Lee v New South Wales Commissioner of Police

Supreme Court of NSW|2017-10-06|Before: Garling J, Commission J

Introduction

By Summons dated 24 February 2017, the plaintiff, Ms Denise Lee, sought various orders relating to a search warrant ("the Warrant") which was granted by the third defendant, Mr Tim Henderson, and which was executed at her premises in Rushcutters Bay on the morning of 22 February 2017 by the second defendant, Ms Meegan Peebles, and by other police officers.

Proceedings in the Supreme Court

The original Summons came before the Duty Judge of this Court on 28 February 2017. On that day, orders were made by consent, in which the Commissioner undertook to the Court that, until 4 pm on 6 March 2017, it would not inspect the electronic equipment seized by police on 22 February 2017 at the plaintiff's premises pursuant to the Warrant.
Leave was granted by the Registrar of this Court to the plaintiff to file an Amended Summons on 25 July 2017. That Amended Summons was filed on 28 July 2017. The plaintiff sought an order, injunction or writ in the nature of mandamus directed to the defendants, requiring them to return the electronic equipment and other material seized during the execution of the Warrant.
The plaintiff also sought orders that some of the material seized during the execution of the Warrant be declared to be subject to legal professional privilege or client legal privilege.
During the hearing of these proceedings on 6 October 2017, the parties agreed that the matters relating to the client legal privilege would be dealt with on a future occasion after judgment was handed down on the orders set out in [9] of this judgment.
Also during the hearing, counsel for the plaintiff sought leave to file a Further Amended Summons in Court. In addition to a number of typographical amendments, the plaintiff sought leave to include three additional paragraphs which raised new grounds of argument impugning the Warrant. I refused leave to the plaintiff to add those paragraphs, on the grounds that the amendments came much too late in the proceedings and no adequate explanation was proffered for their lateness. However, I permitted the plaintiff to file in Court the Further Amended Summons apart from those paragraphs.
By that Further Amended Summons, the plaintiff seeks the following relief: 1. An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the following decisions ("the Decisions") purportedly made under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the LEPRA"): 1. the written application made by the second defendant for the issuing of the Warrant by the third defendant; 2. the decision of the third defendant to issue the Warrant; 3. the decision of the first and second defendants to execute the Warrant; and 4. the decision of the first and second defendants to take material and items from the plaintiff's premises purportedly executing the Warrant on 22 February 2017; 1. An order in the nature of prohibition or alternatively an injunction preventing the defendants or their officers, servants or agents from taking steps in reliance upon the Decisions and preventing them from using the material seized; 2. An order, injunction or writ in the nature of mandamus directed to the defendants to require them to return the material seized pursuant to the Warrant, in addition to any photographs, digital images and audio made or obtained during the purported execution of the Warrant, within 3 days of the order; 3. An order, injunction or writ or writ in the nature of mandamus preventing the defendants from disseminating any information obtained by them from their possession or examination of the material seized during the execution of the Warrant; 4. An interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants from taking any further steps in reliance upon any of the Decisions until the final determination of these proceedings or until further order; 5. A declaration and/or an order against the defendants for loss and damages in respect of the unlawful execution of the Warrant and in respect of the materials seized; 6. Costs.
In short, the plaintiff impugns the obtaining, granting and execution of the Warrant and seeks to have it set aside upon a number of grounds which arise out of the form and contents of the Warrant.
It is necessary to identify the statutory framework which applies to the issuing and execution of warrants pursuant to the LEPRA.

