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) Solicitors: Uther Webster & Evans Pty Ltd (Applicants) Makinson d'Apice Lawyers (First and second respondents) Crown Solicitor's Office (Third respondent, submitting) File Number(s): 2020/7681 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1787 Date of Decision: 13 December 2019 Before: Lonergan J File Number(s): 2018/266913 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the decision] The first applicant was serving a term of imprisonment following his conviction for numerous child sexual offences. While he was still in custody, a new complainant contacted the police, alleging that the first applicant had indecently assaulted him as a child. A police officer applied for a warrant to search a dwelling-house owned by the first applicant, and occupied at the time by the second applicant. The application form contained a field to record the relevant particulars of the grounds relied on to justify the issue of, or refusal to issue, the warrant. This field had been completed in advance by the police officer with a verbatim copy of the grounds relied on in support of her application. No space was left for the eligible issuing officer to complete the field with particulars of her own grounds. Ten minutes after the application was made, the warrant was issued. It authorised the second respondent to search the first applicant's dwelling-house for numerous items, including photographs of the complainant's four brothers. The grounds given in support of the application stated merely that it was reasonably suspected that the first applicant's dwelling-house contained such photographs. No basis was given for this suspicion. The warrant was executed by police later the same day. The applicants sought relief in the Supreme Court of New South Wales in the form of declarations that the search warrant was invalid and an order that the items seized be returned. The primary judge held that the warrant was valid and exercised her discretion not to return to the applicants any items seized. The issues in the appeal were: (i) Whether the third respondent had complied with the requirements of ss 48 and 65 of the Act and whether the search warrant was valid or invalid as a result. (ii) Whether, if the search warrant was invalid, the primary judge had discretion to order the return of the seized items, or instead the applicants were entitled to their return as of right. The Court held, allowing the appeal: As to issue (i): 1. Whether an eligible issuing officer has complied with ss 48 and 65 of the Act is a question of fact to be determined in light of all relevant evidence: at [61]. 2. In the circumstances of the case, the correct inference to draw was that the third respondent had not brought real attention to bear upon the application for the warrant, and had not complied with s 65 of the Act, such that the warrant was invalid: at [62], [76]. Carroll v Mijovich (1991) 25 NSWLR 441 applied; George v Rockett (1990) 170 CLR 104; [1990] HCA 26; R v Gassy (No 3) (2005) 93 SASR 454; [2005] SASC 496; and Parker v Churchill (1985) 9 FCR 316 referred to. 1. Considerations of efficiency do not justify the practice of presenting eligible issuing officers with warrant application forms which presuppose the outcome of the application: at [67]-[68]. As to issue (ii): 1. Whether the applicants' claim was based on ownership or equitable entitlement, or judicial review of executive action, relief in the form of an order that seized items be returned is discretionary, the discretion falling to be re-exercised afresh on appeal: at [83]-[84]. Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 156; [2017] FCAFC 177 referred to. 1. In the circumstances, a further hearing was required in order to resolve whether orders should issue for the return of items seized which the police asserted they were entitled to retain: at [93]. Judgment 1. THE COURT: The principal questions arising on this appeal are whether a search warrant which issued and was executed on 27 August 2018 was invalid, in whole or in part, and, if so, what relief, if any, should obtain. The primary judge found that the warrant was valid, that the police were entitled to seize most of the items which were seized, and, in the exercise of her discretion, made no order for the return of a box of miscellaneous things, known as "item 25", which her Honour found the police were not entitled to seize. 2. There was a hearing lasting parts or all of five days before the primary judge, a complicated procedural history, and a great deal of evidence. The main questions in this appeal may be determined without referring to that background in any detail. It will be necessary to return to the way in which the proceedings in this Court came to be readied for urgent hearing in order to explain the procedural steps which will need to be taken subsequently. Background to the issuing and execution of the warrant 1. In 2012 a jury convicted the first applicant, Mr Philip William Doyle, of some 38 counts of sexual assault and other sexual offences against five male children. Following a Crown appeal, the overall sentence imposed was imprisonment for 9 years with a non-parole period of 6½ years: Doyle v R; R v Doyle [2014] NSWCCA 4. At the time of the issue and execution of the warrant which is the subject of this litigation, 27 August 2018, he was still serving the non-parole period of that sentence. 2. By s 47(1) (which appears in Pt 5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") a police officer may apply to an "eligible issuing officer" for a 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. A registrar of the Local Court is an "eligible officer" (s 46 read with s 3) and an indictable offence is a "searchable offence" (s 46A(1)). By s 48(1) the eligible officer may issue the warrant if satisfied that there are reasonable grounds to do so. 3. By s 62(1) an issuing officer must not issue a warrant unless seven specified categories of information are contained in the application, and, by s 62(3), must consider the reliability of the information on which the application is based, and, 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. 4. By s 65(1) an issuing officer must cause a record to be made of all relevant particulars of the grounds relied on to justify the issue of the warrant. 