: [25] Around August 2009 Philip got arrested. I was on the phone to Philip and he looked on his intercom screen. He told me he had to go someone was there. It was after his arrest I realised that it was the police that were at his door. I had seen it on the news. After his arrest Philip told me numerous times that he was innocent and they were the liars. I believed him that he was innocent and kept up contact with him. I continued to walk regularly with Philip and speak to him on the phone. [26] After the court matters were completed Philip went to gaol in 2012 for seven years. Philip would call me on my mobile telephone from the gaol he was at. He called every Monday and we would speak for six minutes. Philip would always ask me about everyone in the family and how they were going. It was general conversation. Philip would ask about [AB] and [AA]. I visited him twice whilst he was in Silverwater Gaol. I went to the gaol with Mark BARBELIUK. I would meet him at Phil's place because he was living there and we would go there together. Philip only sent a couple of letters or Christmas card to me. He did write to my parents a few times about being worried about me. [27] Around January 2018, [AA's father], [AA], [AE] and I were having dinner. This was a Thursday or Friday. The topic of Philip DOYLE came up because I had found out that he was being released from gaol soon. [AA's father] mentioned it at the dinner table. [AA] said, "If I ever see him I will kill him". I was shocked by that statement and [AA] got up from the table. [AA] came back to the table and said "[AA] said, "If anyone in this family has anything to do with that man when he gets out I won't have anything to do with you or this family ever again. You won't see me I will be gone". This is when I realised that Philip had done something to [AA]. I felt sick. My first thought was that Philip had assaulted [AA] sexually. One time years ago [AA] had mentioned something when he was drunk. He said "You don't know your friends". [AA] was angry but he was not specific about any person and never mentioned anything again. [AA] left the house. [28] About 11:00pm on the Sunday night a few days later [AA] was drunk and his friends were trying to get him into the house. [AA] was upset and crying. I went outside to help him in. The dog bit [AA] after this and he had to go to the hospital to get it stitched. When he came back from the hospital [AA] sat down and said to me I need to tell you what happened. [AA] said "Philip touched me and made me come. There was no penetration, no anal sex but it was the way he smiled when he ejaculated". I was still so shocked and I didn't really ask too many questions. We haven't talked too much about it because [AE] is always around. [29] In February 2018 I sent a letter to Corrective Services to block Philip from contacting me or calling me from the gaol. [30] I think that Philip chose [AA] because he was the clown and often joked around. I think he would have thought that [AA] wouldn't say anything or people wouldn't believe him if he did. [31] I am so angry that Philip has touched [AA]. I think he because close to me because he could have access then to the boys. [AA's father] always worked hard so I was the one always around. And it all comes back to when he first met [AA's father] and the boys. His words "We need to get this man and his family in our club" haunt me. 1. 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. Part 5 of the LEPRA sets out the search and seizure powers of police officers with warrants. Section 47(1) of the LEPRA provides: 47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. 1. Section 46A provides for searchable offences: (1) For the purposes of this Part, searchable offence in relation to a warrant— (a) means any of the following— (i) an indictable offence, (ii) a firearms or prohibited weapons offence, (iii) a narcotics offence, (iv) a child abuse material offence, (v) an offence involving a thing being stolen or otherwise unlawfully obtained, and (b) if the warrant is a covert search warrant—means a serious offence, and (c) if the warrant is a criminal organisation search warrant—means an organised crime offence. (2) In subsection (1)— child abuse material offence means an offence under section 91H or 578C of the Crimes Act 1900. … 1. Section 91H of the Crimes Act 1900 (NSW) relevantly provides: 91H Production, dissemination or possession of child abuse material (1) In this section— … possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)). produce child abuse material includes— (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. … 1. Child abuse material is defined in s 91FB(1) of the Crimes Act relevantly to mean: material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive— … (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include— (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). … (4) The private parts of a person are— (a) a person's genital area or anal area, whether bare or covered by underwear, or … 1. Section 46(3) of the LEPRA provides: (3) For the purposes of this Part, a thing is connected with a particular offence if it is— (a) a thing with respect to which the offence has been committed, or (b) a thing that will provide evidence of the commission of the offence, or (c) a thing that was used, or is intended to be used, in or in connection with the commission of the offence. 1. 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] 2. 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. 3. Section 49 regulates the power to seize items during the execution of a search warrant. It provides: 49 Seizure of things pursuant to search warrant (1) A person executing a search warrant issued under this Division— (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence. (2) Without limiting subsection (1), the power to seize and detain a thing includes— (a) a power to remove the thing from the premises where it is found, and (b) a power to guard the thing in or on those premises, and (c) … 1. Section 62 of the LEPRA sets out the information which must be included in an application for a search warrant. 