Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd

Legislation Cited: Crimes Act 1914 (Cth), s 3E
Evidence Act 1995 (NSW), ss 138, 192A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 60, 62, 66, 70, 71, 75A, 75B, 76
Local Court Act 2007 (NSW), s 19
Protection of the Environment Operations Act 1997 (NSW), ss 91B, 142A, 143, 144, 187, 198, 199

Cases Cited: Carroll v Mijovich (1991) 25 NSWLR 441
Mann v R [2023] NSWCCA 256
New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334
R v Khalid (No 2) [2015] NSWSC 1921
R v Riley, Christopher [2020] NSWCCA 283
Robinson v Woolworth Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612
Smethurst v Commissioner of Police [2020] HCA 14; (2020) 272 CLR 177

Category: Procedural rulings

Parties: Environment Protection Authority (Prosecutor) (Respondent on the motion)
Andrew Lloyd Hughes (Defendant in proceedings 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657) (Applicant on the motion)
ANT Civil Pty Ltd (Defendant in proceeding 2023/297689) (Applicant on the motion)

Representation: Counsel:
A McGrath (Prosecutor) (Respondent on the motion)
G Foster (Defendant) (Applicant on the motion)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor) (Respondent on the motion)
Zali Burrows Law (Defendant) (Applicant on the motion)

File Number(s): 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657, 2023/297689

Publication restriction: Nil

JUDGMENT

1. This judgment is given on a motion in respect to six matters before the Court, being five charges brought against Andrew Lloyd Hughes (First Defendant), under the Protection of the Environment Operations Act 1997 (NSW) (PEO Act), and one charge brought pursuant to that Act against ANT Civil Pty Ltd (Second Defendant), that are detailed more fully below in [11]. The Prosecutor for each charge is the Environment Protection Authority of NSW (Prosecutor).

2. The hearing in respect to all charges was due to commence on Tuesday, 7 October 2025, and has been listed for 20 days. However, on Friday, 3 October 2025, at the pre-trial mention of the six proceedings, the Defendants filed a notice of motion seeking orders, inter alia, to exclude all evidence obtained from the execution of two Search Warrants: S/W 537 of 2022 (the Windsor Downs Search Warrant), and S/W 538 of 2022 (the Wheeny Creek Search Warrant). In its original form, the motion sought a declaration that the Search Warrants were invalid, in addition to orders that all material seized or otherwise obtained pursuant to them be excluded as inadmissible. The motion was filed at this late stage despite Duggan J having ordered on 20 September 2024 that the Defendants file and serve any application for an advanced ruling on the admissibility of prosecution evidence under s 192A of the Evidence Act 1995 (NSW) (Evidence Act) by 1 November 2024. On 15 November 2024, Robson J then further extended this deadline to 6 December 2024. In effect, the motion is a very late application to the Court for it to make a ruling in relation to whether evidence may be adduced at a hearing pursuant to s 192A of the Evidence Act, which is in the following terms:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about—

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

3. The motion was amended on Tuesday, 7 October 2025, following an order I made that the Defendants particularise the jurisdiction they were seeking to invoke for the declarations sought in the motion, and provide particulars in relation to the basis for and power to exclude evidence if such evidence was unlawfully obtained. The Defendants subsequently abandoned their prayers for declarations, and amended the orders sought as follows:

4. An order that all material seized or otherwise obtained pursuant to the execution of the search warrant S/W 537 of 2022 not be admitted into evidence and be excluded from evidence as inadmissible pursuant to section 138(1) Evidence Act 1995 (NSW) including but not limited to material set out in Schedule “A”.

5. An order that all material seized or otherwise obtained pursuant to the execution of the search warrant S/W 538 of 2022 not be admitted into evidence and be excluded from evidence as inadmissible pursuant to section 138(1) Evidence Act 1995 (NSW) including but not limited to material set out in Schedule “B”.

6. Schedule A includes all the materials listed in the Field Exhibit Form dated 21 June 2022 from the Windsor Downs Site, such as, inter alia, invoices, diaries and cameras. Schedule B includes the following:

“1. All soil and other samples, including samples listed in Annexure 7 to the affidavit of Kyle Jacob affirmed 12 September 2023 … taken on 21 June 2022.

2. All control samples listed in Annexure 8 to the affidavit of Kyle Jacob affirmed 12 September 2023…

3. All Photographs taken on 21 June 2022.

4. All Video footage on 21 June 2022.

5. All prosecution Expert reports reliant upon samples taken on 21 June 2022.”

5. The evidence referred to above constitutes the vast majority of the evidence which has formed the basis for the criminal charges brought against the Defendants outlined in [11] below.