5. By s 49(1) a person executing a search warrant may seize and detain any thing mentioned in the search warrant, and may, in addition, seize and detain any other thing found in the course of executing the warrant that the person has reasonable grounds to believe is connected with any offence. 6. The relevant text of those provisions is set out below. The application for the warrant 1. Following receipt of a complaint by another man ("the complainant") that Mr Doyle had committed sexual offences against him when a child in 2007 and 2008, the second respondent, Detective Senior Constable O'Neill, on 27 August 2018 applied to the third respondent, a Deputy Registrar of the Local Court of New South Wales, for the issue of a search warrant under Pt 5 of LEPRA. The Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) prescribes the form that the application, the warrant, and the record of all the relevant particulars relied on by the issuing officer are to take. Form 1 deals with applications for Pt 5 warrants and is in two parts. Part 1 requires certain particulars of the application to be provided. Part 2 makes provision for the issuing officer to whom the application is made to record the application, and, importantly, to record the grounds on which the issuing officer relied in issuing or refusing to issue the warrant. Form 11 prescribes the form of a search warrant (other than certain specified types of warrants) issued under Pt 5. The appropriate forms were used. However, almost the entirety of those forms (including the grounds on which the warrant was issued) was completed by the police officer applying for the warrant before the application was presented to the issuing officer. 2. Detective Senior Constable O'Neill attended before the issuing officer at 9:30 am on 27 August 2018. In her possession were (i) the completed Form 1 (the application), containing detailed grounds on which the application was based, and (ii) a draft Form 11 (the warrant). 3. The application stated that Detective Senior Constable O'Neill had reasonable grounds for believing that: "(a) there is, or within 72 hours will be, in or on the premises, the following things: * Photographs of [the complainant and/or his four brothers] * 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 (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 Aggravated Indecent Assault Person under 16 years of age Incite person under 16 years to commit act of indecency Procure child under 14 years for pornographic purposes Possess child abuse material". 1. The grounds incorporated in the application are some 860 words, comprising seven single-spaced paragraphs occupying slightly more than a page. They disclose that police had received a complaint in July 2018 from the complainant who claimed that he had been indecently assaulted by Mr Doyle in 2007 and 2008, when the complainant was aged between 12 and 14. The first four paragraphs dealt with the detail of the complaints. The fifth paragraph referred to the earlier trial and an earlier warrant. The sixth paragraph referred to information that there was a manhole in a theatre room in Mr Doyle's house which had not previously been searched, and that the house contained diaries. It concluded: "It is reasonably suspected the manhole storage area contains photographs of [the complainant], his brothers and diaries that DOYLE recorded interactions with [the complainant] and his family in". 1. The seventh paragraph referred to criminological evidence that those who possess child pornography seldom destroy it, and a belief on the part of police that images of the complainant would still be in Mr Doyle's possession. 2. It was not disputed that there was a sufficient connection between the grounds summarised in the application and the second, third and fourth categories of things sought in the search warrant (the diaries, boys' underwear, and electronic devices which could store photographs). It was also not disputed that there was a sufficient connection with photographs of the complainant. However, in relation to the balance of the first category of things sought in the warrant, namely, photographs of the complainants' four brothers, the only part of the grounds which addressed the possibility of photographs of the brothers was the last sentence of the sixth paragraph, reproduced above, which contained a bare statement of what was asserted to be reasonable suspicion of the presence of such photographs, as well as photographs of the complainant and the diaries. There was nothing else stated in the grounds to suggest that photographs had ever been taken of the complainant's brothers. 3. The issuing officer signed the form confirming that the police officer had made the oath and had identified herself, in accordance with s 60(2) of the Act. The applicants' complaints were directed to the way in which the draft warrant and record of the issuing officer's grounds for issuing it had been completed beforehand. 4. The main attack related to Part 2 of Form 1, titled "Eligible issuing officer's record of application for a search warrant". It had been substantially, but not completely, filled in before being presented to the issuing officer. 5. Part 2 of the Form provided to the issuing officer contained in paragraph numbered 3 the sentence "On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant". The asterisk directed to a footnote which said "Delete if inapplicable". None of the words was deleted. 6. Paragraph 4 of Part 2 was headed "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". Once again, none of the words was deleted. 7. The box which followed had been filled in, before the application had been made to the issuing officer, by the police. It contained the entirety of the grounds relied on by Detective Senior Constable O'Neill, reproduced verbatim. 8. The issuing officer made very few alterations to the documents provided to her. In what may be presumed to be her handwriting, she wrote on the first page the time 9:30 am. The second page has five lines dealing with warrants which may be issued at night struck through and initialled. The third page has a box with the time 9:40 am written in it, and is signed by the issuing officer. 9. The warrant itself has a handwritten time of expiry of 9:40 am on 30 August 2018, and lines dealing with child prostitution offences and execution at night struck through. It is also signed and dated. 