Harland v Murphy

Supreme Court of NSW|2022-04-27|Before: Adams J, Mr P

Background

These proceedings for judicial review concern the validity of a search warrant. By amended summons filed on 22 March 2022, the plaintiff, Gregory Harland, seeks, inter alia, a declaration that the search warrant executed on his premises in Blacktown on 8 April 2019 is invalid. The applicant for the search warrant was Senior Constable Ashlea Murphy, the first defendant. The search warrant was issued by Ms Adele Andrews, the second defendant.
The second defendant was, at the material time, the Registrar at Blacktown Local Court and thus an authorised Justice within the meaning of the Law Enforcement (Police Responsibilities) Act 2002 (NSW) ("LEPRA"). She filed a submitting appearance in these proceedings save as for costs. The first defendant, SC Murphy, was the active contradictor.
The background to these proceedings can be shortly stated. On 3 February 2019, Mr Harland rang triple-0 to report a neighbour who had physically threatened him. For reasons that will be explained in this judgment, not only did police fail to take any immediate action over his complaint, they in turn investigated Mr Harland for lying in his subsequent application for an Apprehended Personal Violence Order ("APVO") against the neighbour. As part of that investigation, SC Murphy sought, obtained and executed a search warrant at Mr Harland's home to seize his computer and any hard drive or USB storage device on belief of him having committed an offence contrary to s 314 of the Crimes Act 1900 (NSW).

Part 5 of LEPRA

The key provisions of LEPRA in this case are in Pt 5 Div 2. Part 5 is entitled "Search and seizure powers with warrant or other authority" and Div 2 is entitled "Police and other law enforcement officers' powers relating to warrants". Section 47(1) is in these terms: 47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. (Emphasis added.)
Section 46 defines "eligible issuing officer" as follows: eligible issuing officer means - (a) for a warrant other than a covert search warrant or a criminal organisation search warrant - an authorised officer, or (b) for a covert search warrant or a criminal organisation search warrant - an eligible Judge, or (c) for a notice to produce issued under Division 3 - an authorised officer.
Sub-section (a) is clearly the applicable definition in this case as "authorised officer" is defined in s 3 as: 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.
There was no dispute that Ms Andrews was an authorised officer.
The term "searchable offence" is defined in s 46A(1)(a)(i) as, relevantly, an indictable offence.
The requirement for "reasonable grounds" is found in both s 47(1) of LEPRA as to the applicant's state of belief and also in s 48(1) of LEPRA as to the issuing officer's satisfaction: 48 Issue of search warrants (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. (Emphasis added.)
I shall consider the principles derived from the relevant authorities as to the requirement of "reasonable grounds" below.
Section 49 of LEPRA provides: 49 Seizure of things pursuant to search warrant (1) A person executing a search warrant issued under this Division - (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence. (2) Without limiting subsection (1), the power to seize and detain a thing includes - (a) a power to remove the thing from the premises where it is found, and (b) a power to guard the thing in or on those premises, and (c) 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.
Section 60 of LEPRA provides that applications, other than telephone applications, must be in person and is in these terms: 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.
The Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ("the regulation") prescribes various forms in connection with search warrant applications.
Section 62(1) of LEPRA sets out the information that must be included in an application for a search warrant: 62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information - (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations.
Section 62(3) of LEPRA then provides: (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.
Section 65 of LEPRA provides: 65 Record of proceedings before eligible issuing officer (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.
I also note ss 76 and 77 of LEPRA: 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. … 77 Abolition of common law search warrants Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing continues to be abolished.
Given that s 77 abolishes common law search warrants, the provisions in LEPRA and the regulation cover the field for the valid issue and execution of search warrants in NSW.

The further amended summons

The summons was filed on 2 September 2021. It identified eight particulars of invalidity relied upon by Mr Harland. The first particular alleged that SC Murphy provided the issuing officer with information that she knew was "false or misleading in a material particular". The remaining seven particulars pertained to the actions of the issuing officer.
At the conclusion of the first day of the hearing on 3 March 2022, it became apparent that the plaintiff's case was not that SC Murphy had intentionally provided false information but, rather, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I granted the plaintiff leave to apply to amend the summons to reflect this and adjourned the hearing to 22 March 2022.
On 8 March 2022, the plaintiff emailed a draft amended summons suggesting three additional particulars of invalidity to paragraph 1(a) of the summons, in the following terms: "(a)(i) The first defendant (Senior Constable Ashlea Murphy) in the application for the warrant to the second defendant (EIO) provided information that was false or misleading in a material particular. (a)(ii) The first defendant (Senior Constable Ashlea Murphy) did not have reasonable grounds to believe that there was on the premises a thing connected with an indictable offence, being a searchable offence pursuant to section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002. (a)(iii) That the first defendant (Senior Constable Ashlea Murphy) did not properly consider the reliability of the information provided to her by Sergeant Herps."
The amendments were opposed by the first defendant. In brief written submissions, the first defendant contended that there was no merit in the amendments set out in subparagraphs (a)(i) and (a)(iii), as these allegations could not in themselves lead to the invalidity of the warrant but rather went to the question of reasonable grounds in subparagraph (a)(ii). In respect of (a)(ii), the first defendant submitted that the evidence going to this issue had been adduced "on the plaintiff's terms" (in cross-examination) and that the first defendant would be prejudiced by the amendment at that (late) time. It was submitted that the first defendant would need to adduce further evidence to address the new particular, especially from police information technology experts. It was also submitted that the amendment was not necessary as the Court could examine the particulars of invalidity in relation to the issuing officer.
I heard the parties' submissions on 22 March 2022. On that day, I refused leave to make two of the three amendments but granted leave to add subparagraph (a)(ii), which became particular 1(a)(i), namely, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I was satisfied that the proceedings had been conducted on that basis and that any prejudice to the first defendant could be cured by affording her the opportunity to file further evidence, which she subsequently did.
The matter was adjourned for a further two days of hearing on 26 and 27 April 2022. The amended summons filed on 22 March 2022 upon which the plaintiff now moves is in these terms: "RELIEF CLAIMED 1 A declaration that the Search Warrant number 81 of 2019 issued on 8 April, 2019 at the Local Court at Blacktown in respect of the premises at Unit 9 of 20 to 22 Fifth Avenue, Blacktown by the Second Defendant upon the application of the First Defendant is invalid. Particulars of Invalidity (a) The first defendant (Senior Constable Ashlea Murphy) in the application for the warrant to the second defendant (Adele Andrews, Registrar, Blacktown Local Court and the Eligible Issuing Officer 'EIO') provided information that the first defendant knew was false or misleading in a material particular. (a)(i) The first defendant (Senior Constable Ashlea Murphy) did not have reasonable grounds to believe that there was on the premises a thing connected with an indictable offence, being a searchable offence pursuant to section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002. (b) The second defendant (EIO) received the application for the warrant from the first defendant at 11-02am on 8 April, 2019. (c) The second defendant (EIO) issued the warrant at 11-02am on 8 April, 2019. (d) The second defendant (EIO) should not and or could not be satisfied that there were reasonable grounds to issue the search warrant pursuant to section 48 of the Law Enforcement (Powers and Responsibilities) Act, 2002. (e) The second defendant (EIO) did not properly consider whether there were reasonable grounds to issue the warrant pursuant to section 62(3) of the Law Enforcement (Powers and Responsibilities) Act, 2002. (f) The second defendant (EIO) did not properly consider the reliability of the information on which the application was based pursuant to section 62(3) of the Law Enforcement {Powers and Responsibilities) Act, 2002. (g) The second defendant (EIO) did not properly consider the nature and source of the information contained in the application pursuant to section 62(3) of the Law Enforcement {Powers and Responsibilities) Act, 2002. (h) The second defendant (EIO) did not comply with section 65(1) of the Law Enforcement (Powers and Responsibilities) Act, 2002 in causing a record of all relevant particulars of the grounds she relied upon to justify the issue of the warrant. 2 An order in the nature of certiorari quashing the decision of the Second Defendant (EIO) to issue the Search Warrant number 81 of 2019. 3 Such further order or other order as the Court sees fit. 4 Costs."
At the conclusion of the hearing, counsel for the plaintiff accepted that he could not establish 1(a), only faintly pressed 1(h) and accepted that particular 1(e) did not add anything to particulars 1(f) and (g). Despite this concession, I proceeded on the basis that there were four general grounds for invalidity relied upon by the plaintiff: 1. That SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA: particular 1(a)(i); 2. That Registrar Andrews could not have been satisfied that there were reasonable grounds to issue the search under s 48(1) of LEPRA because, inter alia, she only spent one minute on the application: particulars 1(b), (c) and (d); 3. That Registrar Andrews did not properly consider the reliability of the information on which the application was based, including the nature and source of the information contained in the application pursuant to s 62(3)(a) of LEPRA: particulars 1(f) and (g); and 4. That Registrar Andrews did not properly consider whether there was sufficient connection between the thing(s) sought and the offence pursuant to s 62(3)(b) of LEPRA: the residue of particular 1(e).

Leave to bring the proceedings out of time

The plaintiff requires leave to commence these proceedings for judicial review out of time. The search warrant was issued on 8 April 2019. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 59.10(1) provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision. Under UCPR r 59.10(2), the court may, at any time, extend the time for commencing proceedings. Such a decision is discretionary.
The first defendant opposed an extension of time being granted. Ms New of counsel submitted that the defence of these proceedings has been prejudiced by the passage of time and that the police officers have had to turn their minds to this matter by relying upon COPS (Computerised Operational Policing System database) event entries, written statements and correspondence, with little independent recollection. It was submitted that had the proceedings been commenced within time SC Murphy may have recalled what was said between her and the issuing officer at the time of the search warrant application. She could no longer remember that conversation. It was further submitted that the police investigation into Mr Harland was never properly prepared because no charges were ever laid.
On behalf of the plaintiff, Mr Skinner of counsel submitted that the COVID-19 lockdown and difficulty in trying to obtain Legal Aid were major factors leading to the delay.
UCPR r 59.10(3) is in these terms: (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest.
I have had regard to these factors. I am satisfied that the delay was adequately explained. I also accept that the delay caused some prejudice to the first defendant but there were contemporaneous documents to assist recollection. I am satisfied there is a public interest in the issues raised in this matter.
In Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed) identified (at [65]) two further factors to which it is necessary to have regard: the length of the delay and whether the plaintiff has a "fairly arguable case". Despite the position taken by the first defendant, I do not consider the length of the delay to be significant. The remaining question is whether the plaintiff has a "fairly arguable case." It was agreed between the parties that the question of the merits of the application were relevant to the question of leave and that I would determine both at the same time.
For reasons provided in this judgment, I granted an extension of time to bring these proceedings.

The evidence

This matter was set down for one day. Two affidavits were relied upon by the plaintiff and (initially) five affidavits were relied upon by the first defendant. The plaintiff required all of the first defendant's witnesses for cross-examination. It is difficult to understand why such an unrealistic time estimate was provided for the hearing. As it happened, the hearing proceeded over four days.
The plaintiff relied on the affidavits of Gregory William Harland sworn on 1 December 2021 and Patrick John Latham sworn on 1 December 2021 with annexures. Mr Latham is Mr Harland's solicitor. Neither of these witnesses were required for cross-examination.
The first defendant relied on the affidavits of: Detective Sergeant Michael Herps affirmed on 13 January 2022, Detective Senior Sergeant Adam Wilson sworn on 21 December 2021 (acting crime manager at Blacktown police station in April 2019), Senior Constable Aaron Gleaves sworn on 15 January 2021, Senior Constable Ashlea Murphy sworn on 17 January 2022, and Emma O'Brien sworn on 17 January 2021. An additional affidavit of Ashlea Murphy sworn on 13 April 2022 and an affidavit of Adam Catto-Pitkin sworn on 13 April 2022 were also subsequently filed on behalf of the first defendant following the amendment of the summons. All six witnesses relied upon by the first defendant gave evidence and were cross-examined.
Annexed to the affidavits were various COPS entries, police statements, the APVO documents, interviews, transcripts, emails and other contemporaneous documentation upon which the witnesses were cross-examined.
I propose to summarise the evidence chronologically.

