Doyle & Barbeliuk v NSW Commissioner of Police

[2019] NSWSC 546

Supreme Court

New South Wales

Medium Neutral Citation:	Doyle & Barbeliuk v NSW Commissioner of Police [2019] NSWSC 546
Hearing dates:	29 April 2019
Date of orders:	29 April 2019
Decision date:	13 May 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The Notice to Produce dated 22 April 2019 is set aside
Catchwords:	PRACTICE AND PROCEDURE – Notice to Produce documents – whether document or thing referred to in pleadings or affidavits – whether document sought is relevant to fact in issue in the proceeding
Legislation Cited:	Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 46 Uniform Civil Procedure Rules 2005 (NSW) r 21
Cases Cited:	Welker v Rinehart (No 8) [2012] NSWSC 588
Category:	Procedural rulings
Parties:	Phillip William Doyle (First plaintiff) Mark Barbeliuk (Second plaintiff) NSW Commissioner of Police (Defendant)
Representation:	Counsel: Mr J V Agius SC (First and second plaintiffs) Mr P Singleton (Defendant)   Solicitors: Uther Webster & Evans (First and second plaintiffs) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2018/266913

Judgment

1. The plaintiffs have filed a Further Amended Summons seeking various orders in respect of identified items seized pursuant to a search warrant executed on 30 August 2018. The search warrant was executed at premises owned by the first plaintiff and occupied by the second plaintiff.

2. The first plaintiff is currently serving a sentence for sexual assault offences against children committed in the 1980s and 1990s. He has been in custody since 24 August 2012.

3. The search warrant was issued on 27 August 2018.

4. The searchable offences were identified as follows:

1. Aggravated Indecent Assault Person under 16 years of age, Section 61M (1), NSW Crimes Act 1900;

2. Incite person under 16 years to commit act of indecency, Section 61N (1), NSW Crimes Act 1900;

3. Procure child under 14 years for pornographic purposes, Section 91G (1) (b), NSW Crimes Act 1900;

4. Possess child abuse material – Section 91H (2), Crimes Act 1900.

5. Paragraph 2 of the search warrant identifies the specific things for which a search could be made as:

1. Photographs of (pursuant to pseudonym list provided Confidential MFI 1) “AA”, “AB”, “AC”, “AD”, “AE”

2. Diaries of Phillip DOYLE for 2005, 2006, 2007, 2008 and 2009

3. Boy’s underwear in drawers of bedside cabinet

4. Any device or any electronically removable device that can store electronic photograph and videos [sic] data including hard drives, memory sticks, USB, SD cards.

6. The Further Amended Summons pursuant to which the plaintiffs proceed filed in Court on 2 April 2019 does not raise any issue as to the validity of the search warrant.

7. A Notice to Produce was served by the plaintiffs upon the defendant seeking production of “The Application for the Search Warrant, the subject matter of these proceedings.” The defendant made an oral application to set aside the Notice on the basis of relevance. On 29 April 2019, I made an order setting aside the Notice. These are my reasons for that order.

Uniform Civil Procedure Rules 2005 (NSW)

8. Part 21 Division 2 makes provision for Notices to Produce before hearing.

9. Rule 21.10:

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

10. Rule 21.9 provides:

21.9 Definitions

(1) In this Division: 

"notice to produce" means a notice to produce referred to in r 21.10.

"party A" means a party to whom another party is producing, or being asked to produce, documents or things for inspection. 

"party B" means a party who is producing, or being asked to produce, documents or things for inspection.

(2) For the purposes of this Division, a document or thing is to be taken to be 

"relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.

Submissions

11. Mr Agius SC on behalf of the plaintiffs argued that the plaintiffs ought to be able to examine the grounds stated upon which the issuing officer must have proceeded, because it would reveal the bases stated for the belief that certain items were connected with the identified searchable offences, and thus an appropriate assessment as to whether the applicant had “reasonable grounds” for that belief.

12. Mr Agius SC argued that it may be that the person issuing the warrant intended only to allow the collection of items relevant to the offences identified, that is, those offences said to have been committed by Mr Doyle. It is a relevant consideration for the determination of the issues raised in the Further Amended Summons, given that the court attendance notices were issued only to Mr Doyle as to what the police knew when they executed the search warrant.

13. It was argued that this consideration was particularly relevant to the validity of the seizure of an item identified in the Property Seizure Form as No. 24, the silver Apple MacBook serial number [REDACTED]. 

14. The evidence available on the application demonstrates that Mr Barbeliuk, the second plaintiff, identified to police executing the warrant that the MacBook was owned by him. Mr Agius SC argued that therefore, on a proper interpretation of s 46(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), something owned by Mr Barbeliuk cannot be a thing connected with a particular offence as defined, and the application material before the issuing officer would tend to identify that as a matter of fact. Mr Agius SC argued that this is a matter this Court should take into account in determining the plaintiffs’ application, and therefore, implied in his submission, the application is relevant to a fact in issue.

