Harland v Murphy

[2022] NSWSC 1376

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harland v Murphy [2022] NSWSC 1376

Hearing dates:

3, 22 March, 26-27 April 2022

Date of orders:

12 October 2022

Decision date:

12 October 2022

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Grant an extension of time to the plaintiff to commence proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005.

(2) Declare that search warrant number 81 of 2019 issued on 8 April 2019 at Blacktown Local Court is invalid.

(3) The decision by Adele Andrews, Registrar at Blacktown Local Court, to issue search warrant number 81 of 2019 on 8 April 2019 is quashed.

(4) The first defendant is to pay to the plaintiff’s costs of these proceedings on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – police powers – search warrant – whether invalid – where police attended plaintiff’s residence in response to his triple-0 calls of threatened violence by neighbour – police shown notes on computer – APVO application made by plaintiff – search warrant executed on plaintiff’s premises to seize computer and hardware – searchable offence nominated as Crimes Act s 314 – whether applicant had reasonable grounds under LEPRA s 47 – whether Local Court Registrar had reasonable grounds under LEPRA s 48 – other particulars of invalidity under LEPRA s 62(3) – where Registrar appeared to indicate less than one minute spent considering search warrant application – applicant did not have reasonable grounds – search warrant declared invalid and its issue quashed

Legislation Cited:

Crimes Act 1900 (NSW), ss 314, 319, 326, 547B

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 49A

Criminal Procedure Act 1986 (NSW), s 179

Evidence Act 1995 (NSW), s 138

Law Enforcement (Police Responsibilities) Act 2002 (NSW), Pt 5

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

Supreme Court Act 1970 (NSW), ss 69, 75

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39

Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; [1991] FCA 92

Briginshaw v Briginshaw (1938) 60 CLR 336

Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177

Carrol & Ors v Mijoivch & Ors (1991) 25 NSWLR 441

Corbett & Anor v State of New South Wales [2006] NSWCA 138

Doyle v Commissioner of Police [2020] NSWCA 11; 285 A Crim R 349

Dyason v Butterworth [2015] NSWCA 52

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Lee v NSW Commissioner of Police (No.3) [2019] NSWSC 694

Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286

Parker v Churchill (1985) 9 FCR 316

Polley v Johnson [2015] NSWCA 256

Rohozynsky v Holder & ors. [2005] NSWSC 868

Smethurst v Commissioner of Police (Cth) [2020] HCA 14

State of New South Wales v Corbett (2017) 230 CLR 606; [2007] HCA 32

Vincent v Randall & Anor [1999] NSWSC 833

Category:

Principal judgment

Parties:

Gregory Harland (Plaintiff)
Senior Constable Ashlea Murphy (First Defendant)
Adele Andrews, Registrar, Blacktown Local Court (Second Defendant)

Representation:

Counsel:
Mr P Skinner (Plaintiff)
Ms D New (First Defendant)

Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff)
General Counsel, NSW Police Force (First Defendant)
Crown Solicitors Office (Second Defendant, submitting appearance)

File Number(s):

2021/00251189

Publication restriction:

Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 February 2019, Gregory Harland, the plaintiff, rang triple-0 five times between 3.35pm and 9.39pm in relation to an altercation that afternoon during which a neighbour had threatened the plaintiff with violence. Police attended the plaintiff’s residence at 9.50pm. To convey to police what had occurred, the plaintiff showed the two officers a document on his laptop computer where the plaintiff had typed out notes of the events. After advising the plaintiff that he could seek an Apprehended Personal Violence Order (“APVO”) at the court and attempting to speak with the neighbour, police left the scene.

On 5 February 2019, the plaintiff emailed the Registrar at Blacktown Local Court attaching a document which described the altercation and sought the issue of an APVO. The Registrar issued the APVO that afternoon. Later in February 2019, the details of the APVO were brought to the attention of Detective Sergeant Michael Herps. He formed the view that the application differed from the document that he had sighted on the night of 3 February 2019, in that new information had been added which disclosed that the neighbour had committed the offence(s) of assault and/or intimidation. DS Herps also formed the view that the additions were falsehoods or fabrications. The other officer who attended the plaintiff’s residence on 3 February 2019 shared these views.

Over the next month, DS Herps proceeded to investigate both the APVO matter and the suspicions in relation to the plaintiff. Ultimately, on 8 April 2019, Senior Constable Ashlea Murphy applied to the Registrar at Blacktown Local Court, Adele Andrews, for a search warrant in relation to the plaintiff’s residence to seize the plaintiff’s laptop along with any storage hardware. The searchable offence within the meaning of s 46A(1)(a) of Law Enforcement (Police Responsibilities) Act 2002 (NSW) (“LEPRA”) was entered on the application form as “Section 314 Crimes Act 1900 – Make false accusation with intent subject other to investigation”. The Registrar issued the search warrant. On the form, the time of application and time of issue were both recorded as 11.02am. At around 4.00pm, ten police officers attended the plaintiff’s residence and seized his laptop computer and storage hardware.

Over the next months, these items were examined by police. Ultimately, the plaintiff was never charged with any offence and the items were returned to him in late August / early September 2019.

By summons filed on 2 September 2021 (amended, and filed on 22 March 2022), the plaintiff sought a declaration that the search warrant was invalid and an order in the nature of certiorari that the decision of the Registrar to issue the warrant be quashed. A number of particulars of invalidity were advanced relying on the statutory requirements for search warrants in Pt 5 of LEPRA.

Held, declaring that the search warrant was invalid and quashing the Registrar’s decision:

1. SC Murphy did not have reasonable grounds to believe that there was in the plaintiff’s premises a thing connected with a searchable offence in relation to the warrant, contrary to s 47(1) of LEPRA. In particular, there was material in the application that did not reflect the true state of the evidence and, as a matter of law and fact, an offence contrary to s 314 of the Crimes Act could never have been made out against the plaintiff. As such, there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person: at [245], [270].

George v Rockett (1990) 170 CLR 104; [1990] HCA 26, applied.

State of New South Wales v Corbett (2017) 230 CLR 606; [2007] HCA 32; Vincent v Randall & Anor [1999] NSWSC 833; Polley v Johnson [2015] NSWCA 256, considered.

2. It follows that the Registrar did not have reasonable grounds to issue the search warrant, contrary to s 48(1) of LEPRA: at [272]; nor properly consider whether there was sufficient connection between the thing(s) sought and the offence, contrary to s 62(3)(b) of LEPRA. There was no such connection in this case: at [283]-[284].

Polley v Johnson [2015] NSWCA 256, applied.

3. The Registrar must have made an error in recording on the form that the search warrant application was received and granted at precisely the same time, being 11.02am. However, the plaintiff has not discharged its evidentiary onus to establish that in fact less than one minute was spent considering the warrant application (going again to an absence of reasonable grounds), as opposed to an error in completing the form by the Registrar. It was not contended in this case that this error alone was a ground for invalidity of the search warrant: at [273]-[280].

4. Otherwise, the plaintiff has not established that SC Murphy provided information in the search warrant application that she knew was false or misleading: at [244]; that the Registrar failed properly to consider the reliability of the information included in the search warrant application (LEPRA s 62(3)(a)): at [282]; nor that the Registrar failed to record all relevant particulars of the grounds relied on to justify the issue of the warrant (LEPRA s 65(1)): at [285].

5. The appropriate orders are to declare the search warrant invalid and quash the decision of the Registrar to issue the search warrant: at [286]-[288].

Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, followed.

JUDGMENT

Background

1. These proceedings for judicial review concern the validity of a search warrant. By amended summons filed on 22 March 2022, the plaintiff, Gregory Harland, seeks, inter alia, a declaration that the search warrant executed on his premises in Blacktown on 8 April 2019 is invalid. The applicant for the search warrant was Senior Constable Ashlea Murphy, the first defendant. The search warrant was issued by Ms Adele Andrews, the second defendant.

2. The second defendant was, at the material time, the Registrar at Blacktown Local Court and thus an authorised Justice within the meaning of the Law Enforcement (Police Responsibilities) Act 2002 (NSW) (“LEPRA”). She filed a submitting appearance in these proceedings save as for costs. The first defendant, SC Murphy, was the active contradictor.

3. The background to these proceedings can be shortly stated. On 3 February 2019, Mr Harland rang triple-0 to report a neighbour who had physically threatened him. For reasons that will be explained in this judgment, not only did police fail to take any immediate action over his complaint, they in turn investigated Mr Harland for lying in his subsequent application for an Apprehended Personal Violence Order (“APVO”) against the neighbour. As part of that investigation, SC Murphy sought, obtained and executed a search warrant at Mr Harland’s home to seize his computer and any hard drive or USB storage device on belief of him having committed an offence contrary to s 314 of the Crimes Act 1900 (NSW).