10. There was no suggestion of any electronic version of the document being made available to the issuing officer. It was common ground that the documents had been substantially completed prior to the application being made to the issuing officer, and the only alterations to the documents were the handwritten signatures, times, and striking-through lines mentioned above. The execution of the warrant 1. Later that day, the warrant was executed on residential premises owned by Mr Doyle and occupied by the second applicant, Mr Mark Barbeliuk. Early during the course of the execution of the warrant, the solicitors presently acting for Mr Doyle, who had also acted for him in the earlier appeal, spoke by telephone with the executing officers, alerting them to the likelihood of claims of privilege. Items owned by both men were seized. A receipt identifying the property taken (which included two PC towers, laptops, two photo albums, numerous USB memory-sticks and DVDs) was given to Mr Barbeliuk, who signed for it. 2. In particular, items 1, 8, 10, 24 and 25 were, respectively, a folder of job applications, address books and a diary, other diaries, including from outside the period stated in the warrant, a laptop computer found by the primary judge to have been owned by Mr Barbeliuk, and a box of miscellaneous items. 3. A transcript of the execution of the warrant (which appears to have been recorded on video) was tendered before the primary judge. Commencement of proceedings 1. Pursuant to an ex parte application on the afternoon of Thursday 30 August 2018, interim orders were made preventing the police from accessing or viewing the material seized pursuant to the warrant. A continuation of that regime was ordered on Monday 3 September 2018 after the parties reached agreement. The details of that regime do not presently matter. 2. A hearing occupied parts or all of five days in April, May and July 2019 before the primary judge, during which witnesses were called and cross-examined, including Detective Senior Constable O'Neill but not the third respondent. Some, but far from all, of that record was provided to this Court. 3. The proceedings appear to have begun as claims for injunctive relief for the return of the items seized and delivery up and destruction of any copies made of them. It seems that only by their second further amended summons dated 8 May 2019 (after there had been two days of final hearing) did the applicants seek declarations that the warrant was invalid, either in whole or in part, and an order in the nature of certiorari quashing the decision to issue it. The reasons of the primary judge 1. The primary judge declined to order the relief sought in the second further amended summons, including declarations that the warrant was invalid, wholly or as to part, for reasons of some 178 paragraphs delivered on 13 December 2019: Doyle v NSW Commissioner of Police (No 3) [2019] NSWSC 1787. 2. In relation to what became the primary submission of the appeal, that the warrant was invalid through non-compliance with ss 48 and 65 of LEPRA, it is best to reproduce the entirety of her Honour's reasons, at [154]-[161]. "I am unpersuaded by the arguments made on behalf of the plaintiffs. 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. 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 applicants' 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. 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. 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. 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. 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. I am persuaded by the submissions made by Mr Singleton [counsel for the defendants] as to the processing, and therefore the validity of the warrant." 1. Insofar as the last paragraph incorporated the respondents' submissions, the relevant portion of her Honour's recitation of those submissions was as follows (at [153]): "In terms of the desirability or otherwise of there being automatic populating of the 'reasons' part of the warrant, given it might be considered to support the appearance of some kind of 'rubberstamping' exercise, this could be considered undesirable but it is efficient, and helps the issuing officer in terms of speed of processing and helps avoid small mistakes if there was an attempt to rewrite the grounds in the issuing officer's own words. Minds might differ on this point, but the practice is not unlawful and it does not give rise to an implication that the issuing officer failed to apply an independent mind [to] the application." 1. In relation to separate submissions made in relation to items 1, 8, 10, 24 and 25, her Honour accepted that Detective Sergeant Karras, who gave evidence and was cross-examined before her, had reasonable grounds to believe that items 1, 8, 10 and 24 were connected with an offence: at [169]-[175]. Her Honour was not so satisfied in relation to item 25, but instead relied on what had been said in Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 at [468]-[470]. Her Honour said that in all the circumstances she exercised her discretion not to require the return of item 25: at [177]. 2. A week later, on 20 December 2019, her Honour made orders in the nature of a partial conditional stay, preserving, pending appeal, the existing interlocutory regime in relation to items 1, 10, 24 and 25. Her Honour's orders provided for the continuation of that regime until further order if, as has occurred, a summons seeking leave to appeal were filed by 9 January 2020. The Court was told that the parties had resolved, or were in the process of resolving, privilege claims consensually. 3. Thus, in relation to most of the things seized, and putting to one side privileged documents, the police have not been constrained by any court order since no later than 20 December 2019. In relation to the items 1, 10, 24 and 25, the police were able to inspect and use those items in the period immediately after the execution of the warrant for some two or three days, until they were notified of the orders obtained ex parte. 