6. For the following reasons I have concluded that the evidence obtained through the execution of the Search Warrants was not evidence obtained ”improperly or in contravention of an Australian law” within the meaning of s 138(1) of the Evidence Act. Although strictly not necessary to decide, as I also explain below, had I found the evidence to have been obtained “improperly or in contravention of an Australian law”, I consider that the “desirability of admitting the evidence outweighs the undesirability of admitting [the] evidence” within the meaning of s 138(1) of the Evidence Act.

Background

7. Pursuant to orders made by the Court on 13 June 2025, the parties filed a Statement of Agreed Facts. The facts outlined in this section of the judgment are taken from that Statement of Agreed Facts.

8. On 22 September 2020, the Prosecutor received a report of “fill material” being deposited on land owned by the First Defendant (the Wheeny Creek Site). On 13 November 2020, the Prosecutor conducted a site inspection and three samples were collected from the fill material which were tested and confirmed to be asbestos. On 22 January 2021, a clean-up notice was issued to the First Defendant to dispose of an estimated 72 tonnes of waste. The First Defendant notified the Prosecutor by email of compliance on 20 April 2021.

9. Following complaints made to Hawkesbury City Council concerning tip trucks entering and depositing material at the Wheeny Creek Site, the Prosecutor undertook further inspections and surveillance. The Council then issued a Development Control Order (DCO) ordering the First Defendant to stop using the Wheeny Creek Site for the purpose of a waste disposal facility. However, further complaints and inspections revealed more material had been imported. The Council emailed the First Defendant on 12 May 2022 concerning his alleged non-compliance with the DCO, and ordered him to cease use of the land as a waste facility.

10. On 21 June 2022, the Prosecutor carried out search warrants on four locations, including both Sites. The warrants resulted in the seizure of a number of electronic devices, physical and soft copy documents, and ANT Civil invoice books. At the Wheeny Creek Site, extensive sampling of material imported onto the Site, as well as volumetric surveys, were undertaken. At the Windsor Downs Site, the First Defendant’s personal mobile phone and data from two computers, among other items, were seized.

11. On 19 September 2023, the Prosecutor commenced these Class 5 criminal proceedings against the First and Second Defendants. Five charges were brought against the First Defendant consisting of two charges of land pollution contrary to s 142A(1) of the PEO Act (maximum penalty of $500,000 fine for an offense involving asbestos waste), one charge for causing waste to be transported to a place that could not lawfully be used as a waste facility contrary to s 143(1)(a) of the PEO Act (maximum penalty of $500,000 fine for an offense involving asbestos waste), one charge of using a place as a waste facility without lawful authority contrary to s 144(1) of the PEO Act (maximum penalty of $500,000 fine for an offense involving asbestos waste) and one charge of failing to comply with a clean-up notice contrary to s 91B of the PEO Act (maximum penalty of $250,000 fine and $60,000 for each day the offence continues). One charge was brought against the Second Defendant for causing waste to be transported to a place that could not lawfully be used as a waste facility contrary to s 143(1) of the PEO Act (maximum penalty of a $2,000,000 fine if the offense involves asbestos waste, as a corporation).

The Motion

12. The motion first came before the Court on Friday, 3 October 2025, during a pre-trial mention for the proceedings. Mr A McGrath of Counsel appeared for the Prosecutor, and Mr G Foster of Counsel appeared for the First and Second Defendants. I made the following orders regarding the filing of evidence, submissions, and listing the motion for hearing on Monday 13 October 2025 prior to the commencement of the hearing:

1. In each of the six prosecutions before the Court today, by 10am Tuesday 7 October 2025, the Defendants are to file and serve an amended motion (being an amendment to the motion filed on 3 October 2025) particularising the jurisdiction the Defendants are seeking to invoke for the declarations sought in Orders 1 and 3 of the motion, and particulars in relation to the basis for and power to exclude any evidence if any such evidence is found to have been unlawfully obtained.

2. Any further evidence on behalf of the Defendants in support of the motion filed 3 October 2025, and an outline of written submissions, is to be filed and served by 5pm Tuesday 7 October 2025.

3. The Prosecutor is to file and serve any evidence it wishes to rely on and an outline of written submissions in relation to the motion, by 5pm Thursday 9 October 2025.

4. All six matters are adjourned until 10am on Monday 13 October 2025, on which date the Court will first hear and determine the motion filed 3 October 2025.

5. Liberty to restore on 24 hours’ notice.

…

13. The notice of motion was heard on Monday, 13 October 2025. Mr A McGrath of Counsel appeared for the Prosecutor, and Mr G Foster of Counsel appeared for the First and Second Defendants.

Evidence in support of motion

14. The Defendants rely on an affidavit of their solicitor, Ms Zali Burrows, dated 3 October 2025 (Burrows 3 October Affidavit) to which no objection was taken. Ms Burrows outlines the grounds for the orders sought, which are further expanded upon in the Defendant’s written submissions (DWS) and submissions in reply (Reply Submissions).