4. No charge was ever laid against Mr Harland. An offence contrary to s 314 of the Crimes Act could never have been proved for two reasons: there was never an evidentiary basis and, as a matter of law, the elements could never have been established. Although a number of particulars of invalidity were relied upon by Mr Harland, the central issue was whether SC Murphy had reasonable grounds to believe that there would be on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA; and the associated question of whether the issuing officer had reasonable grounds to grant the warrant under s 48(1). Before turning to consider the summons, it is pertinent to look at the relevant statutory scheme.

Part 5 of LEPRA

5. The key provisions of LEPRA in this case are in Pt 5 Div 2. Part 5 is entitled “Search and seizure powers with warrant or other authority” and Div 2 is entitled “Police and other law enforcement officers’ powers relating to warrants”. Section 47(1) is in these terms:

47 Power to apply for search warrants

(1)  A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.

(Emphasis added.)

6. Section 46 defines “eligible issuing officer” as follows:

eligible issuing officer means—

(a) for a warrant other than a covert search warrant or a criminal organisation search warrant—an authorised officer, or

(b) for a covert search warrant or a criminal organisation search warrant—an eligible Judge, or

(c) for a notice to produce issued under Division 3—an authorised officer.

7. Sub-section (a) is clearly the applicable definition in this case as “authorised officer” is defined in s 3 as:

authorised officer means—

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

(b)  a registrar of the Local Court, or

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

8. There was no dispute that Ms Andrews was an authorised officer.

9. The term “searchable offence” is defined in s 46A(1)(a)(i) as, relevantly, an indictable offence.

10. The requirement for “reasonable grounds” is found in both s 47(1) of LEPRA as to the applicant’s state of belief and also in s 48(1) of LEPRA as to the issuing officer’s satisfaction:

48 Issue of search warrants

(1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.

(Emphasis added.)

11. I shall consider the principles derived from the relevant authorities as to the requirement of “reasonable grounds” below.

12. Section 49 of LEPRA provides:

49 Seizure of things pursuant to search warrant

(1)  A person executing a search warrant issued under this Division—

(a)  may seize and detain a thing (or thing of a kind) mentioned in the warrant, and

(b)  may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.

(2)  Without limiting subsection (1), the power to seize and detain a thing includes—

(a)  a power to remove the thing from the premises where it is found, and

(b)  a power to guard the thing in or on those premises, and

(c)  if it is a covert search warrant that authorises the placing of a kind of thing in substitution for a seized thing—a power to place a thing of that kind on the subject premises in substitution for a thing seized.

13. Section 60 of LEPRA provides that applications, other than telephone applications, must be in person and is in these terms:

60 Application for warrant in person

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

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

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

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

14. The Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (“the regulation”) prescribes various forms in connection with search warrant applications.

15. Section 62(1) of LEPRA sets out the information that must be included in an application for a search warrant:

62 Information in, and consideration of, application for warrant

(1)  An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information—

(a)  the name of the applicant and details of the authority of the applicant to make the application for the warrant,

(b)  particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved,

(c)  the address or other description of the subject premises,

(d)  if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location,

(e)  if the warrant is required to search for a kind of thing—a description of the kind of thing,

(f)  if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64,

(g)  any other information required by the regulations.

16. Section 62(3) of LEPRA then provides:

(3)  An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters—

(a)  the reliability of the information on which the application is based, including the nature of the source of the information,

(b)  if the warrant is required to search for a thing in relation to an alleged offence—whether there is sufficient connection between the thing sought and the offence.

17. Section 65 of LEPRA provides:

65 Record of proceedings before eligible issuing officer

(1)  An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant.

(1A) An eligible issuing officer who refuses to issue a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue the warrant.

(2)  The regulations may make provision for or with respect to—

(a)  the keeping of records in connection with the issue and execution of warrants, and

(b)  the inspection of any such records, and

(c)  any other matter in connection with any such records.

(3)  Any matter that might disclose the identity of a person must not be recorded pursuant to this section if the eligible issuing officer is satisfied that to do so might jeopardise the safety of any person.

18. I also note ss 76 and 77 of LEPRA:

76 Defects in warrants

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

…

77 Abolition of common law search warrants

Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing continues to be abolished.

19. Given that s 77 abolishes common law search warrants, the provisions in LEPRA and the regulation cover the field for the valid issue and execution of search warrants in NSW.

The further amended summons

20. The summons was filed on 2 September 2021. It identified eight particulars of invalidity relied upon by Mr Harland. The first particular alleged that SC Murphy provided the issuing officer with information that she knew was “false or misleading in a material particular”. The remaining seven particulars pertained to the actions of the issuing officer.

21. At the conclusion of the first day of the hearing on 3 March 2022, it became apparent that the plaintiff’s case was not that SC Murphy had intentionally provided false information but, rather, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I granted the plaintiff leave to apply to amend the summons to reflect this and adjourned the hearing to 22 March 2022.

22. On 8 March 2022, the plaintiff emailed a draft amended summons suggesting three additional particulars of invalidity to paragraph 1(a) of the summons, in the following terms:

“(a)(i) The first defendant (Senior Constable Ashlea Murphy) in the application for the warrant to the second defendant (EIO) provided information that was false or misleading in a material particular.

(a)(ii) The first defendant (Senior Constable Ashlea Murphy) did not have reasonable grounds to believe that there was on the premises a thing connected with an indictable offence, being a searchable offence pursuant to section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002.

(a)(iii) That the first defendant (Senior Constable Ashlea Murphy) did not properly consider the reliability of the information provided to her by Sergeant Herps.”

23. The amendments were opposed by the first defendant. In brief written submissions, the first defendant contended that there was no merit in the amendments set out in subparagraphs (a)(i) and (a)(iii), as these allegations could not in themselves lead to the invalidity of the warrant but rather went to the question of reasonable grounds in subparagraph (a)(ii). In respect of (a)(ii), the first defendant submitted that the evidence going to this issue had been adduced “on the plaintiff’s terms” (in cross-examination) and that the first defendant would be prejudiced by the amendment at that (late) time. It was submitted that the first defendant would need to adduce further evidence to address the new particular, especially from police information technology experts. It was also submitted that the amendment was not necessary as the Court could examine the particulars of invalidity in relation to the issuing officer.

23. I heard the parties’ submissions on 22 March 2022. On that day, I refused leave to make two of the three amendments but granted leave to add subparagraph (a)(ii), which became particular 1(a)(i), namely, that SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA. I was satisfied that the proceedings had been conducted on that basis and that any prejudice to the first defendant could be cured by affording her the opportunity to file further evidence, which she subsequently did.

24. The matter was adjourned for a further two days of hearing on 26 and 27 April 2022. The amended summons filed on 22 March 2022 upon which the plaintiff now moves is in these terms:

“RELIEF CLAIMED

1   A declaration that the Search Warrant number 81 of 2019 issued on 8 April, 2019 at the Local Court at Blacktown in respect of the premises at Unit 9 of 20 to 22 Fifth Avenue, Blacktown by the Second Defendant upon the application of the First Defendant is invalid.

Particulars of Invalidity

(a)   The first defendant (Senior Constable Ashlea Murphy) in the application for the warrant to the second defendant (Adele Andrews, Registrar, Blacktown Local Court and the Eligible Issuing Officer ‘EIO’) provided information that the first defendant knew was false or misleading in a material particular.

(a)(i) The first defendant (Senior Constable Ashlea Murphy) did not have reasonable grounds to believe that there was on the premises a thing connected with an indictable offence, being a searchable offence pursuant to section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002.

(b)   The second defendant (EIO) received the application for the warrant from the first defendant at 11-02am on 8 April, 2019.

(c)   The second defendant (EIO) issued the warrant at 11-02am on 8 April, 2019.

(d) The second defendant (EIO) should not and or could not be satisfied that there were reasonable grounds to issue the search warrant pursuant to section 48 of the Law Enforcement (Powers and Responsibilities) Act, 2002.

(e) The second defendant (EIO) did not properly consider whether there were reasonable grounds to issue the warrant pursuant to section 62(3) of the Law Enforcement (Powers and Responsibilities) Act, 2002.

(f) The second defendant (EIO) did not properly consider the reliability of the information on which the application was based pursuant to section 62(3) of the Law Enforcement {Powers and Responsibilities) Act, 2002.

(g) The second defendant (EIO) did not properly consider the nature and source of the information contained in the application pursuant to section 62(3) of the Law Enforcement {Powers and Responsibilities) Act, 2002.

(h) The second defendant (EIO) did not comply with section 65(1) of the Law Enforcement (Powers and Responsibilities) Act, 2002 in causing a record of all relevant particulars of the grounds she relied upon to justify the issue of the warrant.

2   An order in the nature of certiorari quashing the decision of the Second Defendant (EIO) to issue the Search Warrant number 81 of 2019.