4. So far as appears from the materials made available to this Court, questions of costs have not as yet been determined. The appeal to this Court 1. Leave is required by reason of s 101(2)(r) of the Supreme Court Act 1970 (NSW). The Court queried whether leave might also be (and have been) required under the Felons (Civil Proceedings) Act 1981 (NSW). Insofar as that might turn upon whether or not the proceedings were in the nature of judicial review (see Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129), there is a factual difficulty. It is clear that the issue of the warrant was an administrative, rather than a judicial, act: Love v Attorney General (NSW) (1990) 169 CLR 307; [1990] HCA 4. However, it seems that the relief originally sought was confined to injunctions, presumably said to flow from rights at general law including equity to the things seized. Claims for certiorari and declaratory relief determined by the primary judge seem first to have been raised by the second further amended summons filed in an adjournment between the hearings in April and May 2019. 2. Those difficulties need not be explored in any more detail. Mr Barbeliuk is entitled to raise all the matters raised by Mr Doyle, he is not subject to the Felons (Civil Proceedings) Act, and the respondents do not oppose the grant of leave under that statute if leave be necessary. 3. Turning more generally to the question of leave, the submissions made in relation to the application of LEPRA are of general application, and concern an important exercise of public power which impacts upon the privacy and property of individuals. There should be a grant of leave. 4. The matter was listed before three Judges of Appeal to be heard concurrently. It was given expedition because the applicants' written submissions stated that charges relating to the searchable offences in the warrant were listed for hearing on 2 March 2020. The primary judge's reasons have not been published on CaseLaw in light of that trial, and this Court's decision likewise will not immediately be published for the same reason. The parties' submissions 1. The appellants' submissions identified two main points. First, it was submitted that the primary judge erred in not declaring that the warrant was invalid, for failure to comply with s 65 of LEPRA, and in not finding that the issuing officer had failed to form an independent view that there were reasonable grounds for the issue of the warrant. This inference was to be drawn from the timing, the fact that the record of the issuing officer's grounds had been completed by the police officer applying for the warrant, the fact that the issuing officer had failed to strike out various alternatives presented on the form, and the fact that the warrant extended to photographs of the complainants' brothers, notwithstanding that the grounds stated in the application failed to provide any support for a belief that photographs of the complainant's brothers would be found in the premises. 2. Secondly, and in the alternative, it was said that the warrant did not permit the lawful seizure of items 1, 10, 24 and 25 (no separate submission was made in relation to item 8). It was said that the discretion exercised by the primary judge in relation to item 25 had miscarried. Complaint was also made of some other aspects of what occurred, including the failure to point out that the premises were occupied by Mr Barbeliuk. 3. The respondents submitted that whether the deficiencies in the execution of the forms on which the applicants relied sustained a conclusion that the issuing officer had failed to address the statutory requirements was a question of fact for the primary judge to resolve. It was conceded that s 56 of the Civil Procedure Act did not apply to the issuing officer, but it was nevertheless contended that s 56 "does reflect a principle that has wide application, including when issuing officers consider applications for search warrants". It was submitted that the fact that the police had incorporated in Part 2 of Form 1 suggested reasons for the issuing officer to issue the warrant was not determinative in any particular case of whether "rubber stamping" occurred, which was a question of fact regarding which a plaintiff bore the onus. It was submitted that here the onus was difficult to discharge, having regard to the hand-made alterations to the form made by the issuing officer, and was not in fact discharged. 4. In relation to the warrant extending to photographs of the complainant's brothers, it was put that any such photographs would necessarily corroborate the allegation that Mr Doyle had known the complainant's family "and thus corroborate the essential context of the allegation that Doyle had assaulted him and remove the practicality of Doyle's completely denying [the complainant's] account." 5. The submissions referred to evidence at the trial that police had information that at least one of the complainant's brothers had stayed overnight at Mr Doyle's premises. The evidence which had been tendered at trial, and any cross-examination, was not included in the White Folder. The transcript of the trial was not before this Court, and so it is unclear on what basis such evidence was adduced. However, it is clear that material which was not relied on in support of the application cannot have formed part of the matters relied on by the issuing officer in determining to issue the warrant. The same point was made in Bridgeman v Macalister (1898) 8 QLJ 151, where Griffith CJ stated that the question was whether "the facts that were presented to the justice on the issue of the warrant, were such as to give him authority under the law to issue the warrant", and dismissed from consideration matters which had not been brought to the knowledge of the Justice. 6. The respondents' written submissions concluded with the proposition that even if the appeal were allowed, this Court would have to exercise its own discretion before making orders for the return of things seized and that there were powerful reasons to decline to make any such order. 