15. Both Search Warrants purport to be warrants issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). They also purport to have been authorised by “Garth Robert Hazell”, who is said on the face of the warrants on page one to be “an authorised officer empowered to issue search warrants under Section 199(1) of the Protection of the Environment Operations Act 1997”. This is said to be wrong as a matter of fact – in that on no view was Mr Hazell authorised to issue a Search Warrant (it is also contended he was not authorised to seek a warrant). The warrants are signed by “P L Gardiner”. There is no dispute that this is Mr P Gardiner, a deputy registrar of the Parramatta Local Court.

16. Also annexed to the Burrows 3 October Affidavit is the “Occupier’s Notice for Search Warrant” (Occupier**’**s Notice) for the Windsor Downs property. This Notice is signed by Deputy Registrar Paul Gerard Gardiner as the authorised officer that it was “granted by” under the PEO Act: Burrows 3 October Affidavit, Annexure D at p 26. The Occupier’s Notice also states that it was “issued on the application of Garth Robert Hazell”.

17. In Ms Burrows 3 October Affidavit (and her Annexures F and G), [20] to [25] concern the submission that Mr Hazell was not a person authorised to seek the Search Warrants pursuant to s 199 of the PEO Act, and Mr Gardiner was not authorised to issue them. Section 199 of the PEO Act is in the following terms:

199 Search warrants

(1) Application for search warrant An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that—

(a) a provision of this Act or the regulations is being or has been contravened at any premises, or

(b) there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations.

(2) Issue of search warrant An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act named in the warrant—

(a) to enter the premises, and

(b) to exercise any function of an authorised officer under this Part.

(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

18. “Authorised officer” for the purpose of issuing search warrants under s 199 has the same meaning as within s 3 of LEPRA, and includes, relevantly, a “registrar of the Local Court”.

Prosecutor’s evidence

19. The Prosecutor relied on an affidavit of Amanda Kelly dated 9 October 2025 (Kelly Affidavit). It was also read without objection. In her affidavit, Ms Kelly, who is employed as the Prosecutor’s “Chief Investigator at Priority Investigations”, attests to the following matters:

(a) On 23 July 2018, Mr Hazell commenced employment with the EPA as a Senior Investigator in a contractor position: Kelly Affidavit at [9]. (b) On 8 August 2018, Mr Hazell was appointed an “authorised officer” of the Prosecutor, pursuant to and within the meaning of authorised officer of, inter alia, the PEO Act: Kelly Affidavit at [10] and Annexures 2 and 3. (c) On 21 January 2019, Mr Hazell’s employment status changed from a contractor position to a full-time temporary employee as a Senior Investigator: Kelly Affidavit at [11] and Annexure 4. (d) On 11 October 2021, Mr Hazell’s employment status changed to being a full time, ongoing employee as a Senior Investigator: Kelly Affidavit at [12] and Annexure 5. (e) Mr Hazell retired on 25 June 2025: Kelly Affidavit at [13]. (f) Mr Hazell was the applicant for the Search Warrants on 20 June 2022: Kelly Affidavit at [14]-[15].

Evidence in reply

20. The Defendants also sought to rely on an affidavit of Zali Burrows dated 13 October 2025 which was provided to the Prosecutor shortly prior to the motion commencing. After a short adjournment, that affidavit was also read without objection. Annexures A and B to the affidavit are copies of the Wheeny Creek Search Warrant (albeit missing some pages) and the Occupier’s Notice. Annexure C is a copy of the Affidavit of Amanda Kelly dated 9 October 2025, which was read by the Prosecutor without objection. Annexures D and E relate to an argument that ultimately was not advanced by Mr Foster. The only other relevance to the Affidavit was that it states that Mr Gardiner is a deputy registrar of the Local Court and not a registrar, a matter not in issue.

Grounds of Motion and resolution

21. The Defendants contend that the evidence obtained following the execution of the Search Warrants should not be admitted in the proceedings by reason of s 138(1) of the Evidence Act, which is as follows:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

22. The Defendants set out four grounds upon which they contend the Search Warrants were “improperly completed”, and are therefore invalid: DWS at [8]. That invalidity means that the evidence relevantly obtained by the Prosecutor was evidence “obtained improperly or in contravention of an Australian law” within the meaning of s 138(1) of the Evidence Act. The evidence obtained from the execution of the Search Warrants should therefore not be admitted: DWS at [9] and [16].

23. The approach to be taken to the Defendants’ application, and the steps to be followed in relation to s 138 of the Evidence Act*,* have been summarised by Kirk JA (Adams J and Hulme AJ agreeing) in M**ann v R [2023] NSWCCA 256 (Mann), where his Honour said at [10]:

“When objection is taken under this section to the admissibility of evidence, the following steps are involved in resolving the issue:

(1) The judicial officer must find the relevant facts (if not agreed) with respect to how the evidence was obtained.