62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing—a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing—a description of the kind of thing, (f) if a previous application for the same warrant was refused—details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. … (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters— (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence—whether there is sufficient connection between the thing sought and the offence. … 1. 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"). 2. 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. 3. Section 49A provides for return or retrieval of the things seized or placed: 49A Return or retrieval of thing seized or placed (1) A covert search warrant may authorise the return of a thing seized under section 49(1)(a), or the retrieval of a thing placed under section 49(2)(c), if the warrant expressly authorises such a return or retrieval. (2) If the covert search warrant authorises the return or retrieval of a thing, the subject premises may be re-entered by an executing officer, but only for the purpose of returning or retrieving the thing (as the case may be). (3) Any re-entry to return or retrieve a thing must occur within 7 days of the first entry under the covert search warrant (or such longer period as is allowed, prior to the expiration of the 7-day period, by an eligible issuing officer). (4) An executing officer authorised to re-enter premises and return or retrieve a thing under this section may do so with the aid of such assistants as the executing officer considers necessary. 1. Sections 75A and 75B of the LEPRA make specific provision for electronic and other equipment in the following terms: 75A Operation of electronic and other equipment at premises and removal of things from premises for examination … (2) If a thing is moved to another place for examination under this section, an eligible issuing officer may authorise the removal of the thing for an additional period (not exceeding 7 working days at any one time) if satisfied that the additional period is required to determine whether it is or contains a thing that may be seized under the warrant. (3) The person executing the warrant must advise the occupier that the occupier may make submissions to the eligible issuing officer on the matter and is to give the occupier a reasonable opportunity to do so (except in the case of a covert search warrant). (4) The eligible issuing officer may authorise the removal of a thing for a period exceeding a total of 28 days only if satisfied that it is justified on the basis that there are exceptional circumstances in the case. (5) The limitation imposed by this section on the period that a thing may be removed to another place ceases when it is determined that it is or contains a thing that may be seized under the warrant. (6) This section does not authorise the operation of equipment already at the premises the subject of the warrant to examine a thing unless the person operating the equipment has reasonable grounds to believe that the examination can be carried out without damaging the equipment or the thing. 75B Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant) (1) The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant. (2) The person executing or assisting in the execution of the warrant may— (a) copy any accessed data to a disk, tape or other data storage device brought to the premises, and (b) with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and (c) take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant. (3) The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced. (4) The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device— (a) if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or (b) if possession by the occupier of the equipment or device could constitute an offence. (5) This section does not authorise the operation of equipment already at the premises the subject of the warrant to access data unless the person operating the equipment has reasonable grounds to believe that the equipment can be operated without damaging the equipment or the data. … 1. Sections 218 and 219 under Part 17, Division 2 deal with property and police custody: 218 Return of seized things (1) A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that— (a) its retention as evidence is not required, and (b) it is lawful for the person to have possession of the thing. (2) This section is subject to any order made under section 219. 219 Disposal of property on application to court (1) A court may, on application by any person, make an order that property to which this Division applies— (a) be delivered to the person who appears to be lawfully entitled to the property, or (b) if that person cannot be ascertained, be dealt with as the court thinks fit. (2) In determining an application the court may do any one or more of the following things— (a) adjust rights to property as between people who appear to be lawfully entitled to the same property or the same or different parts of property (including adjusting rights by extinguishing, whether in whole or in part, any interests in the property of such persons), (b) make a finding or order as to the ownership and delivery of property, (c) make a finding or order as to the liability for and payment of expenses incurred in keeping property in police custody, (d) order, if the person who is lawfully entitled to the property cannot be ascertained, that the property be forfeited to the Crown, (e) make any necessary incidental or ancillary orders. (3) Property ordered to be forfeited to the Crown— (a) in the case of money, is to be paid to the Treasurer for payment into the Consolidated Fund, or (b) in any other case, may be sold by or on behalf of the Commissioner at public auction and the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund. (4) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner. (5) An order under subsection (2)(a) that provides for the extinguishment, whether in whole or in part, of any interest in property operates to extinguish the interest according to its tenor. 