3   Such further order or other order as the Court sees fit.

4   Costs.”

26. At the conclusion of the hearing, counsel for the plaintiff accepted that he could not establish 1(a), only faintly pressed 1(h) and accepted that particular 1(e) did not add anything to particulars 1(f) and (g). Despite this concession, I proceeded on the basis that there were four general grounds for invalidity relied upon by the plaintiff:

1. That SC Murphy did not have reasonable grounds to believe that there was on the premises a thing connected with a searchable offence within the meaning of s 47(1) of LEPRA: particular 1(a)(i);

2. That Registrar Andrews could not have been satisfied that there were reasonable grounds to issue the search under s 48(1) of LEPRA because, inter alia, she only spent one minute on the application: particulars 1(b), (c) and (d);

3. That Registrar Andrews did not properly consider the reliability of the information on which the application was based, including the nature and source of the information contained in the application pursuant to s 62(3)(a) of LEPRA: particulars 1(f) and (g); and

4. That Registrar Andrews did not properly consider whether there was sufficient connection between the thing(s) sought and the offence pursuant to s 62(3)(b) of LEPRA: the residue of particular 1(e).

Leave to bring the proceedings out of time

27. The plaintiff requires leave to commence these proceedings for judicial review out of time. The search warrant was issued on 8 April 2019. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 59.10(1) provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision. Under UCPR r 59.10(2), the court may, at any time, extend the time for commencing proceedings. Such a decision is discretionary.

28. The first defendant opposed an extension of time being granted. Ms New of counsel submitted that the defence of these proceedings has been prejudiced by the passage of time and that the police officers have had to turn their minds to this matter by relying upon COPS (Computerised Operational Policing System database) event entries, written statements and correspondence, with little independent recollection. It was submitted that had the proceedings been commenced within time SC Murphy may have recalled what was said between her and the issuing officer at the time of the search warrant application. She could no longer remember that conversation. It was further submitted that the police investigation into Mr Harland was never properly prepared because no charges were ever laid.

29. On behalf of the plaintiff, Mr Skinner of counsel submitted that the COVID-19 lockdown and difficulty in trying to obtain Legal Aid were major factors leading to the delay.

30. UCPR r 59.10(3) is in these terms:

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

31. I have had regard to these factors. I am satisfied that the delay was adequately explained. I also accept that the delay caused some prejudice to the first defendant but there were contemporaneous documents to assist recollection. I am satisfied there is a public interest in the issues raised in this matter.

32. In Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed) identified (at [65]) two further factors to which it is necessary to have regard: the length of the delay and whether the plaintiff has a “fairly arguable case”. Despite the position taken by the first defendant, I do not consider the length of the delay to be significant. The remaining question is whether the plaintiff has a “fairly arguable case.” It was agreed between the parties that the question of the merits of the application were relevant to the question of leave and that I would determine both at the same time.

33. For reasons provided in this judgment, I granted an extension of time to bring these proceedings.

The evidence

34. This matter was set down for one day. Two affidavits were relied upon by the plaintiff and (initially) five affidavits were relied upon by the first defendant. The plaintiff required all of the first defendant’s witnesses for cross-examination. It is difficult to understand why such an unrealistic time estimate was provided for the hearing. As it happened, the hearing proceeded over four days.

35. The plaintiff relied on the affidavits of Gregory William Harland sworn on 1 December 2021 and Patrick John Latham sworn on 1 December 2021 with annexures. Mr Latham is Mr Harland’s solicitor. Neither of these witnesses were required for cross-examination.

36. The first defendant relied on the affidavits of: Detective Sergeant Michael Herps affirmed on 13 January 2022, Detective Senior Sergeant Adam Wilson sworn on 21 December 2021 (acting crime manager at Blacktown police station in April 2019), Senior Constable Aaron Gleaves sworn on 15 January 2021, Senior Constable Ashlea Murphy sworn on 17 January 2022, and Emma O’Brien sworn on 17 January 2021. An additional affidavit of Ashlea Murphy sworn on 13 April 2022 and an affidavit of Adam Catto-Pitkin sworn on 13 April 2022 were also subsequently filed on behalf of the first defendant following the amendment of the summons. All six witnesses relied upon by the first defendant gave evidence and were cross-examined.

37. Annexed to the affidavits were various COPS entries, police statements, the APVO documents, interviews, transcripts, emails and other contemporaneous documentation upon which the witnesses were cross-examined.

38. I propose to summarise the evidence chronologically.

Sunday, 3 February 2019

39. Mr Harland gave his account of what occurred on 3 February 2019 in the notes he made that night, his telephone calls to triple-0, his application for an APVO, his police statement on 4 March 2019 and his affidavit dated 1 December 2021. As stated above, he was not required for cross-examination. His account of what occurred on 3 February 2019 can be summarised as follows.

40. As at 3 February 2019, Mr Harland was living in a Housing Commission unit in Blacktown with his then partner Aaron Warnecke. Mr Harland parked his car in the carpark of his block of units at approximately 3.00pm. He was in the company of Mr Warnecke. As he approached the lift, he noticed his neighbour, Charles Zerafa, who was in the company of a female and a female child of approximately two years of age. When the child ran towards him, he heard Mr Zerafa yell out to her, “[k]eep away from the faggot cunt”. When Mr Harland responded with, “I beg your pardon”, Mr Zerafa ran up to him with clenched fists whilst shouting, “I’ll punch you in the head you cunt you faggot cunt”.

41. Mr Harland described how Mr Zerafa continued to intimidate and harass him while he put his arms out to stop Mr Zerafa coming too close. Mr Harland attempted to walk away but Mr Zerafa stood in front of him whilst saying, “I could smash you right now if I fucking wanted to”. Mr Harland stated that Mr Zerafa was “frothing from his mouth, his saliva spittle hit my face as yellow and black teeth came right up to my nose”. Mr Harland described that he tried to “de-escalate” by not moving and asking, “[a]re you finished?” and, “[c]an I leave?”. He described how it was not possible for him to get away from Mr Zerafa as each time he made a step Mr Zerafa would move in the same direction. He was fearful that he would be physically assaulted and stated that Mr Zerafa continued to “shout obscenities and threats” when he was finally able to walk away.

42. Following this altercation, Mr Harland called triple-0 at 3.35pm. Police did not respond. Mr Harland called police again at 5.18pm, 8.19pm, 8.51pm and 9.39pm. Police arrived at about 9.50pm. It is not necessary to set out the contents of all of those calls, but it is relevant to identify the occasions on which Mr Harland complained of being assaulted by Mr Zerafa.

43. In the first call, Mr Harland stated the following in describing what Mr Zerafa had done:

“MR HARLAND:   … yes. I – we have just arrived home in the carpark and our neighbour has just threatened me. I’ve had this issue with this neighbour before and I’ve …

…

OPERATOR:        What did he threaten you with?

MR HARLAND:    Violence. He just came up to my face then. I literally had to put my hand out in front of him to keep him away …

…

MR HARLAND:    Well, the man is unhinged.

…

MR HARLAND:    So we hopped out of the car and then he’s just – he said – and then he’s – the child was walking around, and he said to this child, ‘Don’t go near those faggots.’ And I’m like, ‘What did you say?’ And then he said, ‘Don’t … and ran at me, ‘I’m going to fucking punch you in the head, you cunt, you faggot cunt’. And then I’m like … ‘go away’.”

(Emphasis added.)

44. In his second call, Mr Harland repeated the allegations in these terms:

“MR HARLAND:    … I called up at 3:30 because a neighbour came up to me and threatened to assault me.

…

MR HARLAND:     I mean, it’s the second time this neighbour has threatened me and carried on like this.

…

MR HALAND:       And It’s escalating and I’m at the point where, you know, I don’t want to be a prisoner in my own home and I … I mean, do I carry a knife on me or do I carry a baseball bat?

…

OPERATOR:       … So has anything changed since you called before?

MR HARLAND:    No …

…

MR HARLAND:    I’m concerned – can I leave the premises? Do I need to carry a bat or what – I mean, because this man is unhinged.”

(Emphasis added.)

45. In his third call, Mr Harland described the event in these terms:

“MR HARLAND:   … Look, I reported a disturbing incident where a neighbour came up to my face and threatened spitting on me, essentially, among other things.

…

MR HARLAND:   And I reported that at 3:30.

…

OPERATOR:       Are you happy to continue waiting?

MR HARLAND:   I’ve got no choice. This is the second time this neighbour has done this. I hopped out of my car today and he was just – he was just unhinged. He was coming right up to my face. He – he essentially had me prisoner. He wouldn’t even let me leave.

…

OPERATOR:       And has anything happened since you called us?

MR HARLAND:   Shouting and crying out. Still … even, you know – like, he didn’t even let me know when I – we were in the carpark. I’d step … and he’d step in front of me. You know what I mean?

…

MR HARLAND:    … intimidating me.”

(Emphasis added.)

46. In the fourth call, Mr Harland stated:

“MR HARLAND:    … go to another police station if my current police station hasn’t bothered to call or visit me in a five hour period – I think it’s going on six hours.