Applicable Statutory Framework

Part 5 of the LEPRA relates to search and seizure powers of police officers with a warrant. Section 47 of the LEPRA provides: "47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. …"
"Eligible issuing officer" is defined in s 46(1) to mean: "(1) In this Part: … eligible issuing officer means: (a) for a warrant other than a covert search warrant or a criminal organisation search warrant - an authorised officer, or …"
"Authorised officer" is defined in s 3 to mean, inter alia, a Magistrate or a Children's Magistrate, or a Registrar of the Local Court. The third defendant, Tim Henderson, was the relevant issuing officer with regards to the Warrant. There is no dispute that he was at all times an eligible issuing officer within the terms of the LEPRA.
Section 46(3) provides: "(3) For the purposes of this Part, a thing is connected with a particular offence if it is: (a) a thing with respect to which the offence has been committed, or (b) a thing that will provide evidence of the commission of the offence, or (c) a thing that was used, or is intended to be used, in or in connection with the commission of the offence."
There was no dispute in these proceedings that conduct contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the CDPV Act") constitutes an indictable offence, and therefore that it fell within the definition of a "searchable offence" for the purposes of ss 47 and 47A of the LEPRA.
Pursuant to s 47A(1) of the LEPRA, a search warrant authorises any executing officer for the warrant "to enter the subject premises, and to search the premises for things connected with a particular searchable offence in relation to the warrant".
Section 48 provides that an eligible issuing officer to whom an application has been made must only issue a search warrant "if satisfied that there are reasonable grounds for doing so". It was not in dispute that the third defendant was satisfied to the requisite standard pursuant to s 48 in these proceedings.
Section 49 regulates the power to seize items during the execution of a search warrant. It provides: "49 Seizure of things pursuant to search warrant (1) A person executing a search warrant issued under this Division: (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence. (2) Without limiting subsection (1), the power to seize and detain a thing includes: (a) a power to remove the thing from the premises where it is found, and (b) a power to guard the thing in or on those premises, and (c) ..."
Section 62 of the LEPRA sets out the information which must be included in an application for a search warrant. "62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. …"
Section 65 of the LEPRA requires the eligible issuing officer to keep a record of all of the relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant. Section 66 requires a warrant to be in the form prescribed by the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ("the Regulation").
Section 67 of the LEPRA requires the eligible issuing officer to prepare and give an occupier's notice to the person to whom the eligible issuing officer issues a warrant; in this case, the second defendant. The occupier's notice is required to be served on entry into the premises or as soon as practicable after entry upon a person who appears to be an occupier of the premises and to be of or above the age of 18 years.
Sections 75A and 75B of the LEPRA makes specific provision for electronic and other equipment in the following terms: "75A Operation of electronic and other equipment at premises and removal of things from premises for examination … (2) If a thing is moved to another place for examination under this section, an eligible issuing officer may authorise the removal of the thing for an additional period (not exceeding 7 working days at any one time) if satisfied that the additional period is required to determine whether it is or contains a thing that may be seized under the warrant. … (4) The eligible issuing officer may authorise the removal of a thing for a period exceeding a total of 28 days only if satisfied that it is justified on the basis that there are exceptional circumstances in the case. 75B Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant) (1) The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant. (2) The person executing or assisting in the execution of the warrant may: (a) copy any accessed data to a disk, tape or other data storage device brought to the premises, and (b) with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and (c) take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant. (3) The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced. (4) The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device: (a) if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or (b) if possession by the occupier of the equipment or device could constitute an offence. …"
The provisions of the Regulation are also applicable. Pursuant to cl 4(1), for the purposes of an application for a Pt 5 search warrant, Pt 1 of Form 1 is the form which must be completed. Clause 6(1)(a) of the Regulation also provides that Form 11 is the requisite form for a Pt 5 search warrant (other than a covert search warrant or a criminal organisation search warrant).
The form of an Occupier's Notice is prescribed by cl 7 of the Regulation.
Form 1 is contained in Schedule 1 of the Regulation and appears as follows: "Form 1 Application for Part 5 search warrant (other than covert or criminal organisation search warrant)/record of application Part 1 Application On [Date], I, [Name and rank] of [Place of work], apply for a search warrant to enter and search the premises known as [Address] in the State of New South Wales, being a [Description of premises (eg dwelling house)]. I swear/solemnly, sincerely and truly declare and affirm* that: 1 I have reasonable grounds for believing that: (a) there is, or within 72 hours will be, in or on the premises, the following things: [List items to be searched for. If exact location of items is known, include that information.] (b) the things are connected with the following searchable offence(s) within the meaning of section 46A (1) (a) of the Law Enforcement (Powers and Responsibilities) Act 2002: [Insert description of offence(s).] … 2 I rely on the following grounds in support of this application: [Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient, continue overleaf or attach a separate sheet.] … Sworn/declared and affirmed* before me on [Date] at [Place] in the State of New South Wales. …"
Form 11 is also contained in that Schedule and is in the following form: "Form 11 Part 5 search warrant (other than covert or criminal organisation search warrant) This search warrant expires at [Time] on [Date] and must not be used after that time. On [Date], an eligible issuing officer empowered to grant search warrants under Division 2 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002, granted this search warrant authorising [Name and rank] of [Place of work] (the applicant), a police officer, and all other police officers, as follows: 1 To enter the premises known as [Address] being a [Description of premises (eg dwelling house)]. 2 To search those premises for any of the following things: [List and describe the things to be searched for with particularity. If space is insufficient, continue overleaf or attach a separate sheet.] The applicant has reasonable grounds for believing that those things are connected with the following searchable offences: [Specify relevant offences.] …"
Much of the plaintiff's argument that the Warrant should be declared invalid is based upon how the Forms 1 and 11 were respectively completed in this case, and whether the words used to replace the italicised text in brackets were adequate for the purposes of the LEPRA and the Regulation.