1. 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. 2. 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). 3. The form of an Occupier's Notice is prescribed by cl 7 of the Regulation. 4. Form 1 is contained in Schedule 1 of the Regulation and appears as follows: "Form 1 Application for Part 5 search warrant (other than covert or criminal organisation search warrant)/record of application Part 1 Application On [Date], I, [Name and rank] of [Place of work], apply for a search warrant to enter and search the premises known as [Address] in the State of New South Wales, being a [Description of premises (eg dwelling house)]. I swear/solemnly, sincerely and truly declare and affirm* that: 1 I have reasonable grounds for believing that: (a) there is, or within 72 hours will be, in or on the premises, the following things: [List items to be searched for. If exact location of items is known, include that information.] (b) 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: [Insert description of offence(s).] … 2 I rely on the following grounds in support of this application: [Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient, continue overleaf or attach a separate sheet.] … Sworn/declared and affirmed* before me on [Date] at [Place] in the State of New South Wales. …" 1. Form 11 is also contained in that Schedule and is in the following form: "Form 11 Part 5 search warrant (other than covert or criminal organisation search warrant) This search warrant expires at [Time] on [Date] and must not be used after that time. On [Date], an eligible issuing officer empowered to grant search warrants under Division 2 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002, granted this search warrant authorising [Name and rank] of [Place of work] (the applicant), a police officer, and all other police officers, as follows: 1 To enter the premises known as [Address] being a [Description of premises (eg dwelling house)]. 2 To search those premises for any of the following things: [List and describe the things to be searched for with particularity. If space is insufficient, continue overleaf or attach a separate sheet.] The applicant has reasonable grounds for believing that those things are connected with the following searchable offences: [Specify relevant offences.] …" DSC O'Neill's evidence (i) Affidavit evidence 1. 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. 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. 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. 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. 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. 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. 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. 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. 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. DSC O'Neill stated that from her experience and training as a detective she: "…knew that many sexual offenders against children often pursue a consistent modus operandi, such that it was probable that what had been done to [AA] had been done to [AB]." 1. 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. 2. 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". 3. 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. 4. 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." 5. 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. 6. 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. 7. 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). 8. On 27 August 2018 DSC O'Neill attended the premises accompanied by police. She stated: "…I found that Barbeliuk was present; I showed the search warrant to him and gave him the occupiers notice. I was assisted by other police in the execution of the search warrant. The senior officer at the scene was DS Karras who was also still the Commander of Team 4". She also noted in her affidavit that items said by the plaintiffs to have been wrongly seized were not items that she personally seized. (ii) Cross-examination of DSC O'Neill 1. 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": "…so when you put it in each box, it comes, that's how it comes out… so it then transfers across… I type it up on our system on the box and then we press create and it transfers all across to the application." [4] 1. 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). 2. 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: "Well, because that, that's the grounds of the warrant. Then if the, the registrar's not happy with that, they can change, they can make adjustments to that." [6] 1. With admirable frankness DSC O'Neill dealt with this exchange: "Question: Why not leave it to the registrar to fill that box in themselves given that it relates to the material that they relied upon? Answer: That would probably be better, I guess. Because there's more space then." [7] 1. 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] 2. 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. 3. 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: "…when you take photos of young boys on sun beds, in different positions, with their costumes down to their pubic bone, that is a suggestive position." [11] 1. 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] 2. 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] 3. 