Sunday, 3 February 2019

Mr Harland gave his account of what occurred on 3 February 2019 in the notes he made that night, his telephone calls to triple-0, his application for an APVO, his police statement on 4 March 2019 and his affidavit dated 1 December 2021. As stated above, he was not required for cross-examination. His account of what occurred on 3 February 2019 can be summarised as follows.
As at 3 February 2019, Mr Harland was living in a Housing Commission unit in Blacktown with his then partner Aaron Warnecke. Mr Harland parked his car in the carpark of his block of units at approximately 3.00pm. He was in the company of Mr Warnecke. As he approached the lift, he noticed his neighbour, Charles Zerafa, who was in the company of a female and a female child of approximately two years of age. When the child ran towards him, he heard Mr Zerafa yell out to her, "[k]eep away from the faggot cunt". When Mr Harland responded with, "I beg your pardon", Mr Zerafa ran up to him with clenched fists whilst shouting, "I'll punch you in the head you cunt you faggot cunt".
Mr Harland described how Mr Zerafa continued to intimidate and harass him while he put his arms out to stop Mr Zerafa coming too close. Mr Harland attempted to walk away but Mr Zerafa stood in front of him whilst saying, "I could smash you right now if I fucking wanted to". Mr Harland stated that Mr Zerafa was "frothing from his mouth, his saliva spittle hit my face as yellow and black teeth came right up to my nose". Mr Harland described that he tried to "de-escalate" by not moving and asking, "[a]re you finished?" and, "[c]an I leave?". He described how it was not possible for him to get away from Mr Zerafa as each time he made a step Mr Zerafa would move in the same direction. He was fearful that he would be physically assaulted and stated that Mr Zerafa continued to "shout obscenities and threats" when he was finally able to walk away.
Following this altercation, Mr Harland called triple-0 at 3.35pm. Police did not respond. Mr Harland called police again at 5.18pm, 8.19pm, 8.51pm and 9.39pm. Police arrived at about 9.50pm. It is not necessary to set out the contents of all of those calls, but it is relevant to identify the occasions on which Mr Harland complained of being assaulted by Mr Zerafa.
In the first call, Mr Harland stated the following in describing what Mr Zerafa had done: "MR HARLAND: … yes. I - we have just arrived home in the carpark and our neighbour has just threatened me. I've had this issue with this neighbour before and I've … … OPERATOR: What did he threaten you with? MR HARLAND: Violence. He just came up to my face then. I literally had to put my hand out in front of him to keep him away … … MR HARLAND: Well, the man is unhinged. … MR HARLAND: So we hopped out of the car and then he's just - he said - and then he's - the child was walking around, and he said to this child, 'Don't go near those faggots.' And I'm like, 'What did you say?' And then he said, 'Don't … and ran at me, 'I'm going to fucking punch you in the head, you cunt, you faggot cunt'. And then I'm like … 'go away'." (Emphasis added.)
In his second call, Mr Harland repeated the allegations in these terms: "MR HARLAND: … I called up at 3:30 because a neighbour came up to me and threatened to assault me. … MR HARLAND: I mean, it's the second time this neighbour has threatened me and carried on like this. … MR HALAND: And It's escalating and I'm at the point where, you know, I don't want to be a prisoner in my own home and I … I mean, do I carry a knife on me or do I carry a baseball bat? … OPERATOR: … So has anything changed since you called before? MR HARLAND: No … … MR HARLAND: I'm concerned - can I leave the premises? Do I need to carry a bat or what - I mean, because this man is unhinged." (Emphasis added.)
In his third call, Mr Harland described the event in these terms: "MR HARLAND: … Look, I reported a disturbing incident where a neighbour came up to my face and threatened spitting on me, essentially, among other things. … MR HARLAND: And I reported that at 3:30. … OPERATOR: Are you happy to continue waiting? MR HARLAND: I've got no choice. This is the second time this neighbour has done this. I hopped out of my car today and he was just - he was just unhinged. He was coming right up to my face. He - he essentially had me prisoner. He wouldn't even let me leave. … OPERATOR: And has anything happened since you called us? MR HARLAND: Shouting and crying out. Still … even, you know - like, he didn't even let me know when I - we were in the carpark. I'd step … and he'd step in front of me. You know what I mean? … MR HARLAND: … intimidating me." (Emphasis added.)
In the fourth call, Mr Harland stated: "MR HARLAND: … go to another police station if my current police station hasn't bothered to call or visit me in a five hour period - I think it's going on six hours. … MR HARLAND: Because the neighbour just came up to me and was physically aggressive and ---" (Emphasis added.)
In the final, fifth call, Mr Harland said: "MR HARLAND: … I called up police emergency six hours ago because a neighbour came up physically intimidating, harassing me. … MR HARLAND: I mean, this man is … he was swearing at me and calling me a 'fucking faggot' and swearing that he's going to 'punch me in the fucking head.' Right up to my face … he's vomited … same breath, going all over my fucking face. I had to go up and have a shower. … MR HARLAND: … And this is the second time he's done this." (Emphasis added.)
Two police officers finally attended Mr Harland's unit at about 9.50pm, DS Michael Herps and SC Aaron Gleaves.
Mr Harland's account is that when police attended his unit, he told them what Mr Zerafa had done and that he and Mr Warnecke feared for their safety. He had been writing notes of what occurred on his laptop and showed DS Herps those notes. Mr Harland described that DS Herps "glanced" at the screen but then had to move outside to take a telephone call. SC Gleaves also "briefly glanced" at the laptop for a few seconds. According to Mr Harland, DS Herps did not make a copy of the document, photograph it, or ask for a copy. He told Mr Harland that he would go and "have a word to" Mr Zerafa. He also said, "if you want to take the matter further you are welcome to go to the court to obtain an AVO but in my experience AVOs can make matters worse".
In his police statement dated 2 April 2020, DS Herps described his conversation with Mr Harland in these terms: "[4] I spoke with Harland at the front door and he immediately said 'it's better if you just read this'. [5] Harland took me to his laptop and showed me a two-page document. The document was untitled. It outlined an incident that he had with his neighbour Charles Zerafa earlier in the day. I read the word document from start to finish. I recall the document stating, 'he yelled at me, stay away from my family you faggot cunt' or similar words. I further recall the document stating 'when he was yelling at me spittle was coming from his mouth and hitting me'. The document then carried on with derogatory descriptors of Zerafa was no further mention of comments made or threats delivered. It did not describe Zerafa's actions as intimidating or harassing apart from the original bigoted comment. [6] I stayed at the location for over 20 minutes. Harland and his partner, Aaron Warnecke continue to tell me about strata issues they had with Zerafa that were completely irrelevant to the current situation. I informed Harland that if he felt intimidated he could seek a PVO however police would not get involved as no offence had been identified." (Emphasis added.)
On DS Herps' account Mr Harland complained at the outset that Mr Zerafa's spittle hit him during the incident.
In his affidavit of 13 January 2022, DS Herps provided a similar account. He recalled reading a two-page document and asking Mr Harland some questions to be satisfied that the offence of intimidation had not been committed. He stated that Mr Harland responded that Mr Zerafa came towards him yelling, "[s]tay away from my family you faggot cunt" but that he did not state that Mr Zerafa came within his personal space nor that there was any physical altercation (save that spittle came from Mr Zerafa's mouth due to the way he spoke).
Significantly, DS Herps stated that Mr Harland informed him that he only wanted an AVO against Mr Zerafa and he did not want him to be charged. DS Herps stated that he informed Mr Harland of his satisfaction that the offence of intimidation had not occurred as well as the advice on how to obtain an APVO from the Local Court given that police did not get involved unless there was an imminent threat of serious violence. At the request of Mr Harland, police went to speak to Mr Zerafa but he was not there. They spoke to his partner instead who was told that she should tell Mr Zerafa to stay away from Mr Harland and his partner.
In his police statement of 4 June 2019, SC Gleaves stated that on 3 February 2019 he attended at the premises of Mr Harland with DS Herps. Mr Harland showed them a laptop with a Word document opened on the screen that outlined an incident with a neighbour. He recalled the document stating that there was a verbal argument with Mr Zerafa swearing at Mr Harland but containing no details of any physical threats or altercation.
In his affidavit of 15 January 2022, SC Gleaves repeated that he recalled reading the contents of the document on Mr Harland's laptop screen detailing a verbal argument between him and Mr Zerafa, that there were no threats of violence in the document and that DS Herps asked questions directed at whether a charge should be laid or there should be an application for an APVO on behalf of Mr Harland. SC Gleaves stated that he did not make any detailed entry in his notebook about the attendance at Mr Harland's residence.
Although Mr Warnecke did not file an affidavit in these proceedings, in his police statement on 7 March 2019 he described what occurred on 3 February 2019 in these terms. On that day, he and Mr Harland parked their car in the basement of their unit block. He saw Mr Harland walking towards the lift as Mr Zerafa, his girlfriend and her little daughter were walking away from the lift. There were no other people present. He saw the little girl walking towards Mr Harland when Mr Zerafa yelled out, "[k]eep away from those fucking faggot cunts" and Mr Harland saying, "[d]on't speak to me like that". He then saw Mr Zerafa walking aggressively towards Mr Harland with clenched fists and saying, "I'm going to smash your fucking head in you dog cunt" with his face only centimetres away from Mr Harland's face. He then saw Mr Zerafa preventing Mr Harland moving towards the lift by moving in front of him and invading his personal space. He heard Mr Harland saying to him, "[a]re you done?" and Mr Zerafa walking away mumbling something like, "I'm going to smash your head in". He stated that Mr Zerafa's behaviour was getting worse and that he was concerned that that he would assault them or damage their property.

Monday, 4 February 2019

Early the following morning, at 12.20am, DS Herps created COPS entry E69012060 detailing his attendance at Mr Harland's residence. The narrative includes that Mr Harland reported that Mr Zerafa called him a fag and told his children to stay away from Mr Harland, that he found Mr Zerafa physically confronting, and that Mr Harland made "a number of disparaging remarks about Zerafa's hygiene and physical appearance". He noted that Mr Harland was advised that he could obtain an AVO from the court. He also noted that Mr Zerafa's partner was spoken to and indicated that she would tell him to stay away from Mr Harland and his partner.

Tuesday, 5 February 2019

On that day, Mr Harland saw Registrar Adele Andrews in chambers at Blacktown Local Court. She told him to send her the document he prepared on the night (which on Mr Harland's account was the document police looked at on his laptop that night).
At 1.29pm, Mr Harland sent an email to Registrar Andrews attaching a Word document entitled "neighbour second incident unit 6". The subject was "Gregory Harland" and the body of the email read "[p]lease see attached copy of my request for an avo".
In the attachment, Mr Harland set out the nature of the altercation with Mr Zerafa on 3 February 2019 (mistakenly put as "Sunday 4th February 2019") in similar terms to his affidavit, but with more detail: Mr Harland stated that Mr Zerafa appeared to be under the influence of drugs or alcohol, had "foul body odour and nicotine breath" and looked "unhinged". After the confrontation, Mr Harland described going to shower as Mr Zerafa's saliva had landed on him. Mr Harland said he did not feel safe at his home and had requested to relocate. It was the second time "this man has physically threatened to assault me and threatened to damage my vehicle". He had previously lodged a complaint to the Department of Housing (Blacktown) after the first incident.
At 3.28pm, Blacktown Local Court issued an APVO application (2019/000392864) for Gregory Harland and Aaron Warnecke against Charles Zerafa returnable on 20 February 2019.

Wednesday, 13 February 2019

At 3.35pm, Mr Harland emailed Blacktown Local Court seeking an urgent provisional APVO on the basis that he held serious concerns for his safety as Mr Zerafa's behaviour had escalated.

Thursday, 14 February 2019

At 10.19am, Blacktown Local Court replied to Mr Harland that the police could make provisional APVOs if the situation escalated or alternatively that he would need to attend the court registry and request re-listing of the application.

Wednesday, 20 February 2019

At the first listing of the application for the APVO at Blacktown Local Court, Magistrate Miller considered the application and queried why police were not involved given that Mr Zerafa had potentially committed an offence. The police prosecutor that day, Sergeant Lisa Clemence from Blacktown prosecutors, indicated that police would take over carriage of the matter. An interim APVO was granted that day and the matter was adjourned until 13 March 2019.

Thursday, 21 February 2019

At 9.40am, Sergeant Clemence emailed DS Herps advising that the police prosecutors had taken over carriage of Mr Harland's application for an APVO. She asked him to obtain a statement from Mr Harland and lay charges against a person of interest (Mr Zerafa) if there was enough evidence. DS Herps was on leave at that time.

Tuesday, 26 February 2019

DS Herps returned from leave and read Sergeant Clemence's email. He spoke to her and obtained a copy of the APVO application. He maintained his view that the document that he read on Mr Harland's computer on 3 February did not disclose offences warranting police intervention. He was satisfied that there were parts in the APVO application that did not exist in the notes he had seen that night on the laptop.
DS Herps saw SC Gleaves in the muster room at Blacktown police station and showed him Mr Harland's application for an APVO. He asked him to accompany him to Mr Harland's residence in order to put to him the allegation that he had altered his APVO application to include false information.
At 2.54pm, DS Herps and SC Gleaves attended at Mr Harland's residence. DS Herps activated his body worn camera.
The transcript of the body worn camera recording on 26 February 2019 does not include a time stamp when it was activated and when it was deactivated. It records DS Herps putting to Mr Harland that his APVO application included a section that was not in the two-page Word document he and SC Gleaves had read on the night. The transcript of the body worn video includes the following: "MR HERPS: … obviously on the night we read a document which you produced, which was a 2 page Word document. … MR HERPS: Now, obviously a lot of the grounds for the AVO that you applied for --- … MR HERPS: --- look pretty much identical --- … MR HERPS: --- from what we read. However, I do have a concern that there is a paragraph that's been inserted in here that isn't consistent with what you had written on the night. MR HARLAND: Okay."
DS Herps then took Mr Harland to the paragraph in question noting that the reference to the child running towards him and Mr Zerafa shouting to keep away from that "faggot" was in the original version he saw. He then stated: "MR HERPS: … But it's this bit after here that I've got a little bit of a concern with. MR HARLAND: Yes. MR HERPS: And then you said here, 'He ran up to me adopting an aggressive posture with his fists clenched and began shouting, "I'll punch you in the head, you fucken faggot". I put my arms to gesture they didn't want him invading my personal space. He continued to intimidate and harass me by coming right up to my face'. Now, whilst, and then you continue to say that he stood in front of you while you couldn't move and wouldn't get out of your way. MR HARLAND: Yes. MR HERPS: Now, myself and Senior Constable Gleaves, obviously, both read that document. MR HARLAND: Yes. MR HERPS: And that, as far as we're concerned, wasn't in there, that bit. MR HARLAND: Yes. MR HERPS: The rest of it appears pretty much verbatim. MR HARLAND: Yes. MR HERPS: But this section here, this paragraph here, to me, doesn't appear consistent. MR HARLAND: Yes. Well, I can, I swore an oath to tell the truth in court and that's what, what I did. MR HERPS: Do you have the Word document still? MR HARLAND: Only what I emailed to the Local Court. MR HERPS: Do you have the blank Word document that you created? Because --- MR HARLAND: No. Because I think only gave - saw it on the laptop. MR HERPS: Yes. On the laptop, yes. MR HARLAND: Yes. MR HERPS: That Word document that was - sorry, I'm just going to pause this --- … MR HERPS: … for two seconds. I need to take this call. …" (Emphasis added.)
The recording was paused for DS Herps to take a call and did not resume.
Mr Harland's account of this conversation is consistent with the body worn video. He stated that DS Herps did not ask for a copy of the document he sent to the Local Court on 5 February 2019 or the accompanying email. Mr Harland was unaware whether DS Herps ever contacted Blacktown Local Court to obtain a copy of the document. After the body worn video recording ended, Mr Harland deposed that DS Herps accused him of changing the statement and he responded, "I made minor changed [sic] to spelling and syntax and grammar" only. Mr Harland described DS Herps as looking "intimidating and aggressive" at this time, and he kept probing as to what had been changed. Mr Harland also deposed that DS Herps "looked confused" and said, "I'm sorry, but I thought it looked different".
Mr Harland's evidence was that DS Herps had only glanced at the statement for a few seconds on the night in question and had told Mr Harland "to leave out descriptors and be more factual". Mr Harland denied ever saying to DS Herps during this second visit that he copied and pasted the contents of the original Word document into a new document or into the APVO application. I pause to note that it seems credible that DS Herps would have suggested to Mr Harland that he "leave out descriptors" as Mr Harland's account as emailed to the registrar was replete with colourful descriptions of Mr Zerafa.
Both police officers gave a different account to Mr Harland as to what occurred during this conversation.
In his police statement dated 2 April 2019, DS Herps described the following: "[12] I asked him to produce the original computer so that I could check the time and date stamps on the Word document. Harland looked through the computer and said 'I don't think I save the document, all I have saved here is the PVO application'. [13] I said to him, 'That doesn't make sense Greg, the whole document is almost word for word identical, you must have created the PVO application from the original'. He said 'Well yes I did but I left that unsaved my computer and just copied and pasted it to the PVO application and then didn't save the original'. [14] HARLAND continued to say 'You guys were very busy that night it may have been the case you rushed through the document didn't read it correctly'. [15] Senior Constable Gleaves and I are positive the document was altered significantly from the original."
In his affidavit on 13 January 2022, DS Herps stated that when he returned from his telephone call, he thought he had activated the camera for the continuation of his conversation with Mr Harland but did not, so there was no further recording. He did not make any notebook entries about that discussion. He stated that Mr Harland took him to his laptop but could not produce the document saying that the only thing he saved was the APVO application into which he copied and pasted the unsaved original document with some "grammar and syntax" changes. DS Herps stated that he left the room numerous times.
In cross-examination, DS Herps agreed that his body-worn video recorded for approximately three minutes before it was turned off when he needed to take a call. He stated that Mr Harland told him that he emailed an APVO application to the Registrar, not the document that he had read on the night. He agreed that he relied on his memory when he recalled that conversation and that he also made a COPS entry about three hours later. He maintained his evidence that, after the recording stopped, Mr Harland told him that he "copy/pasted" the content of the document into the APVO application.
In his statement of 4 June 2019, SC Gleaves stated that he observed DS Herps turn on his body worn camera upon knocking on Mr Harland's door. He then stated the following: "[9] … Once inside I observed Sergeant Herps and Mr Harland have a discussion in relation to the PVO application Mr Harland had made to Blacktown Court. Mr Warnecke was also present at this time. I heard Sergeant Herps ask Mr Harland to show him the original word document that he showed us back on the 3rd of February 2019. [10] Mr Harland produced his laptop, which appeared to be the same laptop I observed on the 3rd of February 2019. Whilst looking through the laptop's files Mr Harland stated he must not have saved the original document, and only saved the PVO application. Sergeant Herps had to take a work-related call on the Blacktown 14 work mobile and excused himself from the conversation. [11] I said to Mr Harland and Mr Warnecke that Sergeant Herps and I have over 25 years Policing experience and that at no time would we neglect our duties, or not investigate a matter. I told Mr Harland that if I read the word document on the night and had observed the part of Mr Zerafa 'adopting an aggressive posture with his fists clenched and began shouting "I'll punch you in the head you fucking faggot cunt"', Police would have taken more action on the night. Mr Harland stated again that he believed that this allegation was in the original word document he showed Sergeant Herps and myself back on the 3rd of February 2019. A short time later Sergeant Herps return to the room where I was talking to Mr Harland and Mr Warnecke." (Emphasis added.)
In his statement of 15 January 2019, SC Gleaves recounted that when DS Herps returned to the residence from the phone call he continued speaking to Mr Harland and noticed no argument or disagreement by Mr Harland. In his estimate they were there for about 15 minutes in total.
In his cross-examination on 3 March 2022, SC Gleaves agreed that it appears from the transcript of the body worn camera that Mr Harland did not produce his laptop before DS Herps took the call and left the room. He disagreed that that did not happen. He also disagreed that Mr Harland did not look through the laptop files stating that the transcript only recorded the verbal discussion and that he stood by what he said in his statement.
Neither police officer appeared to have had access to the transcript of the body worn camera when making their statements. Their recollections cannot be correct to the extent that it is suggested that the first thing that occurred was that Mr Harland was asked to show them the computer and identify the document. That is not reflected in the transcript of the body worn camera footage. On that basis, I accept that what occurred is reflected in the body worn camera transcript. As for the suggestion that the versions in their statements must reflect what occurred after the body worn camera stopped recording, that does not explain the initial conversation about the document in the terms recorded in the footage. I accept that when police asked Mr Harland where the document they saw on the night of 3 February 2019 was, he responded in the way recorded in that footage, namely, that the only Word document he had was the one that he emailed to the Blacktown Local Court. He told them that he did not have the "blank Word document" they saw in the night.
Significantly, the body worn camera records that Mr Harland clearly told police that he emailed the document he was working on that night to the Blacktown Local Court. Neither police officer referred to that in their police statements. Nor did either police officer ever attend Blacktown Local Court to get a copy of that document. Neither police officer suggested that Mr Harland told them he had "deleted" the document he showed them that night.
When police returned to Blacktown police station they discussed the matter with a police prosecutor, Senior Constable Nathan Blatch. DS Herps sent him an email at 5.25pm regarding police involvement in Mr Harland's APVO: "Just seeking your advice on this one. Obviously the provisional AVO was granted and is yet to be served. As stated today, Myself and SC Gleaves are adamant that he has added information to his PVO application after we initially dealt with him on the night of the incident. I went and spoke with Harland and his partner today and searched through their computer. They no longer have the document on the computer with the version he supplied on the night. He states that he never saved it, which I find It [sic] hard to believe because portions of it have been copied verbatim to the AVO application. Harland is sticking to his story that the allegations of intimidation were present in the word document myself and SC Gleaves read on the night. We are adamant they were not, otherwise I would have instructed an officer to take action and investigate. How would you like me to proceed? Obviously I have received no formal directions from the court. I would find it difficult to get a statement from him as I believe the original is inconsistent from the AVO application. I have made attempts to speak with the POI but have not been able to locate him."