Factual Circumstances

On 21 February 2017, the second defendant, a Detective Senior Constable stationed at Kings Cross Police Station, applied for a search warrant under Part 5 of the LEPRA, by filling out a Form 1.
By filling out the Form 1, the second defendant affirmed that she had reasonable grounds for believing that: 1. there were, or within 72 hours would be, in or on the premises, the following things: "communication devices including mobile phone, laptop computer, desk top computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices"; and 2. the things were connected with the following searchable offence within the meaning of s 46A(1)(a) of the LEPRA: "Section 13 - Crimes Domestic Violence and Personal Violence Act 2007".
The second defendant was then required to nominate the grounds upon which she relied in support of her application for the Warrant. The second defendant provided the following information: "In July 2015, [CH] and Denise LEE met via the dating site, Tinder. … Between 9/8/15 and 11/11/15, 8880 messages were exchanged between LEE and [CH] … At 7.49am on the morning of 11 November 2015 [CH] text, "Please don't text anymore today". The messaging continued and at 8.36am [CH] wrote, "I need a break". Between 9.35am and 10.55am [CH] received another 69 messages from LEE which included the following texts. - "I won't be letting you get away with what you did to me … You are going to regret fucking taking me for a ride and being dishonest with me". … - "Whatever you value most, I will target". [CH] then blocked LEE's phone number and did not receive any further correspondence from her until 15 November 2015 when he started receiving messages from 31 different email accounts. Between 15th November 2015 and 27 December 2015, 3796 emails were exchanged between these email addresses and [CH]. On 6th December 2016, LEE provided email address … to NSW Police. This is one of the 31 email addresses that had been used to email [CH]. In January 2016, [CH] moved to Melbourne, Victoria and shortly began a relationship with [DG]. … Since this time, [CH], [DG], [DG's mother], [DG's sisters] have all been the subject of emails sent to at least 170 recipients from at least 38 different email profiles. The contents of the emails include allegations of [CH] being a rapist, that [DG and her mother] engage in nepotism and that [DM] is a drug user. Emails are derogatory in nature … Between December 2015 and January 2017 there have been over 101 known emails of this nature which have been sent predominantly to [CH's employer], [DG's employer], [DG's parents' employer] …" [sic]
The second defendant also provided details of an email that was sent via the Swiss-based encryption email service, Protonmail, to a number of staff members at [DG's] parents' employer, which threatened that a website would imminently be set up which would enable "students, staff and anyone else [to] post notifications/disclosures regarding the unethical conduct of [BR] and [DG]" so that "everyone around the world [can] know what [they] have been up to".
The second defendant also described the investigation that had been undertaken by Victorian Police and which had determined that, with the assistance of a Forensic Linguist Report, all the emails were likely to have been sent by the same author. It was the opinion of police that the author of those emails was the plaintiff.
The Form 1 which was made available to the Court during the hearing was unsigned, and the eligible issuing officer's record of the application for the Warrant was absent. In the affidavit of the plaintiff's solicitor, Mr Dean Lenz, dated 4 October 2017, Mr Lenz deposed to the circumstances in which the eligible issuing officer's record of the second defendant's application for the Warrant could not be found.
Broadly speaking, those circumstances were that the plaintiff applied, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), to the Registrar of the Supreme Court requesting the transfer of the Warrant documents that were held at the Downing Centre Local Court to the Registry of the Supreme Court. Despite the Crown Solicitor's office informing Mr Lenz that the relevant documents had been hand delivered to the Registry of the Supreme Court on 11 August 2017, the documents were unable to be located. Further, the Crown Solicitor's office informed Mr Lenz that there was only one copy of the relevant documents that had been delivered to the Supreme Court Registry. Accordingly, those documents were not available at the time of hearing. However, the parties did not suggest that the Court should not proceed on the basis of the material which was available.
The Form 11 was also put before the Court. It stated that the Warrant expired at 4:17pm on 24 February 2017 and that on 21 February 2017 an eligible issuing officer under Div 2 of Pt 5 of the LEPRA granted the Warrant authorising the second defendant to enter the plaintiff's premises at Rushcutters Bay and to search for any of the following things: "Communication devices including mobile phone, laptop computer, desk top computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices".
The Form 11 stated that the second defendant had reasonable grounds for believing that those things were connected with a searchable offence which was nominated as "Section 13 - Crimes Domestic Violence and Personal Violence Act 2007". The Warrant was only to be executed by day i.e. between 6.00am and 9.00pm. The Form 11 was signed on 21 February 2017.
The Occupier's Notice for the Warrant confirmed this information, in addition to specifying that the application for the Warrant, written reasons for the issue of the warrant and other associated documents were to be held at the registry of the Downing Centre Local Court. The Occupier's Notice was also signed on 21 February 2017.
No substantive evidence was put before the Court of the execution of the Warrant at the plaintiff's premises, aside from a Report to the eligible issuing officer about the execution of the Warrant, a Form 27, authored by Plain Clothes Senior Constable Courtney Cruikshank, a Property Seizure/Exhibit Form and an Independent Observer report of the execution of the Warrant.
The Form 27 stated that the Warrant was executed on 22 February 2017 between 8.15am and 12.15pm. It also stated that the result of the execution of the Warrant was that "assorted documents, laptop, 2 x mobile phones, iPad, USBs" were seized. The Form 27 was completed on 24 February 2017.
A Property Seizure/Exhibit Form nominated the time that the Warrant commented as 8:40am on 22 February 2017, and described the following items of property as having been found:

Various papers located in various rooms of the plaintiff's residence;
5 x USB drives in various rooms;
1 x WD hard drive;
1 x iPhone mobile phone;
1 x Apple iPad;
1 x Apple iPad (green cover);
1 x HP laptop; and
1 x Apple Mac laptop.

Finally, a Search Warrant - Independent Observer Field Form was completed by Sergeant Kirsten Stocks at 10:46am on 22 February 2017. Sergeant Stocks described that the Warrant was executed at 8:38am on 22 February 2017, that entry was not forced, that an entry video was not made, that there was no safety issues, and that the plaintiff was already under arrest prior to the execution of the Warrant and that she was "handcuffed, seated on couch, [in the] living room". Sergeant Stocks recorded that the search was completed at 10:46am and that the premises were secured. No comments of significance were otherwise recorded.

