Hunter Community Environment Centre Inc v Browne

Supreme Court of NSW|2024-05-07|Before: McNaughton J

Cedar Gray (Fourth Plaintiff) Elena Pavlou-Watt (Fifth Plaintiff) Sadiya Binte Karim (Sixth Plaintiff) Haley Papasavvas (Seventh Plaintiff) Sinead Lewis (Eighth Plaintiff) Scott Mackenzie (Ninth Plaintiff)

Christopher Browne (First Defendant) Matthew Stingmore (Second Defendant) Fiona Cotton (Third Defendant) (Submitting Appearance) Representation: Counsel: P Skinner (First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Plaintiffs) O Jones (First and Second Defendants)

Solicitors: O'Brien Criminal & Civil Solicitors (First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Plaintiffs) Makinson d'Apice Lawyers (First and Second Defendants) Crown Solicitor for New South Wales (Third Defendant) File Number(s): 2023/222110 Publication restriction: Nil

JUDGMENT

On 19 November 2021, two search warrants were issued in relation to two neighbouring properties in the Newcastle area. The first was issued for 167-169 Parry Street, Hamilton East ("the first warrant") and a few hours later the second warrant was issued for 171-173 Parry Street, Hamilton East ("the second warrant"). By way of summons, filed well out of time on 11 July 2023, the first to ninth plaintiffs ("the plaintiffs") seek judicial review of those search warrants pursuant to s 69 of the Supreme Court Act 1970 (NSW). The plaintiffs seek an order declaring that each warrant is invalid, as well as an order in the nature of certiorari quashing the decisions of the eligible issuing officer to issue each warrant. The hearing took place before me on 6 and 7 May 2024.
The first plaintiff is the Hunter Community Environment Centre Incorporated ("HCEC"), which is a community group set up some years ago and is located at one of the addresses, the subject of one of the search warrants. The remaining plaintiffs are people affected by the execution of the search warrants in November 2021.
The application for the first warrant was made by the first defendant, Detective Sergeant Christopher Browne (Detective Senior Constable at the time of the application) in the early afternoon of 19 November 2021. The application for the second warrant was made by the second defendant, Detective Acting Inspector Matthew Stingmore (Detective Senior Sergeant at the time of the application) later that afternoon. Both warrants were issued by the third defendant, the eligible issuing officer, Fiona Cotton ("the EIO").
The third defendant has filed a submitting appearance, save as to costs. The first and second defendants are mainly referred to in this judgment as "the defendants".
The challenges were, in summary, that: 1. there were no reasonable grounds for belief by the defendants; and the provision of information to the EIO by the defendants was false and/or misleading in a material particular; 2. information in the application for the first search warrant by the first defendant was obtained unlawfully and through bad faith; 3. there were no reasonable grounds for the EIO to issue the warrant; 4. the EIO failed to consider matters set out in s 62(3) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"); 5. there was an error by the EIO in recording the time of the receipt of the application.

Extension of time required

The summons was filed well out of time. Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision. Rule 59.10(2) provides that the court may, at any time, extend the time for commencing proceedings. The plaintiffs seek such an extension.
As the warrants were issued on 19 November 2021, and the proceedings were commenced on 11 July 2023 (a period of approximately 1 year and 8 months after the decision), the application is 1 year and 5 months late.
The plaintiffs rely on the affidavit of Patrick John Latham of 20 December 2023 in support of the extension of time, in which he sets out the steps taken to investigate the issuance of the warrants.
The plaintiffs submit that within one week of the execution of the search warrants, the plaintiffs commenced inquiries of the Newcastle Local Court seeking provision to them of documents that they contended Police omitted to provide at the time and further documents relevant to the issue of the warrants. The plaintiffs contend that the evidence shows ongoing polite but persistent attempts were made to obtain the material so it could be assessed as to whether there was sufficient evidence to justify an application for judicial review. Correspondence was sent to NSW Police as well as the Newcastle Local Court and an unsuccessful application pursuant to the Government Information (Public Access) Act 2009 (NSW) was made to the police.
The plaintiffs submit that the material was not provided in sufficient time to enable the three-month time frame to be met. The plaintiffs submit that "[e]ventually […] this application was filed on 11 July 2023 upon the information and evidence then available to the plaintiffs". It is submitted by the plaintiffs that they moved with "alacrity and purpose from an early date to obtain sufficient evidence to commence these proceedings, and that the delay in commencement was not through any fault of [the plaintiffs]".
The defendants contend that an extension of time should be refused. In determining whether the extension of the time should be refused, r 59.10(3) provides that the court should take into account such factors as are relevant in 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."
These inclusive factors can also be viewed in light of the factors (in part, overlapping) identified as appropriate to consider in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] by Basten JA (with whom Hodgson and Ipp JJA agreed) (a case decided prior to the operation of the UCPR). Those factors are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application.
One aspect of possible prejudice to other persons caused by the passage of time is what has been referred to as "the impoverishment of the evidence" available to determine a dispute. This factor has been identified in the relevantly analogous context of the extension of time for initiation of litigation: Abdulla v Birmingham City Council [2013] 1 All ER 649; [2012] UKSC 47 at [41] per Lord Sumption. See also Pagett v The Sydney Children's Hospital Network [2024] NSWSC 292 at [61] per Chen J who observed McHugh J had made similar remarks in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25.
Further, the defendants contend that, where there is no explanation for a more than immaterial delay, an exceptional case on the merits is required, citing Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; [2015] HCA 42 (per Gageler J (sitting alone)). In that case, Mr Vella failed to satisfy the Court that an extension of time of some 16 months to file an application contesting a migration decision made by the relevant Minister was "necessary in the interests of the administration of justice". It was conceded that the plaintiff in that matter would need to show his case was "exceptional": citing Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 at [13]; Gallo v Dawson (1990) 64 ALJR 458 at [459]. See also Gordon J in Salum v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] HCATrans 51.
While it can be observed that the two cases cited by Gageler J dealt with the need for an exceptional case in the context of an extension of time for an appeal against a judicial decision based on the principle the finality of litigation, it was accepted that there was an analogous interest in the timely challenge to non-judicial decisions, such as a migration decision by a Minister (as in Vella). The principle can logically be extended to include the issuance of a search warrant (as in the instant case).
In Vella, the explanation for the delay was also identified as a relevant consideration.

Consideration of whether time should be extended

Whilst some delay is fairly to be accepted because of the initial difficulties encountered by the plaintiffs in accessing the material, there is a large block of unexplained delay. The evidence shows that Mr Latham inspected the relevant search warrant documents on 13 May 2022, after which he made certain inquiries about both warrants having the same time recorded for their issuance and receipt. However, nothing at all was done for over a year between 27 June 2022 and 3 July 2023. No additional information in relation to the time recorded on the warrants was put before the Court. There is no explanation for the delay of about 13 months prior to the issuance of the summons.
Further, the delay was not inconsequential. As can be seen from the correspondence from the Crown Solicitor's Office, dated 1 December 2023 and 14 December 2023, the EIO was no longer employed by New South Wales Court Services, her resignation being effective from 12 May 2023. Her device was re-issued to another employee upon her resignation, the file server which hosted the EIO's "H" drive was decommissioned earlier in 2023, and backups of the drive were only retained for a three month period (which had expired).
The evidence available to the Court was thus impoverished by reason of the delay. The metadata available on the EIO's device may, at least, have indicated when the relevant material was created. The metadata may have provided direct evidence in relation to certain matters, potentially shortening the summons and the evidence as well as, perhaps, restricting or even eliminating the matters in need of determination. Further, without the delay, the memories of the police officers would likely have been fresher. As it was, the police had limited recollection of what occurred before the EIO.
The lack of any explanation for the 13 months' delay is significant but not determinative. There are a number of other matters, including any relevant public interest and the merit or otherwise of the plaintiffs' contentions, which are also relevant to the question of whether the time to commence proceedings should be extended. Further, given the "more than immaterial" delay, I am of the view that it is also necessary to determine if there is "an exceptional case on the merits". Not only does such a principle accord with the authority set out above, it also takes into account the appropriate use of limited court resources. In light of these matters, consideration of the evidence and arguments in more detail is required before making a decision as to whether or not an extension of time should be granted. Accordingly, I will return to this issue later in this judgment.

The bases of challenge to the validity of the search warrants

The particulars of the challenge for each search warrant are almost identical, save for an additional few extra particulars pleaded in relation to the second warrant. The challenge is to the actions of both the police in applying for the warrants and the EIO who issued the warrants.
The challenges can be summarised as follows:

As to the police 1. The officer applying for the warrant did not have reasonable grounds to believe that there was on the premises a thing connected with an indictable offence, pursuant to s 47 of LEPRA. 2. The officer applying for the warrant provided information to the EIO which was false and/or misleading in a material particular. 3. That the information in the application for the search warrant was obtained unlawfully and through bad faith.

As to the EIO 1. The EIO should not, or could not, be satisfied that there were reasonable grounds to issue the warrant pursuant to s 48 of LEPRA. 2. Pursuant to s 62(3) of LEPRA, the EIO did not properly consider: 1. whether there were reasonable grounds to issue the warrant; 2. the reliability of the information on which the application was based; 3. the nature and source of the information contained in the application; 4. whether there was sufficient connection between the things sought and the offences of hinder working of equipment associated with a mine (Crimes Act 1900 (NSW), s 201), do act with intent to kill or injure person on railway (Crimes Act, s 211), and larceny (Crimes Act, s 117), pursuant to s 62(3)(b) of LEPRA; 5. the EIO failed to properly record the time that the application was received and the time the warrant was issued; and 6. in the alternative to (e), the EIO did not give the application meaningful consideration as it was received and issued within one minute.

Plaintiffs' Evidence

The plaintiffs relied on the following evidence: 1. affidavit of Patrick John Latham, filed 21 December 2023; 2. affidavit of Amelia Formby, affirmed 21 December 2023; 3. affidavit of Anneliese Frances Wild, affirmed 22 December 2023.
None of these witnesses were required for cross-examination.
The defendants relied on the affidavits of the applicant police officers Detective Acting Inspector Matthew Stingmore and Detective Sergeant Christopher Browne, dated 6 March 2024. Both officers were cross-examined on 6 May 2024.