Thursday, 28 February 2019

DS Herps attempted to serve Mr Zerafa with the APVO application but was informed that it had been served on him already. Mr Zerafa admitted at that time that he called Mr Harland a "faggot cunt" and told him to stay away from his children. He denied any threats and intimidation.

Friday, 1 March 2019

At 4.47am, DS Herps updated the COPS record regarding the events of 26 and 28 February 2019.

Monday, 4 March 2019

Mr Harland attended Blacktown police station and spoke to Sergeant Kneipp who instructed Constable Battye-Smith to take his statement for the APVO application/possible charges against Zerafa. This was in response to the request by Sergeant Clemence that such a statement be taken.

Wednesday, 6 March 2019

At 1.19pm, Mr Harland emailed Blacktown Local Court seeking to vary the interim APVO conditions.
At 1.59pm, DS Herps updated the COPS record after being informed that Mr Harland had attended on 4 March 2019 and provided a statement.
DS Herps later read Mr Harland's statement for the APVO application.
Mr Harland contacted DS Herps to check what was happening and whether there was anything he and Mr Warnecke could do. DS Herps indicated that he would take a statement from Mr Warnecke the next day.

Thursday, 7 March 2019

Mr Warnecke attended Blacktown police station and made a statement that was witnessed by DS Herps. He described the assault by Mr Zerafa in the terms I have summarised above at [56].
At 11.54am, Mr Harland filed an application at Blacktown Local Court to vary the interim APVO returnable on 13 March 2019.

Friday, 8 March 2019

At 7.50pm, DS Herps updated his COPS entry.
Mr Harland contacted police to report a breach of the APVO by Mr Zerafa in that Mr Zerafa stood in the carpark and stared at him which intimidated him. DS Herps and Acting Inspector Middlebrook told Mr Harland that the APVO is ambiguous and that police will seek to amend it on 13 March 2019.
At 9.00pm, Mr Zerafa attended Blacktown police station for his electronically recorded interview of suspected person ("ERISP") with DS Herps. That interview went for 31 minutes. (It had not been transcribed by the time that SC Murphy subsequently applied for the search warrant.)
Mr Zerafa made a number of admissions in his ERISP in relation to the initial incident on 3 February. He agreed that he was in the carpark when he heard his partner Tonni-Jo Henley-Kelly call out his name, so he ran to her assistance. He described the man he now knows as Mr Harland to be approaching his baby and he yelled out, "[f]uck off, you faggot cunt. Keep away from my family". He then grabbed the baby, grabbed his partner and walked back to the car.
Mr Zerafa agreed that there had been a prior incident when Mr Harland had made a complaint to the Housing Department about him for creating diesel fumes in the carpark.
Significantly, Mr Zerafa agreed with the following parts of Mr Harland's complaint. He agreed that he yelled out, "[f]uck off, you fucking faggot cunt. Keep away from my family". He did this because his partner yelled out his name and he "ran" towards her and his daughter in a "protective way". He grabbed the baby and told his partner "[l]et's go". He denied saying, "I'll punch you in the head, you fucking faggot cunt" or that he blocked Mr Harland's ability to walk to the lift. Specifically, he explained how he ran towards Mr Harland as he yelled at him as follows: "MR ZERAFA: Because I was in a - when I ran in towards her and when she held out my name, and I ran towards her and my daughter was with me, I - like, obviously I've just come out - it just - a protective - in a protective way, I just said what I said. I don't want to repeat it again because I sound like - I don't want to sound rude. MR HERPS: Okay. Well, you can, because at the end of the day, rudeness isn't necessarily an offence. MR ZERAFA: Well --- MR HERPS: II's offensive, but it's not an offence. MR ZERAFA: Well, that's all I - that's the only words I've ever, ever had to say to them is to, 'Fuck off, you fucking faggot cunts. Keep away from my kids'. That's it. That's the only time I've ever, ever spoken to these two blokes." (Emphasis added.)
Mr Zerafa denied threatening to harm Mr Harland and stated that the incident finished after he collected his children and returned to his vehicle. But he did admit that he was running towards Mr Harland in a "protective" way at the time he was yelling out the words described above. His version is that he got to only 2.5 metres away from Mr Harland and Mr Warnecke. He explained to police that he thought that Mr Harland was picking on him and that "they" wanted a quick transfer to a different Housing Commission complex.

Saturday, 9 March 2019

At 5.03am, DS Herps sent an email to Acting Inspector Middlebrook with subject, "Gregory harland". In this email, DS Herps set out the background to the matter, and his view (along with the view of SC Gleaves) that the plaintiff had "altered the PVO from his original version". In relation to the initial incident on 3 February, DS Herps wrote, "I told [Harland] if he felt intimidated he could apply for a PVO." He also stated that, "[a]s discussed with you in person I have told HARLAND that I am going to fully investigate the matter and take statements from all parties involved and interview ZERAFA". DS Herps concluded his email: "My plan is to finish off the investigation (2 more statements) and submit the brief through the chain of command so that it can be sent to the prosecutors for legal advise [sic] allowing them to make a determination on whether the matter should be prosecuted. I believe if I construct the brief in this manner and have the prosecutors determine its merits, it will eliminate any perceived bias he may level at you or I and prevent future complaint issues."

Monday, 11 March 2019

At 8.57am, Acting Inspector Middlebrook replied: "Once you complet [sic] the investigation, I would put the brief through as you suggest but I would suspect that Mr Tickner will make comments and this is where it may stop. If there is no breach and no admissions by the alleged defendant then there is no chance of prosecution. Harland is changing the situation to suit himself."

Tuesday, 12 March 2019

At 1.12pm, SC Blatch emailed DS Herps, following up on the latter's email from 26 February, asking: "How did this progress after we last spoke? Did you get a chance to speak with the boss?"

Wednesday, 13 March 2019

At the listing of the APVO application at Blacktown Local Court, the interim APVO was varied by consent by Registrar Andrews and the matter was adjourned until 3 April 2019.

Friday, 15 March 2019

A statement was taken from Tonni-Jo Henley-Kelly, Mr Zerafa's partner, witnessed by DS Herps. She stated that she had met Mr Harland prior to 3 February 2019. He had complained to her over the intercom that Mr Zerafa's truck was leaking diesel on the floor of the garage, so she went to try and clean it up. When she got to the carpark there was no mess there. She told Mr Zerafa that Mr Harland had yelled at her over the intercom which made her scared. She then described what happened on 3 February 2019 in these terms: "[8] On 3rd February 2019 Charles and Rita, who is Charles eldest [daughter] went downstairs with the pram to put it in the car. I was still upstairs with Athena [the baby] finishing breastfeeding. A short time later I came downstairs via the elevator with Athena. Athena started walking and I went to follow her. Gregory and Aaron, who was the other resident of [the] unit came towards me. To be honest I panicked, and I yelled out to Charlie. I have previously been a violent relationship and I'm scared around males. [9] I yelled 'Charles'. Rita and Charlie came running and Charlie called out, 'Fuck off you faggot cunts stay away from my family'. When I yelled out they were probably only about 1 metre away from them. They are usually really rude to me when walking past and I just don't trust them. When Charles and Rita got to me and he finished saying what he did we all walked away together. Charlie wasn't even within 3 metres of Aaron and Greg never got closer than that."
Ms Henley-Kelly gave a similar version to Mr Zerafa. She accepted that at the time when Mr Zerafa was yelling out the aggressive words he was running towards Mr Harland.

Monday, 1 April 2019

DSS Adam Wilson commenced acting in the role of crime manager at Blacktown police station. He took over from the Acting Inspector Middlebrook. DSS Wilson was aware who Mr Harland was, insofar as he knew that in 2010-2011 Mr Harland had successfully sued police and received an apology over inaction in a previous matter. However, since starting in Blacktown in 2011 up until the time of the current matter, DSS Wilson had heard nothing further of Mr Harland.

Tuesday, 2 April 2019

DS Herps signed his police statement for the investigation into Mr Harland to which I have already referred.
At 7.19pm, DS Herps sent an email to DSS Wilson with the subject heading "report zerafa". Again, he outlined the background to the matter and wrote, "I was approached by prosecutors today regarding a PVO matter that is going to court tomorrow". And further: "I have subsequently obtained statements from all of the involved parties. My belief is that based on the statements alone there is insufficient evidence to prosecute due to the conflicting nature of the versions. That is notwithstanding the fact that I strongly suspect the complainant made a false statement and PVO application. The main reason for the report I am sending through is police are representing the complainant [in the APVO complaint] I have raised my concerns with the prosecutors. They have since raised their concerns with me that to continue representing him would be malicious and could result in costs. I agree with this determination and believe we should withdraw any prosecutorial assistance. … If you are able to make a determination, specifically about the prosecutors withdrawing from the matter that would be appreciated. … I apologise for the lateness of the report and the fact I have sent it directly to you. I understand it should go through TRIM, however I only realised today they wanted a crime managers review of the brief and do not believe it would get to you in time if I sent it directly to #blacktowntrim." (Emphasis added.)
At 7.29pm, DS Herps sent a second email to DSS Wilson attaching two PDFs entitled "Zerafa report" and "herps brief". The body of the email stated: "The report is mostly to determine whether police should withdraw from the PVO matter as it may be a malicious prosecution should they remain involved. … The prosecutor with carriage is Trent Lister. He asked me to submit a report to the Crime Manager to make this determination." (Emphasis added.)
In the report, DS Herps wrote: "I do not believe there is sufficient evidence to prosecute ZERAFA even if the PVO and subsequent statements of HARLAND and Aaron WARNECKE are taken on face value. This is because the statements of ZERAFA and Tonni-Jo HENLEY-KELLY conflict with those of WARNECKE and HARLAND (see attached brief). Even though I believe the PVO has been altered I do not believe there is sufficient proof to prosecute HARLAND as no photographs were obtained of the original document shown to me on 3 February 2019. I do not believe that the PVO matter should remain police represented as to do so would be malicious and could result in costs. The prosecutors have requested the matter be put to the Crime Manager to determine whether police can remove themselves from representing HARLAND. RECOMMENDATION I believe that police should remove their representation from the PVO application. I believe that no further investigation should occur in relation to the intimidation and assault allegations made by HARLAND." (Emphasis added.)
These emails confirm that it was not DS Herps' intention to take any further action against Mr Harland for what DS Herps believed was a change in his account of what occurred with Mr Zerafa on 3 February 2019. His only suggestion was that police should not represent Mr Harland on his APVO.

Wednesday, 3 April 2019

At 9.09am, DSS Wilson responded to DS Herps' email. He stated, "[b]ased on our conversation this morning I am satisfied that police should withdraw from the PVO application".
In DSS Wilson's affidavit dated 21 December 2021 he referred to this email and stated that he had had a telephone discussion with DS Herps in similar terms to what was contained in the emails.
Significantly, DSS Wilson took a contrary view at that time to DS Herps as to whether there was any basis to prosecute Mr Harland for changing his statement. He explained this in his affidavit as follows: "[12] I formed a view that the allegations Sergeant Herps raised regarding differing allegations raised by Mr Harland needs to be investigated by someone who had no role or involvement in this matter. [13] Sometime between 3 and 5 April 2019, I approached and had a brief oral discussion with Senior Constable Ashlea Murphy (SC Murphy) about taking carriage of an investigation into Mr Harland and his partner for possible offences of conspiracy to pervert the course of justice or making a false allegation. [14] I cannot recall the exact words I said to SC Murphy but it was to the effect of: 'Sergeant Herps has spoken to me in relation to a PVO application of Gregory Harland. Sergeant Herps briefly told me that he was called out to an incident in February 2019 and that he was shown a document setting out the incident on Mr Harland's computer. At the time the computer was shown to Sergeant Herps it contained no allegation of a criminal offence or other matter to justify, in Sergeant Herps' view, formal action by police against Mr Zerafa or an application for PVO on behalf of Mr Harland. Sergeant Herps stated that what he read on the computer is different from the allegations in the affidavit Mr Harland and his partner provided to the court to support the PVO application. The affidavit alleges threats of physical violence. Sergeant Herps thinks Mr Harland and his partner may have falsely added details to their affidavits for the PVO application. I don't know anything else about the matter. Can you take carriage of the investigation to see if there's anything in what Sergeant Herps has said." [15] I indicated to SC Murphy in this briefing that in my view, based only on what I was told, was that the alterations to the document could be an attempt to pervert the course of justice and that it may be useful to the investigation to see what was on the computer that Sergeant Herps sighted, which could be seized under a search warrant for the purposes of forensic examination. [16] This briefing was no longer than a few minutes of an oral discussion. It was just a preliminary view I had and I left the investigation to SC Murphy." (Emphasis added.)
At the listing of the APVO application at Blacktown Local Court, the interim APVO was continued by Registrar Andrews and the matter was adjourned to 17 April 2019.

Between 3 and 5 April 2019

SC Murphy first came into the matter on or about 3 April 2019. She had a poor recollection of the events giving rise to these proceedings at the time she gave her evidence before me. By that time, she was on maternity leave and had a young baby. I have taken into account the fact that she was undoubtedly distracted by that and understandably disengaged with her work commitments. Despite this, she could not remember significant details including the circumstances of her coming into the matter. She accepted that at about this time she had a conversation with DSS Wilson about taking carriage of the investigation into Mr Harland for possible offences of conspiracy to pervert the course of justice or making false allegations. Her evidence was derived almost solely from the contemporaneous documents.