Plaintiff's Submissions

The thrust of the plaintiff's submissions was two-fold. First, the plaintiff argued that the description of the offence within the meaning of s 46A(1)(a) at paragraphs 1(a) of the Form 1 and 2 of Form 11 as "Section 13 - Crimes Domestic Violence and Personal Violence Act 2007" was an insufficient description of an offence, and that the warrant was therefore invalid ("the offence description point").
Secondly, the plaintiff argued that the items that were seized by police in execution of the warrant, namely several iPads, laptop computers, and iPhones, were not "things" within the meaning of paragraphs 1(a) of Form 1 and 2 of Form 11, and hence could not be seized ("the items point").
The plaintiff did not put in issue the reasonableness of the second defendant's belief that there was a device in the plaintiff's premises of the kind specified in the Warrant which enabled the transmission of the text messages which founded the application for the search warrant.
On the offence description point, the plaintiff argued that the description of the offence as outlined above could not be said to comply with the requirement to "specify the offence" or to "insert [a] description of [the] offence(s)" for the purposes of paragraph 1(b) of Form 1 and 2 of Form 11. As a result, the plaintiff submitted that Forms 1 and 11 failed to comply with the mandatory requirements of ss 47(1)(a) and 47A(1)(b) of the LEPRA, and the manner in which the Forms are required to be filled out by Schedule 1 of the Regulation.
The plaintiff argued that the requirement to describe or specify the offence as detailed above is created by ss 62(1)(d) and (g) of the LEPRA, which require an application for a warrant to include "if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location" and "any other information required by the regulations" respectively.
The plaintiff then submitted that s 62(1)(g) brings the requirements of the italicised text in the Forms as contained in Schedule 1 of the Regulation to bear upon warrants, including the Warrant in this case. In support of this argument, counsel for the plaintiff submitted that the Court would construe the italicised text in Forms 1 and 11 as provided in Schedule 1 of the LEPRA Regulation as being a command, i.e. that the following italicised words within square brackets were imperative requirements of the Forms: "Form 1 … 1 I have reasonable grounds for believing that: … (b) the things are connected with the following searchable offence(s) within the meaning of section 46A (1) (a) of the Law Enforcement (Powers and Responsibilities) Act 2002: [Insert description of offence(s).] … Form 11 … 2 … The applicant has reasonable grounds for believing that those things are connected with the following searchable offences: [Specify relevant offences.]"
This imperative also derived from the need to give content and meaning to the phrase in the body of each of the paragraphs, namely "… the following searchable offences …".
Hence, the plaintiff argued that the answer provided in Forms 1 and 11 by the second defendant ("Section 13 - Crimes Domestic Violence and Personal Violence Act 2007") could not be said to comply with the command in the Forms that the applicant "Specify relevant offences" or "Insert description of offence(s)", assuming that the correct legislation had been cited.
Counsel for the plaintiff accepted in oral argument that the italicised text was intended to be deleted from the Form once it was completed. The plaintiff submitted that while the Regulation did not contain express words to the effect that the Forms contained in Schedule 1 to the Regulation were commands, nevertheless the terms of s 66 of the LEPRA (which states that "a warrant is to be in the form prescribed by the regulations"), and cl 6(1)(a) of the Regulation (which provides that Form 11 "is the form for a Part 5 search warrant"), indicate that such interpretation is warranted.
The plaintiff submitted further that "Section 13 - Crimes Domestic Violence and Personal Violence Act 2007" could not be construed as "[specifying] the offence" or "inserting [a] description of [the] offence" for the purposes of Forms 1 and 11 because s 13 of the Crimes (Domestic and Personal Violence) Act refers to more than one offence. That section is in the following terms: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both …"
The plaintiff placed particular emphasis upon the fact that "stalking" and "intimidation" are defined separately in the CDPV Act: "7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. …. 8 Meaning of "stalking" (1) In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. …."
The plaintiff submitted that s 13 could not be construed as "an offence", because it contains at least two offences, either intimidation or stalking, but not both. Alternatively, the plaintiff argued that even if s 13 is capable of being construed as one offence, merely using the words "section 13" as a description of the offence is insufficient. In order for a sufficient level of description or specificity to be achieved to satisfy the italicised words in Forms 1 and 11, the plaintiff argued that the Warrant had to nominate the relevant offence under s 13, i.e. either stalking or intimidation, and provide sufficient relevant detail.
The plaintiff also pointed to the fact that the CDPV Act was incorrectly named in Forms 1 and 11 as the "Crimes Domestic Violence and Personal Violence Act 2007", and that this factor added to the lack of specificity and the absence of an adequate description of the offence.
Ultimately, the plaintiff characterised the words inserted in 1(a) of Form 1 and 2 of Form 11 as "a simple (and incorrect) recitation of a numbered section of an Act which could not be construed as a 'particular … offence'", and which failed to comply with the requirements of LEPRA because of the absence of the following essential particulars: 1. A correct recitation of the CDPV Act; 2. The failure to state a "particular" or "specified offence", especially where section 13 of the CDPV Act refers to two separate offences; 3. The absence of nomination of the alleged perpetrator or victim in the nominated offence; and 4. The absence of a date or a range of dates in the description.
The plaintiff submitted that the decision in Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63 was either distinguishable or else did not stand against her argument. In Majzoub, it was contended that the relevant warrant was invalid on its face because it failed to recite, or to sufficiently recite, an offence in accordance with the requirements of the LEPRA and the Regulation. The offence was described as: "Supply Prohibited Drug Section 25 Drug Misuse and Trafficking Act 1985; Possess Prohibited Drug Section 10 Drug Misuse and Trafficking Act 1985".