7. In oral submissions, the respondents maintained that s 65 had been complied with through adoption by the issuing officer: "SINGLETON: ... In my submission [section 65] does not mean that she actually has to type them out again or direct the officer to type them out again, cause someone else to type them out again. SIMPSON AJA: But do you say she did that caused a record to be made? SINGLETON: So [she] adopted what was drafted for her. SIMPSON AJA: How do we know that? SINGLETON: She signed the documentation and issued the warrant. ... SINGLETON: ... it does not say that the issuing officer should write out her own grounds. SIMPSON AJA: Yes, but it doesn't say she can simply move the whole of the particulars of the grounds in the application into the box for the grounds relied on. There's got to be some independent thought given to which particulars brought her to make the decision to issue the warrant. SINGLETON: I accept the last point but it does not follow that she can't adopt all of the grounds that are put before her. Now, it's perfectly proper to adopt all of the grounds and that's perfectly precise as well." 1. It was submitted that it would be "rubber stamping" simply to accept the grounds because they were put to the issuing officer, but that a person who conscientiously read them and conscientiously decided to agree with them would not be rubber stamping them, but agreeing with and adopting them. It was said that it was "a matter of fact for the primary judge whether this cutting and pasting and the adoption of the cutting and paste evinced rubber stamping or evinced conscientious acceptance of all the grounds that were advanced". Legislation 1. Part 5 of LEPRA deals with search and seizure powers with warrant or other authority. Division 2 applies to search warrants. Sections 47, 48 and 49, within Division 2, relevantly provide: "47 Power to apply for search warrants (cf Search Warrants Act 1985 s 5, Crimes Act 1900, ss 357EA, 578D, former LEPRA, s 47) (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. ... 48 Issue of search warrants (cf Search Warrants Act 1985, s 6, Crimes Act 1900, s 357EA, former LEPRA, s 48) (1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant. Note. See section 62(3) in relation to matters to be considered by an eligible issuing officer in determining whether there are reasonable grounds to issue a warrant. (2) An eligible issuing officer to whom an application is made for a covert search warrant who is not satisfied that there are reasonable grounds for issuing the covert search warrant may, at the request of the eligible applicant (if the eligible applicant is a police officer), instead issue a search warrant that may not be executed covertly, but only if satisfied that there are reasonable grounds to do so. 49 Seizure of things pursuant to search warrant (cf Search Warrants Act 1985, s 7, former LEPRA, s 49) (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) if it is a covert search warrant that authorises the placing of a kind of thing in substitution for a seized thing—a power to place a thing of that kind on the subject premises in substitution for a thing seized." 1. Sections 47(1) and 49(1)(b) refer to things which are "connected with" offences. Section 46(3) provides that: "(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. Section 62(3) regulates the matters to be considered when determining whether there are reasonable grounds for a warrant to issue: "(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. Division 4 of Pt 5 contains other provisions generally applicable to various warrants, including search warrants issued under Division 2. Section 60(1) provides that a warrant must be in writing in the prescribed form and applied for in person. Section 60(2) requires that the application be verified on oath or affirmation or by affidavit. Section 62 provides that an eligible issuing officer must not issue a warrant unless seven specified categories of information are provided. Section 65, which is at the core of the case propounded by the applicants, provides: "65 Record of proceedings before eligible issuing officer (cf Search Warrants Act 1985, s 13) (1) An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant. (1A) An eligible issuing officer who refuses to issue a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue the warrant. (2) The regulations may make provision for or with respect to— (a) the keeping of records in connection with the issue and execution of warrants, and (b) the inspection of any such records, and (c) any other matter in connection with any such records. (3) Any matter that might disclose the identity of a person must not be recorded pursuant to this section if the eligible issuing officer is satisfied that to do so might jeopardise the safety of any person." 1. It is clear that there is an obligation upon the issuing officer to cause a record to be made of "all relevant particulars of the grounds" which he or she "has relied on to justify" the issue of the warrant: s 65(1). That provision is materially identical to s 13 of the Search Warrants Act 1985 (NSW) (now repealed). 2. This Court held in Carroll v Mijovich (1991) 25 NSWLR 441 that a breach of that obligation rendered the warrant invalid, and granted declaratory relief. Kirby P referred to the history of search warrants, the need for legislation, the importance of independent scrutiny, including by reference to the endorsement in George v Rockett (1990) 170 CLR 104; [1990] HCA 26 of a statement by Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322: "The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs." 1. Likewise, Handley JA said that it would be "reasonable to conclude that Parliament considered that performance of the duty to make a contemporary record would assist the justice to properly exercise the power and ensure that he or she did not act as a rubber stamp": at 457. 2. The re-enactment in materially identical terms of s 13 of the Search Warrants Act as s 65 of LEPRA confirms the ongoing applicability of what had been held in Carroll. 3. More recently, Bleby and White JJ in R v Gassy (No 3) (2005) 93 SASR 454; [2005] SASC 496 said at [81] that: It has been held by the Full Court in New South Wales that a failure by the authorising justice to comply with the obligation contained in s 13(1) has the effect of rendering the search warrant invalid. Section 13 has the effect of requiring the authorised justice to record, in documentary form, the grounds which he or she regarded as reasonable and which justified the issue of the warrant. In this way, one of the rationales for the common law requirement is satisfied. By resort to the record it can be determined whether or not the issuing justice was satisfied, as required by s 6 of the SWA, that there were reasonable grounds for its issue. In fact, not only is the common law requirement satisfied, it is extended as the issuing justice must also record particulars of the grounds which were relied upon" (citations omitted). 