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". 4. I accept DSC O'Neill's account of her investigations and belief, is truthful, reasonable and considered. Evidence of Detective Sergeant Karras (i) Affidavit evidence 1. 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. 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. 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. 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. 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: "…Some of those photographs were of a young AA wearing speedos by the pool as described by him in his statement". [15] 1. 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. 2. 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] "[10] Item 1 of the "Property Seizure/Exhibit Form" is a folder containing a job advertisement which seeks casual school age children to work at a cinema known as the Mecca theatre. The folder also contains several responses to the advertisement submitted by young persons in the early 1990s. Photos of each applicant are attached to the responses. After inspecting this item and discussion it with Detective Senior Constable Tiffany O'Neill, I formed the view there were reasonable grounds for believing (and I continued to believe) the item would provide evidence of the commission of further offences, particularly evidence of the identity of victims of further child sexual abuse offenses and tendency evidence for offences that were already under investigation by police. It was my decision to seize this item. [17] [11] I also believed (and continue to believe) that the diaries for the years 2010, 2011 and 2012 that were found on 27 August 2018 during the execution of Search Warrant 305/18 were connected with an offence in that they would provide evidence (in particular, tendency evidence) of the offences under investigation and evidence of further offences of a similar kind (including evidence of other potential victims, evidence of dates and places related to the first plaintiff's activities, and tendency evidence). [18] [12] My conclusion was based upon the following information which was known to me at the time of the execution of the search warrant: (a) The plaintiff was the former proprietor of the Mecca theatre; (b) The plaintiff had previously been convicted of historical child sex offences committed against several male complainants in the 1980s and 1990s; (c) The complainants were employed by the plaintiff at the Mecca theatre and were aged in their mid to late teens at the time of the offences; (d) Some of the offences were committed at the Mecca theatre; (e) That the Crown relied on tendency evidence at trial which alleged that the plaintiff had used his position of authority at the Mecca theatre to obtain access to young male employees so that he could engage in sexual activity with them. Exhibited to me and the time of swearing this Affidavit and marked "AK1" is a copy of the NSW Supreme Court, Court of Appeal decision which I had read prior to the search warrant being executed; (f) That since the plaintiff was convicted, [BA] has subsequently reported to police that the plaintiff had sexually assaulted him in or around 1980. On 11 September 2018, [BA] prepared a three-page statement in relation to those allegations. Annexed to this affidavit and marked "D" is a copy of that statement; and (g) That the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) had highlighted the need for improvements in how police respond to sexual abuse and other sexual offences including the need for police to canvas the availability of evidence. I was also aware of the Royal Commission's recommendations with respect to tendency and coincidence evidence in child sexual abuse matter. Exhibited to me at the time of swearing this affidavit and marked "AK2" is a copy of the relevant report. I knew that I would be neglecting my duty if I did not investigate this matter, and the possibility of any other potential victims, thoroughly. [19] [13] My conclusion was also based upon my person experience of investigating other cases involving child sexual assault. I have previously been involved in the investigation of numerous such search cases as the officer in charge and supervising a team of detectives investigating such cases. My experience suggests that those who commit child sex offences may have multiple victims and may offend against particular victims over lengthy periods of time. A failure to report abuse or to protect the child may leave the child exposed to repeated abuse over time and may expose other children to abuse. In addition, through my experience as an investigator I have seen evidence of grooming behaviours by alleged perpetrators and convicted offenders, including evidence of parents being groomed to facilitate the perpetrators' access to their children without raising the parents' suspicions. [20] (ii) Cross-examination of DS Karras 1. 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. 2. 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] 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 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": "- Photographs of AA, AB, AC, AD, AE - Diaries of Philip DOYLE for 2005, 2006, 2007, 2008 and 2009 - Boy's underwear in drawers of bedside cabinet - Any device or any electronically removable device that can store electronic photograph and videos data, including hard drives, memory sticks, USB, SD cards" 1. 