Friday, 5 April 2019

DSS Wilson had a telephone conversation with SEEB (State Electronic Evidence Branch now known as the Digital Forensics Unit) in order to understand the nature of any forensic examination that could be carried out on Mr Harland's computer and associated hardware. The details of what DSS Wilson discussed with SEEB were not entirely clear. In his affidavit of 21 December 2021 he deposed that SEEB "explained … what searches they could do". When asked in cross-examination why a search warrant was needed, part of DSS Wilson's answer was as follows: "The reason that I allocated the investigation to Senior Constable Murphy, it suggested that a search warrant was required to seize the computer; that there may be evidence of the document having been saved and then edited and saved again, and then being edited after Sergeant Herps had attended to include the material that formed the basis of the PVO, being a criminal assault. I had not particularly ‑ with technology, I had to seek advice from the SEEB branch on how that might happen, and in fact if it could be done at all. They gave me certain advice that it may be the case." (Emphasis added.)
And then the re-examination of DSS Wilson in its entirety was: "RE EXAMINATION BY MS NEW Q. You said earlier in cross examination from my friend that he [sic, you] sought advice from SEEB prior to the application for the search warrant done by Senior Constable Murphy. Can you recall words to the effect of or a summary of what SEEB told you? A. They said to assist the search on the hard drive, it would be best if they had a copy of the affidavit because that would, however they do the search, would assist for a document of a like nature or that same document which may be still on the hard drive." (The reference to "the affidavit" must be a reference to the "original"/"deleted" document (or a version of it), but it is unclear.)
At 11.10am, DSS Wilson sent a handover email to SC Murphy, subject, "report zerafa". He wrote: "Ash, As discussed, work up a job for Conspiracy to Pervert the Course of Justice and Make False Allegation on Warnecke & Harland. I have spoken to SEEB and they are happy to forensically examine the computer and any USB's seized. Specifically we will be looking for the deleted word documented [sic] first seen by Sergeant Herps, a copy of the PVO will assist them to search all deleted files containing that information. You will need a search warrant to seize the computer and ideally, Sergeant herps at the wwarant [sic] to identify the computer itself. Failing that, a good description will do. cc. Segt Herps for info." (Emphasis added.)
In his evidence, DSS Wilson clarified what he meant by a number of the matters included in his email.
First, he explained that when he told SC Murphy to "work up a job for Conspiracy to Pervert the Course of Justice and Make False Allegation" on "Warnecke & Harland" he meant that he wanted her to "investigate" this. Secondly, when he told SC Murphy in the email that he had spoken to SEEB, it was to receive preliminary advice on how they could forensically examine the computer. Thirdly, when he told SC Murphy that "we will be looking for the deleted word document", he was simply relaying to SC Murphy guidance he had received from SEEB. And fourthly, when he told SC Murphy in the last paragraph of the email that she "would need to get a search warrant for the computer", that was a "suggested course of action" based on his "preliminary view". It was "not a direction to SC Murphy" which would "override" her own need to form a view as to whether there were reasonable grounds for a search warrant. DSS Wilson's evidence was that he had formed the view there were such grounds, but he did not communicate this to SC Murphy.
DSS Wilson also stated that "[t]he statements in my email of 5 April 2019 were only for the purpose of allocating the matter, providing guidance as to how to confine the search warrant and how to instruct SEEB".
That same day SC Murphy approached DS Herps at Blacktown police station and informed him that she was investigating Mr Harland for offences relating to his APVO application and required the police file and his statement. She has no recollection of any discussion that they had at that time. She stated that if DS Herps told her anything when she obtained the file from him, she could not remember it. Despite this, she disagreed in cross-examination that officers who briefed her gave her any details of what they had seen or heard. She had their statements and other evidence such as computer added dispatch ("CAD") narratives from the triple-0 calls on 3 February 2019, the body worn footage, and the application for the APVO.
DS Herps' recollection of the handover to SC Murphy was that he was copied into an email from DSS Wilson to SC Murphy on 5 April 2019 indicating that the plaintiff was to be investigated for "making a false statement". He had a conversation with SC Murphy on 5 April 2019. He could not remember the conversation but agreed in cross-examination that he might have expressed an opinion. He also disagreed that SC Murphy included in the search warrant application things he told her. He stated that what she included was her interpretation of everything that was before her including the documents from his report to DSS Wilson. He stated that he had "no input in the search warrant application" and that the "first [he] knew about an investigation was when SC Murphy asked for [his] statement".
At 4.13pm, SC Murphy recorded her first entry in the COPS system in relation to Mr Harland; it read, "Further investigation is to be undertaken in relation to the possibility of HARLAND making false accusation with intent subject other to investigation". On this day, she also created an iASK request for the audio recording of Mr Harland's triple-0 calls. That request was authorised by inspector Paul Tickner on 10 April 2022. She did not wait to get those audio recordings before applying for the search warrant. She only had the CAD narratives available to her at that time which recorded, inter alia, the following entries: 1. In relation to the 3.35pm call: "Infts [informant's] nbour [neighbour] from unit 6 has verbally threatened inft for reporting him to strata …". 2. In relation to the 5.18pm call: "… inft called for pol, eta, inft anxious to c pol saying he needs to leave and will carry a bat with him to protect himself against nbour". 3. In relation to the 8.19pm call: "inft called for eta - states this is the 2nd time the same poi [person of interest] has harassed inft - pois name nk to inft - poi has been shouting and carrying on since the last call". 4. In relation to the 9.39pm call: "inft req pol eta. very agitated and distressed at the length of time he has been waiting".

Between 5 and 8 April 2019

SC Murphy reviewed material regarding the investigation into Mr Harland. She had no independent memory of this, but it is consistent with the contemporary documentation.

Monday, 8 April 2019

SC Murphy applied for a "Part 5 search warrant/record" to Registrar Andrews at the Blacktown Local Court. On the form, she indicated that the "searchable offence" in question within the meaning of s 46(1)(a) of LEPRA (with which "the things" were connected, being the laptop and hard drive/USB) was: "Section 314 Crimes Act 1900 - Make false accusation with intent subject other to investigation".
The application was in the following terms: "Part 1 Application … 1 I have reasonable grounds for believing that: (a) there is, or within 72 hours will be, in or on the premises, the following things: 1 x Black Laptop Computer Any hard drive or Universal Serial Bus Storage device (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: Section 314 Crimes Act 1900 - Make false accusation with intent subject to other to investigation … 2 I rely on the following grounds in support of this application: On 3rd February 2019 at 2145pm Senior Constable GLEAVES (sic) and Sergeant HERPS attended 9 of 20 to 22 Fifth Avenue, Blacktown in response to Gregory HARLAND phoning triple zero on five occasions throughout the evening. As a result of these calls, respective computer aided dispatch jobs were created by triple zero operators, within none of these calls outlining any assaults, each stating that HARLAND had been verbally threatened by a neighbour. Upon Sergeant HERPS and Senior Constable GLEEVES they spoke to HARLAND and his de-facto WARNECKE and they informed Sergeant HERPS that he had created a two page document outlining the incident he had phone police for on his small laptop computer and it would be of ease (sic) for them to understand the incident if they read the document. The document outlined that at about 15:30pm (sic) neighbour dispute with the male resident of unit 6, identified as ZERAFA. It stated that ZERAFA called him a fag and told his children to stay away from him. HARLAND stated that he found ZERAFA physically confronting and HARLAND made a number of personal disparaging remarks about ZERAFA'S hygiene and physical appearance. At no time did he inform Senior Constable GLEAVES or Sergeant HERPS that any assaults had occurred and throughout the document on his computer there was nothing in relation to an assault. Sergeant HERPS informed HARLAND there was no offences detected and he would create a record of the matter. On 5th February 2019 HARLAND made an application to Blacktown Local Court for a personal violence order, naming himself and his de-facto partner, Aaron WARNECKE as protected persons and ZERAFA as the defendant. Within that application HARLAND has outlined that ZERAFA had run up to him with his fists clenched and threatening to punch him in the head, he further stated ZERAFA spat on him. The order was granted and referred to Police to investigate the matter. Sergeant HERPS was assigned the matter and read the application made by HARLAND where he identified the paragraph outlining the assault as not being in the document on HARLAND's computer and HARLAND had never mentioned this matter to him. Sergeant HERPS attended HARLAND's residence and asked him why this had been included, to which he denied later including it. Sergeant HERP's requested to view the document on HARLAND's computer to which he stated he had deleted. HARLAND and WARNECKE later attended Blacktown Police Station where they provided witness statement's outlining ZERAFA had run up to him with his fists clenched and threatening to punch him in the head, he further stated ZERAFA spat on him. Both parties stated they had recorded the incidents on a document on the computer and allowed police to read it. Police have conducted an electronically recorded interview with ZERAFA where he agrees that a verbal altercation takes place however strongly denies ever raising his fists, threatening HARLAND or spitting on him. Police obtained a witness statement from ZERAFA's de-facto HENLEY-KELLY where she stated that had never occurred. Police submit that HARLAND has fabricated the evidence that an assault occurred after being informed by Sergeant HERPS no offence was detected in his initial complaint. Police would like to search for an seize HARLAND's computer for his initial document outlining his initial complaint which did not include the allegation of assault. …"
On the same document, the issuing officer recorded the application in these terms (the italicised portions are her handwritten entries): Part 2 Eligible issuing officer's record of application for a search warrant On 8/4/2019 at 11:02am I, the undersigned eligible issuing officer, received this application for a search warrant. … 3 On considering the application I found that there were reasonable grounds for issuing the warrant. 4 The relevant particulars of the grounds on which I relied to justify the issue of … the warrant are as follows: I am satisfied that the information provided is recent & specific in its nature. The grounds of the application are reasonable. The applicant is a Police Officer & authorised to make this application. Make false accusation with intent is a serious indictable offence. The items sought will be located on the subject premises as disclosed to Police during interview. I am satisfied that the items sought will be located on the subject premises & disclose evidence of offences as alleged. … 6 The search warrant was issued at 11:02am on 8/4/19 …" (Emphasis added.)
The eligible issuing officer's record of the application states that she received the application at 11.02am and issued a search warrant at the same time.
The "searchable offence" was defined as an offence contrary to s 314 of the Crimes Act. I will consider the elements of that offence below.
SC Murphy gave evidence that she has no independent recollection of seeking that search warrant. She cannot recall if she said anything to the issuing officer at that time or whether she was asked any questions. Nor could she recall whether she provided any additional information at that time. She made no contemporaneous note about the circumstances of the application. In her affidavit, she identified the following documents as forming the basis of her reasonable grounds: "[12] Within the week before the SW application, I review the NSW Police file which contained the following material which Sergeant Herps provided a physical copy of: a) Witness statement of Sergeant Herps dated 2 April 2019; b) Charles Zerafa's [ERISP] recorded on 8 March 2019; c) Witness statement of Tonni-Jo Henley-Kelly dated 15 March 2019; d) Witness statement of Mr Harland dated 4 March 2019; and, e) Witness statement of Aaron Warnecke dated 7 March 2019. … [14] I also reviewed a copy of the Personal Violence Order application dated 5 February 2019 for Mr Harland which was also on the Police file. [15] I also reviewed: a) NSWPF [CAD] messages from 3 February 2019 and, b) the Body Worn Video Footage of Sergeant Michael Herps of him returning to speak to Mr Harland on 26 February 2019 (the BWV). … [17] After I reviewed the material from 12a) to e), the Personal Violence Order application, the NSWPF CAD messages and the BWV I formed the view, based on what I reviewed that there were reasonable grounds to suspect that the applicant committed the offence of making a false accusation in his statement in support of the Personal Violence Order application with the intent of bolstering that application. I formed this view because when I considered the evidence collectively, I thought there were reasonable grounds to suspect that the applicant in his statement for the Personal Violence Order was different from the evidence showed to Sergeant Herps during the '000' call and visit on 3 February 2019. The statement of Ms Henley-Kelly and Mr Zerafa's interview appeared to contradict what was said in the applicant's statement. I saw that Mr Warnecke's statement did read the same as Mr Harland's. I considered that may have been because it was reliable testimony of it may be because Mr Warnecke was supporting his ex-partner. I considered that Mr Warnecke's statement did not outweigh my reasonable grounds to suspect there was an indictable offence committed to warrant further investigation. [18] I further considered that, given the nature of the suspected offence, which involved comparing the document Sergeant Herps saw to the statement provided by the applicant in the Personal Violence Order application that there were reasonable grounds to suspect a computer or electronic device was connected with the indictable offence enough to justify a Search Warrant of the premises and seize electronic devices that may show a version history of the document shown to Sergeant Herps. [19] I formed the view that there were sufficient grounds to apply for a Search Warrant of the premises." (Emphasis added.)
There was no doubt in SC Murphy's evidence that she was investigating Mr Harland for "making a false accusation in his statement in support of the Personal Violence Order application with the intent of bolstering that application".
At 4.02pm, the warrant was executed, and a search conducted. Ten police officers attended Mr Harland's unit. At 4.24pm, Mr Harland's laptop computer and a number of USBs were seized.

Tuesday, 9 April 2019

At 8.36am, SC Murphy submitted a request to SEEB for examination of the laptop. The following note appears at the end of the document, "Version: 12.0 Created at 9/04/2019 8:36 by Ashlea Murphy". Relevantly, the following information was also included: "Date Required 2/07/2019 Date Required Reason Matter will reach statute of limitations Primary Offence Public Mischief"
Section 179(1) of the Criminal Procedure Act 1986 (NSW) provides for a 6-month time limit for the commencement of summary prosecutions. There is no statutory time limit for commencing the prosecution of indictable offences such as s 314 of the Crimes Act, which SC Murphy stated she was investigating.
Next to the heading "Investigation Background Detail", SC Murphy noted the occurrence of a "verbal dispute" on 3 February 2019 and that police "view[ed] a two page document on HARLAND'S computer where he had outlined what had occurred". The narrative also included: "Police executed a search warrant and seized a number of computer and electronic devices in an attempt to locate the initial document created by HARLAND. HARLAND informed police it has been delete (sic). Police would like the laptop examined in an attempt to recover the document as police as [sic, are] investigating HARLAND for making a false allegation resulting in police investigation."
I will consider the significance of the use of the word "resulting" below.

Wednesday, 10 April 2019

SC Michael Jordan of the Sydney Radio Operations Centre processed SC Murphy's request and produced the triple-0 calls made by Mr Harland that night. They revealed that, contrary to what was included in the application for the search warrant, Mr Harland had complained of an assault to the triple-0 operators (see above at [43]-[47]). The police suspicion that he fabricated such an account for the first time after speaking with them that night could not be sustained on the basis of the triple-0 calls.

Thursday, 11 April 2019

At 8.41am, DS Herps emailed SC Gleaves requesting that he provide a statement to SC Murphy pertaining to possible charges against Mr Harland. At 8.43am, DS Herps emailed SC Murphy attaching his statement dated 2 April 2019. SC Murphy confirmed receipt at 11.50am.

Wednesday, 17 April 2019

At Blacktown Local Court, police withdrew from Mr Harland's APVO application and the interim APVO was continued by Registrar Andrews. The matter was adjourned to 1 May 2019.

Events between 30 April 2019 and 23 August 2019

There was no further investigation into Mr Harland until August 2019. Mr Harland was without his computer during that time and had to defer his university studies. Evidence was adduced regarding Mr Harland's attempts to get his computer back during that time. Most of this evidence was not relevant to the validity of the search warrant but I will briefly summarise what occurred.

Tuesday, 30 April 2019

A letter was sent by the Redfern Legal Centre to Blacktown police station requesting the return of Mr Harland's property. By that date, SC Murphy had the triple-0 calls but no result from SEEB. In the letter, reliance was placed on s 219 of LEPRA: 219 Disposal of property on application to court (1) A court may, on application by any person, make an order that property to which this Division applies - (a) be delivered to the person who appears to be lawfully entitled to the property, or (b) if that person cannot be ascertained, be dealt with as the court thinks fit.
Section 216 of LEPRA provides that "property to which this division applies" refers to property that is in the police custody in connection with an offence, whether or not proceedings have been commenced, and property that is lawfully in police custody other than in connection with an offence.

Wednesday, 1 May 2019

At the listing of the APVO application at Blacktown Local Court, the applicant represented himself and the matter was adjourned to 15 May 2019.

Tuesday, 7 May 2019

Following Mr Harland's request for the return of his property, at 5.30pm, SC Murphy updated the COPS record. The entry read: "A request for assistance has been submitted to the state electronic evidence branch, reference number 821. A time frame has been given as approximately 4-6 months. The owner of the property and POI has been advised of this. A legal representative for HARLAND has requested that all property be returned to him. A response was given to this stating that an examination would still need to be undertaken. Police spoke with HARLAND on the phone advising him of this outcome as well and he stated he had made another document on his laptop and on the advise [sic] from Sergeant Herps he had removed the descriptive parts and thus was the application for the personal violence order. Investigators believe this may be somewhat alluding to the allegation of the deleted document differing from that of the application. HARLAND was forthcoming with the investigators and stated this was on his laptop computer. HARLAND has requested for the hard drive to be returned for university studies. Police will seek advise [sic] however this property and that of the USB devices may be returned in the near future." (Emphasis added.)
It is not entirely clear what SC Murphy meant by the italicised portion in the third paragraph above. It was not new information. It was consistent with what Mr Harland told police as recorded in the body worn camera footage which SC Murphy stated she had viewed before seeking the warrant. She was not cross-examined about this. There was no reference to the triple-0 calls in this update.

Wednesday, 15 May 2019

At the listing of the APVO application at Blacktown Local Court, Mr Zerafa indicated that he would be defending the application. The interim order was continued. Orders were made as to the service of statements and the matter was adjourned until 19 June 2019.

Thursday, 16 May 2019

Mr David Shoebridge MLC wrote a letter to the NSW Police Commissioner complaining about Mr Harland's treatment. He noted Mr Harland's concerns in the context of the background that Mr Harland had previously successfully sued Blacktown police in a civil action for failing to "adequately investigate" a "gay hate crime assault" that left Mr Harland's partner with a permanent brain injury. In particular, complaint was made that Mr Harland's computer had been seized and not returned.

Tuesday, 21 May 2019

There having been no return of the laptop following the letters from Redfern Legal Centre and Mr Shoebridge, Mr Harland filed an application at Blacktown Local Court for the return of his seized property under s 219 of LEPRA. The application was received by Registrar Andrews and listed on 6 June 2019.

Wednesday, 22 May 2019

DS Herps emailed SC Gleaves regarding the status of his statement.

Tuesday, 4 June 2019

SC Gleaves signed his statement.

Thursday, 6 June 2019

At the listing of Mr Harland's s 219 application at Blacktown Local Court, police sought an eight-week adjournment. The application was adjourned for hearing on 23 August 2019.

Wednesday, 19 June 2019

At Blacktown Local Court, Mr Harland's APVO application was adjourned for hearing to 5 September 2019.