(2) It is then necessary to reach a conclusion as to whether the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such. Whether evidence was obtained as a result of a contravention of an Australian law involves a legal conclusion. Whether evidence was obtained as a result of impropriety involves a question of characterisation. If it was obtained by Police, then that issue is determined by reference to “minimum standards of acceptable police conduct”: Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [14], quoting Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at 37. Sections 138(2) and 139 may also be relevant to finding impropriety.

(3) If the judicial officer concludes that the evidence was obtained improperly or in contravention of an Australian law then the evidence is not admissible unless the judicial officer concludes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Once impropriety or illegality is established, the onus of proof and persuasion is on the party seeking that the evidence be admitted: note Kadir at [47]; R v Riley [2020] NSWCCA 283 at [36]. The conclusion involves the evaluative weighing up of those factors listed in s 138(3) which are relevant in the particular case. That list is not exhaustive; the judicial officer may also take into account any other relevant matters. The factors listed in s 138(3) may themselves involve issues of evaluation, such as consideration of the probative value of the evidence (para (a)), its importance in the proceeding (para (b)) and the gravity of the impropriety or contravention (para (c)).”

24. Step one is not a matter of controversy. The relevant evidence was obtained following the execution of the two Search Warrants, the validity of which the Defendants now challenge. The first issue to resolve then in relation to each of the Defendants’ four grounds is whether the evidence was obtained “improperly or in contravention of an Australian law”. This is a matter upon which the Defendants have the onus of proof: R v Riley, Christopher [2020] NSWCCA 283 at [36] per Bathurst CJ (Button and Wilson JJ agreeing).

25. It is convenient to deal with grounds 2 and 3 first, before turning to grounds 1 and 4.

Ground 2

26. The Defendants contend that Mr Hazell was a contractor and not a “member of staff” of the Prosecutor, and hence was not authorised to seek a search warrant under s 199(1) of the P**EO Act: DWS at [8(b)].

27. This submission was contrary to the evidence set out in the Kelly Affidavit, which annexes records of the Prosecutor which evidence that on 23 July 2018 Mr Hazell commenced as a Senior Investigator in a “contractor position” with the Prosecutor, on 21 January 2019 he was made a “full time temporary employee”, and on 11 October 2021 his employment status changed to “full time ongoing employment” with the Prosecutor as a Senior Investigator: Kelly Affidavit at [9]-[12].

28. Ultimately, the argument put by the Defendants was not that Mr Hazell did not become an employee of the Prosecutor on 21 January 2019, or that he was not an employee on the date that the Search Warrants were applied for (20 June 2022), but that on the date he was purportedly appointed as “authorised officer” of the Prosecutor for the purposes of the PEO Act (9 August 2018), he could not have been validly made such an authorised officer.

29. Mr Foster put the Defendants’ argument this way:

(a) The “Instrument of Authorisation and Appointment” (Instrument of Authorisation) of Mr Hazell as an “authorised officer” of the Prosecutor for the purposes of the PEO Act (Annexure 2 to the Affidavit of Amanda Kelly pp 6-8) contains the following:

“Limitations

The appointment and authorisation of a person listed in the attached Schedule only has effect while that person is a member of staff of the Office of Environment Protection Authority.” (emphasis added).

(b) The Schedule referred to, in the column “Employee Number”, states that Mr Hazell is a “contractor”: Affidavit of Amanda Kelly, p 8, Annexure 2. (c) As a “contractor” Mr Hazell was not a “member of staff” of the Prosecutor on 9 August 2018. Although he subsequently became an employee, and hence a member of staff, as he was not a member of staff on the day he purportedly became an “authorised officer”, the Instrument of Authorisation was of no effect. A new Instrument of Authorisation was needed after the time he became an employee or “member of staff” (and prior to the date of him seeking the Search Warrants) in order for him to be an “authorised officer” under the PEO Act at the time he sought the Search Warrants.

30. There are a number of weaknesses to the Defendants’ submissions in my view. First, Ms Kelly’s unchallenged evidence was that on “23 July 2018 Garth Hazell commenced employment with the EPA as a Senior Investigator in a contract**or position”: Affidavit of Amanda Kelly at [9] (emphasis added). If Mr Hazell “commenced employment” with the Prosecutor on 23 July 2018 – whether in a contractor position or any other – I cannot accept that he was not a “member of staff” at the time he was appointed an “authorised officer” of the Prosecutor for the purposes of the PEO Act on 9 August 2018.

31. Secondly, even if I did not hold this view, I would not read the Instrument of Authorisation so narrowly that it did not apply to someone who, subsequent to the date of the instrument, became a “member of staff” by reason of being offered employment in some capacity (as distinct from originally being in the position of a person who is supplying a service under a contract but who is not employed). That is not the purpose of the limitation in my view. The purpose of the limitation is to ensure that it is expressly clear that authorised officers are only authorised while they remain members of staff of the Prosecutor, and not after their employment ceases.