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:" "Aggravated Indecent Assault Person under 16 years of age, Section 61M(1) NSW Crimes Act 1900 Incite Person under 16 years to commit act of indecency, Section 61N(1) NSW Crimes Act 1900 Procure child under 14 years for pornographic purposes, section 91G(1)(b), NSW Crimes Act 1900 Possess child abuse material – Section 91H(2), Crimes Act 1900" 1. Alternative (c) relating to suspected child prostitution offences has been struck through and initialled by Dep Reg D'Arcy. 2. The grounds in support of the application are stated on page 2: "On the 9th July 2018, victim [AA] attended St. George Police Station completing a statement detailing that between 2007 and 2008, when [AA] was twelve to fourteen years of age he was indecently assaulted by Philip DOYLE. In January 2005 [AA] was first introduced to Philip DOYLE due to his father being in the same car club. Shortly after his father joined the car club the family were invited to visit the residence owned by DOYLE at [REDACTED], Sans Souci. DOYLE began inviting the victim and his family over for movie nights and Chinese dinner where he would pay for the whole family. This happened most weeks for about twelve months with no issue. About August 2007, when [AA] was twelve years and five months old he spent a weekend alone with DOYLE. [AA] and his family ([Mrs AA], [AA's father], [AB], [AC], [AD] and [AE]) had dinner with DOYLE at the [REDACTED] Chinese Restaurant at [REDACTED], Sans Souci on the Saturday evening. DOYLE convinced [Mrs AA] to allow [AA] to stay the rest of the weekend. About midday on the Sunday DOYLE and [AA] were at a service station where he bought [AA] some Coca Cola flavoured 'Hubba Bubba' chewing gum. Upon returning to his residence DOYLE said, "Can you breathe it into my face". DOYLE indicated that he liked the smell and began kissing [AA]. DOYLE kept kissing [AA] until he had a red rash on his face telling him, "Just tell them it was wind burn" if anyone asked. Following a shower DOYLE provided [AA] with a set of underwear from the bedside drawers in the bedroom. These were full of boy's underwear. DOYLE continued to invite [AA] to stay at [REDACTED], Sans Souci without his brothers. DOYLE encouraged [AA] to walk around the house naked, swim naked in the pool and take showers in front of DOYLE. In September 2007 DOYLE gave [AA] swimmers to put on and pull them down to his pubic bone level. DOYLE positioned [AA] on a sun bed near the pool and began to take 'model' style photographs of him in suggestive positions on a professional type camera. DOYLE made [AA] pose in several positions. DOYLE later gave a copy of these photographs to [Mrs AA]. [Mrs AA] described [AA] facial impressions in these photographs as haunting. On another occasion DOYLE walked in on [AA] having a shower. DOYLE told [AA] to go to the drawers to get some underwear and they laid down on DOYLE'S bed. DOYLE began kissing [AA] on the mouth. DOYLE made the victim masturbate in front of him whilst he also masturbated. [AA] stayed at DOYLE'S on three further occasions by himself. Each time they would shower together and end up kissing on the bed naked. On one of these times DOYLE pulled [AA] on top of him in the missionary position. DOYLE took hold of [AA]'s penis and assisted in helping him by stroking his penis up and down to the point of ejaculation. DOYLE also bought [AA] many presents. Eventually [AA] refused to attend DOYLE'S house or be alone with him. In 2009 DOYLE was arrested for historical sexual assault offences on nine boys during his ownership of Kogarah Mecca Theatre. In 2012 he was convicted of many of these offences. On the 25th August 2009 a search warrant was conducted at [REDACTED], Sans Souci in relation to this investigation. This search warrant was for gym equipment. Photographs were taken of this equipment. No other areas of the house were searched. In May 2018 the victim reported this matter to Police where an investigation commenced. Statements were obtained from [AA], the first complainant and other witnesses. On the 22nd August 2018 statements were obtained from witnesses where information was provided that DOYLE has a storage area in the manhole in the theatre room. DOYLE informed this witness that he believes in his innocence, had items to corroborate his version and indicated they were in the manhole which was not searched during the original search warrant. Following his arrest, the witness observed several his [sic] diaries within his house. It is reasonably suspected the manhole storage area contains photographs of [AA], his brothers and diaries that DOYLE recorded interactions with [AA] and his family in. DOYLE is currently unaware a Police investigation is being conducted into the allegations by [AA] and remains in custody at MRRC Long Bay for his previous matters. Even though the images were alleged to have been taken in 2007 and 2008, research by Dr. Tony KRONE of the Australian Institute of Criminology has shown that a distinctive feature among those who possess child pornography is the extent to which they keep and organise their collection particularly in computers. Child pornography become [sic] a permanent fixture in their life and will be moved or hidden with offenders almost never destroying a collection. As a result of this, that these were not searched for on the previous occasion and that DOYLE was still in contact with [AA]'s family under February 2018 Police believe DOYLE will still have photographs and be in possession of the images taken of [AA]." 1. 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. 2. Paragraph numbered 3 states: "On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant" Dep Reg D'Arcy did not strike out either alternative. The asterisk (*) in the key below is noted as "* delete if inapplicable". 1. Paragraph numbered 4 states: "The relevant particulars of the grounds on which I relied to justify the issue of/ refusal to issue [Delete whichever is inapplicable] the warrant are as follows:" Dep Reg D'Arcy did not strike out either alternative. This is followed by the entirety of the material set out in paragraph [90] above with no alterations or annotations handwritten or otherwise. 1. 