1. On one view, what was said in R v Gassy is contrary to the respondents' submission that s 65 could be complied with by the issuing officer adopting particulars which were drafted by others. It is not necessary to express a view on this, and it would be inappropriate to do so, in circumstances where neither party referred to the decision in their written or oral submissions. Our own research has not disclosed any other appellate decisions on s 65 or its counterparts. 2. Although reference was made to what Burchett J had said in Parker v Churchill, her Honour did not mention any of the appellate decisions, including those binding upon her, as to the effect of non-compliance with s 65. It is not clear whether she was taken to those decisions. Inferences to be drawn from the form of the documents 1. No evidence was given by the issuing officer. Mr Singleton candidly confirmed that the only evidence as to what was before the issuing officer and what was relied on was the documentation summarised above. Insofar as inferences are to be drawn from the documents which were before the issuing officer on 27 August 2018, this Court is in the same position as the primary judge. 2. It was not disputed that the appropriate inference to draw, based on the times handwritten on the forms, was that the application for a warrant was heard, determined and documented in around 10 minutes. 3. Whether LEPRA, and in particular ss 48 and 65, was complied with is a question of fact, to be determined in light of all relevant evidence. 4. The inference we draw is that there was a failure to bring "real attention", as required by the High Court and this Court, to bear upon the application as required by law, and that there was non-compliance with s 65. That is for the following reasons. 5. The fact that the "Eligible officer's record of application for a search warrant" was signed and dated by the issuing officer is consistent with its adoption by her as the record of what she relied upon. However, it is equally consistent with "rubber stamping". 6. The record of the particulars relied on by the issuing officer was largely completed by the police officer before it was presented to the issuing officer. There was no room left in the document for the issuing officer to record any of the matters on which she relied in reaching a decision to issue or to refuse to issue the warrant. 7. Further, the parts which had been left uncompleted by the police (whether the issuing officer "found/did not find" that there were reasonable grounds, and the particulars relied on "to justify the issue of/refusal to issue" the warrant) remained uncompleted by the issuing officer. Plainly in that respect the issuing officer had been less than assiduously careful in turning her attention to what was required by the form. 8. Section 65(1A) of LEPRA requires the officer to whom an application is made to cause a record to be made of "all relevant particulars" he or she had relied on to refuse an application, if that is the decision, in the same language as the obligation to cause a record to be made of all relevant particulars if the warrant issues. Thus, irrespective of the outcome of the application, the issuing officer must cause a record to be created. 9. The issuing officer was presented with a substantially completed form, which presupposed not only the outcome of the application – namely, that the officer would issue the warrant in the full breadth as sought – but also that the entirety of the matters actually relied upon to issue it were precisely those matters to which the police officer deposed, no more and no less. 10. We do not agree with the statement made by the primary judge, accepting a submission made by the respondents, that considerations of "efficiency" justified the practice. LEPRA provides that an issuing officer must cause a record of all relevant particulars relied on in determining to issue, or to refuse to issue, the warrant. That is not some nicety which may be ignored if time is short. It is a requirement of law. Breach of that requirement goes to the validity of the warrant. In accordance with the authorities mentioned above, it involves an independent assessment of the material relied on, and an evaluation of whether the inevitable intrusion into privacy and an individual's property has been shown to be justified. 11. The practice, at least in a case such as the present, of the police officer anticipating not only the ultimate determination, but also the entirety of the particulars relied upon by the issuing officer in reaching that determination, tends to detract from the issuing officer's ability to discharge that obligation. 12. Further, the practice adopted by the police officer gives rise to difficulties which were acute in the present case. If the issuing officer actually makes some record of his or her essential reasons, then the submissions that were exchanged in the present case as to whether it is to be inferred that she correctly applied the statute, or else acted as a mere rubber stamp, would not be available. One effect of the way the application was made to the issuing officer, with the particulars "pre-populated" in the form, was to give rise to debate as to what motivated the issuing officer, this being the very thing which the salutary obligation imposed by s 65 was intended to avoid. 13. For those reasons, we do not agree with the statement by the primary judge that "it is not fundamentally problematic" for the police officer applying for a warrant to fill out the form recording the issuing officer's reasons, thereby anticipating not merely the outcome of the application but also all of the particulars which the issuing officer will rely on. 14. Still further, s 62(3)(a) required the issuing officer to have regard to the reliability of the information on which the application was based, including the nature of its source. In relation to photographs of the complainants' brothers, the application for the warrant was based upon the mere assertion that the police reasonably suspected such photographs to exist. The application was less securely founded in the supporting grounds insofar as the warrant was sought to extend to photographs of the complainant's brothers (which were the subject of a mere assertion) as opposed to all other items (which were the subject of information from identified sources). In George v Rockett at 113, a unanimous High Court said of the need to provide grounds for a reasonably held belief that: "Griffith CJ, speaking for the Full Court of the Supreme Court [in Bridgeman v Macalister], held that 'the information must state the ground, the reasonable ground, for suspicion' and, finding that the information 'merely contains a statement that the deponent suspects they are concealed, for which suspicion he gives no relevant foundation', he declared that there was no ground for the exercise of the magistrate's power to issue the warrant. This view has been followed in other jurisdictions (see Feather v Rogers (1909) 9 SR(NSW) 192 and Mitchell v New Plymouth Club (Inc) [1958] NZLR 1070) and should now be accepted as correct." 