15. Mr Singleton on behalf of the defendant submitted that the plaintiffs’ arguments indicated a misunderstanding of the way in which this area of the law works. Police may search and seize any of the items described in the search warrant identified as particular “things”, and in the case of this search warrant, that included any device or any electronically removable device that can store electronic photographs and videos data, including hard drives, memory sticks, USB, SD cards. The warrant should not be read down by cross-referencing to other parts of the warrant. The effect of the warrant on its face is that the police may search and seize any device that fits that description. The search warrant is not confined to devices that are owned by Mr Doyle and is not confined to the list of offences set out in the warrant.

16. Mr Singleton submitted that the person to whom the application was made - the issuing officer - had clearly already determined that the applicant had reasonable grounds to believe that any electronic device found in the house of Mr Doyle could well be connected with the nominated offences, by the act of signing the warrant, highlighting in particular that one of the nominated searchable offences is possess child abuse material.

17. Mr Singleton argued that the words “any device” cannot be construed as excluding the laptop owned by Mr Barbeliuk.

18. In essence the warrant records what the police officers may seize because those things are described in the warrant and the issuer of the warrant has already determined that those items should be collected.

19. The police officers executing the search warrant do not need to make their own determination as to whether the particular device or electronically removable device is in fact connected with a particular offence as provided by s 46(3) of LEPRA. The requirement of the executing officers is simply to determine whether the thing to be seized is described in the warrant. In the same way, there is no requirement that the executing police officers seize everything that is responsive to a description in the warrant.

20. Finally Mr Singleton submitted that, it may well be that there is material on the laptop that may be evidence of Mr Doyle’s offending, regardless of whether he was able to physically directly access the laptop or not. Such material could have been placed or transmitted to the device at a time after Mr Doyle was taken into custody. It would not be reasonable for the seizing officers to conclude that the computer cannot be responsive to the search warrant, simply because it was purchased at a time after Mr Doyle was taken into custody.

21. The application for the warrant is irrelevant to the orders sought on the Amended Summons which is seeking relief regarding the execution of the warrant, not the obtaining of it.

Decision

22. The originating process is a Further Amended Summons filed on 2 April 2019. That document makes no reference to the application for the search warrant, nor is there any reference to the application in the affidavit material relied upon by the defendant, namely an affidavit of Detective Sergeant Anthony Karras sworn on 17 April 2019.

23. In a statement appended to his affidavit, Detective Sergeant Karras makes reference to the fact that a Detective O’Neill had applied for and been granted the search warrant. He does not describe or refer to the application document, or say anything about its contents.

24. As stated by Brereton J in Welker v Rinehart (No 8) [2012] NSWSC 588, for the purposes of r 21.10(1)(a) of the UCPR it is established that:

“…the reference must involve a direct allusion to the document itself, as distinct from its effect or the information it contains. Two Australian cases illuminate this: the judgment of Moore J in King v GIO (Australia) Holdings Limited [2001] FCA 1487 at [18], and that of Austin J in New Cap Reinsurance Corporation Limited (In Liq) v Daya [2008] NSWSC 763.”

25. By parallel reasoning, the reference by Detective Sergeant Karras to the fact that another officer had applied for a search warrant does not amount to a “reference” to a document for within the meaning of r 21.10(1)(a).

26. The plaintiffs are thus required to persuade me that the application is relevant to a fact in issue. The relief sought in the Further Amended Summons is for initially, interlocutory relief restraining the defendant from accessing or viewing certain nominated material, and final relief restraining the defendant from accessing or viewing certain material, as well as an order that items be delivered up to the plaintiffs’ solicitors, or alternatively, in relation to other items that the defendant destroy any copy or record, note or facsimile of certain identified material. No part of the relief sought raised any issue about the basis upon which the warrant had been obtained or any issue about the validity of the warrant.

27. The affidavit material relied upon by the plaintiffs was focused on the propriety or otherwise of the manner in which the search warrant had been executed in terms of the activities of the officers executing it allegedly seizing items outside the descriptions on the warrant.

28. The bases and “reasonable belief” required to be held by the applicant for the search warrant is a different enquiry entirely to that which needs to be undertaken under s 49 of LEPRA which is the subject matter of the proceedings before me, and the basis for the relief sought in the Further Amended Summons. What the applicant for the search warrant knew or believed is not relevant to the belief of the officers executing the search warrant already obtained.

29. In those circumstances the Application for the warrant is not relevant to a fact in issue in the proceedings and I set aside the Notice to Produce dated 22 April 2019.

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Decision last updated: 09 April 2024