The Latham affidavit

Mr Latham set out the following in his affidavit, together with supporting documentation, which is set out in summary form: 1. HCEC is an incorporated association (incorporated in 1984), and a registered charity (registered in 2012). Its address is listed as 167 Parry Street, Hamilton East NSW 2303. Its office is located at that address, which is reflected on the HCEC website. The property situated at the address 167 Parry Street, Hamilton East NSW 2303 is the land contained in folio identifiers 281/1082710 and 282/1082710. HCEC runs two charity programs for the safe reuse of Coal Ash waste and restoring a full-scale corridor for squirrel glider populations in Newcastle/Lake Macquarie. HCEC rents its office from Parry Street Pty Ltd, which is the registered proprietor of folio identifiers 281/1082710 and 282/1082710. 2. The website describes HCEC as a "resource hub for environmentally conscious citizens since 2004". Under the heading "Environmental and social justice", the mission of HCEC is described as follows: 1. to maintain a community environment information, resource and advocacy centre; 2. to educate and inform the community about biodiversity and the need to protect it; 3. to provide and promote the dissemination of information and views regarding environmental matters; 4. to promote and assist cooperation, sharing of resources and coordination of activities amongst environment and community groups; and 5. to protect and conserve ecological processed, genetic diversity and the natural environment. 1. Photos of the HCEC office show that the numbers "167-175" are displayed on one of the doors and plaques with the numbers 167 and 169 are displayed above two separate doorways. There is no signage on the HCEC office for Pachamama House as described below at (6). 2. HCEC has a committee elected each year. Steve Phillips is the Chairperson and Elizabeth Phillips is the Treasurer. Susie Russell has never been on the committee of HCEC. 3. Share house accommodation known as "La Paz" was also located at 167-169 Parry Street, Hamilton East and 171-175 Parry Street, Hamilton East. Arborist equipment owned by a former resident Scott McKenzie was stored at the properties. The folio identifier for 171-175 Parry Street, Hamilton East is 50/95307, and is also held by Parry Street Pty Ltd, to whom the residents paid rent. The eight residents who occupied four residences were as follows: 1. 169 Parry Street, by Elena Pavlou-Watt and Annelise Wild; 2. 171 Parry Street, by Sunny Short; 3. 173 Parry Street, by Cedar Grey and Eloise Baker; and 4. 175 Parry Street, by Sinead Lewis, Sadiya Karim, and Haley Papasavvas. 1. Pachamama House is a registered business name (registered in 2018 by The Trustee for Gladneys Trust). Its principal place of business is 21 Gordon Avenue, Hamilton East. The property is the land contained in folio identifier 54/978700 and owned by Gladneys Pty Ltd. Its website states: "Pachamama House is run as a not for profit community resource centre and an incubator for people and groups working for social change. We offer spaces for offices, meetings, workshops and community gatherings to support the progressive and radical activist community of Newcastle to grow and flourish. Some of our current tenants are: The Wilderness Society Newcastle, Share Shop, Newcastle Birth Movement, Food not Bombs, University of the 3rd Age, Newcastle Greens, Birdlife Australia, Trash Pixies Collective, Tipping Point, Common Good Therapy and the Newcastle Makerspace." (Emphasis in original.) The website also outlines areas available for booking as "[t]he upstairs training/yoga room in the rear building", "[t]he upstairs common room in the front of the main building", and "the Commons Courtyard out the back between the buildings". Further similar information was available via a Facebook page. Included on a hard copy printout of a Facebook page for Pachamama House Community Hub, posted on 28 February at 14:06 (it does not state what year, but inferentially, in 2022), is a photo of a garage sale on Sunday 20 March, with the title "Fundraiser Garage Sale" and a description that states: "Come along to Pachamama House to grab a bargain & support Extinction Rebellion put on the upcoming People's Blockade of the World's Biggest Coal Port!" 1. Susan Russell of a particular date of birth and address was issued with a National Police Certificate on 29 May 2017, stating there were no disclosable court outcomes against her as at 19 May 2017. 2. Millie Formby was the Migratory Shorebirds Project Officer, located at Birdlife Australia, Level 1, Pachamama House, 21 Gordon Avenue, Hamilton NSW. At 3:56pm on 15 November 2021, she emailed Adrian Garner and Lachlan Storrie in relation to the Australasian Bittern Survey site details and safety briefing to be conducted on 16 November 2021 in Hexham Swamp. The email attached 3 items: an Australasian Bittern Listening Surveys cheat sheet, a risk assessment and control form, and a volunteer activity sign-on form. 3. Quinn Squires was granted conditional bail on 18 November 2021 at Newcastle Local Court, which included a residential condition to reside at an address in Islington NSW with his father, to abide by a curfew between 8:00pm and 8:00am, and not to enter any rail corridor or coal loading facility in NSW. There was also an enforcement condition permitting police to ensure his compliance with the curfew. 4. Anneliese Wild left her accommodation at 169 Parry Street, Hamilton East at 6:00am on 19 November 2021 to drive to work at a pre-school in Barnsley via a no through road. She was stopped by police at 6:47am approximately 350 metres from her place of work. She was ostensibly stopped for a random breath test, but was then told by another police officer who arrived shortly afterwards that he had "intelligence to suggest [she was] involved with the protests that are occurring in Newcastle". Ms Wild was asked to provide her phone and unlock it. She eventually did this as she wanted to get to her work. On the phone, in the "Chats" section, one of the officers saw 22 chat groups listed under the name "lethal". One of the chat groups was called "La Paz" and another was called "FNB organisers". None of the messages in that group chat had been sent by Ms Wild. They had been sent by people using the monikers "Sq squirrell", "Ez Exriii" and "TW Tom Wickert". 5. One of the police officers relayed information, including the following, to another, more senior, police officer: "There's some stuff in here in relation to the blockade, Um she's saying she's co-ordinating the kitchen at base camp, she's been paying for BA expenses, all that sort of stuff […] They're using the WIRE app. The encrypted app, so". He also read out a message on the "FNB organisers" chat that had been posted by SQ Squirrel: "Hey crew just a heads up Bronte and I have been using the fnb card for some BA expenses but will get reimbursed in the next few days. $700 to $900". The police officer also relayed the following information to his superior. In answer to a question in the group chat as to what BA expenses are, "[s]he says Blockade Australia, crew that has been doing direct actions on train line last few days. I'm co-ordinating the kitchen at basecamp so most[ly] expenses for food". 6. Ms Wild stated that she did not know what was happening and that it was really overwhelming. One police officer also reported to a colleague that the car was "straight as anything", he couldn't "find anything on her", he couldn't "defect it", and that he "even checked the window wiper fluid". Another police officer stated: "I think from what Scotty's saying, I think we're just going to cut her because she's one of the coordinators, but this is probably the biggest thing, its got all her messages through Wire. So she's helping co-ordinate the protesters. Um, so we're just going to seize stuff and just question her about a few things." 1. It was clear that Ms Wild was distressed and that she wanted to get to work. She also agreed to answer questions from the police. Ms Wild said she had come that morning from her home address at 167 Parry Street, that she lived there with housemates and that she did not want to say how many people lived with her or answer further questions. She was told her phone would be seized for analysis, and that process would be quicker if she provided the PIN to her phone. The police officer told his colleague, by phone, that Ms Wild looked like she was on her way to work, and that the material she had with her all related to her childcare work. There was nothing on "BA". At Ms Wild's request, an officer read out the phone number of her partner. She refused to provide the PIN for her phone. 2. The police retained her phone, and located other messages sent by "Squirrel". These included: 1. "Hey friends. Anyone here able to put up a rad BA human at their place for a week until Thursday? I'd say yes but my place is already occupied and I'm also navigating curfew stuff. Possibly would have cops to come by to check on them so understand if peeps uncomfortable with this." 2. "Yep. Not local and has no priors so I suspect she won't be prioritised by cops. but still." 3. "she's currently in the watch house and needs a place to put down so she can make bail. It's possible so other local crew can help but waiting to hear back." 4. "yep for sure sounds like lapaz wouldn't be good for [a] number of reasons." 1. There were no messages sent by Ms Wild (under the moniker "lethal") in this sequence. 2. There was another message in the group chat "Octopia", stating: "Friends, LaPaz (thanks to Cedar) rescued a LOT of eggs from the bin. Anyone want some eggs? […]" 1. At 10:13am on 19 November 2021, a police officer prepared an Operational Order to execute a search warrant at 167-169 Parry Street, Hamilton. At 11:39am, a Sergeant checked the operational order. At 12:44pm, a Chief Inspector recommended the operational order, and at 12:50pm, a Superintendent authorised the operational order.
Mr Latham's affidavit then set out factual matters (which were overtaken, in part, by the oral evidence of the police officers) relating to the application and issuance of the first and second search warrants. The applications for, and executions of, the search warrants will be dealt with in detail below.
Mr Latham's affidavit then dealt with matters which occurred after the execution of the search warrants. This part of the affidavit set out various steps that were taken by Mr Latham from 25 November 2021 to 27 June 2022 in relation to the execution of the search warrants. This included writing to the Newcastle Local Court, on 25 November 2021, to request an inspection of all the search warrant documentation. On 26 November 2021, this request was refused because reg 14 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ("LEPRR") applied. In response to Mr Latham's further query, it was confirmed that reg 14 certificates were issued in relation to both warrant applications, on the grounds that there was "an ongoing investigation and the disclosure of information pertaining to that could compromise investigations". A further request was made, by way of a letter addressed to the EIO, on 29 November 2021, including a request to revoke or amend the reg 14 certificates. That letter also noted the three month time constraint for judicial review of a decision in the Supreme Court of NSW, pursuant to the UCPR. This further request was responded to on 10 December 2021, and access to a copy of the search warrants was granted as sought. However, access to the application and the reasons for issue was refused as the decision maker was of the view that the matters contained in the application would disclose police methodology, and the release of such matter "may seriously compromise the investigation of both current and future investigations of a similar nature". Mr Latham responded to this communication on 10 December 2021, requesting details of when each application was received by the EIO. A response was provided on 21 December 2021, with the times of the receipt of each application provided as 12:45pm and 3:45pm respectively.
Mr Latham also made requests and subsequently successfully retrieved property which had been seized belonging to various people. Mr Latham's actions included an attendance at Newcastle Court registry on 13 May 2022 to inspect the search warrant documents which had been made available to him.
Mr Latham deposed that, on 17 May 2022, he wrote to the Registrar at the Newcastle Court to point out that the documents relating to both search warrants recorded both applications as being dealt with within 59 seconds. He suggested that the court record should be corrected and requested that the time stamps recorded on both documents be examined to show the time the EIO started and finished each document, as "the times recorded are clearly not correct".
On 22 June 2022, Mr Latham filed a Statement of Claim in the District Court of NSW, on behalf of Ms Wild, against the State of NSW in respect of the alleged unlawful stop and search on 19 November 2021.
By 27 June 2022, despite correspondence between Mr Latham and the Senior Manager/Registrar of the Newcastle Court, in relation to the times recorded on the search warrant documentation, he had not received a reply.
There was then a break from any activity between 27 June 2022 and 25 November 2022 when Mr Latham delivered a brief to counsel.
On 13 April 2023, Ms Wild's District Court claim was settled.
On 12 May 2023, the EIO, Ms Cotton, resigned.
On 3 July 2023, Mr Latham wrote again to the Senior Manager/Registrar of the Newcastle Court, referring to his earlier letters, dated 17 May 2022 and 20 June 2022, requesting copies of the word documents completed by the EIO or details of the times when each document was created.
On 7 July 2023, the Acting Registrar of Newcastle Local Court wrote to Mr Latham advising that she was following up on his enquiry.
On 11 July 2023, a summons was filed in the Supreme Court of NSW.
A further letter was received from the Acting Registrar on 20 July 2023, advising that the EIO no longer worked for Court Services.
On 25 September 2023, Mr Latham filed a request to the Registrar to produce documents held by Newcastle Local Court in relation to both warrants. The documents requested included copies of "the word documents […] in an electronic format which includes metadat[a] showing the time and date each document was created and completed" by the EIO.
On 22 November 2023, the NSW Crown Solicitor's office emailed, advising Mr Latham that IT services would conduct a search of the Department of Communities and Justice server to try and locate the word documents.
On 1 December 2023, the NSW Crown Solicitor's office advised Mr Latham that the EIO was no longer employed by NSW Court Services and her device was re-issued to another employee. The file server that had hosted the EIO's "H" drive was decommissioned earlier in 2023. Backups were only retained for a three month period which, at that time, had expired, and searches of the current "H" drive produced no results. No results were produced either from searches of the Newcastle Court registry's shared drive or the DCJ OneDrive.

