Doyle v Commissioner of Police [2020] NSWCA 11

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Doyle v Commissioner of Police [2020] NSWCA 11 Hearing dates: 5 February 2020 Decision date: 14 February 2020 Before: Leeming JA; Payne JA; Simpson AJA Decision: 1. Grant leave to appeal, such leave including if necessary leave pursuant to the Felons (Civil Proceedings) Act 1981 (NSW).

2. The appellants to file within 7 days a notice of appeal in the form of the draft notice of appeal, and otherwise dispense with the requirements of service.

3. Appeal allowed.

4. Set aside order 6 made on 20 December 2019, and in lieu thereof, declare that the search warrant numbered 305/18 is invalid.

5. Reserve for the consideration of a Judge of Appeal questions of (a) the variation of the extant interlocutory regime applicable to items 1, 10, 24 and 25, (b) the exercise of discretion in relation to items seized by the police pursuant to the warrant, and copies of those items, and (c) costs at first instance and in this Court.

6. Stand the proceedings over to directions before a Judge of Appeal on Tuesday 18 February 2020 at 9:30 am. Catchwords: POLICE – Search warrant – police officers completed terms of draft warrant and particulars relied upon by issuing officer before application was made – issuing officer signed and dated warrant and issued it in terms sought – issuing officer failed to complete certain parts of warrant – one aspect of warrant supported only by unsubstantiated statement of reasonable suspicion by police – whether issuing officer complied with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether warrant invalid – whether other relief should issue Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Felons (Civil Proceedings) Act 1981 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 46(3), 47, 48, 49, 62(3), 65 Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Search Warrants Act 1985 (NSW), s 13 Supreme Court Act 1970 (NSW), s 101(2) Uniform Civil Procedure Rules 2005 (NSW), Pt 51 rr 51.12(2)(e), r 51.14(2), Cases Cited: Boensch v Pascoe [2019] HCA 49 Bridgeman v Macalister (1898) 8 QLJ 151 Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177 Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 Carroll v Mijovich (1991) 25 NSWLR 441 Doyle v NSW Commissioner of Police (No 3) [2019] NSWSC 1787 Doyle v R; R v Doyle [2014] NSWCCA 4 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 Love v Attorney General (NSW) (1990) 169 CLR 307; [1990] HCA 4 Parker v Churchill (1985) 9 FCR 316 Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 R v Gassy (No 3) (2005) 93 SASR 454; [2005] SASC 496 Category: Principal judgment Parties: Philip William Doyle (First applicant) Mark Barbeliuk (Second applicant) Commissioner of Police (First respondent) Detective Senior Constable Tiffany O'Neill (Second respondent) Deputy Registrar Cally D'Arcy (Third respondent) Representation: Counsel: J Agius SC (Applicants) P Singleton (First and second respondents)