Wednesday, 3 July 2019

At 1.14pm, SC Murphy made a COPS entry recording that Mr Harland had requested the return of the hard drive for his university studies.

Thursday, 18 July 2019

SC Sfarjalani from SEEB collected Mr Harland's Acer laptop for data copying onto a USB and returned it with the USB.

Thursday, 15 August 2019

SEEB conducted an examination of the Acer laptop and found that Mr Harland had created the document "in his personal violence order application and that there were artifacts linked to the file and temporary saved versions", which police were unable to view. Sergeant Catto-Pitkin advised that further analysis (requiring a further request) would be needed to view these items. SC Murphy updated the COPS case narrative in relation to this and other matters on 27 August 2019. The document described by SEEB was the one that Mr Harland emailed to Blacktown Local Court on 5 February 2019.

Friday, 23 August 2019

The hearing of Mr Harland's s 219 application at Blacktown Local Court was adjourned to 22 November 2010. Police sought this lengthy adjournment to provide time to obtain the results of the laptop analysis. At 3.41pm, police prosecutor William Jarboue sent an email update to SC Murphy about this.

Tuesday, 27 August 2019

SC Murphy submitted a second request for assistance to SEEB which was approved by Inspector Goddard. She indicated that it was required by 22 November 2019. The alternative contact was noted as being "Michael HERPS".
At 6.15am, SC Murphy emailed prosecutor Jarboue confirming her (expedited) request to SEEB. Later that day, SC Murphy sat down with SEEB.
SEEB examined the file again and were unable to recover any temporary saved versions of the document because the amendments had occurred "within the same file and had been saved as the same file, instead of further files that had since been deleted as once thought" (emphasis added). "Of interest" was that the file (the APVO document) was created at 4.40pm on 3 February 2019 and had undergone "19 hours of editing prior to its last amendment before being seized by police". The narrative recorded by SC Murphy in COPS about this concluded: "There is circumstantial evidence to suggest that HARLAND has altered the document after police have viewed it and prior to it being submitted to Blacktown Local Court for the personal violence order, which is confirmed by Sergeant HERPS and LSC Prior. On HARLANDS own admissions he stated on the advise [sic] from Sergeant HERPS he had removed the descriptive parts and thus was the application for the personal violence order. Investigators believe this may be somewhat alluding to the fact that he had changed the document however police have been unable to recover the prior documentation. Investigating police, in liaising with Sergeant HERPS, do not believe there is sufficient evidence to proceed in relation to HARLAND creating a false application and therefore this matter will be suspended. All exhibits will be returned to HARLAND in relation to this matter."
At 8.54pm, SC Murphy updated the COPS case narrative detailing the findings of SEEB's investigations on 15 and 27 August.

Wednesday, 28 August 2019

At 6.00am, SC Murphy emailed the plaintiff's solicitor and noted that she had sat down with SEEB the day before and was able to expedite the process. She confirmed that the laptop and all the other seized items could be returned, that there was insufficient evidence to charge Mr Harland and that the case against him was to be suspended.
At 2.31pm, Mr Harland's solicitor emailed SC Murphy to arrange a date for collection.

5 September 2019

There was no appearance by Mr Zerafa at the hearing at Blacktown Local Court for his APVO. The order was granted for a period of two years.

Evidence as to searchable offence

I shall make some findings regarding the inferences to be drawn from the contemporaneous documents in my consideration below. However, there is one aspect of the evidence that I need to summarise before doing so: how was it that SC Murphy arrived at the relevant searchable offence?
SC Murphy was cross-examined on the fact that the COPS case report (under which the event narratives are entered) indicates that the offence Mr Harland was being investigated for was "public mischief" which is a summary offence and thus not a "searchable offence" within the meaning of s 47(1). Her evidence was that she did not enter that description, Sergeant Kniepp did. Further, although she accepted that she had read all of the COPS entries when she took over the investigation, she was unable to recall whether she ever noticed that the offence was described in that way. As referred to above, on 5 April 2019, SC Murphy described the offence in the narrative of her first COPS entry as, "making false accusation with intent subject other to investigation". That language is taken from DSS Wilson's email extracted above at [119].
Although it seems somewhat suspicious that the investigation was at all times "entitled" as "public mischief", a full list of categories that an officer can choose from for "case title" was tendered by SC Murphy. It revealed that the categories do not correspond to specific provisions of the Crimes Act; they are simply descriptors at a broader level of generality. Significantly, there did not appear to be any option that more aptly fit the case than "public mischief".
Counsel for the plaintiff cross-examined SC Murphy at length as to how she arrived at the s 314 offence being the "searchable offence". That offence is in the following terms: 314 False accusations etc A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years. (Emphasis added.)
SC Murphy was also provided with copies of s 547B of the Crimes Act and s 49A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("Crimes (DPV) Act"). Section 547B provides for the offence of public mischief and is in these terms: 547B Public mischief (1) Any person who, by any means, knowingly makes to a police officer any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a police officer, shall be liable on conviction before the Local Court to imprisonment for 12 months, or to a fine of 50 penalty units, or both. (2) For the purposes of subsection (1), a person shall be deemed to make a representation to a police officer if the person makes the representation to any other person and the nature of the representation reasonably requires that other person to communicate it to a police officer and that person does so communicate it.
Section s 49A of the Crimes (DPV) Act is specifically concerned with false statements in APVO application and is also a summary offence. It provides: 49A False or misleading applications for apprehended personal violence order A person is guilty of an offence if - (a) the person makes a statement (whether orally, in a document or in any other way), and (b) the person does so knowing that the statement is false or misleading in a material particular, and (c) the statement is made to a Registrar or Magistrate for the purpose of making an application for an apprehended personal violence order under section 18. Maximum penalty - Imprisonment for 12 months or 10 penalty units, or both.
SC Murphy was also asked about the offence of perverting the course of justice, which was one of the two offences suggested by DSS Wilson in his email. Section 319 of the Crimes Act is in these terms: 319 General offence of perverting the course of justice A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.
After SC Murphy was taken to these provisions, she was asked the following questions: "Q. Now, I would suggest to you that the facts presented to you on 5 April 2019 for you to investigate a possible offence could have rationally triggered possibly those three statutory provisions setting out offences against the criminal law of New South Wales. Do you agree with that? A. Can I have a second just to read through them? Q. Sure. Don't read the whole thing. Just those three, s 314 and s 547B of the Crimes Act and then s 49A of the Crimes (Domestic and Personal Violence) Act? A. Yes. Q. My question is why did you choose s 314 as one for which you might be possibly moving against this man, Mr Harland, for what he did or did not do on 3 February 2019? A. I believed that that offence was the most suitable offence at the time. Q. Did you contemplate using s 49A of the Crimes (Domestic and Personal Violence) Act? A. Am, I can't recall, I'm sorry. Q. Would you agree looking at that from your knowledge that is a summary offence at most? A. Sorry, I don't I'm sorry, I don't know." (Emphasis added.)
SC Murphy's answer that she believed an offence contrary to s 314 of the Crimes Act was the "most suitable offence at the time" is the high point of the evidence is to why she did so.
On 9 April 2019, in her request to SEEB for examination of the laptop, SC Murphy indicated that "[p]olice would like the laptop examined in an attempt to recover the document as police as [sic] investigating HARLAND for making a false allegation resulting in police investigation" (emphasis added). As stated above, the "primary offence" field was recorded as "public mischief". She could not recall how that offence was entered. She could not recall if there were categories to choose from on the pro-forma document on the computer or if anything could be typed in the fields, "primary offence" and "date required reason" (where "matter will reach statute of limitations" was recorded). Nor could she recall why she had suggested a time limit for prosecution of five months (relevant to a summary offence, not an indictable offence).
It was suggested to SC Murphy in cross-examination that one of more of the other police officers had suggested that offence to her but she denied it. In the event, there is insufficient evidence for me to find that DS Herps suggested to SC Murphy that the appropriate offence was one contrary to s 314 of the Crimes Act. SC Murphy could not recall what she discussed with DS Herps when the matter was handed over to her and that there was no documentation of that conversation. And going further, in none of his emails or COPS entries does he ever make any reference to s 314 of the Crimes Act.
I have already summarised the email from DSS Wilson to SC Murphy on 5 April 2019 suggesting that an offence contrary to s 314 is what she should "work up". There is no other reference to that offence in the contemporaneous documentation. For reasons I will explain below, I am satisfied that the only inference is that she accepted what had been suggested to her by DSS Wilson.

The plaintiff's submissions

The plaintiff relied on written submissions filed prior to the hearing and oral submissions made at the conclusion of the evidence.
Mr Skinner accepted in his final submissions that he could not establish to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336) that SC Murphy deliberately supplied information in her application that she knew to be false. The focus of his submissions was on the lack of requisite "reasonable grounds".
He confirmed that the particulars in support of the contention that SC Murphy did not have reasonable grounds to believe that there was a thing on the premises that was connected with the searchable offence were those enumerated at [62] of his written submissions (paraphrased) as follows: 1. When DSS Wilson first emailed SC Murphy at 11.10 am on 5 April 2019 he stated, "you will need a search warrant to seize the computer"; 2. On 5 April 2019, when SC Murphy first created the case, she described the offence as being one of "public mischief" (as discussed, this was not strictly accurate and her evidence was that Sergeant Kniepp inputted that label, not her); 3. SC Murphy did not interview or obtain any documents from SC Gleaves. Nor did she attempt to contact him or obtain any statement or document from him; 4. SC Murphy did not interview Blacktown police prosecutors or Sergeant Clemence; 5. SC Murphy did not examine the court papers at Blacktown Local Court in relation to the application for the APVO; 6. SC Murphy did not make any enquiries with Blacktown Local Court to inspect the Word document that Mr Harland told DS Herps he had emailed to the court; 7. SC Murphy did not critically assess the 23-day recollection of DS Herps "compared to his notebook entry and COPS entry" (likely referring to the period between 3 and 26 February being DS Herps' two attendances at Mr Harland's unit); 8. SC Murphy did not critically assess the actions of DS Herps on 26 February 2019 and his discussion with Mr Zerafa on 28 February 2019; 9. SC Murphy did not critically assess whether DS Herps was biased; 10. SC Murphy did not critically assess the ERISP with Mr Zerafa; 11. SC Murphy did not critically assess DS Herps' concessions about the limitations of liability of his memory (at [21] of his statement dated 2 April 2019 he stated that he did not take photographs of the original document and could not say that the APVO application was a complete fabrication); 12. SC Murphy did not fairly and impartially weigh the respective versions of Mr Harland and Mr Warnecke against Mr Zerafa and Ms Henley-Kelly in determining whether Mr Harland had committed an offence; 13. SC Murphy did not properly consider the law of assault; 14. SC Murphy did not properly consider the legal procedure and requirements for the making of an APVO; 15. SC Murphy did not properly consider the appropriateness of investigating a matter that was in the process of being heard by the Local Court; 16. SC Murphy did not properly consider the appropriateness of applying for a search warrant to search the home of the person whilst police were "on the record as representing" that same person in APVO proceedings; 17. SC Murphy did not properly consider the evidence provided by DS Herps of a conversation with Mr Harland which was not corroborated by an audio or video record, contemporaneous notes or a third-party witness; 18. SC Murphy did not understand the legal requirements for a court to make an APVO, incorrectly believing that Mr Harland needed to prove an assault to obtain an APVO; and 19. SC Murphy ignored that by DS Herps referring Mr Harland to court to obtain an APVO that DS Herps was of the opinion that Mr Harland had grounds to obtain such an order.
As for the particulars of invalidity pertaining to the issuing officer, it was submitted in writing that Ms Andrews took less than one minute to consider and issue the search warrant. She also failed to consider the appropriateness of determining the application in circumstances where she had issued the interim APVO for Mr Harland. Further, it was contended that she did not record sufficient reasons as to her decision to grant a search warrant as required by s 65(1) of LEPRA.
In closing submissions, Mr Skinner's focus was as to why the Court would be satisfied that SC Murphy did not have reasonable grounds to believe that there was a thing connected with the searchable offence contrary to s 314 of the Crimes Act. Significant reliance was placed on the evidence concerning how the searchable offence was arrived at, what investigations SEEB could have done in any event, the circumstances of the handover to SC Murphy, the triple-0 calls, the interview with Mr Zerafa and inconsistencies between what is recorded in the body worn camera and what was included in the police statements.
It was noted that there was no transcript of Mr Zerafa's ERISP at the time of the application, although SC Murphy states that she listened to it or watched it. It was submitted that SC Murphy put the wrong indictable offence on the warrant, but it was conceded there was no evidence to find that she did so deliberately. Reliance was placed on SC Murphy's evidence that she did not know how "public mischief" came to be included in the police records.
It was accepted that DSS Wilson denied that police were exercising their powers to teach Mr Harland a lesson for being a nuisance, but, it was put, the question for the Court was whether the grounds were reasonable. It was submitted that if I was satisfied that the power had been misused that was relevant to the validity. It was submitted that DSS Wilson's state of mind was relevant because of the "chain of command"; it was realistic to conclude that a junior constable told by her crime manager that he believed getting a computer would be useful that she would not resist that. DSS Wilson had asked her to "work up" a case for an indictable offence when she was never charged to investigate anything other than the making of a false APVO application.
It was submitted that there has to be the "connection" with the offence as defined in s 46(3) of LEPRA. Police appear to have been looking for a previous draft of the document emailed to the Registrar but that was not how it was described in the application.
In relation to defects in the search warrant application, it was submitted that Mr Harland had never said that he deleted the document. Nor was it accurate to state that in the application that "both parties" (Mr Harland and Mr Warnecke) made reference to the computer in their police statements as Mr Warnecke's statement mentions nothing about the computer. Further, the effect of saying "both parties" would convey an undertone of concoction to the issuing officer. The application also omitted to note that Mr Zerafa (and Ms Henley-Kelly) admitted that at least he ran near Mr Harland saying in purported protection of his children.
It was submitted that the "kicker" (in the misleading application) was the reference to "fabrication" at the end. It would have led the issuing officer to conclude that Mr Harland had fabricated evidence based on material which was wrong or misleading. The issuing officer was presented with an indictable offence which never happened and given supporting information suggesting a s 314 offence about police statements when the question was what he said in his APVO application.
Referring back to the amended summons, it was submitted that if the plaintiff was successful on particular 1(a)(i) (SC Murphy's reasonable grounds), then he would also be successful on 1(d) (the Registrar's reasonable grounds), and the reverse was also the case.
As for particular 1(e), reliance was placed on Doyle v Commissioner of Police [2020] NSWCA 11; 285 A Crim R 349 ("Doyle") (considered below at [238]-[241]). It was submitted that if the issuing officer received and issued the warrant at 11.02am on 8 April 2019 she could not have been satisfied that there were reasonable grounds to issue the search warrant (or indeed, consider this question in any meaningful way).
As for particular 1(f), it was submitted that the issuing officer should have directed her mind to how reliable DS Herps and SC Gleaves' memories were.
Finally, it was conceded that there was insufficient evidence to advance the particular that the issuing officer did not comply with s 65(1) of LEPRA.