Other evidence of the plaintiffs

The plaintiffs also relied on affidavit evidence of Ms Formby and Ms Wild, neither of whom (as noted above) were required for cross-examination.

Ms Formby's affidavit

Ms Formby set out that she is a zoologist, currently working as a real estate photographer. She has co-authored a book relating to Shorebirds, has a website, located at www.wingthreads.com, and has been featured on YouTube and in numerous media reports in relation to her work. From December 2019 to June 2022, she lived in Newcastle, where she worked as a Migratory Shorebird Project Officer with Birdlife Australia, and her office was located in Pachamama House at 21 Gordon Avenue, Hamilton East.
In November 2021, she was organising volunteers to assist in the conducting of a listening survey of the Australasian Bittern in the Hexham swamp area near Newcastle, to be conducted on 16 November 2021. On 15 November 2021, at 3:56pm, she sent an email with attachments (a Risk Assessment and Control Form, Survey Cheat Sheet, and Volunteer Activity Sign-on Form) to two volunteers, Lachlan Storrie and Adrian Garner. Ms Formby states in her affidavit that the email was the same as that sent to all other volunteers.
I note at this point that although that may be accurate in a general sense, it can be seen from a copy of the email that this particular email was only sent to the two men and was clearly providing details geared to them specifically, in one joint email, as it said: "Please find details of your survey sites below". The details "below" appear to be specific to the two recipients of that email in that it states: "Rail Trail", followed by the subheading "Milly Formby, Adrian Garner and Lachlan Storrie" and the locations, together with hyperlinks, described as "Big Swamp"; "Halfway between Big and Little Swamps"; and "Little Swamp".
At approximately 6:20pm on 16 November 2021, Ms Formby arrived at the gate to enter a farm property in the Hexham Swamp where she was meeting with volunteers. She was stopped by two police officers and was asked who she was and what she was doing. She was asked to provide identification and her vehicle was searched. Other volunteers were also stopped and searched. After approximately 50 minutes, they were allowed to proceed to conduct the survey. Lachlan Storrie was also stopped and searched, and he joined the other volunteers later. She made a report of the incident and sent it to Birdlife Australia. Included in that report was the following: "At one point I had 5 police officers questioning me at the same time asking if I knew who Blockade Australia were and if I was associated with them and how I knew Lachlan Storrie and Adrian Garner. I told them I had met both of them for the first time at the Hunter Wetlands Centre the previous week for the Australasian Bittern Workshop. Lachlan had also messaged me earlier that day to let me know Adrian couldn't make it because he had been involved with the coal protest and received a curfew. All of us were also asked about bitterns and the surveys we were conducting. […] Jo Erskine from NPWS [stet] had alerted Jen and I to the fact protests had been happening in the area and that if we noticed any suspicious activity on Ash Island to contact Waratah Police. However, neither of us had thought to contact the police to let them know of our activities for the evening at each of the sites."

Ms Wild's affidavit

Ms Wild set out that, in November 2021, she was living at "La Pas", which was a collection of flats located behind HCEC at 167-175 Parry Street, Hamilton East. She lived in the premises at 168 Parry Street, having moved in approximately 30 June 2021. She deposed that she has never been a member of Blockade Australia and had no involvement in any protest activity conducted by Blockade Australia in Newcastle in November 2021. She worked as a pre-school teacher.
She set out what happened on the morning of 19 November 2021 when she was stopped by police. In relation to the search of her mobile phone she stated: "PCSC Sherman found chat messages on my phone that had been sent in a 'Food not bombs organisers' group chat by Quinn Squires who used the title 'Squirrel'. The chat was sent to me because I had worked as a volunteer for the 'Food not Bombs' organisation which cooked meals for the homeless and disadvantaged in the Newcastle area. I had volunteered on a couple of occasions and helped cook some meals for them. Quinn included me in the chat group without asking me if I wanted to be included. I did not ask Quinn to include me in the chat group. I was not involved in any protests in Newcastle at this time, and I had no involvement at all with anyone who was involved with the protests."
She went on to say that she chose the handle "Wildey" on the WIRE app, and "Lethal" was her display name. She used the name "Lethal" in any chat groups and her profile was "Lethal@wildey". She had never used the name "Squirrel". She did not send any messages in the "Food not bombs organisers" chat group.
Ms Wild further stated she had never been "actively involved" in the Blockade Australia protest activity.
She confirmed she had instituted District Court proceedings against the police on 22 June 2022, which had been settled on 19 April 2023.

Defendants' evidence

The defendants relied on affidavits from the two applicants for the search warrants, Detective Acting Inspector Matthew Stingmore and Detective Sergeant Christopher Browne. Both witnesses were cross-examined.

The Stingmore affidavit and cross-examination

Detective Acting Inspector Stingmore was the Officer in Charge, and Senior Supervisor, of Strike Force Tuohy, which was formed on 15 November 2021 to conduct investigations into unlawful protest activities and related offences in and around critical coal infrastructure. The taskforce collated intelligence and other material. Operational briefings were held each day which he attended at which a number of matters were reviewed and discussed including intelligence holdings, arrests from the day before and arising investigative avenues.
He reported to the Police Forward Commander, Detective Chief Inspector Scott Parker, Crime Manager Newcastle City Police District. Throughout the course of the Strike Force, Detective Acting Inspector Stingmore had a large contingent of investigators and specialist officers under his supervision, including Detective Sergeant Chris Browne.
The information in his affidavit was obtained by his review of police holdings, his direct involvement, and/or from briefings in which he participated as part of the Strike Force.
He stated that intelligence available to him at the time of the warrant application indicated that 167 and 169 Parry Street were situated on the same block, with the buildings on 167 Parry Street being used as a community centre and buildings situated on 169 Parry Street being used as residential buildings. That HCEC was located at 167 Parry Street was consistent with his own observations and other intelligence available to him.
Based on intelligence, police holdings, information provided by the New South Wales Land and Registry services and map evidence, 171 and 173 Parry Street were the same property.
The owner of the lots for 167-173 Parry Street was Parry Street Pty Ltd.
Further, 171-173 Parry Street, East Hamilton shares a boundary with 167-169 Parry Street and 21 Gordon Avenue, East Hamilton, however there are no physical boundaries between those properties, as could be seen by an aerial image he produced.
At the time of the warrant application, 21 Gordon Avenue, Hamilton was the address for Pachamama House. Information available at the time of the warrant indicated that Gladneys Pty Ltd was the proprietor of 21 Gordon Avenue, Hamilton.
The affidavit contained the following section on the "Relationship between the premises" (with supporting documents referred to): "ASIC holdings available to me at the time of the warrant application listed Susan Wendy Russell (Ms Russell) as a Director and the Secretary of Parry Street Pty Ltd. […] ASIC holdings available to me at the time of the warrant application listed Ms Russell as a Director of Gladneys Pty Ltd, along with Gregory Thomas Hall. […] Information available to me on the NSW Police Computerised Operating Policing System and other open-source information such as Facebook indicated that both Ms Russell and Gregory Thomas Hall had been involved in deliberate activity associated with Issue Motivated Group (IMG) action. NSW Police intelligence holdings available to me at the time of the application revealed that: a. each of 167 - 169 Parry Street, 171 - 173 Parry Street and 21 Gordon Avenue, Hamilton East (the premises) shared communal areas and pathways, b. persons who had been charged with, or had intelligence for participating in, direct action protest activities were accessing each of the premises, including areas which required access via a PIN code, and c. there were no dividing boundaries between the premises." (Emphasis in original.)
The affidavit then set out the following open-source information available to Detective Acting Inspector Stingmore at the time of the warrant in relation to 167-169 Parry Street (supported by attached Court Attendance Notices): 1. 167-169 Parry Street was leased by Eloise Baker and Timothy Evans. Police holdings showed involvement by Ms Baker in IMG action in 2017 and 2018. In 2017, Ms Baker was charged with two counts of trespass on the grounds of Newcastle Coal Infrastructure Group when she entered the grounds of that facility without permission, climbed a coal stack, and placed a large banner on top of the stack; 2. information on the NSW Police Computerised Operating Policing System ("the police system") indicated that Peter Parslow was linked to 167-169 Parry Street. He had been involved in IMG activity on Newcastle Coal infrastructure in 2017. In 2017, Mr Parslow was charged with two counts of trespass on the grounds of Newcastle Coal Infrastructure Group when he entered the grounds of that facility without permission, climbed a coal stack, and placed a large banner on top of the stack. [It can be noted that a Court Attendance Notice annexed to Detective Acting Inspector Stingmore's affidavit for Mr Parslow from 2017 showed his address at 167 Parry Street]; 3. information on the police system indicated that Naomi Hodgson was linked to 167-169 Parry Street. She has a history of involvement in IMG activity since 2002. The most proximate event to the search warrant application was on 5 November 2021, when she was charged with malicious damage that arose because she cut a padlock and gained access to a rail corridor for a coal network at Sandgate, NSW, in company with others and a large red flag.
The affidavit went on to set out open-source information available to Detective Acting Inspector Stingmore at the time of the warrant in relation to 171-173 Parry Street (supported by attached Court Attendance Notices): 1. Ned Haughton had been linked to IMG action since 2005. On 7 November 2014, he was arrested after entering the Gloucester Coal Seam Gas site and used a bicycle lock around his neck to affix himself to a part of the drilling rig. Intelligence indicated that, in 2019, he was taking bookings on behalf of Pachamama House. [It can be noted that Haughton's address on a 2014 Court Attendance Notice showed his address as 173 Parry Street]; 2. Quinn Squires was charged on 17 November 2021 (as set out further below) and provided his address as 173 Parry Street, Hamilton East when he was released on bail. [That address appears on his Court Attendance Notice as his address]; 3. Ms Wild, when pulled over by police, stated she resided at 167 Parry Street.
Detective Acting Inspector Stingmore further set out that NSW Police Intelligence holdings available to him at the time of the warrant application revealed that all of the above persons had links to IMG action.
Further, on 15 November 2021: 1. Claire Tobin was arrested inside the rail corridor belonging to the Australian Rail Track Corporation ("ARTC"), in Sandgate, after she suspended herself from a tree using a harness strap whilst wearing a State Emergency Services ("SES") Commander Emergency Services Safety Vest. She live-streamed her activities to a Facebook page called "Blockade Australia". She was charged with offences, including s 211(1)(a) of the Crimes Act (do act with intent to kill or injure person on railway) and s 201(1)(d) of the Crimes Act (hinder working of equipment belonging to, or associated with, a mine); and 2. Emily Wood-Trounce was also arrested inside the rail corridor in Sandgate belonging to the ARTC. She was charged with similar offences to Ms Tobin after she erected a banner on a train line before laying down between two running tracks and using a metal "lock on device" which was concreted to the edge of the railway line. Ms Wood-Trounce live-streamed her activities to the "Blockade Australia" Facebook page.
Detective Acting Inspector Stingmore records that intelligence available at the time of the search warrant application indicated that at 4:51pm on 5 November 2021, Ms Tobin and Ms Wood-Trounce were released from Waratah Police Station and were picked up by persons who drove them to Pachamama House, which they entered via a side gate.
Further, on 16 November 2021, Adrian Garner was arrested inside the grounds of Port Waratah Coal Services, having climbed a fence and activated an emergency stop button on the equipment. He livestreamed these events via the "Blockade Australia" Facebook page. He was also charged with a number of offences including hinder working of mine equipment and enter inclosed lands.
Detective Acting Inspector Stingmore recorded that intelligence available at the time of the search warrant application indicated that Mr Garner was picked up from police custody by Ms Elvy Swan in a particular vehicle and driven to his home in Tighes Hill. That particular vehicle was later observed parked outside Pachamama House. Intelligence further showed that Ms Swan had used that vehicle to collect other persons charged with offences relating to IMG activity and had taken them to Pachamama House.
In addition, Detective Acting Inspector Stingmore recorded that intelligence within NSW Police holdings revealed the persons of interest referred to in his affidavit were frequently moving through, entering and leaving the premises 167-169 and 171-173 Parry Street.
Detective Acting Inspector Stingmore then set out information available to him in relation to the use of ropes and harnesses, including the following: 1. as noted above, an SES branded emergency vest was used by Ms Tobin on 15 November 2021, whilst committing an offence; 2. on 17 November 2021, Ms Zianna Fuad and Ms Hannah Doole were arrested inside the grounds of the Newcastle Coal Infrastructure Group in Kooragang after breaching security fencing, climbing a coal ladder and attaching themselves to the loading infrastructure using rope harnessing. Ms Doole livestreamed these events via the "Blockade Australia" Facebook page. Both women were charged with various offences. Images of the ropes and harnesses they used, and that were seized by police, were exhibited in the affidavit. When Ms Doole was released from police custody on 17 November 2021, she was picked up by Ms Swan in her vehicle and driven to Pachamama House which Ms Doole accessed via the side gate; 3. at 7:30pm on 17 November 2021, Mr Squires and Ms Clancy Smith entered the grounds of Newcastle Coal Infrastructure Group. They breached security fencing and caused the operations of the facility to come to a stop. Ms Squires then used a metal lock-on device comprising a long pipe with handholds to attach himself to the machinery before super gluing his hands together. Mr Squire's actions were livestreamed by Ms Smith via the "Blockade Australia" Facebook page. They were arrested and charged by police. Images of the ropes and harnesses used by them were exhibited to Detective Acting Inspector Stingmore's affidavit; 4. the ropes and harnesses used by Ms Fuad, Ms Doole, Mr Squires and Ms Clancy were a combination of both specialised rope products made specifically for the SES and other non-SES branded products. The SES products were distinctive; and 5. based upon surveillance (both aerial and ground) of the movements of various persons of interest, Detective Acting Inspector Stingmore formed the belief that both SES-branded ropes and harnesses, and non-SES branded equipment, along with other items used during prior protest activities, were being stored at 167-169 Parry Street.
Detective Acting Inspector Stingmore further stated that in light of the nature of the offending, which was engaged in by persons associated with the premises at 167-169 Parry Street, the above circumstances, and intelligence available to him, he formed the belief that the premises was being used as a facility from which to plan direct action operations, to store and manufacture items for use in such activities and publicly promote protest activities.