Having discussed the principles applicable to the consideration of the validity of a search warrant, Hall J said at [54]-[59]: "A requirement to specify a relevant offence carries the meaning of a requirement to name or identify an offence. For that purpose, subject to the specific terms of a statutory provision, an offence may be named or identified by reference to the provisions of an Act that creates a particular offence. In the present case, reference was made to sections 10 and 25 of the Drug Misuse and Trafficking Act accompanied by a short description of 'possess prohibited drug' and 'supply prohibited drug respectively. No argument has been raised in these proceedings that those particulars in the warrant were ambiguous, vague or obscure. The offence stated in s 10 of the Drug Misuse and Trafficking Act is that 'a person who has a prohibited drug in his or her possession is guilty of an offence'. Possession of a prohibited drug is the only offence created by that provision. Section 25 of the Drug Misuse and Trafficking Act provides for variations of the offence of 'supply of prohibited drugs'. The primary offence can be found in subsection (1) … The remaining subsections of the provision deal with offences of supply of a prohibited drug according to the age of the person supplying the drug, the age of the person to whom it is supplied and the quantity of the drug supplied. … In the present case, it was possible to know with a high degree of accuracy that the offence referred to in the warrant concerned or involved the 'supply of prohibited drug', even though the offence may have been aggravated by the presence of more specified features. As noted above, the issue of specifying the offence with sufficient particularity must be considered by looking at the warrant as a whole: Ryder v Morley (supra). This includes the specified items to be searched for. The warrant in this case identified the things to be searched for with a high degree of particularity, including the type of drug ('(ice) Crystal Methamphetamine' and '(speed) Amphetamine'), money associated with the sale of prohibited drugs, drug ledgers and things connected with the sale of prohibited drugs."
Therefore, his Honour concluded that the particulars given in the warrant were sufficient to satisfy the statutory requirement to "specify relevant offences".
The plaintiff submitted that the present case was distinguishable from Majzoub because, in contrast to the offence as specified in Majzoub, the offence description in this case ("Section 13 - Crimes Domestic Violence and Personal Violence Act 2007") made reference to a statutory provision which contained two separate offences. Hence, the plaintiff argued that the Warrant "does not indicate which of the two offences it relates to and does not contain any basic information" and therefore could not be construed to be particular enough to satisfy the requirement that it 'specify the relevant offence(s)' ".
The plaintiff also submitted, in the alternative, that emphasis should be placed upon Hall J's caveat in [55] that: "subject to the specific terms of a statutory provision, an offence may be named or identified by reference to the provisions of an Act that creates a particular offence" (emphasis added).
The plaintiff argued that the specific statutory provisions of the Regulations and the LEPRA require that the offence be specified or particularised, and that this has not been done by the second defendant.
On this point, the plaintiff impugned the description of the "things" which the Warrant authorised the police to take from the plaintiff's premises in 1(a) of Form 1 and 2 of Form 11 as: "Communication devices including mobile phone, laptop computer, desk top computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices".
Form 1 requires a description of "things", being "items to be searched for", and their location, if known to the applicant for the warrant. Form 11 requires the applicant to "list and describe the things to be searched for [in the premises where the warrant is to be executed] with particularity".
The plaintiff argued that the description used, as set out in [63] above, could not be valid because there was no necessary connection between those "things" and the alleged offences under s 13 of the CDPV Act. The plaintiff submitted that to describe a laptop computer or a desktop computer in a warrant was the equivalent by analogy of describing a filing cabinet, where in truth what is being searched for in connection with the offence is a file or a document within the filing cabinet, and not the cabinet itself.
The plaintiff argued that such a broad description of the "things" is inconsistent with ss 75A and 75B of the LEPRA, which make specific provision for the powers of police when it comes to inspecting and seizing electronic equipment, and downloading any relevant data contained within the equipment.
Moreover, in relation to ss 75A and 75B of the LEPRA, the plaintiff submitted that there was no evidence of compliance with those sections, and that this would contribute to a finding that the Warrant was invalid. In the alternative, if the Court was not persuaded that the Warrant was invalid on the grounds argued by the plaintiff, the plaintiff submitted that the failure by the defendants to comply with ss 75A and 75B should go in favour of the Court exercising its discretion to require the defendants to return the electronic equipment seized in the course of the Warrant to the plaintiff.
In support of this submission, the plaintiff relied upon the decision of Beazley J (as her Honour then was) in Bartlett v Weir [1994] FCA 1143; (1994) 72 A Crim R 511, where her Honour held that not only must a search warrant be reasonably carried out, but that the seizing officer must have reasonable cause to believe at the time of seizure that the items seized might be connected with some crime. Her Honour made these remarks in circumstances where police seized computer hardware and software and other records from premises without knowing whether those items fell within the terms of the warrant, intending to examine them later, and without having, at the time of seizure, the requisite reasonable belief that the items were relevant to a particular offence.
Accordingly, the plaintiff submitted that the Warrant ought be declared to be unlawful on the basis that the first and second defendants seized the plaintiff's electronic equipment without knowing whether the contents of the equipment fell within the ambit of the warrant and intending to examine them later.
On the ultimate issue of discretion, namely whether this Court should intervene in the criminal proceedings which are currently on foot in the Local Court, counsel for the plaintiff emphasised the preliminary nature of those proceedings, in particular that a police brief had not yet been served, as going in favour of permitting this Court to intervene in the proceedings by making orders in relation to the Warrant.
The plaintiff also contrasted the instant case with that in Majzoub, where, rather than the criminal proceedings being at their beginning as in this case, committal proceedings were commenced in the Local Court, and on the second day of those proceedings, the plaintiff lodged the civil suit which was the subject of the judgment in Majzoub in this Court. Hence the plaintiff argued that the Court ought make the orders sought.
If the Court was not inclined to make orders which would interfere with the criminal proceedings in the Local Court, the plaintiff submitted that the Court ought exercise its discretion and order the defendants to return the electronic equipment seized during the execution of the Warrant.