1. Irrespective of whether the need to identify a basis for the reasonable suspicion that there were photographs of the complainant's brothers is a free-standing requirement, or an aspect of s 62(3), there is nothing to suggest that the issuing officer separately considered the fact that the material relied on to justify a warrant extending to photographs of the complainant's brothers was materially different from that relied on to justify the balance of the warrant. 2. The failure to complete parts of the document, the failure to make any record adding to or subtracting from what had already been printed on the form, the nature and extent of the material in the application itself, the fact that the entire process was completed in some ten minutes and the fact that there is nothing to suggest any consideration was given to the different quality of material supporting the warrant extending to photographs of the complainant's brothers, when considered together lead us to draw the opposite inferences from those drawn by the primary judge. 3. The importance of the task committed to the issuing officer ought not to be underestimated. The issue of a search warrant authorises intrusion into private property and seizure of items identified in s 49. By its nature, the application must be made in the absence of the very individuals whose rights will be affected if the warrant is issued, and who will, obviously, have no opportunity to present a contradictory case. The consequence of those circumstances is apt in many or most cases to cast a heavy duty on an eligible issuing officer to whom an application under s 47 is made. That task involves at least three steps. First, the issuing officer must satisfy himself or herself that the seven categories of information listed in s 62(1) are included in the application. Secondly, the issuing officer must, pursuant to s 62(3)(a), consider the reliability of the information on which the application is based and, pursuant to s 62(3)(b) (if the warrant is to search for a thing in relation to an alleged offence), consider whether there is sufficient connection between the thing and the alleged offence. Thirdly and perhaps most importantly, the issuing officer must, before issuing a warrant, satisfy himself or herself that there are reasonable grounds for doing so. 4. That resolves the first and principal issue raised on appeal. The applicants are entitled to a declaration that the warrant was invalid. The remaining grounds of appeal 1. The applicants advanced in the alternative a variety of submissions dealing with items 1, 10, 24 and 25. We have considered whether we should address the details of those grounds, in accordance with what was said in Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12], but noting that there is no rule that ordinarily requires non-dispositive grounds to be determined: Boensch v Pascoe [2019] HCA 49 at [8]. We have concluded that we should not do so, for the following reasons. 2. First, none will affect the declaratory relief which will issue from the Court by this judgment. The remaining grounds were alternative, fall-back bases advanced by the applicants in order to obtain the same, or lesser, relief. 3. Secondly, the parties exchanged submissions on the construction of "connected with any offence" in s 49(1)(b). It is not desirable for this Court to express views on that point of construction (a) in the abstract, rather than in its application to particular things and (b) in circumstances where the evidentiary basis for the submission was not before the Court. Some of both parties' submissions referred to material which had not been included in the White Folder, even as supplemented on the afternoon before the appeal was heard, in circumstances described below. 4. Thirdly, this appeal, heard on the third day of the 2020 term from orders made on the last day of the 2019 term in circumstances where there is a trial listed for hearing on 2 March 2020, should be resolved urgently to the extent possible. Orders 1. The appeal should be allowed, the order dismissing the proceedings made at first instance set aside, and a declaration should issue that the warrant was invalid, on the basis that the issuing officer did not comply with s 65 of LEPRA. 2. The applicants sought further relief. In their written submissions, the applicants appeared to concede that the relief sought by them was discretionary. However, on several occasions during oral submissions, Mr Agius contended that the applicants were entitled to return of the items seized, and destruction of all copies, as of right. He relied on no authority. 3. The submission is unsound. In point of principle, insofar as the claim is based on ownership or equitable entitlement, orders for mandatory injunctions, and delivery up and destruction, are equitable and discretionary. Insofar as the orders are based on judicial review of executive action, once again it is clear that relief is discretionary. All authority to which this Court was referred points in favour of there being a discretion. Some of the decisions are contained in Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177, especially at [158]-[159]. In that appeal as in the present it appears that the appellant laboured under the misapprehension that once the warrant was found to be invalid, the items seized must necessarily be returned. 