Detective Acting Inspector Stingmore's account of application for search warrants

First application - 167-169 Parry Street

Detective Acting Inspector Stingmore and Detective Sergeant Browne attended Newcastle Local Court at approximately 12:15pm, on 19 November 2021, in relation to the search warrant application for 167-169 Parry Street. Detective Acting Inspector Stingmore said he had "quality reviewed the application before we attended Court and was personally aware of the matters that [Detective Sergeant] Browne was relying upon to establish the grounds for the warrant application." After waiting in the front foyer area for five or so minutes, they went into the EIO's office and Detective Sergeant Browne provided the EIO with the warrant application, which "she appeared to read". Whilst he had no specific recollection of any conversation between the EIO, Detective Sergeant Brown and himself, he "was present when the warrant application was discussed with the [EIO]".
Detective Acting Inspector Stingmore states that at approximately 12:45pm, "the EIO signed the warrant application and issued the warrant (Warrant 121/21) by handing [Detective Sergeant] Browne the signed Form 11 document and the occupier's notice". He and Detective Sergeant Browne then left the court.
Execution of the first warrant commenced at approximately 2:25pm on 19 November 2021. When police (including Detective Acting Inspector Stingmore) drove down the driveway of 167-169 Parry Street, a group of occupants emerged from a building located at 171-173 Parry Street. These people were Eloise Baker, Sunny Short, Cedar Grey, Elena Pavlou-Watt, Haley Papasavvas and Ms Wild.
Detective Acting Inspector Stingmore saw a building containing a communal kitchen and some bedrooms located at the back of 167-169 Parry Street. He stated: "During a cursory search of the workshop area in 167 - 169 Parry Street which occurred whilst securing 167 - 169 Parry Street, I identified a number of abseiling ropes and harnesses consistent with those used in the offences [referred to above at [71]]. I was informed that, as a result of conversations that other Police officers had had with the occupants of 167 - 169 Parry Street, part of the residential aspect of the property was situated on the property of 171 - 173 Parry Street, and that was primarily office and workshop spaces that were located at 167 - 169 Parry Street. As a result of the above information, in addition to the material to which reference has been made earlier in this affidavit, I formed the belief that 171 - 173 Parry Street was being used as part of a common enterprise with 167 - 169 Parry Street. I therefore determined that [it] was necessary to conduct a search of the property located at 171 - 173 Parry Street."

Second application - 171-173 Parry Street

Detective Acting Inspector Stingmore did not have a specific memory of the time he returned to Newcastle Police Station, but it was likely between approximately 2:40pm and 3:00pm. Once there, he created a new warrant application with the bulk of the information constituted by the same grounds Detective Sergeant Browne had used to support his application for the first warrant (with identifier 121/21).
He stated: "Being personally aware of those matters, I utilised those grounds as a base to support my application for the warrant in relation to 171 - 173 Parry Street. In addition to those matters, having seen all of the paint, banners, welding equipment and 'lock-on' devices in the equipment sheds at the back of the property. I also saw Ms Wild exit 171 - 173 Parry Street with the other occupants, which reinforced by [the] view that 171 - 173 Parry Street was being used as part of a common enterprise with 167 - 169 Parry Street. I added a number of paragraphs which reflected what had occurred during the execution of Warrant 121/21."
He went on to state that he formed a belief that "lock-on" devices; banners; ropes; harnesses; and "paints and minerals used to manufacture banners" would be in or on 171 - 173 Parry Street.
He attended Newcastle Local Court some time prior to 3:45pm, likely about 3:30pm, to make a warrant application for 171-173 Parry Street. He provided the application to the EIO (the same person who issued the earlier warrant, Ms Cotton). He explained the nature of the investigation to the EIO and why a further warrant was required. He stated: "The EIO appeared to read the application. I would estimate that I was with the EIO [in] her office for about 15 minutes. At approximately 3:45pm, the EIO signed the warrant and provided me with a copy of the signed Form 11 and occupier's notice (Warrant 122/21)." (Emphasis in Original.)
As to the execution of the second warrant (with identifier 122/21), Detective Acting Inspector Stingmore returned to 171-173 Parry Street, at about 4:27pm, to provide a copy of the second warrant and accompanying occupier's notice to the case holder, Detective Sergeant Browne, for execution. He remained for a further half an hour to supervise the initial execution of the warrant, then returned to the operation centre at Newcastle Police Station.

Detective Acting Inspector Stingmore cross-examination

Detective Acting Inspector Stingmore confirmed his affidavit evidence in cross-examination.

First application

As to quality reviewing the first application he stated that meant: "We would have discussed the grounds, the information in the grounds of the application, and the information that was relied upon."
Detective Acting Inspector Stingmore said he received a copy of the typed-up application from Detective Sergeant Browne and: "[…] then I would have verified that information with all of the other intelligence holdings and information that we've received throughout the course of that strike force up until that date."
He said that the process of the EIO reading the application took "[p]robably 20/25 minutes perhaps". He didn't specifically recall the EIO swearing in Detective Sergeant Browne in relation to the search warrant or writing "N/A" or "see attached".
He said he had never seen the typed "grounds" document, and typically he did not receive it. Detective Sergeant Browne only took away the warrant and the occupier's notice.
In cross-examination, Detective Acting Inspector Stingmore confirmed he was at the courthouse for around half an hour, including five minutes waiting.
He confirmed the time of arrival of 12:15pm was recorded in his duty book (the relevant pages of which had been tendered).

Second application

Detective Acting Inspector Stingmore confirmed that, as with the first application, he left with the Form 11 and the Form 21 (the search warrant and the occupier's notice respectively), and the pages with the application were left at court with the EIO. As with the first application, he had not seen the typed grounds document before, in that format or any other format.
It was put to Detective Acting Inspector Stingmore that it could not be right that the EIO received the warrant application at 3:45pm and issued the warrant at 3:45pm. He stated he could not say why the EIO wrote that time, but that he was at the courthouse at around 3:30pm.

The Browne affidavit and cross-examination

Detective Sergeant Browne was in charge of the co-ordination of the surveillance response and surveillance holdings of Strike Force Tuohy. His role was to brief Detective Acting Inspector Stingmore and Chief Inspector Scott Parker on updates in intelligence and intelligence holdings that would provide scope for further investigation during the Strike Force. Daily briefings were held in which Detective Sergeant Browne participated and received updates on recent developments. At the briefings, there would be representatives from, but not limited to, general duties, supervisors, proactive team and the surveillance teams. Detective Sergeant Browne's affidavit was based on material obtained from his review of the police intelligence and other material holdings, his direct involvement in matters and from briefings in which he participated.