The first defendant's submissions

Detailed written submissions were filed on behalf of the first defendant prior to the commencement of the hearing. They were supplemented by oral submissions at the conclusion of the hearing.
Much of the written submissions addressed the initial assertion that SC Murphy had deliberately supplied misleading material; a matter that was not ultimately pressed on behalf of the plaintiff.
It was submitted in relation to the investigation for an offence contrary to s 314 of the Crimes Act that the alleged conduct may have constituted such an offence. It was submitted that although the internal documentation refers to the offence of public mischief, there was no evidence that it was SC Murphy who had recorded it in those terms. It was submitted that it was not SC Murphy's role to assess matters of credibility and reliability. It was submitted that the evidence cogently shows that SC Murphy had reasonable grounds as alleged.
Reliance was placed on the decision of Doyle. In particular, it was submitted that this case was very different factually and that there was a cogent inference that the issuing officer had turned her mind to the nature of the allegation and found the application was not broadly "fishing" for an offence. It was submitted that she did give real attention to the legislative considerations and did not simply "rubberstamp" the application.
As for the suggestion that the issuing officer took less than one minute to read the application, it was submitted that there was a strong inference available that she took more than one minute to consider the application given that she handwrote detailed reasons which would have taken more than a minute to write. It was submitted that if, by way of example, she had received the application at 11.02am and issued the warrant at 11.04am that would be evidence that she only spent two minutes on it which would have been insufficient time. The fact that she has written the same time just shows that she must have made a simple error.
In oral submissions in response to my concern that there was no evidence as to how SC Murphy arrived at an offence contrary to s 314 of the Crimes Act, Ms New referred to the SC Murphy's evidence that she was investigating whether Mr Harland had made a false statement to police and also to the Registrar. SC Murphy knew that Mr Harland had provided a juratted statement and his application for an APVO. There was a suggestion that what was contained in both of those documents was different from what was seen by police. It was submitted that that was an insight into why she was investigating an offence contrary to s 314 of the Crimes Act.
As to the reference to the six-month statutory limitation in the 9 April 2019 request to SEEB, it was accepted that SC Murphy's evidence was that she could not recall which were the pre-filled categories, but that did not establish that SC Murphy had formed a view that it was a summary offence; that evidence needs to be considered in the context of the other evidence that she was investigating a s 314 false accusation. I indicated at the time that I was satisfied on the balance of probabilities that SC Murphy must have entered those details herself because of the coincidence of that date being five months (February to July) from the date of the alleged offence. Ms New submitted that it would not be open to me to infer that SC Murphy provided a five-month date to put some pressure on SEEB because the witness had no recollection to this effect. It was submitted that given the other evidence that she has consistently maintained that she is investigating for a s 314 offence, I would not infer that she had entered the time limit because she knew she was investigating a summary offence.
As for the relevant legal principles, Ms New submitted that material sufficient to provide reasonable grounds for the issue of a warrant may fall short of proof of the offence suspected. As for the nomination of the searchable offence, Ms New relied on Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; [1991] FCA 92 ("Beneficial Finance Corp") and State of New South Wales v Corbett (2017) 230 CLR 606; [2007] HCA 32 ("New South Wales v Corbett") (summarised in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [35]-[42]). I have considered these decisions below. Ms New submitted that an applicant applying for a search warrant is not tied to a specific offence and that, citing Corbett, "even in the face of the error of a section where there was no mistake about the object of the search or the boundaries of the search warrant, the search warrant was not invalid."
On the issue of how other available (summary) offences might have impacted on SC Murphy's reasonable grounds for the s 314 offence, and drawing on George v Rockett (1990) 170 CLR 104; [1990] HCA 26, Ms New submitted the relevant inquiry was whether there existed facts that to induce the relevant belief in the mind of a reasonable person and not whether there existed alternative facts which weighed against this (including other possibly applicable summary offences).
Ms New also relied upon the principle that the scheme for the application for search warrants has to have "practical workability". This principle was said to be derived from the decision in Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Mason J (as his Honour then was) observed the following at 83: "In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. These considerations suggest that par. (b) and the concluding words of the section, in so far as they relate back to par. (b), are looking to documents as to which there are reasonable grounds for believing that they will in some way implicate the persons named in the warrant, or, if no person is named, someone in the commission of the offence. To say that the section excluded documents the subject of legal professional privilege from the scope of the authority given by the warrant would unduly inhibit the investigation of crime and lead to the institution of legal proceedings before trial which would require a determination of the existence of the privilege because the Crown's right to retain the documents would depend on the resolution of this issue. In the case of production on discovery and under subpoena duces tecum there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s. 10(b)."
It was submitted that the incorrect aspect of the application concerning there being no assaults in the "calls" was not necessarily misleading when the paragraph is read in its entirety. It was submitted that the Court would not declare the search warrant to be invalid on the basis of the error regarding the triple-0 calls as that would invite "a futuristic look as to the outcome of that line of investigation". In response to whether there was any basis to seek the search warrant if the triple-0 calls had been available and listened to, Ms New submitted that the significance of the triple-0 calls was such that it still would have been reasonable to seek a warrant even after having regard to those calls.
It was submitted that SC Murphy was a reliable and a credible witness who gave thoughtful answers. In a response to a question as to why, if police were satisfied Mr Harland was verbally threatened, they did not charge Mr Zerafa with intimidation, Ms New accepted that was unclear.
It was acknowledged that SC Murphy now concedes there was no evidence that Mr Harland "deleted" the notes. That word appears to have come from DSS Wilson in his 5 April handover email, writing, "we will be looking for the deleted Word document."
It was submitted that SC Murphy had a belief that there was a document on a laptop which, with SEEB's help, could be examined to identify the original version, which was a line of objective evidence in her mind; she was trying to reconcile two stories and she was applying for a search warrant to try and find objective evidence to do so. It was submitted that there was no evidentiary foundation to suggest that SC Murphy was blindly guided by DSS Wilson.
As for the results of the examination by SEEB, reliance was placed on the fact that the first result was equivocal, so she went back a second time which confirms that she was after the document she described in her application.

Relevant principles

An overriding principle in relation to search warrant law is the strictness with which the law pertaining to them is to be applied. In the oft cited words of Burchett J in Parker v Churchill (1985) 9 FCR 316 at 333: "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."
Kirby J explained the necessity for strictness in approaching the law governing search warrants in New South Wales v Corbett at [16]-[19] (footnotes omitted): "[16] From its earliest days, this Court has insisted on a rule of strictness in expressing the law governing search warrants. It has done so, despite a recognition that, as Brennan J observed, in Halliday v Nevill: 'There is ... a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement.' [17] In intermediate courts, opinions are sometimes expressed reflecting a perceived need to moderate the rule of strictness. This has followed the inconvenience that the application of the rule can sometimes occasion and a sympathy for those who seek and execute search warrants (generally police officers) who are accountable in law for defaults when the rule of strictness is rigorously applied. Instances of such opinions may be seen, for example, in the dissenting reasons in two important cases in the New South Wales Court of Appeal. The dissents concern, and respond to, the tension to which Brennan J referred in Halliday. [18] Notwithstanding such differences, intermediate courts in Australia have normally adhered to the rule of strictness. They have correctly interpreted that to be their duty, conforming to the unanimous reasons of seven Justices of this Court in George v Rockett. Those reasons, in turn, constituted a strong reaffirmation of a line of federal cases such as R v Tillett; Ex parte Newton and Parker v Churchill, extracted and cited with approval in Rockett. [19] The rule of strictness in this area of the law can only be fully understood against the background of its history in common law countries; the basic principles expressed in that history commonly reflected in the constitutions of most such countries; and the development of instruments expressing relevant norms of the international law of human rights to which Australia is a party."
The present case concerns whether the applicant had "reasonable grounds" to believe that there would be a thing connected with the searchable offence (s 314 of the Crimes Act) at Mr Harland's premises and whether the issuing officer had reasonable grounds to issue the warrant. The leading case concerning the requirement for "reasonable grounds" is George v Rockett (1990) 170 CLR 104; [1990] HCA 26. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) considered the construction of the relevant search warrant provision in Queensland legislation at that time, which required both the applicant and the issuing officer to have "reasonable grounds" for issuing the warrant. In that context, the Court observed the following at 110: "A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property."
Their Honours went on at 111 to observe the following in relation to the statutory powers to grant such warrants: "… in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation."
After noting that a warrant should express the justice's satisfaction that there are reasonable grounds for the suspicion and belief their Honours noted (at 111): "These observations accord with the language of the statute. Although it is implicit in s.679 that the applicant for the search warrant should entertain the suspicion and belief to which that section refers, it must 'appear' to the issuing justice that there are reasonable grounds for entertaining the relevant suspicion and belief: see the phrase 'that there are reasonable grounds for suspecting' and, in pars (b) and (c), the phrase 'there are reasonable grounds for believing'."
Their Honours went on at 112 to state: "When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v . Reynolds (1980) AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist."
I pause to note that the wording of LEPRA does not use the word "suspects" but rather the applicant's state of satisfaction is one of belief. The relevant statutory provision in George v Rockett specified that it must appear to the Justice (issuing officer) that there were reasonable suspicions about some matters and reasonable beliefs about others. As for the difference between suspicion and belief, their Honours observed at 113-114: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam (1970) AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.' The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
Their Honours went on to observe the following at 115-116 (footnotes omitted): "In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s. 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v. Thorpe; Seven Seas Publishing Pty. Ltd. v. Sullivan) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there are reasonable grounds for suspecting that 'there is in any house, vessel, vehicle, aircraft, or place - Anything' and that there are reasonable grounds for believing that the thing 'will ... afford evidence as to the commission of any offence'. Suspicion, as Lord Devlin said in Hussien v. ChoTIg Fook Kam, 'in its ordinary meaning is a state of conjecture or sunnise where proof is lacking: 'I suspect but I cannot prove.' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said: 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-So (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.' The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
More recently in Smethurst v Commissioner of Police (Cth) [2020] HCA 14 Kiefel CJ, Bell and Keane JJ observed the following in relation to search warrants generally, albeit in the context of the proper identification of the relevant offence and items being searched for at [23]-[25] (footnotes omitted): "[23] The power to search has always been regarded as an exceptional power, to be exercised only under certain justifying conditions. One essential condition, found in statutes authorising the issue of warrants for search and seizure, both Commonwealth and State and Territory, is that the object of the search be specified by reference to a particular offence [24] In George v Rockett, the Court observed that in prescribing conditions governing the issue of search warrants the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of their privacy. A person's interest in privacy is recognised in all modern bills of rights and it has achieved a status in international human rights law. [25] It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by a warrant."
As for the principles pertaining to the identification of the searchable offence, the first defendant relied upon the following observation of Burchett J (with whom Sheppard J agreed) in Beneficial Finance Corp at 533: "The authorities make it clear that the statement of the offence in a search warrant need not be made with the precision of an indictment. That would be impossible, and indeed to attempt it would be irrational, bearing in mind the stage of the investigation at which a search warrant may issue. The purpose of the statement of the offence in the warrant is not to define the issues for trial; but to set bounds to the area of search which the execution of the warrant will involve, as part of an investigation into a suspected crime. The appropriate contrast is not with the sort of error which might vitiate an indictment, but with the failure to focus the statutory suspicion and belief upon any particular crime, with the result that a condition of the issue of the warrant is not fulfilled, and it purports to be a general warrant of the kind the law decisively rejected in the 18th century." (Emphasis added.)
I have also considered the decisions of this Court, both the Court of Appeal and at first instance, in which the question of "reasonable grounds" has arisen in the relevant statutory context. I have found the following decisions to be of assistance.
In Carrol & Ors v Mijoivch & Ors (1991) 25 NSWLR 441, the Court of Appeal allowed an appeal against a decision of Finlay J. His Honour had upheld the validity of a search warrant despite the fact that the issuing officer had failed to cause a record of the grounds relied upon to justify the issue of the warrant. The Court (Kirby P and Handley JA (Meagher JA dissenting)) held, in reliance upon George v Rockett, that the failure of an authorised justice to record the grounds relied upon to justify the warrant renders such a warrant invalid.
In Vincent v Randall & Anor [1999] NSWSC 833, Hidden J considered a challenge to a search warrant where incorrect information had been provided to the authorised officer orally by the applicant during the application. In that case, a 14-year-old child had attended Redfern police station and reported that her parents had been selling cannabis from their home for some time and were receiving stolen property. The applicant obtained police intelligence reports which suggested the child's parents were engaging in the supply of cannabis and heroin. Those intelligence reports appeared to have come from unnamed members of the public. During the application for the warrant, the authorised officer enquired of the applicant whether the occupants had any convictions for possessing cannabis and he replied that they did (from his recollection).
The suspects did not have any convictions for selling cannabis. That aspect of the report was incorrect. When the search warrant was executed, a small quantity of cannabis was found. In this factual context Hidden J noted at [14]: "[14] Several of the cases to which I was referred, including Jackson v Mijovich itself, were concerned with the question whether there were reasonable grounds for the issue of a warrant. These involved an examination of the adequacy of the material that was before the justice and, in particular, whether further information should have been sought before the warrant was issued. The researches of the plaintiff's solicitor and counsel for the second defendant were unable to produce a case where, as here, the justice had been given supplementary information which was false."
His Honour went on at [16] to observe: "[16] It needs hardly be said that it is most unfortunate that the justice was supplied with false information about the criminal records of the plaintiff and her husband, and it is particularly this aspect of the matter which has troubled me. I accept that it was a genuine mistake on Snr Cnst Campbell's part. The contrary was not suggested. Nevertheless, it is entirely unsatisfactory that information of such significance should have been supplied without reference at that time to police records, and based purely upon recollection of material which had been perused some days earlier. To have checked those records before answering the justice's question was essential and, in the circumstances, would have occasioned no inconvenience or delay. The lesson to be learned is that a police officer applying for the issue of a search warrant should have all relevant documentation immediately to hand, so that any queries by the justice can be answered accurately."
Significantly, his Honour was satisfied that putting the criminal histories to one side, the remaining material was sufficient to provide reasonable grounds for the issue of the warrant. In that context, Hidden J observed the following at [18]: "[18] It must be remembered that material sufficient to provide reasonable grounds for the issue of a warrant may fall short of proof of the offence suspected. In Parker v Churchill (1985) 9 FCR 316, Burchett J was dealing with a warrant issued under s10 (since repealed) of the Crimes Act 1914 (Cth). That section provided for the issue of a warrant by a justice who was 'satisfied … that there is reasonable ground for suspecting' one or more of the things set out in the section. For present purposes, I see no relevant difference between that provision and s6 of the Search Warrants Act , with which I am dealing. As his Honour observed (at 232), 'Suspicion and belief are not of course dependent upon proof.' His Honour went on to refer to authority bearing on that question. In George v Rockett the Court said (at 116): 'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture'."
I note that Vincent v Randall turned on the statutory requirements in respect of the issuing officer, rather than the applicant.
In Rohozynsky v Holder & ors. [2005] NSWSC 868, a search warrant had been issued for a stolen "Bobcat" on specified premises. The applicant had frankly stated in the application "there is no evidence to connect the residents of these premises with the initial hirer of the machine". Nor was the authorised officer told that the identity/identities of the occupant(s) of the dwelling house was/were unknown to police. Sully J quashed the search warrant on the basis, inter alia, that there were no "reasonable grounds" for believing that the property would be at the subject premises or even that it was stolen in the first place.
In Corbett & Anor v State of New South Wales [2006] NSWCA 138, one of the grounds of invalidity concerned the fact that the searchable offence was a provision of the Firearms Act which had been superseded. A police officer who was known to have firearms in his possession wrote a suicide note suggesting that police officers may be killed. His firearms licence was cancelled as a result of his poor mental health issues. A search warrant was then sought to seize his firearms on the basis that he was in possession of firearms whilst unlicensed under the superseded Act and section. The appeal was allowed on that basis and the warrant found invalid. That decision was overturned by the High Court who cited Burchett J's statement of principle extracted above at [216] with approval at [99], [103], and then observed the following at [105]-[106]: "[105] Section 5(1)(b) should be construed by reference to the principle that the applicant is required to state reasonable grounds for believing in a particular offence so as to ensure that the issuing justice knows the specific object of the search warrant and accordingly limits its scope. [106] … It was the nature of the offence which was critical, not the reference to the section of repealed legislation which had been replaced with cognate legislation. The nature of the offence had to be stated sufficiently to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize." (Emphasis added.)
In Polley v Johnson [2015] NSWCA 256 the Court of Appeal considered an appeal against a decision by Bellew J to decline to declare a search warrant to be invalid. That case also concerned a warrant in relation to a public justice offence. A Mr Gillard, who was a member of the Rebels Outlaw Motorcycle Gang ("OMCG"), had approached a potential witness in a murder investigation whilst wearing his "colours". She felt that he was threatening her in the event that she cooperated with the police investigation. He had told her that he hoped people were not talking to police about the death because if they did "bad things could happen to them".
Application was made for a search warrant to search for clothing or insignia associated with the Rebels OMCG. The searchable offence was identified as "Reprisals against judges, witness, jurors etc - Crimes Act (1900) s 326(2)". Following the execution of the search warrant Mr Gillard was charged with two offences, not under s 326(2) of the Crimes Act, but under s 315(1)(a) (hindering the investigation of a serious indictable offence committed by another person) and s 315A(1) (threatening or causing injury or detriment to another person intending to deter the provision of material information about an indictable offence to a police officer or appropriate authority).
It was contended before the primary judge that there were no reasonable grounds for believing that Mr Gillard had committed an offence against s 326(2) because there were no judicial proceedings at that time on foot. The issue turned on the proper construction of s 326 of the Crimes Act. As stated above, Bellew J dismissed the summons.
On appeal the two grounds of appeal were as follows: "1 His Honour the Judge below erred in his construction of the meaning and application of subs 326(2) of the Crimes Act 1900. 2 His Honour erred in not accepting that the real purpose of the issue of the search warrant was not that stated in the Application but was to further the investigation of the suspicious death of Charles Avouris in 1996."
Simpson AJA (with term Beazley P and McColl JA agreed) was satisfied that it is not a precondition for the valid issue of a warrant that the issuing officer was satisfied that the conduct attributed to Mr Gillard was capable of supporting a conviction under the relevant section. In that context, her Honour stated the following at [38]: "[38] By s 47(1) of the LEPR Act, Constable Johnson was authorised to apply to Ms Smith for the issue of a search warrant if she - Constable Johnson - believed on reasonable grounds that there was (or would within 72 hours be) in the premises at Neurea Street 'a thing' connected with a searchable offence. There is no doubt that s 326(2) creates a searchable offence, and that was the offence identified in Constable Johnson's application to Ms Smith. The belief required of a police officer is a composite one - before applying for a search warrant a police officer must believe (on reasonable grounds) that the searchable offence nominated in the application has been committed, and that there is (or will, within 72 hours, be) in the premises in relation to which the warrant is sought a thing connected with that offence." (Emphasis in original.)
Relevantly to the present matter, her Honour went on to observe at [39]: "[39] Although the attack made in the proceedings was on the issue of the warrant, rather than the application for its issue, it may be taken that it applied at least equally to Constable Johnson's asserted belief that an offence against s 326(2) had been committed. That belief, it was submitted, could not have been reasonable, because there was no basis upon which Constable Johnson could have believed that an offence against s 326(2) had been committed. That was because there was no current judicial proceeding in which Mr Gillard could have believed that Ms Howard may have been called as a witness."
Her Honour went on at [40] to describe the statutory relationship between the reasonable grounds held by the applicant and the reasonable grounds held by the issuing officer as follows: "[40] The power conferred on Ms Smith by s 48 of the LEPR Act was to issue the warrant 'if satisfied that there were reasonable grounds for doing so'. The satisfaction must be that of Ms Smith. Satisfaction that there are reasonable grounds for issuing the warrant involves satisfaction that Constable Johnson had reasonable grounds for her belief that the searchable offence had been committed, and satisfaction that Constable Johnson had reasonable grounds for believing that there were relevant items in the premises. Ms Smith's power was confined by s 62, which imposes restraints on the issue of warrants. A warrant is not to be issued unless the information specified in s 62(1) is contained in the application. The information required by s 62(1) includes 'the nature of the searchable offence': s 62(1)(b). Sub-section (3) states (non-exhaustively) matters that Ms Smith was required to consider when determining whether there were reasonable grounds for issuing the warrant: the second matter there specified is 'whether there is sufficient connection between the thing sought and the offence': that is, in this case, an offence against s 326 (2). The submission was that it was not open to Ms Smith to be satisfied that there were reasonable grounds for issuing the warrant. To repeat, that was because there was no current judicial proceeding in which Mr Gillard could have believed that Ms Howard may have been called as a witness." (Emphasis added.)
One of the difficulties in Polley v Johnson is that there were authorities pointing in opposite directions as to whether for the purposes of establishing an offence contrary to s 326 of the Crimes Act, judicial proceedings needed to be current in relation to the threat to be made; the question was not a straightforward one. Her Honour resolved the question in this way at [43]-[45]: "[43] I have come to the conclusion that the question of the validity of the issue of the search warrant is to be resolved, not by the construction of s 326(2), but by reference to s 48 of the LEPR Act. In the view that I have taken, it is unnecessary for this Court to determine whether, for conviction of an offence against s 326(2), that a current judicial proceeding is in existence is an essential element, or whether, as the primary judge held, that the alleged offender believes that a judicial proceeding is contemplated is sufficient. Nowhere in the LEPR Act is there any provision which requires an eligible issuing officer to determine whether the information contained in the application as the basis for the application is capable of 'sustaining' (the language in the applicant's written submission) a charge under s 326(2). [44] In determining whether or not to issue a warrant, an eligible issuing officer is acting administratively, or ministerially, although the discretion to do so is to be exercised judicially: Baker v Campbell [1983] HCA 39; 153 CLR 52 at p 70, per Gibbs CJ (noting that his Honour was in dissent as to the principal issue in that proceeding). It is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence upon which reliance is placed by the police officer seeking the issue of a warrant. [45] Indeed, it is not the role of the eligible issuing officer to determine whether the information contained in the warrant is sufficient to provide the foundation for a conviction under the identified provision. Search warrants are issued in the investigative stages of the criminal process, and relied upon, often, to produce the very evidence that will provide that foundation: see George v Rockett [1990] HCA 26; 170 CLR 104."
Her Honour went on to state: "[46] I accept that, in this case, it was reasonably clear to Ms Smith, from the information in the application, that there was then no current relevant judicial proceeding. But it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence identified in the application. The question for that officer is whether that material provides "reasonable grounds" for the issue of a warrant, which may yield relevant evidence or information. [47] Nor is it the role of the eligible issuing officer to engage in the construction of the legislation in question; particularly is that so, where, as here, there existed an unresolved (unresolved until the decision of the primary judge in this very case) issue of the construction of that provision. Ironically, it was the very absence of certainty about the construction of s 326(2) upon which the applicant relied to advance her claim for leave to appeal."
In dismissing the first ground, Simpson JA noted the undesirability of committing the determination of complex legal issues to individuals exercising administrative functions: see [48]. Her Honour concluded by stating (at [51]): "[51] The question Ms Smith was obliged to ask herself was whether there were reasonable grounds for issuing the warrant, in the light of the information provided to her, and having regard to the provisions of ss 62(1) and (3). It was not for Ms Smith to engage in a fine dissection of what would suffice to support a conviction under s 326(2)."
The second ground of appeal asserted that the search warrant had been obtained for an ulterior purpose (investigation of the murder). That ground was dismissed on the basis that there was nothing in the evidence that was "remotely capable" of supporting it.
In Lee v NSW Commissioner of Police (No.3) [2019] NSWSC 694 Garling J considered a challenge to the invalidity of a search warrant on grounds including that the applicant relied upon material or information that was unlawfully obtained by police and thereby could not legally or reasonably have been satisfied that there were reasonable grounds within the meaning of s 47(1) of LEPRA. Garling J was not persuaded that that ground was made out given that there is an entitlement to admit evidence which is unlawfully obtained (see s 138 of the Evidence Act 1995 (NSW)): at [147].
Finally, both parties relied upon the decision of the Court of Appeal in Doyle v Commissioner of Police [2020] NSWCA 11; 285 A Crim R 349 ("Doyle"). The issue in that case was whether the issuing officer had complied with the requirements of ss 48 and 65 of LEPRA and whether the search warrant was invalid as a result. The Court was satisfied that the correct inference to draw was that the officer had not brought real attention to bear upon the application for the warrant and had not complied with s 65 of LEPRA, such that the warrant was invalid.
One of the problems in that case (which does not arise in the present matter) is that the applicant had pre-filled those aspects of the application that the issuing officer was required to complete including those pertaining to the reasonable grounds held by the issuing officer. There was no evidence given by the issuing officer. The only evidence as to what was before them was the application document and the warrant.
The Court of Appeal was satisfied that the question as to whether the statutory provisions of LEPRA, in this case ss 48 and 65, were complied with was a question of fact to be determined in light of all the relevant evidence: at [61]. It was common ground that the appropriate inference to draw was that the application for the warrant was heard, determined and documented in around 10 minutes: at [62]. The Court (Leeming and Payne JJA and Simpson AJA) observed the following at [63]-[64]: "[63] 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'. [64] 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." (Emphasis in original.)
After noting disagreement with the primary judge that considerations of efficiency justified the practice of pre-filling the form, their Honours went on to address whether the issuing officer properly considered the application. Their Honours noted at [72] that 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. Their Honours went on to conclude the following at [74]-[75]: "[74] 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. [75] 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." (Emphasis added.)