32. In any event, I find that Mr Hazell was a “member of staff” on 9 August 2018, and reject the submission that he did not become an authorised officer of the Prosecutor for the purposes of the PEO Act on that date. Mr Foster suggested that the unchallenged evidence in [9] of Ms Kelly’s affidavit that Mr Hazell “commenced employment” with the Prosecutor on 23 July 2018 “in a contractor position” was “linguistically in error”: T44.11. I took this to mean that he considered Ms Kelly’s evidence to be somehow an incorrect description as a matter of employment law. I reject that. The unchallenged evidence is that on 23 July 2018 the Prosecutor employed Mr Hazell. He became a “member of staff” on that day. He became an authorised officer for the purposes of the PEO Act as a member of staff on 9 August 2018. Although this is established in my view from the evidence of Ms Kelly and the Instrument of Authorisation, it is further supported by Annexure 3 to Ms Kelly’s affidavit, which is a photocopy of Mr Hazell’s “authorised officer” card, which indicates he had been made an “authorised officer” under the PEO Act on 9 August 2018.

33. For all the above reasons, I reject the submissions made by the Defendants in their ground 2.

Ground 3

34. The Defendants assert that the person who purported to authorise the warrants (Mr P Gardiner, a deputy registrar of the Parramatta Local Court), lacked the authority required to authorise them because as a deputy registrar, he does not fall within the definition of “authorised officer” which is defined in the following way in s 3(1) of the LEPRA [1] :

authorised officer means—

(a) a Magistrate or a Children’s Magistrate, or

(b) a registrar of the Local Court, or

(c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office. (emphasis added).

35. The difficulty with the Defendants’ submission lies in s 19 (and in particular s 19(3)) of the Local Court Act 2007 (NSW) (LCA) which provides:

19 Registrar’s functions generally

(1) A registrar has and may exercise the functions conferred on a registrar by or under this Act, the rules or any other Act or law.

(2) Subject to any direction of the Secretary of the Department of Justice, a registrar (including a registrar for a designated place or places) may exercise such functions as are conferred on the registrar under subsection (1) in respect of any place, or any particular designated place or places, in the State.

(3) A person employed as a deputy registrar has, under the registrar, all of the functions of the registrar and may exercise those functions in respect of any place in the State at which the registrar may exercise the functions.

36. There is no dispute that Deputy Registrar Gardiner is a deputy registrar within the meaning of s 19(3) of the LCA. As such, he seems authorised to exercise the functions of a registrar, including those to issue the Search Warrants granted to a registrar pursuant to s 3(b) of LEPRA. Mr Foster however contended that he was not. The argument put was along the following lines:

(a) Section 19(1) makes no explicit reference to a “deputy registrar” but only to a “registrar”: Defendants’ Reply Submissions at [4(i)]. (b) Section 19(3) refers to “the registrar” (emphasis added), not ‘a’ or ‘any’ registrar. It is therefore “not a general power affecting all registrars wherever they are located”: Defendants’ Reply Submissions at [4(iii)].

37. I do not accept these submissions. There is no dispute that Mr Gardiner, who issued the Search Warrants and the Occupiers’ Notices, is a deputy registrar of the Parramatta Local Court. It is reasonable, I believe, to take judicial notice that the Parramatta Local Court has registrars (many), and even senior deputy registrars. As a deputy registrar, by reason of s 19(3) of the LCA, Deputy Registrar Gardiner of the Parramatta Local Court has the functions of, and can exercise those functions, of a registrar of that Court. He was at the relevant time then an “authorised officer” within the meaning of s 3(b) of LEPRA. To the extent Mr Foster submitted that because the definition in s 3(b) of LEPRA refers to the “registrars of the Local Court” and not expressly to “deputy registrars exercising the same functions”, I reject that submission.

Ground 1

38. The foundation for the proposition that the Search Warrants are invalid in Ground 1 is that on their face they record that “Garth Robert Hazell” is “an authorised officer empowered to issue search warrants under Section 199(1) of the Protection of the E**nvironment O**perations Act 1997”. Although I have found that Mr Hazell was relevantly an “authorised officer”, he was an officer authorised to seek a search warrant, not to issue one. Because the Search Warrants were “improperly completed”, the Defendants argue that the evidence obtained through their execution was “obtained improperly or in contravention of an Australian law”: DWS at [8(a)]. The contravention is alleged to be both to s 199 of the PEO Act (set out above), and to s 60 of the LEPRA (see [16] of the DWS) which provides as follows:

60 Application for warrant in person

(1) An application for a warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.

(2) An eligible issuing officer must not issue a warrant unless the information given by the applicant in or in connection with the application is verified before the eligible issuing officer on oath or affirmation or by affidavit.

(3) An eligible issuing officer may administer an oath or affirmation or take an affidavit for the purposes of an application for a warrant.