First application - 167-169 Parry Street

Detective Sergeant Browne set out the ownership and title search information of 167-169 Parry Street, Hamilton East NSW, as set out in Detective Acting Inspector Stingmore's affidavit.
In relation to 21 Gordon Avenue, Hamilton, Detective Sergeant Brown set out the ownership and title search information as set out in Detective Acting Inspector Stingmore's affidavit.
He also set out information in relation to the arrests on 15 November 2021 of Ms Tobin and Ms Wood-Trounce, and on 16 November of Mr Garner as set out in Detective Acting Inspector Stingmore's affidavit.
Detective Sergeant Browne also set out that the Birdlife Australia email Mr Garner had received from Ms Formby was found on Mr Garner's phone at the time of his arrest. He further stated that the email correspondence provided directions to the "Rail Train" and "Pipeline Track" at Sandgate for an Australasian Bittern (native bird) survey at 6:30pm that evening. Detective Sergeant Browne stated: "This location is in the near vicinity of critical rail infrastructure such as a large maintenance shed containing engines and carriages owned by ARTC as well as the rail maintenance facility of Aurizon Provisioning, a company responsible for the transportation of coal from the mines to the Port of Newcastle. […] Based on the information provided to me, I suspected that Ms Formby may have been using the Australasian Bittern listening survey as a cover for a canvas of possible incursion points into the ARTC property."
Detective Sergeant Browne further set out that Ms Formby was stopped and searched on the evening of 16 November 2021, and her associates involved in the listening survey were stopped and spoken to by police. As no relevant items were found, Ms Formby and her associates were permitted to leave the location of the police stop.
He also set out information relating to the relationship between the premises in question.
He set out information (as set out by Detective Acting Inspector Stingmore) in relation to Ms Baker, Ms Hodgson and Mr Parslow. Further, he set out information in accordance with that in Detective Acting Inspector Stingmore's affidavit in relation to Mr Haughton, Mr Squires and Ms Wild, noting that at the time of the warrant intelligence available to him was that they were leasing 171-173 Parry Street, Hamilton. Detective Sergeant Browne also stated that NSW Police intelligence holdings available to him at the time of the application revealed each of the above people had links to IMG action. Further, those holdings also showed that each of 167-169 Parry Street and 21 Gordon Avenue, Hamilton, shared communal areas and pathways; persons who had been charged with, or had intelligence regarding their participation in direct action protest activities, were accessing each of the premises, including areas which required access via a PIN code; and there were no dividing boundaries between the premises. The holdings also indicated to Detective Sergeant Browne that the persons of interest in the affidavit were moving through, entering and leaving these premises.
As to the stop and search of Ms Wild, Detective Sergeant Browne said he was made aware that she identified herself as residing at 167-169 Parry Street, and also about the content of messages on her telephone. In particular, those messages referring to the operational activities of Blockade Australia, arranging a place to stay for a Blockade Australia member (and how to subvert police methodology in this regard, such as navigating curfew compliance checks) and access to funds of Blockade Australia, reinforced his belief that Pachamama House was linked to IMG activity. Detective Sergeant Browne stated: "This was particularly so in light of the fact that one of the messages on Ms Wild's mobile phone was a hyperlink to a livestream of Mr Garner's actions on the previous day, in which he had been arrested inside the grounds of Port Waratah Coal Services, having climbed a fence and activated an emergency stop button on the equipment […]"
As to the use of ropes and harnesses, Detective Sergeant Browne included information in his affidavit which reflected the information in Detective Acting Inspector Stingmore's affidavit.
He provided similar information as to the time of his attendance at court in relation to the first search warrant application. After waiting in the foyer, Detective Sergeant Browne said he and Detective Acting Inspector Stingmore provided the EIO with the warrant application "which she appeared to read". He did not have a specific memory of any conversation that occurred between himself and the EIO, although his usual practice was to provide a general outline of the matter they were investigating, and he would usually answer any clarifying questions asked by the EIO. He stated he had no reason to think that this did not what occur on that date.
He stated that at approximately 12:45pm, the EIO signed the warrant application and issued the warrant by handing him the signed Form 11 document (the warrant) and the occupier's notice.
As to the execution of the warrant, Detective Sergeant Browne attended 167-169 Parry Street with other officers to execute it at approximately 2:20pm. He and Detective Grob subsequently had initial conversations with a number of occupants and the occupier's notice was provided to Ms Eloise Baker. After discussions with Ms Baker and others, including other police officers, a need for a further search warrant for 171-173 Parry Street was identified. Detective Sergeant Browne remained at the premises while Detective Acting Inspector Stingmore returned to Newcastle Police Station to prepare a second warrant application. When Detective Acting Inspector Stingmore returned with the warrant, he remained at the properties until 5:30pm, when the execution of both warrants was concluded.
Finally, he noted that after the execution of the search warrant there were no further protest related incursions upon any further critical infrastructure as had been investigated pursuant to Strike Force Tuohy.

Detective Sergeant Browne cross-examination

Detective Sergeant Browne could not remember if he saw the EIO write on the application. He said: "[…] I didn't see her do it, I can't remember seeing her do it, but I would suggest that's her handwriting."
He agreed he attended the Newcastle Local Court around quarter past 12 and waited in the front foyer area for five minutes.
Detective Sergeant Browne stated that he did not know when the EIO wrote in his name on the search warrant application. When asked if the EIO's handwriting was written in front of him, he stated: "[…] they do leave the registrars into the rear out of that office, so whether that part was filled out directly in front of me or not, I can't remember."
The following questions and answers were recorded: "[Mr Skinner:] The point is this is a document that, on its face, seems to be done and completed on this page at 12.45, i.e., contemporaneously with you being there, right? [DS Browne:] Yep, that's correct. [Mr Skinner:] The times have to go on it, and your knowledge of doing these things is the times go on it when the writing's being put on it; correct? [DS Browne:] Yes. […] [Mr Skinner:] Looking at this now, where she says no particulars of further information was orally provided to her, which seemed your usual ‑ you do have something to think that this is not what occurred on that day. [DS Browne:] No, I'm saying to you that I would've answered questions, but if the issuing officer didn't find them to be additional to what was already contained in it, I can't comment on what she's written there in the search warrant. [Mr Skinner:] Is there anything you can remember which would indicate that what she's writing there is incorrect, i.e., you didn't give her any further information orally? [DS Browne:] No. [Mr Skinner:] Did you see her write, 'See attached'? [DS Browne:] I don't think so. […] [Mr Skinner:] But you don't know when she did that. [DS Browne:] No. While we were there. I don't remember seeing her write, 'See attached,' but she was filling out the documents."
Detective Sergeant Browne confirmed he was in the room with the EIO and Detective Acting Inspector Stingmore for roughly half an hour. He stated that 12:45pm was the time she signed the warrant, not when she received it.
The following questions and answers were then recorded: "[Mr Skinner:] Anyway, you say you don't know where the, 'See attached' ‑ when she put that on. [DS Browne:] During the course of completing the signature and the swearing is the best of my recollection."
Detective Sergeant Browne confirmed he only took away the signed warrant and the occupier's notice. He left the application with the Court. He confirmed he had never seen the typed "grounds" document.
The following questions and answers were then recorded: "[Mr Skinner:] They would seem, reading the document, to be what's referred to as, 'See attached', two pages before, would they not? [DS Browne:] That would make sense, yes. [Mr Skinner:] Did you ever see those? [DS Browne:] No. [Mr Skinner:] Did you have anything to do with the preparation of those? [DS Browne:] I would imagine that's written from our conversation in relation to the application. [Mr Skinner:] Written by who? [DS Browne:] The registrar, if you're telling me it's on ‑ dated by the registrar. [Mr Skinner:] When you say, 'imagine', did you see it happen? [DS Browne:] No."
He did not have a memory of the EIO typing it up and confirmed he had not seen the document until today.

LEPRA

The issuance of search warrants in NSW is now governed by Pt 5 of LEPRA.
In particular, in this matter, the following provisions are most relevant.
Section 47(1) provides as follows in relation to the application for a search warrant by a police officer: 47 Power to apply for search warrants (cf Search Warrants Act 1985 s 5, Crimes Act 1900, ss 357EA, 578D, former LEPRA, s 47) (1) A police officer may apply to an eligible issuing officer for a search warrant […] 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. […]
Section 48(1) sets out the state of satisfaction required of the EIO to issue a search warrant. That section relevantly provides: 48 Issue of search warrants (cf Search Warrants Act 1985, s 6, Crimes Act 1900, s 357EA, former LEPRA, s 48) (1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant. […]
Section 60(2) proscribes the issuance of a warrant by an EIO unless the information given by the applicant is verified before the authorised officer on oath or affirmation, or by affidavit.
Sections 62(1) and (3) provide important detail in relation to what should be contained in an application and what should be considered by the EIO: 62 Information in, and consideration of, application for warrant (cf Search Warrants Act 1985, s 12A, former LEPRA, s 62) (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information - (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. […] (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters - (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence. […]
Section 63 provides: 63 False or misleading information in applications (cf Search Warrants Act 1985, s 12B) (1) A person must not, in or in connection with an application for a warrant, give information to an eligible issuing officer that the person knows to be false or misleading in a material particular. […] (3) This section applies whether or not the information given is also verified on oath or affirmation or by affidavit.
Section 65 relevantly provides: 65 Record of proceedings before eligible issuing officer (cf Search Warrants Act 1985, s 13) (1) An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant. […] (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. […]
Section 66(1) provides that a warrant is to be in the form prescribed by the regulations.
Section 76 provides that a warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.

Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRR)

The regulations set out which forms, or parts of forms, are relevant to the sections set out at [116]-[123] above.
Regulation 4(1)(a) relevantly provides that Pt 1 of Form 1 is the form for an application for a Pt 5 search warrant.
Regulation 5 relevantly provides: 5 Determination of application for warrant, notice to produce or order - record by eligible issuing officer (1) A record is to be made by or on behalf of an eligible issuing officer, in relation to each application for a warrant dealt with by the officer, in the following form - (a) in the case of an application for a Part 5 search warrant […] Part 2 of Form 1 […]

Relevant principles

Search warrants are a powerful investigative tool available to police officers. They are powerful because they authorise an invasion of privacy and property: George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at p 110.
The issuance of a search warrant is an administrative act. It is amenable to judicial review by this Court in its supervisory jurisdiction. The statutory provisions which apply to search warrants within Pt 5 of LEPRA are to be interpreted and applied in accordance with long standing common law principles.
Decided over 30 years ago, George remains the leading Australian authority in relation to the issue of search warrants, albeit it concerned Queensland legislation which included features which do not appear in the NSW legislation. As stated in State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 at [89] (per Callinan and Crennan JJ, Gleeson CJ and Gummow J agreeing): "The balancing of a person's private interest in the inviolability of his house, his 'castle and fortress', against the public interest in the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law, lies behind the statutory requirement […] that an applicant for a search warrant needs to have reasonable grounds for a belief in respect of 'a thing connected with a particular […] offence."
As also recognised in George at p 110: "Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting [the relevant Queensland power to issue a warrant], the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. […]"
The statements of Burchett J in Parker v Churchill (1985) 9 FCR 316 at p 322, were endorsed in George at p 111: "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."
It is obvious that the information underpinning an application for a search warrant is gathered partway during an investigation, with a view to gathering more evidence. Clearly, the information which underpins such an application is almost certainly not of the evidentiary quality which makes up a brief of evidence to be used to prove a person's guilt, in court, beyond reasonable doubt. It is also possible, indeed, even likely, that some of the material relied upon as the grounds for issue of the search warrant will turn out to be incorrect.
As Burchett J stated in Malubel Pty Ltd v Elder (1998) 88 FCR 242 at p 245, cited in Roman v The Commonwealth of Australia (2004) 16 NTLR 80; [2004] NTSC 9 at p 92: "In the nature of the case, a search warrant is likely to be sought upon incomplete information, in circumstances of suspicion [1] rather than knowledge, and having regard to facts that may be imperfectly understood." (Footnote Added.) In Roman, it was stated at p 91: "The plaintiffs complain that Lynette's allegations included falsities that might have been exposed had Quirk and Jabbour only checked other information, for example the whereabouts of the first plaintiff when Lynette alleged she was in his company interstate. But the question was not whether Quirk or Jabbour might have obtained more satisfactory and surer grounds of belief by further investigation but whether the information they had furnished reasonable and probable cause for their belief that evidentiary material in relation to offences under the Crimes Act and the Immigration Act was present at the plaintiffs' premises which, in the circumstances, justified them acting on that belief without further enquiry, cf Lister v Perryman (1870) LR 4 HL 521 at 536 per Lord Chelmsford."
Further, in Gibbs v Rea [1998] AC 786 (a case involving an action for the tort of malicious procurement of a search warrant), also cited in Roman, the important observation (albeit in the dissenting judgment [2] ) was also made at p 807 that: "It is in the nature of such information that it may, on further inquiry when the warrant has been executed, turn out to have been mistaken or inaccurate. Yet it cannot be said that a police officer who obtains a search warrant on the basis of information which has been provided to him in the form of a tip-off was acting maliciously simply because in the event it yields no result. The position is entirely different at the prosecution stage, when the prosecutor can be expected to have gathered in all the evidence and applied his mind, with the benefit of such legal advice as may be appropriate, to the question whether the prosecution can be justified."
In Polley v Johnson [2015] NSWCA 256 Simpson J (with whom Beazley P and McColl JA agreed) stated similarly at [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."
At [40], Simpson JA also described the relationship between the reasonable grounds held by the applicant and the reasonable grounds held by the EIO as follows: "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). Subsection (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."
Further at [51], Simpson JA stated: "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 62(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)." (Emphasis added.)
Accordingly, it is the police officer who must have the belief that the conditions set out in s 47(1) of LEPRA are satisfied, based on reasonable grounds, not the EIO. Rather, the EIO must be satisfied of the reasonable grounds for issuing the warrant. The common feature between ss 47 and 48 is the presence of information forming the basis for "reasonable grounds" which has been verified by oath or affirmation pursuant to s 60(2).
It is clear from the terms of the section that the EIO's satisfaction pursuant to s 48 must be reached at the time of the issuance of the search warrant, and the reasonableness of the grounds are not to be assessed with the benefit of hindsight: Roman at [27] (and authorities cited therein).
It is also important to note the statement from George at 111: "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."
As to the statutory words "believes on reasonable grounds", the following valuable guidance can also be found in the following passage from George 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."

Consideration

It is now convenient to deal with each ground of challenge, noting that the particulars in relation to both the first and second warrant are almost identical (with the essential difference being additional particulars included in relation to the second warrant (concerning alleged factual inaccuracies)). It is therefore convenient to deal with the grounds of challenge in relation to both warrants together. As I go on to discuss, none of the particulars have been made out.

Particulars 2(a) and (b) - no reasonable grounds for belief by the first and second defendants; provision of information by first and second defendants was false and/or misleading in a material particular

Particular 2(a) contends that the defendants (that is, the applicant police officers) did not have reasonable grounds to believe that there was, on the premises, a thing connected with a searchable offence for the purposes of s 47. However, this particular appears to be based upon the contention that some of the information relied upon by the defendants, at the time of each application, was in fact false and/or misleading in a material particular as set out in Particular 2(b).
It is important to note that the plaintiffs are not contending that any alleged inaccuracy in the information was known to the defendants at the time of the warrant application, nor that any inaccuracy was as a result of a deliberate attempt to mislead or deceive such that it would give rise to an offence pursuant to s 63 of LEPRA (or indeed any action in tort). If I understand the argument correctly, it is that some of the information relied upon by the defendants was, in hindsight, false or misleading in a material particular. As a result, in hindsight, there were no reasonable grounds to make the application.
In response, the defendants contended that even if there were errors, the errors were not material when all the information was looked at as a whole. Further, they contended that to the extent that any information was inaccurate, such inaccuracy does not invalidate the warrant but, rather, requires that the information be put aside for the purposes of assessing whether the remaining information was sufficient to provide reasonable grounds for the belief required by s 47 of LEPRA.
The plaintiffs relied upon Patten v Justice of the Peace, Redfern Court (1986) 22 A Crim R 94 at pp 98-99, in which it was stated: "I should perhaps indicate that the duty of a court reviewing the issue of a search warrant is not to inquire whether the justice was himself satisfied as to the grounds for the issue of a warrant but as to whether he should have been so satisfied. In my view, if the justice in the present case had taken the necessary steps to examine the critical assertion of residence by Bishop, he would have been given answers which would have indicated to him that he could not, at that stage, issue a warrant. In my opinion, the issue of the warrant in this case was tainted by the absence of that essential inquiry and also by the failure of the third defendant to place before the first defendant the material upon which the assertion of residence by Bishop was based so that that material could be subjected to proper judicial consideration by the first defendant." (Emphasis added.)
In Patten, there was only a bare assertion as to Bishop's address, with no supporting material. In this case, however, there was no such equivalent bare assertion. To the contrary, there was ample material setting out the reasonable grounds as the basis for the applicant's belief in relation to both premises. In my view, Patten is of no assistance to the plaintiffs.
The plaintiffs also referred to the judgment of N Adams J in Harland v Murphy [2022] NSWSC 1376. Her Honour provided a useful summary of important principles relating to search warrants (at [207]-[241]). Both Harland and the present case concerned whether the applicant had "reasonable grounds" to believe that there was a thing connected with the searchable offence(s), and whether the issuing officer had reasonable grounds to issue the warrant.
However, Harland is distinguishable in several important respects.
True it is that in Harland, as in this case, there were some alleged unintentional inaccuracies and omissions in the application. However, in contrast to this case, some of the inaccuracies in Harland did not reflect the state of the material as known by the warrant applicant at the time of the application. Further, it can be seen that her Honour was satisfied that, when viewed objectively, the applicant did not turn her mind to the elements of the searchable offence. Her Honour concluded that in light of those factors "there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person". To the extent that her Honour also relied upon information found after the application to demonstrate inaccuracies in the application, for reasons I develop further below, I respectfully disagree with that portion of her Honour's reasons.
Justice N Adams then went on to state that based on Simpson JA's comments in Polley v Johnson (extracted above at [136] and [137]) that because the issuing officer's satisfaction must be that of the applicant, her Honour was satisfied that the issuing officer did not have reasonable grounds to issue the warrant. In relation to this aspect of N Adams J's judgment, I respectfully disagree that Simpson JA's analysis necessarily results in this outcome. Justice N Adams also went on to consider a further basis for the argument: the issuing officer could not have had reasonable grounds to issue the warrant on the basis that the notation on the documents indicated she had spent less than a minute considering the application. I will deal with this part of the judgment below when I consider a similar argument which arose in this case.
I now turn to part of the defendants' argument in response where it is submitted that any incorrect material (if any) should be put to one side. The cases cited by the defendants in support of the proposition that incorrect material should be put to one side were Vincent v Randall & Anor [1999] NSWSC 833 (per Hidden J; and referred to by N Adams J in Harland) and R v Petroulias (No. 8) [2007] NSWSC 82 (per Johnson J) at [144]. In Vincent, the police officer had presented a typed application for a search warrant which asserted that information had been received from "a reliable source" that Mr and Mrs Vincent were "actively engaged in the supply of cannabis and other drugs and receiving stolen property". The source was their daughter. She was described as a "young informant", a member of the family living at the subject premises, who had witnessed Mr and Mrs Vincent "buying and selling the prohibited drugs for a lengthy period of time". It went on to summarise the daughter's account of her parents obtaining drugs from Brighton-Le-Sands and returning to the home, where they were "packaged and sold". Finally, it asserted that both Mr and Mrs Vincent were known to police "through their association with drugs", there being "several intelligence reports from other informants and police in relation to selling drugs". The officer did not show the issuing justice any of the intelligence reports which he had obtained. Further, and importantly, in response to a question from the justice, the officer said that both Mr and Mrs Vincent had recorded convictions for possessing cannabis. In evidence before Hidden J, this was acknowledged not to be true. The officer said that he had gained that mistaken impression from the material about the parents he had read four days earlier, after he was approached by their daughter.
It was accepted by Hidden J that this was a "genuine mistake" on the part of the applicant police officer. Even though the applicant for the warrant and the issuing justice were both defendants in that matter, the focus of his Honour's judgment in assessing the validity of the warrant was the basis for the satisfaction of the issuing justice - not the reasonable grounds for belief of the police officer.
Justice Hidden cited Patten at p 98 for the proposition that the question for a court reviewing the issue of a warrant is not whether the issuing justice was satisfied of reasonable grounds but whether, on the material present, he or she should have been so satisfied. Justice Hidden also cited Finlay J in Jackson v Mijovich (Supreme Court (NSW), 22 March 1991, unrep), including Finlay J's observation that a justice issuing a warrant "must act independently and judicially; and I would add, with great care". Hidden J approached the problem by assessing the material before the justice absent the erroneous material and assessing whether the information which remained was capable of supporting the issue of the warrant.
As to the approach of Hidden J, with respect, it is not obvious to me, when assessing the task of the issuing justice based on the material before him, why the erroneous material should be set aside. As acknowledged by Hidden J in his judgment, the question for a court reviewing the issue of a warrant is whether, on the material presented, he or she should have been satisfied there were reasonable grounds for the issue. As I understand the test in the legislation and the weight of the authorities, one must not look at the material placed before the EIO with the benefit of hindsight. As stated by Hidden J in Vincent at [15], his Honour's task was to consider the question as to whether there were reasonable grounds for the issue of the warrant by reference only to the material that was before the issuing justice. This principle is in accordance the observations in Gibbs cited in Roman, extracted above at [134]. In Vincent, the material before the issuing justice included material which was later established to be inadvertently incorrect. Even if it could have been checked at the time by the applicant and found to be incorrect, that was not apparent to the issuing justice. The issuing justice was told and was presented with material which satisfied him that there were reasonable grounds for the issue of the warrant. I do not see a principled basis for setting aside the incorrect information when assessing the satisfaction of the issuing officer at the time of the issuing of the warrant.
In my view, Hidden J's approach can perhaps be better understood if one looks at the incorrect material from the perspective of the applicant police officer (who was, after all, the other defendant in that case). If one looks at all the material technically available to the police officer at the time of the application, that included the correct information about the presence or otherwise of the criminal histories of Mr and Mrs Vincent. Accordingly, in assessing whether the police officer believed "on reasonable grounds" that there was a thing connected with a search, that (partly objective) assessment appropriately included assessing his belief in the context of all the information which, on the evidence, was available to the officer at the time. Accordingly, when assessing the reasonableness of the police officer's belief, it would be appropriate to include material which was available to him, on the evidence, at the time, but misremembered. If, therefore, on review of all the material available to the police officer, one is assessing the reasonableness of the police officer's belief, it is appropriate to set aside that portion of material which although relied on by the police officer, was wrong (that is, wrong according to information which was available to the police officer at the time). That setting aside exercise is not, however, appropriate when reviewing the satisfaction of the issuing officer, which is based on the material before them (albeit to be considered in light of the matters set out non-exhaustively in s 62(3) of LEPRA).
This principle was also endorsed in a slightly different context. [3] In Commissioner of Police v Atkinson (1991) 23 NSWLR 495, Gleeson CJ (with whom Hope AJA agreed) stated at p 504: "It is the authorised justice's satisfaction as to the relevant facts, rather than the facts themselves, that forms the basis of the jurisdiction to issue a telephone warrant. By hypothesis we are dealing with applications that are made ex parte and in circumstances of actual or claimed urgency, and the criteria of urgency and practicability are very much matters of impression upon which different views may be held. The legislation commits the decision upon those questions to the justice, and provided it is made according to law, it is binding. It is not for this Court to substitute its own opinions on the issues of fact involved. […]"
Returning to Vincent, it can be seen that the situation there was different to the situation in this case. In this case, there is no evidence to the effect that there was material available to the police officers at the time of the application showing the officers should have known that any details in the application were incorrect. One must view the material available to them at the time of the application without any benefit of hindsight. This approach accords with established principle.
The defendants also relied upon the "similar approach" taken by Johnson J in Petroulias (No. 8), where there was some objectively inaccurate information included in a telephone intercept warrant application, but the substantial body of accurate information which remained was more than capable of supporting the issue of the relevant warrant. However, Johnson J's observations in Petroulias (No. 8) were not made in the context of determining the validity of a warrant, but rather whether certain evidence should be excluded pursuant to s 138 of thse Evidence Act 1995 (NSW). Accordingly, in my view, little assistance is provided by that case.
Just to be clear, the evidence in this case does not establish that there was material available to the defendants (that is, the applicant police officers) at the time of the application which showed there was any mistake on their part. Accordingly, there is no need to conduct an exercise of setting aside any information which later may be shown to be incorrect.
If I am wrong, in any event, as it happens, the inaccuracies pointed to by the plaintiffs are either simply not inaccurate at all, or if they are inaccurate, they are not material inaccuracies, either alone or together. I have considered all the alleged inaccuracies. To give a flavour of the matters said to be false or misleading in a material particular, it will suffice to give a few examples, with the defendants' response, which I accept is correct (except to the extent it is suggested that the incorrect matters should be put to one side, as discussed above). Particular Alleged factual inaccuracy by plaintiff Defendants' response 2(b)(ii) That the premises at 167-169 Parry Street Hamilton East was also known as lot reference DP 1082710. There is no inaccuracy here. The plaintiffs' evidence confirms that 167 Parry Street is located on folio identified 281/1082710 and 282/1082710: Latham affidavit, [7]. The defendants evidence also demonstrates that 167-169 Parry Street is located on DP 1082710: Stingmore affidavit, [11]; Browne affidavit, [7]. This is not what was stated in the application for the warrant. The application stated that: 2(b)(iii) That 167-169 Parry Avenue Hamilton East had signage upon the building identifying the location as "Pachamama House". "Both 167-169 Parry Avenue, Hamilton East and 21 Gordon Avenue, Hamilton have signage upon the building identifying the locations at 'Pachamama House'." It was correct that there was a sign on 21 Gordon Avenue identifying the location as "Pachamama House". The suggestion that 167-169 Parry Street had such a sign appears to have been incorrect (and can be put to one side). It is correct that Ms Russell is not a director of HCEC. 2(b)(vi) That Susan Russell is a director of HCEC. However, Ms Russell is a director of Parry Street Pty Ltd, which owns the land on which HCEC operates (as noted above). This inaccuracy is immaterial. 2(b)(vii) That the application did not provide complete and accurate details of Susan Russell's criminal history, including that she had not been convicted of any offence. There is no inaccuracy here. There was no requirement for the application to set out Ms Russell's full criminal history. Ms Wild's evidence for the purposes of these proceedings is that she did not use the username "squirrel" on WIRE. 2(b)(xi) That Anneliese Wild uses the username "squirrel" on "WIRE". It is not accepted that it was not open to those investigating the offences on 19 November 2021 to conclude that Ms Wild used that username. In any event, any inaccuracy in this regard is immaterial in circumstances where Ms Wild contends that the username was used by Mr Squires, who stated to police that his address was 173 Parry Street.