Consideration

The plaintiff seeks declaratory relief and an order in the nature of certiorari quashing the search warrant. In doing so, the plaintiff invokes this Court's supervisory jurisdiction, regulated by ss 69 and 75 of the Supreme Court Act 1970 (NSW).
In considering the validity of the search warrant, I have regard to the relevant terms of LEPRA and the principles derived from the decisions I have considered above. I have applied those principles to my factual findings. I shall consider each of the particulars of invalidity relied upon in turn.

Particular 1(a): SC Murphy provided information to the issuing officer that she knew was false or misleading in a material particular

I am not satisfied that the evidence supports a finding that SC Murphy provided information to the authorised officer that she knew was false or misleading in a material particular. The plaintiff accepted that as the evidence fell, he could not reach the Briginshaw standard in that regard.

Particular 1(a)(i): SC Murphy did not have reasonable grounds to believe that there was a thing at Mr Harland's premises connected with a searchable offence

I have considered SC Murphy's evidence as to what she had regard to in forming the requisite belief. I have summarised her evidence as to the basis for her requisite belief above at [132]. It is to be accepted that there were a number of documents and recordings available to her that she had access to and, on her evidence, considered. But there are two difficulties with her application for a search warrant. The first difficulty is that although I am not satisfied that SC Murphy intentionally provided information in the application that was false or misleading, there was material in the application that did not reflect the true state of the evidence which SC Murphy appears to have acted upon. The second difficulty is that, viewed objectively, I am satisfied that SC Murphy did not turn her mind to the elements of the searchable offence. In light of these factors, I am satisfied that there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person: George v Rocket at 112.
I will consider these two problems with the application in turn.

Information in the application

There was a false representation in the application concerning the triple-0 calls. I have extracted the relevant portions above at [43]-[47]. They disclose that during the five calls Mr Harland made to police he repeatedly complained that he had been physically threatened by Mr Zerafa. Given that the entire basis for the investigation into Mr Harland turned on a belief that his complaint to the Registrar on 5 April 2019 that he had been physically threatened was a recent invention, the prior consistent statements made to the triple-0 operators are fatal to the police investigation. In that context, SC Murphy asserted the following in the application for the search warrant: "As a result of these [triple 0] calls, respective computer aided dispatch jobs were created by triple zero operators, within none of these calls outlining any assaults, each stating that HARLAND had been verbally threatened by a neighbour." (Emphasis added.)
The suggestion to the issuing officer that none of the calls outlined any assaults was incorrect and was a significant error. I have had regard to the first defendant's submission that it was not necessarily misleading because the application refers to the "computer aided dispatch jobs" prior to the assertion that none of the "calls" outlined any assaults. As stated above, I am not satisfied that SC Murphy deliberately misled the issuing officer, but I am satisfied that the issuing officer would have been left with the impression that SC Murphy was aware of the contents of the triple-0 calls and they did not record any threats, neither of which reflected the true position.
SC Murphy had access to the triple-0 calls two days after she applied for the warrant. It was never explained why she did not wait for them. It had already been over two months since police first attended Mr Harland's home; a few more days would not have mattered. The calls established either that DC Herps and SC Gleaves were mistaken in their recollection of Mr Harland's notes on his computer shown to them on the evening of 3 February 2019 or that (contrary to Mr Harland's evidence) Mr Harland did add some further details after speaking to police, but they were not a recent invention as police suspected.
The next complaint made by the plaintiff regarding the application was the assertion that "Sergeant HERPS informed HARLAND there was no offences detected and he would create a record of the matter". Mr Harland denied this was said and SC Gleaves gave no evidence about it. In the witness box, DS Herps could not remember whether he said it or not, but I am satisfied that in his police statement he included the words I have extracted above at [50]. On that basis, it could not be said there was no evidence this was said.
The real question about this aspect of the application is why SC Murphy omitted to include the uncontradicted evidence of DS Herps that Mr Harland had expressly told police that evening that he did not want anyone charged; he only wanted an APVO. Given that Mr Harland was being investigated for making a false statement with the intent of having Mr Zerafa subject to investigation, the omission of the fact that Mr Harland told police that night that he did not want anybody charged is significant given the searchable offence was s 314 of the Crimes Act.
The next difficulty with the application is the following inclusion: "Sergeant HERP's requested to view the document on HARLAND's computer to which he stated he had deleted."
It was common ground that none of Mr Harland, SC Herps or SC Gleaves ever gave an account of Mr Harland using the word "deleted" in relation to the notes he showed police on 3 February 2019. I have summarised the competing versions above. The only mention of that word in the contemporaneous documentation came from DSS Wilson who used that word in his email to SC Murphy on 5 April 2019. Although it appears to have been a slip on his part which SC Murphy adopted, it was a significant one for two reasons. First, I accept the plaintiff's submission that the word "deleted" carries connotations of destruction of evidence. Secondly, it appears to have given rise to a misapprehension as to what SEEB would be able to recover.
The application for the search warrant suggested that there had been a document that had been "deleted". The actual "thing" specified in the application was "his initial document outlining his initial complaint which did not include the allegation of assault". SC Murphy was looking for a document that had been deleted before it had been saved, but there was no basis for believing that there was a "deleted" document. The ultimate SEEB examination showed that "the file" (which could only be the document sent to Blacktown Local Court by Mr Harland by email on 5 April 2019) was created at 4.40pm on 3 February and had undergone "19 hours of editing" prior to its last amendment before the laptop was seized by police.
The next slightly misleading aspect of the application was in these terms: "HARLAND and WARNECKE later attended Blacktown Police Station where they provided witness statement's outlining ZERAFA had run up to him with his fists clenched and threatening to punch him in the head, he further stated ZERAFA spat on him. Both parties stated they had recorded the incidents on a document on the computer and allowed police to read it." (Emphasis added.)
This passage suggests that Mr Harland and Mr Warnecke put their heads together to concoct a false version. The two men did not attend Blacktown Police Station together. Nor did both parties state they had recorded the incidents on a document on the computer; only Mr Harland did. On their own, these slight inaccuracies are of no moment, but they are relevant to note as part of the application overall. Further, to the extent that the allegation that Mr Zerafa spat on Mr Harland was relied upon as part of the "recent invention", that fact was also misleading as DS Herps has always accepted that Mr Harland told him on the night that Mr Zerafa's spittle landed on him (even if DS Herps' recollection of it was that it was not an intentional spitting).
The next misleading aspect of the application is in the following passage: "Police have conducted an electronically recorded interview with ZERAFA where he agrees that a verbal altercation takes place however strongly denies ever raising his fists, threatening HARLAND or spitting on him."
The phrase "verbal altercation" significantly understates the nature of the homophobic abuse directed at Mr Harland by Mr Zerafa (which the latter admitted). As at the time of the application, SC Murphy did not have a transcript of Mr Zerafa's ERISP but she stated that she listened it. It went for 31 minutes. It was not put to her that she had not listened to it, so I accept that she did. She had no recollection either way. That recording shows that although it is accurate to say that Mr Zerafa denied, inter alia, "threatening" Mr Harland, he agreed that he "ran" towards Mr Harland in a "protective" manner whilst yelling the words he did with no obvious provocation. These aspects of Mr Zerafa's account which supported Mr Harland's account were not included in the application.
The next misleading aspect of the application is this part: "Police submit that HARLAND has fabricated the evidence that an assault occurred after being informed by Sergeant HERPS no offence was detected in his initial complaint." (Emphasis added.)
There are at least two difficulties with this part of the application. First, it fails to mention that Mr Harland told police on the night that he did not want anybody charged. Secondly, the use of the word "fabricated" is a conclusion which ignores the fact that even if Mr Harland had added further matters (including the assault) to his notes on his computer after police left (which was denied), that does not necessarily mean those additional matters were fabrications. When witnesses make police statements or affidavits it is not uncommon for a draft to be prepared that might be changed a number of times until it is finally signed. It is not a criminal offence to make changes to a draft before it is finalised; and this document was not even a signed statement at a police station; it was simply some typed notes of what had occurred that day.
The final portion of the application was in these terms: "Police would like to search for and seize HARLAND's computer for his initial document outlining his initial complaint which did not include the allegation of assault." (Emphasis added.)
The "thing" sought by the warrant was the "initial document". In her request to SEEB on 9 April 2019, SC Murphy stated that she wanted them to "recover" the "initial document". But Mr Harland had told police that he did not have the unsaved Word document he showed them on the night, only the document he had emailed to the Local Court. As I have already concluded, I am satisfied on the evidence that the "initial document" became the document that was emailed to the Blacktown Local Court by Mr Harland on 5 February 2019. This is also consistent with the SEEB evidence. Despite this, SC Murphy appears to have proceeded on the basis that there was some other "deleted" document. It was never explained how SEEB could have located either an unsaved or a deleted document (even if it had existed) and been able to identify precisely when it was that Mr Harland inserted details of an assault after police left his premises.