Defendants' Submissions

The defendant submitted in relation to the items point that the "things", being "items to be searched for", were adequately described when regard is given to the grounds upon which the second defendant relied in paragraph 2 of the Form 1, namely the matters set out in this judgment at [31] above.
In response to the plaintiff's offence description point, the defendant submitted that neither the LEPRA nor the Regulations require the specification of the relevant offence. Moreover, the defendants argued that the fact that s 13 of the CDPV Act referred to the offence of "stalk or intimidate" did not mean that those offences were separate offences.
The defendants contrasted the instant case with that of Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151, where Lockhart J held the relevant warrant to be invalid on the basis that it did not specify, with sufficient particularity, what offence was alleged to have been committed. The relevant warrant in Cloran nominated s 70 of the Crimes Act 1900 (NSW) as the relevant offence. That offence described offences relating to the publication or communication by a Commonwealth officer of information which came into that person's knowledge as a result of their office. Lockhart J held that the terms of that section "[provided] for the commission of a somewhat indeterminate number of offences" because, if more than one person was involved in the communication or dissemination of the information to more than one other person, "the possible combinations of people who communicate information and of those to whom information is imparted are manifold". Hence the warrant in Cloran was declared to be invalid.
The defendants distinguish this case from Cloran on the basis that the nomination of s 13 of the CDPV Act sufficiently identified the substance of the relevant offence to which the Warrant was relevant i.e. a domestic violence offence.
While the defendants accepted that the description of the offence did not contain any particulars, such as the alleged perpetrator or victim of the offence, or the alleged date or time that the offence was supposed to be committed, the defendants submitted that there was no such requirement in the legislation that those matters be provided. The legislation only required that the offence be described with "sufficient particularity".
The defendants disputed the plaintiff's submission that the italicised words within the square brackets in the Forms as presented in Schedule 1 of the Regulation were mandatory commands. In support of this argument, the defendants pointed to the fact that, once the Form had been filled out by the relevant person, that italicised text would be deleted. The italicised text was nothing more in the circumstances than a guide for completion of the form.
In respect of the requirement of Form 1, that the offence be described, the defendants argued that this requirement was fulfilled by the text provided, i.e. "Section 13 - Crimes Domestic Violence and Personal Violence Act 2007". The defendants also asserted that such a requirement was satisfied by the answer provided in the Form 11.
The defendants argued that a misdescription of the title of the CDPV Act was immaterial, and did not make the warrant unlawful on its face.
Counsel for the defendants took the Court to Corbett v New South Wales [2006] NSWCA 138 in support of the assertion that a search warrant may be valid where the only description of the relevant offence is one which proceeds by reference to a section of legislation. The defendants pointed to [108] of the judgment of Giles JA, where his Honour said: "What appears from the cases is that the description of an offence is part of defining what may be searched for, in the language in the passages set out above the object of the search. The object of the search may satisfactorily appear even if no offence is stated, and this can not in principle be an essential element of a search warrant. Further, so far as there has been appeal to the common law condemnation of general warrants, that is, warrants which did not state who was to be arrested or what premises were to be searched, in R v Inland Revenue Commissioners (1980) AC 952 it was held that a search warrant which complied with the legislation under which it was issued was valid although it did not state the particular offence or offences suspected, and that it was not of assistance to appeal to the early cases on general warrants…"
On the issue of the applicability of Majzoub, the defendants submitted that the instant case is analogous with Majzoub. Just as the specification of the offence in Majzoub referred only to the offences by their section number and heading in the Crimes Act, so did the Warrant in the instant case only make reference to the relevant offence by the relevant Act and section number.
The defendants hence submit that the description of the offence in the warrant is "sufficiently clear to enable the person where premises are being searched to know the exact object of search": R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 113. That is, that the nature of the offence was clear from the description of the offence as a section of the CDPV Act, and that the nature of the things which could be seized, in combination with the CDPV Act, enabled a person to deduce that the relevant offence was one committed via electronic means and was a domestic violence offence.
In the event that the Court found against the defendants on the issue of whether the offence was described with sufficient particularity, the defendants submitted that the Court should not exercise its discretion to order the defendants to return the documents which it seized pursuant to the Warrant.
In support of this argument, the defendants referred to the case of Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132, which the defendants cited as authority for the proposition that a court has a discretion as to whether or not it orders the return of documents to a plaintiff where the plaintiff has successfully argued that a warrant was unlawful.
At [468]-[470] of Caratti, Wigney J characterised the discretion in the following manner: "The starting point, perhaps, is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods. That consideration would support the return of the unlawfully seized goods. That is not, however, the end of the matter. Weighed against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The result is that a number of additional considerations would ordinarily come into play. The list of relevant considerations is not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. All of the facts and circumstances surrounding the unlawful seizure must be considered. Relevant considerations may include: was the unlawful seizure deliberate, reckless or contumelious, or was it the product of mere technical deficiency or less serious conduct on the part of the seizing officer or agency; what is the nature of the items seized (for example, are they items that the party from whom they were seized requires to conduct their business); is there a risk that, if returned, the seized items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced (as in Cassaniti); and the possible importance and probative value, if any, of the seized material. … Ultimately the question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained. Or, put in another way, whether the undesirability of a person being unlawfully deprived of their goods is outweighed by the public interest in the police or investigating agencies being permitted to investigate and prosecute serious criminal conduct without undue interference. In that regard, the discretion is somewhat similar to the discretion to admit unlawfully obtained evidence under s 138 of the Evidence Act. That is not to suggest that the discretion is the same as the discretion in s 138 of the Evidence Act. … The point is that the exercise of the discretion, like the exercise of many discretionary powers, ultimately involves an exercise of balancing competing private and public interests. …"
The defendants also added that the Court would have to be satisfied that it was appropriate to grant the relief by declaration or otherwise before granting the relief sought by the plaintiff: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
As a result, the defendants submitted that, were the Court to find the Warrant invalid, the Court ought not exercise its discretion to require the defendants to return the seized items to the plaintiff, and it ought dismiss the proceedings without making a declaration that the Warrant was invalid.