…

MR HARLAND:     Because the neighbour just came up to me and was physically aggressive and ---"

(Emphasis added.)

47. In the final, fifth call, Mr Harland said:

“MR HARLAND:    … I called up police emergency six hours ago because a neighbour came up physically intimidating, harassing me.

…

MR HARLAND:     I mean, this man is … he was swearing at me and calling me a ‘fucking faggot’ and swearing that he’s going to ‘punch me in the fucking head.’ Right up to my face … he’s vomited … same breath, going all over my fucking face. I had to go up and have a shower.

…

MR HARLAND:    … And this is the second time he’s done this.”

(Emphasis added.)

48. Two police officers finally attended Mr Harland’s unit at about 9.50pm, DS Michael Herps and SC Aaron Gleaves.

49. Mr Harland’s account is that when police attended his unit, he told them what Mr Zerafa had done and that he and Mr Warnecke feared for their safety. He had been writing notes of what occurred on his laptop and showed DS Herps those notes. Mr Harland described that DS Herps “glanced” at the screen but then had to move outside to take a telephone call. SC Gleaves also “briefly glanced” at the laptop for a few seconds. According to Mr Harland, DS Herps did not make a copy of the document, photograph it, or ask for a copy. He told Mr Harland that he would go and “have a word to” Mr Zerafa. He also said, “if you want to take the matter further you are welcome to go to the court to obtain an AVO but in my experience AVOs can make matters worse”.

50. In his police statement dated 2 April 2020, DS Herps described his conversation with Mr Harland in these terms:

“[4] I spoke with Harland at the front door and he immediately said ‘it’s better if you just read this’.

[5] Harland took me to his laptop and showed me a two-page document. The document was untitled. It outlined an incident that he had with his neighbour Charles Zerafa earlier in the day. I read the word document from start to finish. I recall the document stating, ‘he yelled at me, stay away from my family you faggot cunt’ or similar words. I further recall the document stating ‘when he was yelling at me spittle was coming from his mouth and hitting me’. The document then carried on with derogatory descriptors of Zerafa was no further mention of comments made or threats delivered. It did not describe Zerafa’s actions as intimidating or harassing apart from the original bigoted comment.

[6] I stayed at the location for over 20 minutes. Harland and his partner, Aaron Warnecke continue to tell me about strata issues they had with Zerafa that were completely irrelevant to the current situation. I informed Harland that if he felt intimidated he could seek a PVO however police would not get involved as no offence had been identified.”

(Emphasis added.)

51. On DS Herps’ account Mr Harland complained at the outset that Mr Zerafa’s spittle hit him during the incident.

52. In his affidavit of 13 January 2022, DS Herps provided a similar account. He recalled reading a two-page document and asking Mr Harland some questions to be satisfied that the offence of intimidation had not been committed. He stated that Mr Harland responded that Mr Zerafa came towards him yelling, “[s]tay away from my family you faggot cunt” but that he did not state that Mr Zerafa came within his personal space nor that there was any physical altercation (save that spittle came from Mr Zerafa’s mouth due to the way he spoke).

53. Significantly, DS Herps stated that Mr Harland informed him that he only wanted an AVO against Mr Zerafa and he did not want him to be charged. DS Herps stated that he informed Mr Harland of his satisfaction that the offence of intimidation had not occurred as well as the advice on how to obtain an APVO from the Local Court given that police did not get involved unless there was an imminent threat of serious violence. At the request of Mr Harland, police went to speak to Mr Zerafa but he was not there. They spoke to his partner instead who was told that she should tell Mr Zerafa to stay away from Mr Harland and his partner.

54. In his police statement of 4 June 2019, SC Gleaves stated that on 3 February 2019 he attended at the premises of Mr Harland with DS Herps. Mr Harland showed them a laptop with a Word document opened on the screen that outlined an incident with a neighbour. He recalled the document stating that there was a verbal argument with Mr Zerafa swearing at Mr Harland but containing no details of any physical threats or altercation.

55. In his affidavit of 15 January 2022, SC Gleaves repeated that he recalled reading the contents of the document on Mr Harland’s laptop screen detailing a verbal argument between him and Mr Zerafa, that there were no threats of violence in the document and that DS Herps asked questions directed at whether a charge should be laid or there should be an application for an APVO on behalf of Mr Harland. SC Gleaves stated that he did not make any detailed entry in his notebook about the attendance at Mr Harland’s residence.

56. Although Mr Warnecke did not file an affidavit in these proceedings, in his police statement on 7 March 2019 he described what occurred on 3 February 2019 in these terms. On that day, he and Mr Harland parked their car in the basement of their unit block. He saw Mr Harland walking towards the lift as Mr Zerafa, his girlfriend and her little daughter were walking away from the lift. There were no other people present. He saw the little girl walking towards Mr Harland when Mr Zerafa yelled out, “[k]eep away from those fucking faggot cunts” and Mr Harland saying, “[d]on’t speak to me like that”. He then saw Mr Zerafa walking aggressively towards Mr Harland with clenched fists and saying, “I’m going to smash your fucking head in you dog cunt” with his face only centimetres away from Mr Harland’s face. He then saw Mr Zerafa preventing Mr Harland moving towards the lift by moving in front of him and invading his personal space. He heard Mr Harland saying to him, “[a]re you done?” and Mr Zerafa walking away mumbling something like, “I’m going to smash your head in”. He stated that Mr Zerafa’s behaviour was getting worse and that he was concerned that that he would assault them or damage their property.

Monday, 4 February 2019

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

Tuesday, 5 February 2019

58. On that day, Mr Harland saw Registrar Adele Andrews in chambers at Blacktown Local Court. She told him to send her the document he prepared on the night (which on Mr Harland’s account was the document police looked at on his laptop that night).

59. At 1.29pm, Mr Harland sent an email to Registrar Andrews attaching a Word document entitled “neighbour second incident unit 6”. The subject was “Gregory Harland” and the body of the email read “[p]lease see attached copy of my request for an avo”.

60. In the attachment, Mr Harland set out the nature of the altercation with Mr Zerafa on 3 February 2019 (mistakenly put as “Sunday 4th February 2019”) in similar terms to his affidavit, but with more detail: Mr Harland stated that Mr Zerafa appeared to be under the influence of drugs or alcohol, had “foul body odour and nicotine breath” and looked “unhinged”. After the confrontation, Mr Harland described going to shower as Mr Zerafa’s saliva had landed on him. Mr Harland said he did not feel safe at his home and had requested to relocate. It was the second time “this man has physically threatened to assault me and threatened to damage my vehicle”. He had previously lodged a complaint to the Department of Housing (Blacktown) after the first incident.

61. At 3.28pm, Blacktown Local Court issued an APVO application (2019/000392864) for Gregory Harland and Aaron Warnecke against Charles Zerafa returnable on 20 February 2019.

Wednesday, 13 February 2019

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

Thursday, 14 February 2019

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

Wednesday, 20 February 2019

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

Thursday, 21 February 2019

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

Tuesday, 26 February 2019

66. DS Herps returned from leave and read Sergeant Clemence’s email. He spoke to her and obtained a copy of the APVO application. He maintained his view that the document that he read on Mr Harland’s computer on 3 February did not disclose offences warranting police intervention. He was satisfied that there were parts in the APVO application that did not exist in the notes he had seen that night on the laptop.

67. DS Herps saw SC Gleaves in the muster room at Blacktown police station and showed him Mr Harland’s application for an APVO. He asked him to accompany him to Mr Harland’s residence in order to put to him the allegation that he had altered his APVO application to include false information.

68. At 2.54pm, DS Herps and SC Gleaves attended at Mr Harland’s residence. DS Herps activated his body worn camera.

69. The transcript of the body worn camera recording on 26 February 2019 does not include a time stamp when it was activated and when it was deactivated. It records DS Herps putting to Mr Harland that his APVO application included a section that was not in the two-page Word document he and SC Gleaves had read on the night. The transcript of the body worn video includes the following:

“MR HERPS:    … obviously on the night we read a document which you produced, which was a 2 page Word document.

…

MR HERPS:      Now, obviously a lot of the grounds for the AVO that you applied for ---

…

MR HERPS:       --- look pretty much identical ---

…

MR HERPS:        --- from what we read. However, I do have a concern that there is a paragraph that’s been inserted in here that isn’t consistent with what you had written on the night.

MR HARLAND:   Okay.”

70. DS Herps then took Mr Harland to the paragraph in question noting that the reference to the child running towards him and Mr Zerafa shouting to keep away from that “faggot” was in the original version he saw. He then stated:

“MR HERPS:   … But it’s this bit after here that I’ve got a little bit of a concern with.

MR HARLAND:   Yes.