The searchable offence could not be proved

The second problematic aspect of the application is that, although the searchable offence was described as an offence contrary to s 314 of the Crimes Act, there was no explanation in the application as to how that offence could be proved by seizing the plaintiff's computer. Such an offence required proof that Mr Harland had: 1. Made an accusation (police relied on what he said to the Registrar to obtain the APVO); and 2. That when he did so he intended Mr Zerafa to be the subject of an investigation of an offence (but the accusation was made to a Chamber Magistrate to obtain an APVO not to commence any police investigation for a criminal offence. Further, Mr Harland had told police he did not want Mr Zerafa charged in any event); and 3. That when he made the accusation, he knew that Mr Zerafa was innocent of the offence (police relied on the evidence of DS Herps and SC Gleaves that the complaint to the Registrar of threats was a "recent invention" but such a claim is squarely contradicted by the triple-0 calls).
There is nothing in the contemporaneous documentation to suggest that SC Murphy ever turned her mind to the elements of such an offence. I note that in her initial entry in the COPS record on 5 April 2019 and in the application, SC Murphy described the offence as "making false accusation with intent subject other to investigation" (emphasis added). However, in her subsequent request to SEEB on 9 April 2019 she described the offence as "making a false allegation resulting in police investigation" (emphasis added). The problem with that narrative is that it fails to acknowledge that for the offence to be an indictable offence contrary to s 314, as opposed to the summary offence of public mischief or a summary offence contrary to s 49A of the Crimes (DPV) Act, there has to be proof that Mr Harland made a false statement with a specific intention, namely, that Mr Zerafa be the subject of a police investigation. The use of "resulting" by SC Murphy more aptly describes the elements of public mischief.
Further, in her SEEB request, she referred to the six-month statutory time limit for a summary offence. SC Murphy was not able to explain why she instructed SEEB that a response was required within five months. The searchable offence she had executed a warrant in relation to only the previous day was an indictable offence with no statutory time limit. Although it was the plaintiff's case that SC Murphy deliberately nominated s 314 of the Crimes Act as the searchable offence solely to obtain a warrant, I am not able to make that finding to the requisite standard. Rather, the SEEB request provides further support for my conclusion that SC Murphy did not turn her mind to the elements of the offence under s 314 and apply them to the evidence and what she was searching for.
Further, the use of the word "intent" by SC Murphy in the application (and SEEB request) was somewhat confusing. Did she mean that the intent was for something other than an investigation (which is what SC Murphy maintains she was investigating) or does it mean to subject another person to an investigation? SC Murphy's evidence was that she was investigating Mr Harland for making a false representation in his application for an APVO. Although Ms New initially submitted that an offence contrary to s 314 could be proved if police relied on the police statement Mr Harland subsequently made on 4 March 2019, she accepted that there was no basis for that submission given SC Murphy's evidence that that was not what she was investigating; her evidence was that she was specifically investigating the alleged falsity of what Mr Harland had put to the Registrar to obtain an APVO.
Not only am I satisfied that the searchable offence could never have been proved as a matter of law, I am satisfied that SC did not turn her mind to the elements of the offence. Her evidence as to how she arrived at the relevant searchable offence was unsatisfactory and went no further than that she thought it was the most "suitable offence". Her inability to remember why she arrived at it did not assist her case. I have had regard to the delay in commencing these proceedings and the forensic disadvantage in that regard, but the delay was only a few years. Police officers routinely give evidence about matters years after the event with only their contemporaneous records, including their police statements, to refresh their memories.
As stated above, I have also had regard to the fact that SC Murphy was on maternity leave with a young baby when she gave her evidence. Nor did she have the assistance of a police statement made in 2019 when the events would have been fresher in her memory; that was because there was no basis to charge Mr Harland and thus no reason for her to ever make a police statement. The fact remains that her poor memory means that I have had to rely on inferences drawn from the contemporaneous documentation that do not always assist her case.
Having regard to all of the evidence before me I have come to the conclusion that the only available inference is that SC Murphy arrived at the searchable offence of s 314 of the Crimes Act because it was suggested to her by DSS Wilson in his email who told her to "work up" an offence of perverting the course of justice or "make false accusation". There is no other conclusion open on the evidence other than that she proceeded on the basis that if her superior at the station, the acting crime manager, thought that was an appropriate offence then that was sufficient basis to act on it. In finding that SC Murphy adopted DSS Wilson's suggestions in his email I expressly make no finding as to why DSS Wilson took the approach he did. It is not necessary for me to do so in order to reach my conclusion.
Given the cumulative effect of the factual inaccuracies in the application, the factual omissions in the application, the fact that the searchable offence under s 314 could never have been proved, the fact that there was no "deleted" document to search for and the fact that SC Murphy appears to have adopted the approach suggested to her by DSS Wilson to form her reasonable grounds, I have come to the conclusion that SC Murphy did not have reasonable grounds to seek Mr Harland's computer and other hardware to establish an offence contrary to s 314 of the Crimes Act. There were insufficient facts to induce that state of belief in the mind of a reasonable person.
In so finding, I accept that there will be occasions when police officers identify a searchable offence which may not be able to be proved, and that fact alone may not invalidate a warrant: see Polley v Johnson. Nor will simply misnaming the section invalidate the warrant so long as it is otherwise properly described: New South Wales v Corbett. Nor will making factual errors in the application alone necessarily invalidate the warrant if there are otherwise sufficient facts to establish reasonable grounds: Vincent v Randall. It is to be accepted that police investigating indictable offences often need to act quickly and unintentional errors may be made as a result of time and resourcing pressures. But this case goes further than what occurred in any of those cases. I am satisfied that the plaintiff has established particular 1(a)(i) in the amended summons. The long history of the common law in protecting the rights of the individual cannot be ignored.

Particulars 1(b),(c) and (d): The issuing officer should not and/or could not be satisfied that there were reasonable grounds to issue the search warrant pursuant to s 48 of LEPRA

Particular 1(d) contended that the issuing officer should not and/or could not have been satisfied that there were reasonable grounds to issue the search warrant. It was the common position of the parties that particulars 1(a)(i) and (d) stood or fell together; that is, if I upheld particular 1(a)(i) then it followed that the issuing officer could not have been satisfied that there were reasonable grounds to issue the search warrant. As Simpson JA noted in Polley v Johnson at [40] (extracted above), the issuing officer's satisfaction must be that of the applicant. I am satisfied that the issuing officer did not have reasonable grounds to issue the warrant given my finding in relation to particular 1(a)(i).
Particulars 1(b) and (c) collectively contend that the issuing officer spent less than a minute considering the warrant. There was thus a second basis upon which the plaintiff contended that the issuing officer could not have had reasonable grounds to issue the warrant under s 48(1) of LEPRA. On one view, it is unnecessary for me to consider this second basis for upholding particular 1(d) but I propose to do so in the event that I am wrong in my primary conclusion.
The issuing officer reported that she received the application at 11.02 am and issued it at 11.02 am. Both parties relied upon the decision in Doyle regarding the consequences of this. The first defendant distinguished the decision in Doyle on its facts, given that there was no suggestion in the present case that the issuing officer had been provided with a pre-filled application. Rather, it was submitted that the Court could be satisfied that the second defendant had properly considered the application. The plaintiff, on the other hand, submitted that given that the Court of Appeal in Doyle had considered 10 minutes to be an inadequate time to consider that warrant, it followed that the (less than) one minute reported on the search warrant application to have been taken in this matter was considerably more problematic.
If I was satisfied that the issuing officer had in fact spent less than one minute considering the application and issuing the warrant, then it would follow that I would also be satisfied that she could not have been satisfied that there were reasonable grounds to issue it; it could reasonably be inferred that she had simply "rubber-stamped" it. The plaintiff bears the evidentiary onus of establishing that the issuing officer spent less than a minute considering the application. I am unable to be so satisfied on the material before me. In particular, I am satisfied that it would have taken her longer than one minute to have handwritten her reasons and otherwise complete the paperwork in the way she did. Instead, I am satisfied that the issuing officer incorrectly completed the form; either the first or second entry of the time as being 11.02am is wrong.
The plaintiff's challenge relied solely on the times of 11.02am entered by the issuing officer. I am not satisfied that he has discharged his evidentiary onus in establishing that less than a minute was spent considering and issuing the application, as opposed to an error in the way that the times were recorded.
I am unaware of any decision in which a search warrant has been declared invalid on the basis that the issuing officer has failed to properly record the time the application was received and the time that the warrant was issued. But I have had regard to the principles derived from the decisions I have referred to above, in particular, Doyle. In that decision the Court had regard to how long the issuing officer took to consider the warrant as part of the challenge to its validity.
The issue of search warrants is an administrative act amenable to judicial review by this Court in its supervisory jurisdiction. An issuing officer is statutorily required to provide the grounds upon which a warrant is issued. It seems to me that when this Court is asked to consider a challenge to the validity of a search warrant on a ground asserting that an issuing officer did not or could not have had the requisite reasonable grounds, it cannot perform that supervisory role if the issuing officer has failed to accurately record the time that the application was received and the time the warrant was issued. In the present matter there is simply no way of assessing how much time was spent considering the application.
It seems to me that if an issuing officer fails to properly record the time taken to consider a search warrant, this Court cannot properly exercise its supervisory jurisdiction in respect of that administrative decision. Despite this, it was not contended on behalf of the plaintiff that the mere failure to properly record the time was a ground for invalidity. As stated above, this particular of invalidity turned on the factual finding as to how much time was in fact taken.
I would not uphold particulars 1(b), (c) and (d) to extent that it was contended that the issuing officer took less than one minute to consider the warrant application.

Particular 1(e): The issuing officer did not properly consider whether there were reasonable grounds to issue the warrant pursuant to s 62(3) of LEPRA

Particular 1(f): The issuing officer did not properly consider the reliability of the information on which the application was based

Particular 1(g): The issuing officer did not properly consider the nature and source of the information contained in the application

Under s 62(3)(a) of LEPRA an issuing officer is required to consider the reliability of the information on which the application is based, including the nature of the source of the information, and under s 62(3)(b) of LEPRA an issuing officer is required to consider whether there is sufficient connection between the thing sought and the offence. Despite ambiguity in the form of the amended summons, as indicated above at [26], I understood that the plaintiff contended that there had been a failure to comply with both subsections.
Relying on s 62(3)(a), the plaintiff contended that there was an onus on the issuing officer to seek further documentary information as to the observations of the relevant police officers (DS Herps and SC Gleaves). I do not accept that there was anything on the face of the application that suggested that she needed to do so. There is no requirement for an issuing officer to do so and it would be a considerable burden should there be such a requirement in each case.
Under s 62(3)(b) the issuing officer is required to consider whether there is a sufficient connection between the thing sought and the offence. For the reasons stated above, I am not satisfied that there was such a connection in this matter.
Given the longstanding principles that an issuing officer is not to "rubber stamp" an application, the fact that I have found that there was no deleted document to search for and even if there had been it could not have established an offence contrary to s 314 of the Crimes Act, it follows that I am also satisfied that the issuing officer could not have complied with s 62(3)(b).

Particular 1(h): The issuing officer did not comply with s 65(1) of LEPRA

This complaint was ultimately only faintly pressed. Although I am satisfied that there were not reasonable grounds to issue the warrant, the issuing officer did cause a record of all relevant particulars of the grounds she relied upon to justify the issue of the warrant.

The appropriate orders

I am satisfied that the plaintiff has established one or more bases to declare the warrant invalid.
The relief sought is discretionary in nature. Although the summons was strongly defended, it was not contended that there were any discretionary reasons why, should the plaintiff be successful, the relief sought should not be granted.
A declaration would resolve the dispute as to the validity of the warrant but by itself it does not have an element of coercion. It is for that reason that the plaintiff also seeks consequential relief in the form of an order in the nature of certiorari quashing the decision to issue the warrant. In the present case, there was no agreement as to the consequences that would flow from the declaration sought. As Barwick CJ and Jacobs J observed in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307, it is generally undesirable that a court make a declaration without consequential orders in such circumstances. Accordingly, I would make an order quashing the decision as well.
No submissions were advanced to suggest that I would depart from the ordinary rule that costs follow the event.

ORDERS

Accordingly, I would make the following orders: 1. Grant an extension of time to the plaintiff to commence proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005. 2. I declare that search warrant number 81 of 2019 issued on 8 April 2019 at Blacktown Local Court is invalid. 3. The decision by Adele Andrews, Registrar at Blacktown Local Court, to issue search warrant number 81 of 2019 on 8 April 2019 is quashed. 4. The first defendant is to pay to the plaintiff's costs of these proceedings on an ordinary basis.

Amendments 13 October 2022 - Caselaw formatting 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: 13 October 2022

Law Enforcement (Police Responsibilities) Act 2002(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] On 3 February 2019, Gregory Harland, the plaintiff, rang triple-0 five times between 3.35pm and 9.39pm in relation to an altercation that afternoon during which a neighbour had threatened the plaintiff with violence. Police attended the plaintiff's residence at 9.50pm. To convey to police what had occurred, the plaintiff showed the two officers a document on his laptop computer where the plaintiff had typed out notes of the events. After advising the plaintiff that he could seek an Apprehended Personal Violence Order ("APVO") at the court and attempting to speak with the neighbour, police left the scene. On 5 February 2019, the plaintiff emailed the Registrar at Blacktown Local Court attaching a document which described the altercation and sought the issue of an APVO. The Registrar issued the APVO that afternoon. Later in February 2019, the details of the APVO were brought to the attention of Detective Sergeant Michael Herps. He formed the view that the application differed from the document that he had sighted on the night of 3 February 2019, in that new information had been added which disclosed that the neighbour had committed the offence(s) of assault and/or intimidation. DS Herps also formed the view that the additions were falsehoods or fabrications. The other officer who attended the plaintiff's residence on 3 February 2019 shared these views. Over the next month, DS Herps proceeded to investigate both the APVO matter and the suspicions in relation to the plaintiff. Ultimately, on 8 April 2019, Senior Constable Ashlea Murphy applied to the Registrar at Blacktown Local Court, Adele Andrews, for a search warrant in relation to the plaintiff's residence to seize the plaintiff's laptop along with any storage hardware. The searchable offence within the meaning of s 46A(1)(a) of Law Enforcement (Police Responsibilities) Act 2002 (NSW) ("LEPRA") was entered on the application form as "Section 314 Crimes Act 1900 - Make false accusation with intent subject other to investigation". The Registrar issued the search warrant. On the form, the time of application and time of issue were both recorded as 11.02am. At around 4.00pm, ten police officers attended the plaintiff's residence and seized his laptop computer and storage hardware. Over the next months, these items were examined by police. Ultimately, the plaintiff was never charged with any offence and the items were returned to him in late August / early September 2019. By summons filed on 2 September 2021 (amended, and filed on 22 March 2022), the plaintiff sought a declaration that the search warrant was invalid and an order in the nature of certiorari that the decision of the Registrar to issue the warrant be quashed. A number of particulars of invalidity were advanced relying on the statutory requirements for search warrants in Pt 5 of LEPRA. Held, declaring that the search warrant was invalid and quashing the Registrar's decision: 1. SC Murphy did not have reasonable grounds to believe that there was in the plaintiff's premises a thing connected with a searchable offence in relation to the warrant, contrary to s 47(1) of LEPRA. In particular, there was material in the application that did not reflect the true state of the evidence and, as a matter of law and fact, an offence contrary to s 314 of the Crimes Act could never have been made out against the plaintiff. As such, there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person: at [245], [270]. George v Rockett (1990) 170 CLR 104; [1990] HCA 26, applied. State of New South Wales v Corbett (2017) 230 CLR 606; [2007] HCA 32; Vincent v Randall & Anor [1999] NSWSC 833; Polley v Johnson [2015] NSWCA 256, considered. 1. It follows that the Registrar did not have reasonable grounds to issue the search warrant, contrary to s 48(1) of LEPRA: at [272]; nor properly consider whether there was sufficient connection between the thing(s) sought and the offence, contrary to s 62(3)(b) of LEPRA. There was no such connection in this case: at [283]-[284]. Polley v Johnson [2015] NSWCA 256, applied. 1. The Registrar must have made an error in recording on the form that the search warrant application was received and granted at precisely the same time, being 11.02am. However, the plaintiff has not discharged its evidentiary onus to establish that in fact less than one minute was spent considering the warrant application (going again to an absence of reasonable grounds), as opposed to an error in completing the form by the Registrar. It was not contended in this case that this error alone was a ground for invalidity of the search warrant: at [273]-[280]. 2. Otherwise, the plaintiff has not established that SC Murphy provided information in the search warrant application that she knew was false or misleading: at [244]; that the Registrar failed properly to consider the reliability of the information included in the search warrant application (LEPRA s 62(3)(a)): at [282]; nor that the Registrar failed to record all relevant particulars of the grounds relied on to justify the issue of the warrant (LEPRA s 65(1)): at [285]. 3. The appropriate orders are to declare the search warrant invalid and quash the decision of the Registrar to issue the search warrant: at [286]-[288]. Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, followed.

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