Discernment

It is convenient to start with an outline of the general principles relating to the contents of a search warrant. These principles are not in doubt.
First, a fundamental concept underlying the LEPRA is the balance between public and private interests. The public interest is in the detection, prosecution and prevention of crime. The private interest is the protection of an individual's home from unlawful interference: Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123.
Secondly, in light of the concern of the legislature to protect the individual's interest, strict compliance with statutory conditions and obligations governing the issue of search warrants is necessary: George v Rockett [1990] HCA 26; (1990) 170 CLR 104.
Thirdly, there is a requirement arising from the common law and from the LEPRA to identify the relevant offence in the search warrant: Douglas v Blackler [2001] NSWSC 901 at [12]. That is because the person whose home is being searched is entitled to know the object of the search: R v Tillett; Ex Parte Newton at 113, and because the identification of the object of the search is necessary so as to limit the scope of the warrant: George v Rockett at 118.
Fourthly, the question of whether a warrant meets the statutory requirements is viewed objectively: Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667 at 676.
Fifthly, the nature of the offence must be sufficiently stated: NSW v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [106]. It need not be stated with the precision of an indictment: Beneficial Finance Corporation v Commissioner for Australian Federal Police [1991] FCA 475; (1991) 31 FCR 523 at 533.
Sixthly, the question of whether the offence is specified with sufficient particularity is a question to be resolved by looking at the warrant in its entirety: Ryder v Morley [1986] FCA 437; (1986) 12 FCR 438 at 444. The items identified as being searched for may assist with this examination.
Seventhly, it is not essential to specify, on the warrant, the section or the legislation against which an offence has been committed, providing that the warrant specifies the substance of the offence in question: Williams v Keelty [2001] FCA 1301; (2001) 184 ALR 411 at [143]. Conversely, merely to name the section without a description of the offence may be inadequate, particularly having regard to the structure and terms of the offence creating legislation: Cloran at 153-154.
See generally the discussion of these principles in Majzoub at [52].
In dealing specifically with the LEPRA, Hall J in Majzoub held that the requirement in the forms prescribed by the regulation to specify a relevant offence: "… carries the meaning of a requirement to name or identify an offence". It was there held that the reference to the provision of a section and an act, together with a very short description of the offence "possess prohibited drug" and "supply prohibited drug", complied with the requirements specified in the form required by the regulation under LEPRA. Hall J also had regard to the specificity of the items being searched for in coming to that conclusion. In that particular case, two particular illicit drugs were identified together with specific nominated drug paraphernalia.