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. 2. 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. The Warrant 1. 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]. 2. The alternative allowing "to search those premises in connection with child prostitution offence(s)" has been struck out and initialled. 3. The alternative provided on page two for the search warrant to be executed by day or by night has been struck through and initialled. The Occupier's Notice 1. 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. 2. 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. 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. 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. 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. 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: "MB: Why are you taking my MacBook Air? Officer: You haven't provided a password... we can't MB: Well, I can try to get into it? Officer: Yeah, well that will be great if you could. MB: Yeah, well we can take it back up and we can try to get into it." And later: "MB: …If you got that um MacBook Air, let's try and… I can try and get into it. Officer: I don't know, if it's sealed it's sealed. Detective O'Neill: If you are going to make the statement tomorrow. Then we can…" 1. 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] 2. Mr Barbeliuk stated that he "clearly identified to NSW Police" that the MacBook Air (item 24 on the Seizure Form) belonged to him. 3. 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: "[12] Mr Doyle went into custody on 24 August 2012 and as such has never had access to, or used the Apple Macbook." 1. 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: "Detective O'Neill: If you are going to make the statement tomorrow. Then we can… MB: Look, Do you know what? The legal representative, Phil's lawyer says basically, and she will probably will tell me to say nothing. Officer: What..what password do you think is for 24? MB: I thought it was Longford1966 Officer: Longford - Ford .... MB: It has been so... because it only goes so far and I couldn't go into it. I have contacted Apple. Officer: Right? MB: About password issues. But I will give, so Longford1966 with a capital L ...or it is in front of me. Ummm...Moscow with a capital M, 1966 or Mark66 with a capital M. Detective O'Neill: Mark66? MB: Mark66 yeah with a capital M, 66." 1. 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. 2. 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. 3. 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: * Item 1 - folder of job applications for the Mecca Cinema at Kogarah; * Item 8 - two address books and a diary for 2007; * Item 10 - five diaries 2008, 2009, 2010, 2011 and 2012; * Item 15 - photographs; * Item 17 - photos taken from album; * Item 13 - images of "young boys" taken from a box; * Item 14 - a photo album; * Item 16 - three white binders containing images of male persons in police uniform; and * Item 25 - an iPad box of pictures, a wallet, a padlock, silver cufflinks and other miscellaneous items. (Mr Agius SC noted in May 2019 that items 13 to 17 were no longer in issue). 1. 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. 2. 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 Ground 2a: Certiorari, or a declaration to declare invalid the decision purportedly made under the LEPRA to make written application for issuing search warrant number 305/18 (i) Plaintiffs' submissions 1. 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. 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. (ii) Defendants' submissions 1. 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. 2. 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. (iii) Consideration 1. 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. 2. 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. 3. 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. 4. 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. Ground 2b: Certiorari or a declaration declaring invalid the decision to issue the search warrant (i) Plaintiffs' submissions 1. 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: The third defendant: b. Failed to form an independent view and properly exercise her discretion in issuing the warrant as required by s 62; c. Failed to independently identify, specify and/or record the relevant particulars of the grounds on which she relied upon to justify the issue of the warrant; d. Failed to consider whether there were reasonable grounds to issue the warrant; e. Failed to indicate whether there were reasonable grounds to issue the warrant; f. Failed to indicate the relevant particulars of the grounds to justify the issue of the warrant (which in my view is a repetition of the substance of (c); g. The substance of the warrant was materially defective and therefore invalidated; and h. The applicant DSC O'Neill did not express a belief on reasonable grounds that the photographs taken of the complainant were "pornographic" or "child abuse material" to sufficiently connect them with the warrant, and consequently there was no evidence in the application upon which Dep Reg D'Arcy could base any opinion that the things listed in the application and set out in paragraph 3(a)(iv) were connected as required by s 46(3) of the LEPRA. (ii) Defendants' submissions 1. 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. (iii) Consideration 1. 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. Ground 3: In the alternative, a declaration that the search warrant numbered 305/18 is invalid (i) Plaintiffs' submissions 1. 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. 2. 