(4) This section does not apply to a telephone warrant.

39. Because the Search Warrants are, on the Defendants’ contention, invalid, they assert that the evidence obtained pursuant to their execution should be excluded under s 138(1) of the Evidence Act.

40. The Prosecutor accepts that the name “Garth Robert Hazell” in the box on page one of the Wheeny Creek and Windsor Downs Search Warrants was placed in error. It is accepted that the entry in that box should have been “Deputy Registrar Gardiner”, the deputy registrar being the person authorised to issue the warrants.

41. The Prosecutor however submits that the Defendants have not established that the evidence was obtained “improperly or in contravention of an Australian law”, and submits that the Search Warrants are not invalid, despite the incorrect name being written in the box on the first page of the Wheeny Creek and Windsor Downs Search Warrants. In support of this submission, the Prosecutor relies partly on s 76 of the LEPRA (which applies to warrants issued under the PE**O Act by reason of s 199(3) of that Act), which provides as follows:

76 Defects in warrants

A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.

42. The essential submission of the Prosecutor is that the error of writing the wrong name in the box on page one of each Search Warrant is not an error or “defect” that “affects the substance of the warrant in a material particular”: Prosecutor's Written Submissions (PWS) at [69].

43. Courts have on many occasions insisted on “a rule of strictness” in relation to considerations as to whether certain defects in a search warrant might render it invalid: New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [16] per Kirby J (Corbett). The reasons for a strict approach relate primarily to the fact that a search warrant is a means by which the agents of the state can disrupt the “ordinary quiet and tranquillity of the places in which people live and work”: Corbett at [22]. Because of the power granted in a search warrant, a great deal of clarity is required, among other things, in their drafting, and strict observance of statutory provisions concerning their form.

44. Section 76 of the LEPRA provides a statutory basis however for finding that not every defect in the form of a search warrant will render it invalid. Specifically, unless the defect “affects the substance of the warrant in a material particular”, the search warrant is not invalid.

45. Mr Foster submitted that the error of placing Mr Hazell’s name in the box on page one was “a defect which affects the substance of the warrant in a material particular”. This is because, in his submission, it would mislead a person reading the warrant in to thinking that Mr Hazell was an authorised officer for the purpose of issuing a warrant, as distinct from only being authorised to seek a warrant.

46. I accept that any person who read the first page of the Windsor Downs Search Warrant (see Annexure C to the Burrows 3 October Affidavit, p 16) would consider that Mr Hazell was the authorised officer to issue warrants within the meaning of s 199(1) of the PEO Act. The same applies for the Wheeny Creek Search Warrant. However, whether this leads to the invalidity of the Search Warrants need to be considered in light of the following matters:

(a) Both the Windsor Downs and Wheeny Creek Search Warrants correctly identify the provision giving power for the warrants to be issued. (b) They specify premises owned or partly owned by the First Defendant. (c) The identities of the authorised officers who may execute the warrants are stated. (d) Both warrants set out the section containing the powers of the authorised officers in executing the warrants: s 198 and s 199A PEO Act; ss 70, 71, 75A, 75B LEPRA. (e) They describe the matters being investigated by the Prosecutor, and identify the alleged offences. (f) The items being searched for and seized are specified. (g) The date and time that the search warrants expire is specified. (h) The authorised officer who granted the warrants has signed them (the deputy registrar).

The one error identified is the wrong name in the box on page one.

47. Further, the First Defendant called no evidence to suggest that he was in fact mislead in any way by the wrong name appearing on page one of the Search Warrants, and it can be noted also that the Occupiers Notice served when the warrants were executed correctly identified Mr Hazell as the authorised officer for seeking the warrants, and Deputy Registrar Gardiner as the authorised officer to issue a warrant.

48. By writing the name of the “authorised officer” for seeking the Warrants (Mr Hazell) in the box on page one of the Search Warrants, rather than the name of the “authorised officer” for issuing the warrants (Deputy Registrar Gardiner) there has been an error or defect in the form of the warrants: see s 62 and 66 of LEPRA, and form 14 of the LEPRA Regulations. However, in all the circumstances outlined above in [46]-[47], I consider this to be a defect of a kind that does not affect “the substance of the warrant[s] in a material way” within the meaning of s 76 of LEPRA. Mr Hazell was authorised to apply for the warrants. The Deputy Registrar was relevantly authorised to issue the warrants. This is what happened as a matter of fact. The defect on the face of the Search Warrants is in my view, as the Prosecutor submits, no more than an administrative error: PWS at [69]. It is a minor defect, and does not affect what in fact happened; nor does it undermine the grounds for seeking the Wheeny Creek and Windsor Downs Search Warrants, or for issuing them, which the Defendants do not challenge. It is not an error or ‘defect’ of the kind considered, for example, by the Court of Appeal in Carroll v Mijovich (1991) 25 NSWLR 441, where the authorised justice who issued a search warrant had failed to set out in the warrant the “grounds” upon which reliance had been placed to issue the warrant. That is an error that could be said to go to the “substance of the warrant in a material particular”: see Carroll v Mijovich at p 453 A-E per Kirby J. Here, placing the wrong name on page one of the search warrant, in light of all the matters set out above at [46] and [47], could hardly be said in my view to be something affecting the substance of the warrant in a material way.