Even if one were to set aside the alleged erroneous material (which, in this case, I do not accept is called for), as can be seen from the material summarised above, there was ample remaining material linking individuals involved directly or indirectly in protest activity, some of whom had been charged with various offences, to Pachamama house, to 167-169 Parry Street and to 171-173 Parry Street. Further, as noted above, each of 167-169 Parry Street, 171-173 Parry Street and 21 Gordon Avenue shared communal areas and pathways, and there were no dividing boundaries between the properties.
For instance, Susan Russell was a director of both Parry Street Pty Ltd and Gladneys Pty Ltd, companies that owned 167-169, 171-173 Parry Street and 21 Gordon Avenue, respectively. Ms Russell had past involvement in direct action protest activities.
Messages on Ms Wild's phone also supported the application for the warrant, including a message from "squirrel" that "lapaz wouldn't be good for a number of reasons". "Lapaz" was a reference to accommodation located at 167-169 and 171-175 Parry Street, Hamilton East.
Messages on Ms Wild's phone, wrongly attributed to Ms Wild as the sender, nevertheless included a message containing a hyperlink to a livestream of Mr Garner's actions, and contained a reference to "La Paz", which was where Ms Wild lived at the time. In any event, the true sender of the messages was Mr Squires, who had been arrested for protest related activity on 17 November 2021, at which time he gave his address as 173 Parry Street.
Other contentions advanced by the plaintiffs do not persuade me as showing the warrant was invalid (and in any event were not pleaded). In summary: 1. I reject the contention that there were no links between certain named persons, the premises to be searched, and the things that may be found there which are connected with the searchable offence. There clearly were. 2. I reject the contention that nothing could "add to or detract from" the evidence that would prove an offence of hinder working of equipment associated with a mine under s 201 of the Crimes Act because police "already had a complete case". There is no basis in law for this submission. Police are entitled to search for additional evidence in relation to proving an offence. 3. I reject the relevance of the contention that there was no evidence to support an intention of the protesters to kill or injure any person pursuant to s 211 of the Crimes Act. Not only had some persons already been charged with offences under s 211, that offence also encompasses an intent to endanger the safety of people on a railway. The statement of an offence in a search warrant (or, logically, in an application for a search warrant), does not require the precision of an indictment: Corbett at [99]. 4. I reject the contention that there was not material set out in the application to justify the belief that harnesses and ropes were stored at the premises. The reasonableness of the belief can be seen from the summary of the material available, including that various persons connected with the premises had recently been charged with offences involving harnesses and ropes. 5. I reject the relevance of the contention that nothing seized during the execution of the warrant was ever used in the prosecution of any person. Not only is there no evidence of this contention, it simply is not relevant to the applicant's belief at the time of the application.

Particular 2(c) - information in the application for the first search warrant by the first defendant was obtained unlawfully and through bad faith

The sub-particulars of particular 2(c) are: "i. The stop and search of Anneliese Wild on 19 November 2021 was unlawful and contrary to law. ii. The search and seizure of the mobile phone of Anneliese Wild was unlawful and contrary to law."
This can be dealt with shortly. There is insufficient evidence to sustain this allegation. Further, even if it had been demonstrated that the stop and search was not lawful, it does not follow that material obtained from that search could not be used in the application for the warrant: Doyle v Commissioner of Police [2020] NSWCA 11 at [83]; Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132 at [468]; Lee v NSW Commissioner for Police (No 3) [2019] NSWSC 694 at [139]-[151].

Particular 2(d) - no reasonable grounds for EIO to issue the warrant

In my view, for the reasons set out above in relation to the first two particulars, there were clearly reasonable grounds for the satisfaction of the EIO based on the material placed before her.

Particulars 2(e), (f), (g), (h) - alleged failure by the EIO to consider matters set out in s 62(3)

It is not clear what the plaintiffs rely upon in support of these particulars. Whilst s 62(3) of LEPRA requires that certain matters be considered, there is no requirement to set out in writing that those matters were considered.
As stated by Garling J in Lee at [182]-[183]: "There is no statutory requirement to set out findings of fact, details of any reasoning process, resolution of competing arguments, nor reasons for discarding or not relying upon any matter. What is required is the grounds relied upon to justify the decision. There is no reason having regard to the subject matter of the decision, to require anything more of the decision-maker. There is no contradictor present. The nature of the application is such that it will always be an ex-parte one. There is no right of appeal for any person against the decision to issue a search warrant. There is no procedural reason why extensive reasons would be required."
In my view, these particulars are not made out.