4. In a modified form, Mr Agius maintained by way of fallback that where no evidence had been adduced of the utility of any of the documents seized, the discretion should inevitably be exercised in favour of granting substantive relief. That cannot be right, in circumstances where the applicants had obtained interlocutory relief preventing the police from inspecting or using the things seized. Mr Agius' response was that the applicants had the ability, in the two or three days after the documents were seized and before ex parte relief was obtained, to review them and put on such evidence as they had wished. We reject that aspect of the submission, and not merely because two or three days in late August 2018 before proceedings were commenced was not sufficient to permit the respondents to adduce evidence of the utility of the material. The main point is that the primary judge, on the view her Honour took on the validity of the warrant, did not reach the question of discretion, except in relation to item 25. The result of this appeal is that the discretion must be re-exercised. This appeal being by way of rehearing, that re-exercise is to take place in light of the circumstances which obtain now, in 2020. There are material differences, not least in the fact that charges have been laid, a brief served on the defence, and a trial set down for hearing in a few weeks time. That may cut both ways – it may be that what was highly probative in August 2018 may, in light of the material now available to the Crown, be of little significance in February 2020. Things seized which are not required to be retained as evidence are obliged to be returned pursuant to s 218 of LEPRA. But it is no answer to the respondents' wish to be heard on the exercise of discretion to point to the opportunity the respondents had in 2018 to adduce evidence before the applicants obtained interlocutory relief. 5. In some circumstances, it would be appropriate for this Court to re-exercise the discretion, having found that the warrant was invalid. But that is not possible, for a series of reasons which should be summarised in order to explain why there must, regrettably, be some further delay. 6. The White Folder filed by the applicants was deficient. It did not contain the orders from which leave to appeal was sought. It did not contain the summons which the applicants said should not have been dismissed. It did not contain any of the evidence, save for the application for the warrant and the warrant itself and the receipt for the items seized. It did not contain any of the submissions, or any of the transcript of the trial. The parties were advised at the commencement of the hearing that the Court had supplemented what had been provided with the further amended summons and the orders made in the Common Law Division. 7. The rules require the applicant to include in the White Folder the documents necessary to determine the application for leave: UCPR Pt 51 r 51.12(2)(e). Where there has been a determination that there be a concurrent hearing, the parties must thereafter cause any additional documents to be added to the White Folder: r 51.14(2). The obligation rests on all parties to ensure that all of the documents necessary to determine the appeal have been made available to the Court. 8. On the afternoon of Tuesday 4 February, two large lever arch folders of evidence at the trial were provided to the Court. There was no indication of how that material was relevant to any of the issues on appeal, or indeed by whom it had been provided. One of the folders contained the search warrant transcript, and five affidavits read by the applicants before the primary judge. This made all the more conspicuous the absence of the remaining affidavits, including those of Detective Senior Constable O'Neill and Detective Sergeant Karras, both of whom were cross-examined on the grounds in applying for the warrant and seizing objects during its execution. 9. It turns out that those two folders were supplied by the applicants. The respondents had no objection to the White Folder being supplemented by the first folder. However, as it turned out, there was almost no reference to any of the material in it. Repeatedly during submissions reference was made to the evidence of the two most important witnesses, which was not before the Court. 10. During the hearing of the appeal, it became apparent that the other folder contained material which had not been provided to the respondent, either at trial or in this Court. The Court thereupon returned that folder to the applicants, indicating that if further documents were sought to be placed before this Court, that should be done in open court and after hearing from the respondents. No further application was made to supplement the materials before this Court. 11. There was an unresolved question whether at trial some of the documents whose return is sought were in fact tendered, and if so the basis on which they were tendered. The applicants say that they were tendered, but without their being provided to the respondents or their lawyers, a course taken without objection and on a confidential basis, thereby leaving in place a basis to prevent the police from using them. That may be what occurred, but it is highly unusual for a Court to proceed on that basis. In the absence of the transcript, it is not possible to take that point any further. 12. The applicants submitted that the fact that those documents were supplied to the Court the day before the appeal, and not to the respondents, was something of which the respondents were aware. The respondents denied that they had been informed. Again, what the position was cannot be determined on the materials presently available to the Court. 13. All those matters compel the conclusion that there needs to be a further hearing to resolve whether orders should issue for the return of any items which the police say they are entitled to retain. The orders below make provision for that, and on an urgent basis. We have in mind any dispute as to the exercise of discretion being heard within the next fortnight. The intention of the orders is not to alter the interlocutory regime which was put in place by the primary judge pending appeal. However, it will be clear from the above that we have rejected the applicants' submission that the discretion should be exercised without the respondents having any access to the documents which remain subject to that regime. It may be necessary for the orders to be made (as were foreshadowed by Mr Singleton last week) varying that regime, with the applicants' position protected by appropriate undertakings. If any dispute arises, that will be resolved by a single Judge of Appeal. Orders 1. For those reasons, the Court makes the following orders. 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. ********** 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: 22 October 2020