49. Support for this view is also obtained by some of the cases brought to the Court’s attention by the Prosecutor where there were defects in warrants, but in these cases there was no relevant equivalent provision to s 76 of LEPRA. For example, in Corbett, the High Court found that a search warrant was not invalid even though the warrant misstated the particular firearms offence that was being investigated. The court unanimously held that a reference in a search warrant to a repealed provision outlining an offence should be read as referring to the amended provision. Four members of the Court (Gleeson CJ, Gummow, Callinan and Crennan JJ (Kirby J not deciding)), held that the search warrant in issue was not invalid because the wrong statutory provision was referred to. Callinan and Crennan JJ (with whom Gleeson CJ agreed) stated it this way:

“Here there could be no mistake about the object of the search or about the boundaries of the search warrant. Given the construction of s 5(1)(b) stated above, the Court of Appeal erred in its approach. The reference to the repealed Act in the application form was mere surplusage, which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Accordingly, the applicant complied with the statutory requirements and the warrant is not invalidated by the description of the offence in the application form.

The respondents' submissions concerning the issuing justice's obligations under ss 6 and 12A(2)(b) equally fail because they depended on the respondents' arguments in relation to s 5(1)(b) which have been rejected. Accordingly the appeal should be upheld”: Corbett at [107]-[108].

50. In Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334, the Full Court of the Federal Court also held that a reference to an incorrect statutory provision in a search warrant did not invalidate it. It is difficult to see any great distinction between writing the wrong person’s name on a search warrant as the authorised officer, and having an incorrect statutory reference for a charge. Again, this is particularly so in the context of what is set out above at [46] to [47]. In the circumstances, I find the defect in the Search Warrants here of a kind that would not lead to invalidity even in the absence of a provision like s 76 of LEPRA.

51. What has occurred here in relation to incorrectly placing Mr Hazell’s name on page one of the Search Warrants can be contrasted to the circumstances of one of the warrants considered by the High Court in Smethurst v Commissioner of Police [2020] HCA 14; (2020) 272 CLR 177 (Smethurst). In Smethurst the Court was considering a Commonwealth search warrant issued under the Crimes Act 1914 (Cth) (Crimes Act). Section 3E(5) of the Crimes Act relevantly provides:

(5) If an issuing officer issues a warrant, the officer is to state in the warrant:

(a) the offence to which the warrant relates; and

(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c) the kinds of evidential material that are to be searched for under the warrant…

52. In Smethurst, the warrant in question not only did not “state the nature of the offence to which the… Warrant was said to relate, it succeeded in misstating it and thereby compounded the problem”: Smethurst at [43] per Kiefel CJ, Bell and Keane JJ. It is clearly a far more serious defect than the error of putting Mr Hazell’s name incorrectly in the box on page one of the Search Warrants in question here. Likewise in R v Khalid (No 2) [2015] NSWSC 1921 (Khalid), Bellew J was considering the validity of two warrants which had a clear breach of s 3E(5)(d) of the Crimes Act, which provides as follows:

(5) If an issuing officer issues a warrant, the officer is to state in the warrant:

(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant

53. In Khalid, while the search warrants named a particular agent to be responsible for executing the warrants, another agent in fact executed the warrant, rendering them invalid. This breach of a statutory requirement can be again contrasted to the error made here of mistakenly putting the wrong name in the box on page one of the search warrants. Least of all because no one in fact acted outside of their powers or statutory responsibilities – Deputy Registrar Gardiner did validly issue the Warrants, as evidenced by the last page of the Warrants. Mr Hazell did validly apply for the Warrants, and the executing officers did validly execute the Warrants.

54. Accordingly, in my view, the evidence in question here was not obtained in contravention of an Australian law by reason of my finding that the error or defect here is of a minor and non-material nature.

55. For completeness though, it is also submitted by the Defendants that “the invalid warrants were obtained both improperly as well as in contravention of an Australian law”: DWS at [16]. In my view there was nothing improper in the means by which the evidence was obtained. The NSW Court of Appeal gave consideration to the meaning of improperly and “impropriety” in s 138 of the Evidence Act in Robinson v Woolworth Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612. In that case, Baston JA (with whom Barr and Hall JJ agree) said the following at [23]:

“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced”: see also Ridgeway v the Queen (1994) 184 CLR 1.