MR HERPS:       And then you said here, ‘He ran up to me adopting an aggressive posture with his fists clenched and began shouting, “I’ll punch you in the head, you fucken faggot”. I put my arms to gesture they didn’t want him invading my personal space. He continued to intimidate and harass me by coming right up to my face’. Now, whilst, and then you continue to say that he stood in front of you while you couldn’t move and wouldn’t get out of your way.

MR HARLAND:   Yes.

MR HERPS:        Now, myself and Senior Constable Gleaves, obviously, both read that document.

MR HARLAND:   Yes.

MR HERPS:        And that, as far as we’re concerned, wasn’t in there, that bit.

MR HARLAND:   Yes.

MR HERPS:       The rest of it appears pretty much verbatim.

MR HARLAND:   Yes.

MR HERPS:        But this section here, this paragraph here, to me, doesn’t appear consistent.

MR HARLAND:   Yes. Well, I can, I swore an oath to tell the truth in court and that’s what, what I did.

MR HERPS:        Do you have the Word document still?

MR HARLAND:   Only what I emailed to the Local Court.

MR HERPS:        Do you have the blank Word document that you created? Because ---

MR HARLAND:   No. Because I think only gave - saw it on the laptop.

MR HERPS:        Yes. On the laptop, yes.

MR HARLAND:   Yes.

MR HERPS:       That Word document that was – sorry, I’m just going to pause this ---

…

MR HERPS:   … for two seconds. I need to take this call. …”

(Emphasis added.)

71. The recording was paused for DS Herps to take a call and did not resume.

72. Mr Harland’s account of this conversation is consistent with the body worn video. He stated that DS Herps did not ask for a copy of the document he sent to the Local Court on 5 February 2019 or the accompanying email. Mr Harland was unaware whether DS Herps ever contacted Blacktown Local Court to obtain a copy of the document. After the body worn video recording ended, Mr Harland deposed that DS Herps accused him of changing the statement and he responded, “I made minor changed [sic] to spelling and syntax and grammar” only. Mr Harland described DS Herps as looking “intimidating and aggressive” at this time, and he kept probing as to what had been changed. Mr Harland also deposed that DS Herps “looked confused” and said, “I’m sorry, but I thought it looked different”.

73. Mr Harland’s evidence was that DS Herps had only glanced at the statement for a few seconds on the night in question and had told Mr Harland “to leave out descriptors and be more factual”. Mr Harland denied ever saying to DS Herps during this second visit that he copied and pasted the contents of the original Word document into a new document or into the APVO application. I pause to note that it seems credible that DS Herps would have suggested to Mr Harland that he “leave out descriptors” as Mr Harland’s account as emailed to the registrar was replete with colourful descriptions of Mr Zerafa.

74. Both police officers gave a different account to Mr Harland as to what occurred during this conversation.

75. In his police statement dated 2 April 2019, DS Herps described the following:

“[12]  I asked him to produce the original computer so that I could check the time and date stamps on the Word document. Harland looked through the computer and said ‘I don’t think I save the document, all I have saved here is the PVO application’.

[13]  I said to him, ‘That doesn’t make sense Greg, the whole document is almost word for word identical, you must have created the PVO application from the original’. He said ‘Well yes I did but I left that unsaved my computer and just copied and pasted it to the PVO application and then didn’t save the original’.

[14]  HARLAND continued to say ‘You guys were very busy that night it may have been the case you rushed through the document didn’t read it correctly’.

[15]  Senior Constable Gleaves and I are positive the document was altered significantly from the original.”

76. In his affidavit on 13 January 2022, DS Herps stated that when he returned from his telephone call, he thought he had activated the camera for the continuation of his conversation with Mr Harland but did not, so there was no further recording. He did not make any notebook entries about that discussion. He stated that Mr Harland took him to his laptop but could not produce the document saying that the only thing he saved was the APVO application into which he copied and pasted the unsaved original document with some “grammar and syntax” changes. DS Herps stated that he left the room numerous times.

77. In cross-examination, DS Herps agreed that his body-worn video recorded for approximately three minutes before it was turned off when he needed to take a call. He stated that Mr Harland told him that he emailed an APVO application to the Registrar, not the document that he had read on the night. He agreed that he relied on his memory when he recalled that conversation and that he also made a COPS entry about three hours later. He maintained his evidence that, after the recording stopped, Mr Harland told him that he “copy/pasted” the content of the document into the APVO application.

78. In his statement of 4 June 2019, SC Gleaves stated that he observed DS Herps turn on his body worn camera upon knocking on Mr Harland’s door. He then stated the following:

“[9] … Once inside I observed Sergeant Herps and Mr Harland have a discussion in relation to the PVO application Mr Harland had made to Blacktown Court. Mr Warnecke was also present at this time. I heard Sergeant Herps ask Mr Harland to show him the original word document that he showed us back on the 3rd of February 2019.

[10] Mr Harland produced his laptop, which appeared to be the same laptop I observed on the 3rd of February 2019. Whilst looking through the laptop’s files Mr Harland stated he must not have saved the original document, and only saved the PVO application. Sergeant Herps had to take a work-related call on the Blacktown 14 work mobile and excused himself from the conversation.

[11] I said to Mr Harland and Mr Warnecke that Sergeant Herps and I have over 25 years Policing experience and that at no time would we neglect our duties, or not investigate a matter. I told Mr Harland that if I read the word document on the night and had observed the part of Mr Zerafa ‘adopting an aggressive posture with his fists clenched and began shouting “I’ll punch you in the head you fucking faggot cunt”’, Police would have taken more action on the night. Mr Harland stated again that he believed that this allegation was in the original word document he showed Sergeant Herps and myself back on the 3rd of February 2019. A short time later Sergeant Herps return to the room where I was talking to Mr Harland and Mr Warnecke.”

(Emphasis added.)

79. In his statement of 15 January 2019, SC Gleaves recounted that when DS Herps returned to the residence from the phone call he continued speaking to Mr Harland and noticed no argument or disagreement by Mr Harland. In his estimate they were there for about 15 minutes in total.

80. In his cross-examination on 3 March 2022, SC Gleaves agreed that it appears from the transcript of the body worn camera that Mr Harland did not produce his laptop before DS Herps took the call and left the room. He disagreed that that did not happen. He also disagreed that Mr Harland did not look through the laptop files stating that the transcript only recorded the verbal discussion and that he stood by what he said in his statement.

81. Neither police officer appeared to have had access to the transcript of the body worn camera when making their statements. Their recollections cannot be correct to the extent that it is suggested that the first thing that occurred was that Mr Harland was asked to show them the computer and identify the document. That is not reflected in the transcript of the body worn camera footage. On that basis, I accept that what occurred is reflected in the body worn camera transcript. As for the suggestion that the versions in their statements must reflect what occurred after the body worn camera stopped recording, that does not explain the initial conversation about the document in the terms recorded in the footage. I accept that when police asked Mr Harland where the document they saw on the night of 3 February 2019 was, he responded in the way recorded in that footage, namely, that the only Word document he had was the one that he emailed to the Blacktown Local Court. He told them that he did not have the “blank Word document” they saw in the night.

82. Significantly, the body worn camera records that Mr Harland clearly told police that he emailed the document he was working on that night to the Blacktown Local Court. Neither police officer referred to that in their police statements. Nor did either police officer ever attend Blacktown Local Court to get a copy of that document. Neither police officer suggested that Mr Harland told them he had “deleted” the document he showed them that night.

83. When police returned to Blacktown police station they discussed the matter with a police prosecutor, Senior Constable Nathan Blatch. DS Herps sent him an email at 5.25pm regarding police involvement in Mr Harland’s APVO:

“Just seeking your advice on this one.

Obviously the provisional AVO was granted and is yet to be served.

As stated today, Myself and SC Gleaves are adamant that he has added information to his PVO application after we initially dealt with him on the night of the incident.

I went and spoke with Harland and his partner today and searched through their computer. They no longer have the document on the computer with the version he supplied on the night. He states that he never saved it, which I find It [sic] hard to believe because portions of it have been copied verbatim to the AVO application.

Harland is sticking to his story that the allegations of intimidation were present in the word document myself and SC Gleaves read on the night. We are adamant they were not, otherwise I would have instructed an officer to take action and investigate.

How would you like me to proceed? Obviously I have received no formal directions from the court. I would find it difficult to get a statement from him as I believe the original is inconsistent from the AVO application. I have made attempts to speak with the POI but have not been able to locate him.”

Thursday, 28 February 2019

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

Friday, 1 March 2019

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

Monday, 4 March 2019

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

Wednesday, 6 March 2019

87. At 1.19pm, Mr Harland emailed Blacktown Local Court seeking to vary the interim APVO conditions.

88. At 1.59pm, DS Herps updated the COPS record after being informed that Mr Harland had attended on 4 March 2019 and provided a statement.

89. DS Herps later read Mr Harland’s statement for the APVO application.

90. Mr Harland contacted DS Herps to check what was happening and whether there was anything he and Mr Warnecke could do. DS Herps indicated that he would take a statement from Mr Warnecke the next day.