Particulars 2(i) and (j) - error in recording time of application for warrant; no meaningful consideration of application

Particular 2(i) contended that the warrant was invalid because the EIO failed to properly record the time the application was received and the time the warrant was issued. Particular 2(j) (in the alternative) contended that the EIO did not give the application meaningful consideration as it was received and issued within one minute.
The plaintiffs relied on the fact that the EIO noted in Pt 2 of the Form 1 "Application for Part 5 search warrant/record (other than covert or criminal organisation search warrant)/record of application", she received the first application at 12:45pm and issued the first warrant at 12:45pm. A similar complaint was made in relation to the second application and warrant - with 3:45pm recorded as the time of receipt of the application and issue of the warrant.
There are a number of issues to determine, both factual and legal. Factually it would appear that certain matters are clear. First, it is clear that the EIO erroneously recorded identical times for the receipt of the application and the issue of the warrant in each instance. So much was accepted by the plaintiffs well prior to the filing of the summons, and in their submissions. For instance, once Mr Latham had reviewed the search warrant documents he noted that "the times recorded are clearly not correct". That it was an error was also plain from the uncontradicted evidence of the defendants. That uncontradicted evidence was that the application for the first warrant was received about 25 minutes before the issue of the warrant, and the application for the second warrant was received about 15 minutes before the issue of the warrant.
Unsurprisingly, at the hearing, particular 2(j) was abandoned.
The plaintiffs continued to press the argument that the mere fact of the error in recording the time of the applications invalidates the warrants, purportedly relying on the remarks of N Adams J in Harland at [278]-[279]. Those paragraphs read as follows: "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." (Emphasis added.)
It can be observed that these remarks were neither concerned with any pleaded ground advanced by the plaintiffs in that case, nor were they the subject of full argument.
In any event, this case is clearly distinguishable from the situation considered by N Adams J where her Honour had observed "there is simply no way of assessing how much time was spent considering the application". In this case, there was evidence about how much time was spent considering the application for each warrant. The uncontradicted evidence in relation to the first warrant was that the EIO spent around 25 minutes considering the first application and issuing the first warrant, and around 15 minutes in relation to the second. The error occurred in the recording of the time of the receipt of each application. There was no error in relation to the time recorded in relation to the issue of the warrant.
I am not aware of any appellate authority to support the contention that an error recording the time of receipt of an application necessarily vitiates the warrant. In my view, if, as here, there is a clear error apparent in the detail of the receipt of the application recorded on Pt 2 of Form 1 and there is evidence which shows when, in fact, the application was received and the warrant was issued, the error, in and of itself, does not invalidate the warrant. Whilst the error may point to some lack of care in the completion of the whole task, it does not inexorably flow that that same lack of care flowed through to the EIO's consideration of the substance of the application, or to the proper consideration of the grounds for the issuance of the warrant. The evidence must be viewed as a whole. In light of the evidence in this case, particular 2(i) fails.
At the hearing, a related argument was made by the plaintiffs which was expressed in supplementary written submissions as follows: "This case is on all fours with the judgment of Handley JA in Carroll in that clearly the record of grounds for each warrant was not 'made before or at the time the warrant is issued' and, it is submitted, it is on all fours with the judgment of Kirby P in Carroll in that the EIO did not 'before issuing the warrant … formulate her grounds precisely' and at the time of issue did not make the record. Neither is there any evidence than can be comfortably relied upon to find when records of grounds was made, certainly not to find that that timing was 'shortly thereafter' in the sense that Kirby P was expressing that comment." (Emphasis in original.)
Given some time was devoted to this issue at the hearing, I will consider this related argument. As I understand the argument, it is that the warrants are invalid because there is no evidence showing that the record of the grounds for issuing the warrants was made by the EIO either "before", "at the time" or "shortly thereafter" the issuing of the warrants.
As noted above, the evidence from the applicant police officers was as follows:
As set out at [85]-[86] above, in relation to the first application, Detective Acting Inspector Stingmore said that the process of the EIO reading the application took "probably 20/25 minutes perhaps". He did not specifically recall the EIO swearing in Detective Sergeant Browne in relation to the search warrant, or writing "N/A" or "see attached" on Pt 2 of Form 1 (the place on the form for the recording of the particulars of grounds on which the EIO relied to issue the warrant). He further stated that he had never seen the typed "grounds" document, and typically did not receive it.
As to the second application, he said he had not seen the typed grounds document before, in that format or any other format.
I note that s 65(2)(a) of LEPRA provides that the regulations may make provision for or with respect to "the keeping of records in connection with the issue and execution of warrants". It is convenient to again set out reg 5 of the LEPRR, which provides that: 5 Determination of application for warrant, notice to produce or order - record by eligible issuing officer (1) A record is to be made by or on behalf of an eligible issuing officer, in relation to each application for a warrant dealt with by the officer, in the following form - (a) in the case of an application for a Part 5 search warrant […] Part 2 of Form 1 […]
Detective Sergeant Browne's evidence in chief in relation to the first warrant was that he was before the EIO for 20 to 25 minutes. At approximately 12:45pm, the EIO "signed" the warrant application and issued the warrant by handing the detective the signed Form 11 document (the warrant) and the occupier's notice. In cross-examination, Detective Sergeant Brown was asked if he could remember seeing the EIO write on the application. It can be recalled that he said: "I didn't see her do it, I can't remember seeing her do it, but I would suggest that's her handwriting."
Further, Detective Sergeant Brown could not remember when the EIO wrote his name on the application, nor could he remember seeing her write "see attached" in the section marked number 4 under the heading "Part 2 Eligible issuing officer's record of application for a search warrant" of Form 1. That section is stated to be for "[t]he relevant particulars of the grounds on which I relied to justify the issue of/refusal to issue [Delete which is inapplicable] the warrant are as follows". I note that neither option was deleted by the EIO. Again, that indicates some carelessness (as do some other instances of her failure to delete minor inapplicable portions in Pt 2 of Form 1). As set out above at [110], the following exchange occurred: "[Mr Skinner:] Anyway, you say you don't know where the, "See attached" ‑ when she put that on. [Detective Sergeant Brown:] During the course of completing the signature and the swearing is the best of my recollection."
In Doyle, what was required by s 47 of LEPRA was explained as follows at [75]: "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."
First, there is no basis to find the EIO did not comply with s 47.
One must next, therefore, turn to s 65 of LEPRA. The plaintiffs bear the onus. The plaintiffs argue that the only rational inference is that the EIO drafted the grounds after they were issued, overnight, or possibly the next day. I do not accept that to be the only rational inference. It can be inferred that the grounds documents were prepared quite quickly, with minimal formatting, and less than full expression. Both documents were signed and dated 19 November 2021. That there were common errors between the two grounds documents is neutral as to the time at which they were prepared. Given the application for the second warrant was closely related to the application for the first warrant, and given the subject premises were neighbouring and related, that some of the material was copied and pasted from one grounds document to the other carries no necessary inference as to the time the documents were created.
The time available to the EIO whilst she was with the officers leading up to and including the time she issued the warrant (about 25 minutes for the first warrant, and about 15 minutes for the second warrant) was clearly not enough time for her to have produced the reasonably detailed grounds documents she produced in relation to each warrant. Further, the officers had not previously seen the document or documents containing the grounds. Accordingly, I am satisfied that the EIO did not type out the grounds document while the officers were in her presence. There is, however, no legal requirement for her to do so.
In relation to both the first and second warrant applications, section 4 of Pt 2 of Form 1 provided space for the particulars of the grounds relied upon to issue the warrant. In the respective spaces of each form, the EIO wrote "see attached". It can be inferred that the closely type-written grounds documents, with minimal formatting, and signed and dated with the date of issue referring in some detail to the material contained in the application, was the document "attached" in each instance. Each is signed and dated 19 November 2021. There is no evidence to suggest that the EIO undertook the task of "causing a record to be made of all relevant particulars of the grounds she relied upon to justify the issue of the warrant" at any time other than appropriately proximate to the issuing of the warrant.
To the extent that the plaintiffs rely upon Handley JA's comment in Carroll v Mijovich (1991) 25 NSWLR 441 that the record (in this case, the closely type-written grounds documents) must be made "before or at the time" of the issue of the warrant, several matters can be noted. First, the phrase "at the time" cannot have been meant literally by Handley JA, given that one cannot issue a warrant and record reasons at precisely the same moment. Accordingly, if the record is not made before the issue of the warrant (which is unlikely in most practical settings, given warrants are often sought with some urgency), the other option is for the record to be made "shortly thereafter" as stated by Kirby P in Carroll for the reasons set out in that judgment.
Second, it can be observed that Handley JA concluded his judgment in Carroll by referring to the "construction favoured by Kirby P and myself", indicating that he accepted the record could be made "shortly after".
Third, some expressions with s 65(1) of LEPRA itself connote that the record may be made at a point after the issuance of the warrant, especially the terms "must cause a record to be made" and, also "has relied on to justify the issue of the warrant".
Fourth, the terms of the printed Pt 2 of Form 1 also use the past tense at relevant points, indicating that the form may properly be completed following the issue of the warrant. For instance, "was/was not" in paragraph 1; "provided" in paragraph 2; "found/did not find" in paragraph 3; importantly, "on which I relied" in paragraph 4 (albeit I note that footnote 3 to paragraph 4 uses the term "are relied on"); and finally, "[t]he search warrant was issued at [Time] and [Date]".
There is no evidence before me which satisfies me that the EIO failed to comply with s 65.
In summary, the EIO was entitled to complete Pt 2 of Form 1 (including a separate grounds document attached to the form) after the warrant was issued so long as it was, in accordance with authority, "shortly after". There is no evidence which satisfies me that the EIO did anything other than complete Pt 2 of Form 1, together with the separate grounds document, shortly after the issue of each warrant, and conformably within the terms of s 65.
Further, it is true that the EIO could and should have been more careful in completing some minor parts of Pt 2 of Form 1. However, the minor defaults (essentially failing to strike out certain options) are not such as could undermine the validity of the warrants. Likewise, the errors in recording the time of receipt of the applications were not, in light of the evidence, sufficient to vitiate the warrants.

Determination as to whether an extension of time should be granted

As noted above, there was a complete absence of explanation for 13 months of the delay. That is clearly a significant period of time. While some of the submissions made in relation to the application of LEPRA are of general application, they are not novel. Delay meant that certain evidence was no longer available, and memories were diminished, which detrimentally affected the efficient disposition of the proceedings. Whilst the bringing of the matter highlighted the need for care to be taken by EIOs in keeping records when issuing warrants, the merits of the case cannot be characterised as exceptional. Indeed, none of the particulars in the summons have been made out.
However, there is also a public interest in the lawful issuance and execution of search warrants. On balance, I am of the view that an extension of time should be granted.

Conclusion

None of the particulars of the summons have been made out. Costs should follow the event.
The Court makes the following orders: 1. Grant the application to file the summons out of time. 2. Dismiss the summons. 3. Order the plaintiffs to pay the defendants' costs.

Endnotes

The use of "suspicion" in this excerpt is not significant in this context.
I note the decision in Gibbs turned on a question of proof in circumstances where the defendant police officers called no evidence.
That is, whether or not a search warrant was properly issued pursuant to a telephone application (rather than in person). 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: 15 November 2024

(Crimes Act 1900(NSW)

Crimes Act 1900(NSW)ss 117, 201, 211

Law Enforcement (Powers and Responsibilities) Act 2002(NSW)ss 47, 48, 60, 62-63, 65-66, 76

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