56. As stated above, what has happened here is that an officer authorised to seek a warrant has sought a warrant from an officer authorised to issue a warrant. The warrant has been correctly completed in all respects (as outlined above in [46]) and there has been no challenge to the grounds upon which the warrant was sought or issued. The sole error has been the incorrect transcription of someone’s name on the first page. That conduct of making an administrative type error could not be described in my view as being conduct “quite inconsistent with” or “clearly inconsistent with” standards expected of those entrusted with the power of law enforcement. It is a minor error. The evidence was not “improperly” obtained within the meaning of s 138(1).

57. Accordingly ground 1 fails.

Ground 4

58. This ground relates to the Occupiers’ Notices, and is contingent on the Court finding that the Wheeny Creek and Windsor Downs Search Warrants were invalid. They were not. Further, the minor administrative error on the face of these Search Warrants is not repeated in the Occupiers’ Notices. They correctly record Deputy Registrar Gardiner as the authorised officer to issue the warrants, and Mr Hazell is correctly identified as the authorised officer to seek it: Burrows 3 October Affidavit, Annexure D at pp 26-27; Burrows Affidavit dated 13 October 2025, Annexure B at pp 15-16. Ground 4 must fail.

Section 138 consideration

59. As each ground of challenge to the Search Warrants has failed, the Defendants have not established that the evidence obtained through their execution was obtained “improperly or in contravention of an Australian law”. Although it is not strictly necessary to do so, I add that I would not have excluded the evidence had I found that the warrants were invalid. This is because I accept the submission of the Prosecutor (who bears the onus in this regard) at [81]-[83] of the PWS that the “desirability of admitting the evidence outweighs the undesirability of admitting the evidence” within the meaning of s 138(1) of the Evidence Act.

60. I can briefly state why I hold this view. If I had found that the error of form outlined in [48] above was an error that invalidated both Search Warrants, regard then must be had to the factors outlined in s 138(3) of the E**vidence A**ct, which provides as follows:

138 Exclusion of improperly or illegally obtained evidence

…

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

61. As to s 138(3)(a) and (b), the evidence obtained through the execution of the Search Warrants (set out at Appendix A to the Prosecutor’s submissions and summarised above at [4]), is both highly probative to the charges brought against the Defendants, and of utmost importance to those charges. The Defendants did not dispute this.

62. As to s 138(3)(c), the charges relate to alleged serious breaches of pollution laws. Again, there is no dispute about this.

63. As to s 138(3)(d), the contravention of law here (should I have found such a contravention) would have been that an incorrect name was, by inadvertence (as distinct from a deliberate act or recklessness) placed in a box in one place on each Warrant. If this was a contravention of the law, it is minor. It was an error that should not have been made, and would not have been made with greater care, but is in a category of administrative slip that is not uncommon. It did not go to the heart of the power to seek or issue warrants.

64. As to s 138(3)(e), the defect in the Search Warrants was neither “deliberate” nor “reckless”. There was a submission made by Mr Foster that it was unclear whether the defect here was the result of a deliberate or reckless act. I reject that. Both Warrants are signed by Deputy Registrar Gardiner, correctly, as the authorised officer to issue the Warrants. The Occupiers’ Notices, as stated above, correctly identify Mr Hazell as the authorised officer to seek the Warrants, and the Deputy Registrar as the authorised officer authorised to issue the Warrants. The inference I draw from those matters is that incorrectly putting Mr Hazell’s name on page one of the Search Warrants was a mistake. It was certainly not done deliberately to mislead anyone that Mr Hazell actually had authority to issue a search warrant as distinct from seeking one. It is not a reckless error, but rather a careless one.

65. Nothing in subsections 138(3)(f)-(g) rationally arises. In relation to s 138(3)(h), if the Search Warrants were invalid because of the incorrect name on page one, it is self-evident that there would have been little difficulty in obtaining the evidence without contravention of the law. All that would have been required was for the correct name to be noted on page one of the Search Warrants. There is therefore no issue of potentially giving an “incentive for a deliberate ‘cutting of corners’”, such as that referred to by Kirk JA in Mann at [103]. The ease with which the Deputy Registrar’s name could have been written in the box on page one of the Search Warrants rather than Mr Hazell’s is probably in this matter a neutral issue in relation to the desirability or not of admitting the evidence. It certainly in my view does not make it undesirable that the evidence obtained be admitted.

66. In my view then, even if the Search Warrants are invalid, the evidence should be admitted, as it is more desirable that the evidence be admitted than undesirable within the meaning of s 138(1) of the E**vidence A**ct.

Conclusion

67. For the above reasons, the Defendants’ amended notice of motion dated 7 October 2025 is dismissed. Costs are reserved.

Orders

1. The Defendants’ amended notice of motion dated 7 October 2025 is dismissed.
2. Costs are reserved.

**********

Endnote

Division 4 of Part 5 of LEPRA applies to search warrants sought pursuant to the PEO Act.