Thursday, 7 March 2019

91. Mr Warnecke attended Blacktown police station and made a statement that was witnessed by DS Herps. He described the assault by Mr Zerafa in the terms I have summarised above at [56].

92. At 11.54am, Mr Harland filed an application at Blacktown Local Court to vary the interim APVO returnable on 13 March 2019.

Friday, 8 March 2019

93. At 7.50pm, DS Herps updated his COPS entry.

94. Mr Harland contacted police to report a breach of the APVO by Mr Zerafa in that Mr Zerafa stood in the carpark and stared at him which intimidated him. DS Herps and Acting Inspector Middlebrook told Mr Harland that the APVO is ambiguous and that police will seek to amend it on 13 March 2019.

95. At 9.00pm, Mr Zerafa attended Blacktown police station for his electronically recorded interview of suspected person (“ERISP”) with DS Herps. That interview went for 31 minutes. (It had not been transcribed by the time that SC Murphy subsequently applied for the search warrant.)

96. Mr Zerafa made a number of admissions in his ERISP in relation to the initial incident on 3 February. He agreed that he was in the carpark when he heard his partner Tonni-Jo Henley-Kelly call out his name, so he ran to her assistance. He described the man he now knows as Mr Harland to be approaching his baby and he yelled out, “[f]uck off, you faggot cunt. Keep away from my family”. He then grabbed the baby, grabbed his partner and walked back to the car.

97. Mr Zerafa agreed that there had been a prior incident when Mr Harland had made a complaint to the Housing Department about him for creating diesel fumes in the carpark.

98. Significantly, Mr Zerafa agreed with the following parts of Mr Harland’s complaint. He agreed that he yelled out, “[f]uck off, you fucking faggot cunt. Keep away from my family”. He did this because his partner yelled out his name and he “ran” towards her and his daughter in a “protective way”. He grabbed the baby and told his partner “[l]et’s go”. He denied saying, “I’ll punch you in the head, you fucking faggot cunt” or that he blocked Mr Harland’s ability to walk to the lift. Specifically, he explained how he ran towards Mr Harland as he yelled at him as follows:

“MR ZERAFA:   Because I was in a - when I ran in towards her and when she held out my name, and I ran towards her and my daughter was with me, I - like, obviously I’ve just come out - it just - a protective - in a protective way, I just said what I said. I don’t want to repeat it again because I sound like - I don’t want to sound rude.

MR HERPS:     Okay. Well, you can, because at the end of the day, rudeness isn’t necessarily an offence.

MR ZERAFA:    Well ---

MR HERPS:     II’s offensive, but it’s not an offence.

MR ZERAFA:   Well, that’s all I - that’s the only words I’ve ever, ever had to say to them is to, ‘Fuck off, you fucking faggot cunts. Keep away from my kids’. That’s it. That’s the only time I’ve ever, ever spoken to these two blokes.”

(Emphasis added.)

99. Mr Zerafa denied threatening to harm Mr Harland and stated that the incident finished after he collected his children and returned to his vehicle. But he did admit that he was running towards Mr Harland in a “protective” way at the time he was yelling out the words described above. His version is that he got to only 2.5 metres away from Mr Harland and Mr Warnecke. He explained to police that he thought that Mr Harland was picking on him and that “they” wanted a quick transfer to a different Housing Commission complex.

Saturday, 9 March 2019

100. At 5.03am, DS Herps sent an email to Acting Inspector Middlebrook with subject, “Gregory harland”. In this email, DS Herps set out the background to the matter, and his view (along with the view of SC Gleaves) that the plaintiff had “altered the PVO from his original version”. In relation to the initial incident on 3 February, DS Herps wrote, “I told [Harland] if he felt intimidated he could apply for a PVO.” He also stated that, “[a]s discussed with you in person I have told HARLAND that I am going to fully investigate the matter and take statements from all parties involved and interview ZERAFA”. DS Herps concluded his email:

“My plan is to finish off the investigation (2 more statements) and submit the brief through the chain of command so that it can be sent to the prosecutors for legal advise [sic] allowing them to make a determination on whether the matter should be prosecuted. I believe if I construct the brief in this manner and have the prosecutors determine its merits, it will eliminate any perceived bias he may level at you or I and prevent future complaint issues.”

Monday, 11 March 2019

101. At 8.57am, Acting Inspector Middlebrook replied:

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

Tuesday, 12 March 2019

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

Wednesday, 13 March 2019

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

Friday, 15 March 2019

104. A statement was taken from Tonni-Jo Henley-Kelly, Mr Zerafa’s partner, witnessed by DS Herps. She stated that she had met Mr Harland prior to 3 February 2019. He had complained to her over the intercom that Mr Zerafa’s truck was leaking diesel on the floor of the garage, so she went to try and clean it up. When she got to the carpark there was no mess there. She told Mr Zerafa that Mr Harland had yelled at her over the intercom which made her scared. She then described what happened on 3 February 2019 in these terms:

“[8] On 3rd February 2019 Charles and Rita, who is Charles eldest [daughter] went downstairs with the pram to put it in the car. I was still upstairs with Athena [the baby] finishing breastfeeding. A short time later I came downstairs via the elevator with Athena. Athena started walking and I went to follow her. Gregory and Aaron, who was the other resident of [the] unit came towards me. To be honest I panicked, and I yelled out to Charlie. I have previously been a violent relationship and I’m scared around males.

[9] I yelled ‘Charles’. Rita and Charlie came running and Charlie called out, ‘Fuck off you faggot cunts stay away from my family’. When I yelled out they were probably only about 1 metre away from them. They are usually really rude to me when walking past and I just don’t trust them. When Charles and Rita got to me and he finished saying what he did we all walked away together. Charlie wasn’t even within 3 metres of Aaron and Greg never got closer than that.”

105. Ms Henley-Kelly gave a similar version to Mr Zerafa. She accepted that at the time when Mr Zerafa was yelling out the aggressive words he was running towards Mr Harland.

Monday, 1 April 2019

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

Tuesday, 2 April 2019

107. DS Herps signed his police statement for the investigation into Mr Harland to which I have already referred.

108. At 7.19pm, DS Herps sent an email to DSS Wilson with the subject heading “report zerafa”. Again, he outlined the background to the matter and wrote, “I was approached by prosecutors today regarding a PVO matter that is going to court tomorrow”. And further:

“I have subsequently obtained statements from all of the involved parties. My belief is that based on the statements alone there is insufficient evidence to prosecute due to the conflicting nature of the versions. That is notwithstanding the fact that I strongly suspect the complainant made a false statement and PVO application.

The main reason for the report I am sending through is police are representing the complainant [in the APVO complaint] I have raised my concerns with the prosecutors. They have since raised their concerns with me that to continue representing him would be malicious and could result in costs. I agree with this determination and believe we should withdraw any prosecutorial assistance.

…

If you are able to make a determination, specifically about the prosecutors withdrawing from the matter that would be appreciated.

…

I apologise for the lateness of the report and the fact I have sent it directly to you. I understand it should go through TRIM, however I only realised today they wanted a crime managers review of the brief and do not believe it would get to you in time if I sent it directly to #blacktowntrim.”

(Emphasis added.)

109. At 7.29pm, DS Herps sent a second email to DSS Wilson attaching two PDFs entitled “Zerafa report” and “herps brief”. The body of the email stated:

“The report is mostly to determine whether police should withdraw from the PVO matter as it may be a malicious prosecution should they remain involved. … The prosecutor with carriage is Trent Lister. He asked me to submit a report to the Crime Manager to make this determination.”

(Emphasis added.)

110. In the report, DS Herps wrote:

“I do not believe there is sufficient evidence to prosecute ZERAFA even if the PVO and subsequent statements of HARLAND and Aaron WARNECKE are taken on face value. This is because the statements of ZERAFA and Tonni-Jo HENLEY-KELLY conflict with those of WARNECKE and HARLAND (see attached brief). Even though I believe the PVO has been altered I do not believe there is sufficient proof to prosecute HARLAND as no photographs were obtained of the original document shown to me on 3 February 2019.

I do not believe that the PVO matter should remain police represented as to do so would be malicious and could result in costs. The prosecutors have requested the matter be put to the Crime Manager to determine whether police can remove themselves from representing HARLAND.

RECOMMENDATION

I believe that police should remove their representation from the PVO application. I believe that no further investigation should occur in relation to the intimidation and assault allegations made by HARLAND.”

(Emphasis added.)

111. These emails confirm that it was not DS Herps’ intention to take any further action against Mr Harland for what DS Herps believed was a change in his account of what occurred with Mr Zerafa on 3 February 2019. His only suggestion was that police should not represent Mr Harland on his APVO.

Wednesday, 3 April 2019

112. At 9.09am, DSS Wilson responded to DS Herps’ email. He stated, “[b]ased on our conversation this morning I am satisfied that police should withdraw from the PVO application”.