The Offence Description Point

It is necessary to keep in mind that LEPRA requires that a person executing a warrant of the kind here in question, must on entry into the premises or as soon as practicable after entry, serve the Occupiers Notice on the person who appears to be the occupier: s 67(4) LEPRA. On the other hand, the obligation falling on a person executing a warrant of the kind here in question, is to produce that warrant for inspection by an occupier of the premises "… if requested to do so by that occupier": s 69 LEPRA. The effect of these provisions is that the application form for a search warrant does not come to the attention of the occupier at the time when the warrant is being executed. The contents of that application may come to the attention of the occupier at a later point in time, if the occupier seeks to examine it.
Accordingly, the detail set out at [31] above is not available to the occupier at the time the warrant is first executed.
The occupier is entitled to provision of sufficient knowledge from the Notice to Occupier and the warrant, if requested, of the search to understand the limits of the search and to observe that the officer executing the warrant, together with such assistance as may be present, is acting in accordance with the warrant.
It is against this background that the terms of the warrant in question must be viewed.
The misdescription of the legislation, whilst unfortunate and certainly careless, does not in my view affect the validity of the warrant. Assuming someone was inclined to attempt to identify the legislation by searching for it, it is likely that it would be capable of being identified. Equally, if the occupier of the premises being searched were to ask the relevant police officer for a copy of the provision, then there is no reason to think that the police officer would not have identified the correct legislation.
Equally, one cannot expect the occupier of premises to have an encyclopaedic knowledge of offence-creating legislation. The mere statement of the name of a piece of legislation or a section of it, would not of itself and without more constitute a meaningful description of any offence.
To give but one example, it may be expected that an occupier would understand what was meant if the searchable offence was described as "murder". Very few, if any, occupiers would be expected to understand that a reference to an offence as being s 18(1)(a) of the Crimes Act would amount to a reference to the offence of murder.
Applying this view to the circumstances here present, the mere description of the offence of stalking or intimidating by simply referring to the section and the legislation, does not tell the occupier, by itself and without more, what the offence is.
As well, I accept the plaintiff's argument that because the wording of s 13 of the CDPV contemplates a number of alternatives as constituting an offence under that section, the mere reference to the section and the legislation does nothing to identify what the offence giving rise to the search warrant is said to be. The possibilities are an offence of stalking another person or else intimidating that other person, or perhaps both stalking and intimidating the other person. The statutory definitions of each of stalking and intimidation suggest that the conduct may be entirely different. I note also in this respect that the phrases "intimidation" and "stalking" are defined quite differently in the Crimes Act -"intimidation" is a comprehensive definition whereas "stalking" is an inclusive one. On its face, stalking as defined incorporates the notion of geographical proximity. It may be that a court would find that stalking could be undertaken through electronic means. I do not rule that out. Nevertheless, conduct may differentially be constituted as intimidation or stalking. In those circumstances, greater specification was necessary to identify the offence which enabled the issue of the warrant.
I do not think it is necessary to find, as the plaintiff submitted, that the italicised words in the requisite forms amount to a mandatory command. It would be surprising if such words which are intended to be deleted when a form is completed would be so regarded. In my view, the better approach is to attempt to make sense of each of the forms themselves, against the background of general principle to which I have earlier referred.
Clearly what is required is for a searchable offence to be nominated with sufficient description or particularity to enable the person in receipt of the Occupiers Notice, and/or the warrant, to understand what is being searched for and to understand the limits of the search.
Here, at a minimum, what was required was for a short description in plain words of the substantive offence. If the substantive offence was said to be one of intimidation, then a short description of that offence should have been given. If it was alleged to be stalking, then similarly a short description needed to be given. To those short descriptions there needed to be added a reference to the section and the legislation concerned. Particularly is this so here, because the offence is created by a statute, and is not an offence which is known generally to exist. This may be contrasted with a description of an offence as "murder", which may not necessarily require a reference to the relevant legislative provision.
In the absence of such a description, I am satisfied that the content of the Warrant did not comply with either the LEPRA or the Regulation pursuant to it.
Because the warrant did not comply with the statutory regime, it was invalid. Accordingly, the search undertaken by the second defendant, Ms Peebles, and other authorised officers, was not authorised by the Warrant issued by the third defendant, Mr Anderson.
Having regard to this conclusion to all of the events which have subsequently occurred, including the charging of the plaintiff, it will be appropriate for the Court to receive submissions from the parties as to the appropriate orders to be made reflecting this conclusion.

The Items Point

Although on the basis of the description of the offences, I have found that the search warrant did not comply with the statutory regime, it is appropriate to consider the items point.
Section 47 of the LEPRA authorises the executing officer to search the identified premises "… for things connected with a particular searchable offence".
A thing is connected with a searchable offence if it "… will provide evidence of the commission of the offence …" or if it "… was used … in or in connection with the commission of the offence": s 46(3)(b) and (c) of the LEPRA.
Given the nature of the offences in respect of which the warrant was issued, in particular the sending of a very large number of text messages and emails from a number of different email addresses, it seems clear that an electronic device capable of sending text messages and emails must have been used for the purpose of committing the offence alleged. As well, an electronic record would exist on such a device if the device had been used for that purpose. Additionally, if an electronic device was connected to one or more of the email addresses which had been used to send the impugned emails, then there is likely to have been a record available on that device of the sending of the emails.
The notice put before the issuing Justice did not suggest that the police applying for the Warrant knew of the identification of the computer and other electronic devices which had been used. But they reasonably suspected that such a device must have been used.
In those circumstances, the description given to the things connected with the searchable offence contained in the Warrant, the details of which are set out at [31] above, although apparently generic, are not unreasonable. The police were seeking any communication device which was connected with the mentioned offences.
In my view, a communication device so described is a thing within the meaning of the LEPRA. The Warrant is not invalid on that basis.
Whilst the list of items seized when the Warrant was executed arguably included items or "things" which could not by themselves, communicate with anybody or any other machine, that does not affect the validity of the warrant. Leaving aside the question of validity of the warrant, whether they were properly seized was not the subject of any evidence or submission, and is not determined by this judgment.
It follows that I do not uphold the plaintiff's Summons on the items point.

Orders

It will be appropriate for counsel to provide appropriate orders for the Court to make which give effect to these reasons.
I make the following orders: 1. Direct counsel to serve on each other proposed Short Minutes of Order, and to provide a copy to my Associate on or before 4pm Wednesday 29 November 2017. 2. Stand the proceedings over for directions generally, and for consideration of the appropriate orders to be made until 9.30am on Friday 1 December 2017. 3. Liberty to apply on 24 hours' notice.

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: 27 November 2017

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