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: "…Nevertheless, the information on oath should express the facts as concisely as possible, consistent with satisfying the magistrate or justice of the peace that there is reasonable ground for suspecting the matter alleged. Although the matters material to that and all other matters which may affect the terms or ambit of the warrant should be disclosed, it is not the function of a magistrate or justice of the peace to investigate anew the whole of the material available to the officer who seeks the issue of the warrant. The function of the information on oath is to provide a synopsis on oath of the material facts. As was indicated in George v Rockett (at 114-115; 252-254), the material facts must be set in the sworn information, not communicated in some other fashion." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. (ii) Defendants' submissions 1. 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. 2. 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: "In 2009 Doyle was arrested for historical sexual assault offences on nine boys. In 2012 he was convicted. Doyle remains in custody." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. (iii) Consideration 1. I am unpersuaded by the arguments made on behalf of the plaintiffs. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. I am persuaded by the submissions made by Mr Singleton as to the processing, and therefore the validity of the warrant. 9. 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. 10. 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. 11. I decline to declare the warrant invalid or to make orders setting aside the warrant. Ground 4a: A declaration that the warrant is invalid in that there was insufficient connection between those things to be sought as set out in the warrant, namely any device or any electronically removable device that can store electronic photographs and videos, data, including hard drives memory sticks, USBs, SD cards and the searchable offences listed in the warrant. 1. 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. 2. 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. 3. There is no merit in this ground and it is dismissed. 4. It follows that I do not need to deal with grounds 4(b), (c) or (d). Ground 5: In the event that the warrant is held to be valid, the defendant his servants or agents be restrained from accessing, viewing, examining, copying or in any way dealing with the specified items remaining in issue. 1. 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). 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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]: "[468] The starting point, perhaps, is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods. That consideration would support the return of the unlawfully seized goods. That is not, however, the end of the matter. Weighed against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The result is that a number of additional considerations would ordinarily come into play. [469] The list of relevant considerations is not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. All of the facts and circumstances surrounding the unlawful seizure must be considered. Relevant considerations may include: was the unlawful seizure deliberate, reckless or contumelious, or was it the product of mere technical deficiency or less serious conduct on the part of the seizing officer or agency; what is the nature of the items seized (for example, are they items that the party from whom they were seized requires to conduct their business); is there a risk that, if returned, the seized items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced (as in Cassaniti); and the possible importance and probative value, if any, of the seized material. That is not intended to be a complete list of potentially relevant considerations. It is intended to be no more than indication of the types of matters that might be relevant. [470] Ultimately the question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained. Or, put in another way, whether the undesirability of a person being unlawfully deprived of their goods is outweighed by the public interest in the police or investigating agencies being permitted to investigate and prosecute serious criminal conduct without undue interference. In that regard, the discretion is somewhat similar to the discretion to admit unlawfully obtained evidence under s 138 of the Evidence Act. That is not to suggest that the discretion is the same as the discretion in s 138 of the Evidence Act. That discretion arises in a different context and at a different stage of the administration of criminal justice. The point is that the exercise of the discretion, like the exercise of many discretionary powers, ultimately involves an exercise of balancing competing private and public interests." 1. In all the circumstances I exercise my discretion not to require the defendant to return item 25 to the plaintiffs. Orders 1. 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. 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. 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. Endnotes 1. Affidavit of Detective Sergeant Karras dated 17 April 2019. 2. LEPRA, s 47A(1)(a). 3. LEPRA, s 47A(1)(b). 4. T133.32-50. 5. T134.33-34. 6. T134.40-45. 7. T134.48-50. 8. T138. 9. T139. 10. T1.43.1-2 11. T143.10-13. 12. T145.15-26. 13. T1.46.1-9 14. Affidavit of DS Karras dated 17 April 2019 at [1]. 15. DS Karras Police Statement dated 30 October 2018 annexed to his Affidavit of 17 April 2019 at [8]. 16. Affidavit of DS Karras dated 17 April 2019 at [10]-[13]. 17. Affidavit of DS Karras dated 17 April 2019 at [10]. 18. Affidavit of DS Karras dated 17 April 2019 at [11]. 19. Affidavit of DS Karras dated 17 April 2019 at [12]. 20. Affidavit of DS Karras dated 17 April 2019 at [13]. 21. T37.48 to T38.44. 22. AA's statement at [18]. 23. [8] Affidavit of Mr Barbeliuk dated 18 October 2018. 24. Exhibit B. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024