113. In DSS Wilson’s affidavit dated 21 December 2021 he referred to this email and stated that he had had a telephone discussion with DS Herps in similar terms to what was contained in the emails.

114. Significantly, DSS Wilson took a contrary view at that time to DS Herps as to whether there was any basis to prosecute Mr Harland for changing his statement. He explained this in his affidavit as follows:

“[12] I formed a view that the allegations Sergeant Herps raised regarding differing allegations raised by Mr Harland needs to be investigated by someone who had no role or involvement in this matter.

[13] Sometime between 3 and 5 April 2019, I approached and had a brief oral discussion with Senior Constable Ashlea Murphy (SC Murphy) about taking carriage of an investigation into Mr Harland and his partner for possible offences of conspiracy to pervert the course of justice or making a false allegation.

[14] I cannot recall the exact words I said to SC Murphy but it was to the effect of:

‘Sergeant Herps has spoken to me in relation to a PVO application of Gregory Harland. Sergeant Herps briefly told me that he was called out to an incident in February 2019 and that he was shown a document setting out the incident on Mr Harland’s computer. At the time the computer was shown to Sergeant Herps it contained no allegation of a criminal offence or other matter to justify, in Sergeant Herps’ view, formal action by police against Mr Zerafa or an application for PVO on behalf of Mr Harland. Sergeant Herps stated that what he read on the computer is different from the allegations in the affidavit Mr Harland and his partner provided to the court to support the PVO application. The affidavit alleges threats of physical violence. Sergeant Herps thinks Mr Harland and his partner may have falsely added details to their affidavits for the PVO application. I don’t know anything else about the matter. Can you take carriage of the investigation to see if there’s anything in what Sergeant Herps has said.”

[15] I indicated to SC Murphy in this briefing that in my view, based only on what I was told, was that the alterations to the document could be an attempt to pervert the course of justice and that it may be useful to the investigation to see what was on the computer that Sergeant Herps sighted, which could be seized under a search warrant for the purposes of forensic examination.

[16] This briefing was no longer than a few minutes of an oral discussion. It was just a preliminary view I had and I left the investigation to SC Murphy.”

(Emphasis added.)

115. At the listing of the APVO application at Blacktown Local Court, the interim APVO was continued by Registrar Andrews and the matter was adjourned to 17 April 2019.

Between 3 and 5 April 2019

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

Friday, 5 April 2019

117. DSS Wilson had a telephone conversation with SEEB (State Electronic Evidence Branch now known as the Digital Forensics Unit) in order to understand the nature of any forensic examination that could be carried out on Mr Harland’s computer and associated hardware. The details of what DSS Wilson discussed with SEEB were not entirely clear. In his affidavit of 21 December 2021 he deposed that SEEB “explained … what searches they could do”. When asked in cross-examination why a search warrant was needed, part of DSS Wilson’s answer was as follows:

“The reason that I allocated the investigation to Senior Constable Murphy, it suggested that a search warrant was required to seize the computer; that there may be evidence of the document having been saved and then edited and saved again, and then being edited after Sergeant Herps had attended to include the material that formed the basis of the PVO, being a criminal assault. I had not particularly ‑ with technology, I had to seek advice from the SEEB branch on how that might happen, and in fact if it could be done at all. They gave me certain advice that it may be the case.”

(Emphasis added.)

118. And then the re-examination of DSS Wilson in its entirety was:

“RE EXAMINATION BY MS NEW

Q. You said earlier in cross examination from my friend that he [sic, you] sought advice from SEEB prior to the application for the search warrant done by Senior Constable Murphy. Can you recall words to the effect of or a summary of what SEEB told you?

A. They said to assist the search on the hard drive, it would be best if they had a copy of the affidavit because that would, however they do the search, would assist for a document of a like nature or that same document which may be still on the hard drive.”

(The reference to “the affidavit” must be a reference to the “original”/”deleted” document (or a version of it), but it is unclear.)

119. At 11.10am, DSS Wilson sent a handover email to SC Murphy, subject, “report zerafa”. He wrote:

“Ash,

As discussed, work up a job for Conspiracy to Pervert the Course of Justice and Make False Allegation on Warnecke & Harland. I have spoken to SEEB and they are happy to forensically examine the computer and any USB’s seized. Specifically we will be looking for the deleted word documented [sic] first seen by Sergeant Herps, a copy of the PVO will assist them to search all deleted files containing that information.

You will need a search warrant to seize the computer and ideally, Sergeant herps at the wwarant [sic] to identify the computer itself. Failing that, a good description will do.

cc. Segt Herps for info.”

(Emphasis added.)

120. In his evidence, DSS Wilson clarified what he meant by a number of the matters included in his email.

121. First, he explained that when he told SC Murphy to “work up a job for Conspiracy to Pervert the Course of Justice and Make False Allegation” on “Warnecke & Harland” he meant that he wanted her to “investigate” this. Secondly, when he told SC Murphy in the email that he had spoken to SEEB, it was to receive preliminary advice on how they could forensically examine the computer. Thirdly, when he told SC Murphy that “we will be looking for the deleted word document”, he was simply relaying to SC Murphy guidance he had received from SEEB. And fourthly, when he told SC Murphy in the last paragraph of the email that she “would need to get a search warrant for the computer”, that was a “suggested course of action” based on his “preliminary view”. It was “not a direction to SC Murphy” which would “override” her own need to form a view as to whether there were reasonable grounds for a search warrant. DSS Wilson’s evidence was that he had formed the view there were such grounds, but he did not communicate this to SC Murphy.

122. DSS Wilson also stated that “[t]he statements in my email of 5 April 2019 were only for the purpose of allocating the matter, providing guidance as to how to confine the search warrant and how to instruct SEEB”.

123. That same day SC Murphy approached DS Herps at Blacktown police station and informed him that she was investigating Mr Harland for offences relating to his APVO application and required the police file and his statement. She has no recollection of any discussion that they had at that time. She stated that if DS Herps told her anything when she obtained the file from him, she could not remember it. Despite this, she disagreed in cross-examination that officers who briefed her gave her any details of what they had seen or heard. She had their statements and other evidence such as computer added dispatch (“CAD”) narratives from the triple-0 calls on 3 February 2019, the body worn footage, and the application for the APVO.

124. DS Herps’ recollection of the handover to SC Murphy was that he was copied into an email from DSS Wilson to SC Murphy on 5 April 2019 indicating that the plaintiff was to be investigated for “making a false statement”. He had a conversation with SC Murphy on 5 April 2019. He could not remember the conversation but agreed in cross-examination that he might have expressed an opinion. He also disagreed that SC Murphy included in the search warrant application things he told her. He stated that what she included was her interpretation of everything that was before her including the documents from his report to DSS Wilson. He stated that he had “no input in the search warrant application” and that the “first [he] knew about an investigation was when SC Murphy asked for [his] statement”.

125. At 4.13pm, SC Murphy recorded her first entry in the COPS system in relation to Mr Harland; it read, “Further investigation is to be undertaken in relation to the possibility of HARLAND making false accusation with intent subject other to investigation”. On this day, she also created an iASK request for the audio recording of Mr Harland’s triple-0 calls. That request was authorised by inspector Paul Tickner on 10 April 2022. She did not wait to get those audio recordings before applying for the search warrant. She only had the CAD narratives available to her at that time which recorded, inter alia, the following entries:

1. In relation to the 3.35pm call: “Infts [informant’s] nbour [neighbour] from unit 6 has verbally threatened inft for reporting him to strata …”.

2. In relation to the 5.18pm call: “… inft called for pol, eta, inft anxious to c pol saying he needs to leave and will carry a bat with him to protect himself against nbour”.

3. In relation to the 8.19pm call: “inft called for eta – states this is the 2^nd time the same poi [person of interest] has harassed inft – pois name nk to inft – poi has been shouting and carrying on since the last call”.

4. In relation to the 9.39pm call: “inft req pol eta. very agitated and distressed at the length of time he has been waiting”.

Between 5 and 8 April 2019

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

Monday, 8 April 2019

127. SC Murphy applied for a “Part 5 search warrant/record” to Registrar Andrews at the Blacktown Local Court. On the form, she indicated that the “searchable offence” in question within the meaning of s 46(1)(a) of LEPRA (with which “the things” were connected, being the laptop and hard drive/USB) was: “Section 314 Crimes Act 1900 – Make false accusation with intent subject other to investigation”.

128. The application was in the following terms:

“Part 1 Application

…

1 I have reasonable grounds for believing that:

(a) there is, or within 72 hours will be, in or on the premises, the following things:

1 x Black Laptop Computer

Any hard drive or Universal Serial Bus Storage device

(b) the things are connected with the following searchable offence(s) within the meaning of section 46A(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002:

Section 314 Crimes Act 1900 – Make false accusation with intent subject to other to investigation

…

2 I rely on the following grounds in support of this application:

On 3rd February 2019 at 2145pm Senior Constable GLEAVES (sic) and Sergeant HERPS attended 9 of 20 to 22 Fifth Avenue, Blacktown in response to Gregory HARLAND phoning triple zero on five occasions throughout the evening. As a result of these calls, respective computer aided dispatch jobs were created by triple zero operators, within none of these calls outlining any assaults, each stating that HARLAND had been verbally threatened by a neighbour.

“As a result of these [triple 0] calls, respective computer aided dispatch jobs were created by triple zero operators, within none of these calls outlining any assaults, each stating that HARLAND had been verbally threatened by a neighbour.”

(Emphasis added.)

248. The suggestion to the issuing officer that none of the calls outlined any assaults was incorrect and was a significant error. I have had regard to the first defendant’s submission that it was not necessarily misleading because the application refers to the “computer aided dispatch jobs” prior to the assertion that none of the “calls” outlined any assaults. As stated above, I am not satisfied that SC Murphy deliberately misled the issuing officer, but I am satisfied that the issuing officer would have been left with the impression that SC Murphy was aware of the contents of the triple-0 calls and they did not record any threats, neither of which reflected the true position.

249. SC Murphy had access to the triple-0 calls two days after she applied for the warrant. It was never explained why she did not wait for them. It had already been over two months since police first attended Mr Harland’s home; a few more days would not have mattered. The calls established either that DC Herps and SC Gleaves were mistaken in their recollection of Mr Harland’s notes on his computer shown to them on the evening of 3 February 2019 or that (contrary to Mr Harland’s evidence) Mr Harland did add some further details after speaking to police, but they were not a recent invention as police suspected.

250. The next complaint made by the plaintiff regarding the application was the assertion that “Sergeant HERPS informed HARLAND there was no offences detected and he would create a record of the matter”. Mr Harland denied this was said and SC Gleaves gave no evidence about it. In the witness box, DS Herps could not remember whether he said it or not, but I am satisfied that in his police statement he included the words I have extracted above at [50]. On that basis, it could not be said there was no evidence this was said.

251. The real question about this aspect of the application is why SC Murphy omitted to include the uncontradicted evidence of DS Herps that Mr Harland had expressly told police that evening that he did not want anyone charged; he only wanted an APVO. Given that Mr Harland was being investigated for making a false statement with the intent of having Mr Zerafa subject to investigation, the omission of the fact that Mr Harland told police that night that he did not want anybody charged is significant given the searchable offence was s 314 of the Crimes Act.

252. The next difficulty with the application is the following inclusion:

“Sergeant HERP’s requested to view the document on HARLAND’s computer to which he stated he had deleted.”

253. It was common ground that none of Mr Harland, SC Herps or SC Gleaves ever gave an account of Mr Harland using the word “deleted” in relation to the notes he showed police on 3 February 2019. I have summarised the competing versions above. The only mention of that word in the contemporaneous documentation came from DSS Wilson who used that word in his email to SC Murphy on 5 April 2019. Although it appears to have been a slip on his part which SC Murphy adopted, it was a significant one for two reasons. First, I accept the plaintiff’s submission that the word “deleted” carries connotations of destruction of evidence. Secondly, it appears to have given rise to a misapprehension as to what SEEB would be able to recover.

254. The application for the search warrant suggested that there had been a document that had been “deleted”. The actual “thing” specified in the application was “his initial document outlining his initial complaint which did not include the allegation of assault”. SC Murphy was looking for a document that had been deleted before it had been saved, but there was no basis for believing that there was a “deleted” document. The ultimate SEEB examination showed that “the file” (which could only be the document sent to Blacktown Local Court by Mr Harland by email on 5 April 2019) was created at 4.40pm on 3 February and had undergone “19 hours of editing” prior to its last amendment before the laptop was seized by police.

255. The next slightly misleading aspect of the application was in these terms:

“HARLAND and WARNECKE later attended Blacktown Police Station where they provided witness statement’s outlining ZERAFA had run up to him with his fists clenched and threatening to punch him in the head, he further stated ZERAFA spat on him. Both parties stated they had recorded the incidents on a document on the computer and allowed police to read it.”

(Emphasis added.)

256. This passage suggests that Mr Harland and Mr Warnecke put their heads together to concoct a false version. The two men did not attend Blacktown Police Station together. Nor did both parties state they had recorded the incidents on a document on the computer; only Mr Harland did. On their own, these slight inaccuracies are of no moment, but they are relevant to note as part of the application overall. Further, to the extent that the allegation that Mr Zerafa spat on Mr Harland was relied upon as part of the “recent invention”, that fact was also misleading as DS Herps has always accepted that Mr Harland told him on the night that Mr Zerafa’s spittle landed on him (even if DS Herps’ recollection of it was that it was not an intentional spitting).

257. The next misleading aspect of the application is in the following passage:

“Police have conducted an electronically recorded interview with ZERAFA where he agrees that a verbal altercation takes place however strongly denies ever raising his fists, threatening HARLAND or spitting on him.”

258. The phrase “verbal altercation” significantly understates the nature of the homophobic abuse directed at Mr Harland by Mr Zerafa (which the latter admitted). As at the time of the application, SC Murphy did not have a transcript of Mr Zerafa’s ERISP but she stated that she listened it. It went for 31 minutes. It was not put to her that she had not listened to it, so I accept that she did. She had no recollection either way. That recording shows that although it is accurate to say that Mr Zerafa denied, inter alia, “threatening” Mr Harland, he agreed that he “ran” towards Mr Harland in a “protective” manner whilst yelling the words he did with no obvious provocation. These aspects of Mr Zerafa’s account which supported Mr Harland’s account were not included in the application.

259. The next misleading aspect of the application is this part:

“Police submit that HARLAND has fabricated the evidence that an assault occurred after being informed by Sergeant HERPS no offence was detected in his initial complaint.”

(Emphasis added.)

260. There are at least two difficulties with this part of the application. First, it fails to mention that Mr Harland told police on the night that he did not want anybody charged. Secondly, the use of the word “fabricated” is a conclusion which ignores the fact that even if Mr Harland had added further matters (including the assault) to his notes on his computer after police left (which was denied), that does not necessarily mean those additional matters were fabrications. When witnesses make police statements or affidavits it is not uncommon for a draft to be prepared that might be changed a number of times until it is finally signed. It is not a criminal offence to make changes to a draft before it is finalised; and this document was not even a signed statement at a police station; it was simply some typed notes of what had occurred that day.

261. The final portion of the application was in these terms:

“Police would like to search for and seize HARLAND’s computer for his initial document outlining his initial complaint which did not include the allegation of assault.”

(Emphasis added.)

262. The “thing” sought by the warrant was the “initial document”. In her request to SEEB on 9 April 2019, SC Murphy stated that she wanted them to “recover” the “initial document”. But Mr Harland had told police that he did not have the unsaved Word document he showed them on the night, only the document he had emailed to the Local Court. As I have already concluded, I am satisfied on the evidence that the “initial document” became the document that was emailed to the Blacktown Local Court by Mr Harland on 5 February 2019. This is also consistent with the SEEB evidence. Despite this, SC Murphy appears to have proceeded on the basis that there was some other “deleted” document. It was never explained how SEEB could have located either an unsaved or a deleted document (even if it had existed) and been able to identify precisely when it was that Mr Harland inserted details of an assault after police left his premises.

The searchable offence could not be proved

263. The second problematic aspect of the application is that, although the searchable offence was described as an offence contrary to s 314 of the Crimes Act, there was no explanation in the application as to how that offence could be proved by seizing the plaintiff’s computer. Such an offence required proof that Mr Harland had:

1. Made an accusation (police relied on what he said to the Registrar to obtain the APVO); and

2. That when he did so he intended Mr Zerafa to be the subject of an investigation of an offence (but the accusation was made to a Chamber Magistrate to obtain an APVO not to commence any police investigation for a criminal offence. Further, Mr Harland had told police he did not want Mr Zerafa charged in any event); and

3. That when he made the accusation, he knew that Mr Zerafa was innocent of the offence (police relied on the evidence of DS Herps and SC Gleaves that the complaint to the Registrar of threats was a “recent invention” but such a claim is squarely contradicted by the triple-0 calls).

264. There is nothing in the contemporaneous documentation to suggest that SC Murphy ever turned her mind to the elements of such an offence. I note that in her initial entry in the COPS record on 5 April 2019 and in the application, SC Murphy described the offence as “making false accusation with intent subject other to investigation” (emphasis added). However, in her subsequent request to SEEB on 9 April 2019 she described the offence as “making a false allegation resulting in police investigation” (emphasis added). The problem with that narrative is that it fails to acknowledge that for the offence to be an indictable offence contrary to s 314, as opposed to the summary offence of public mischief or a summary offence contrary to s 49A of the Crimes (DPV) Act, there has to be proof that Mr Harland made a false statement with a specific intention, namely, that Mr Zerafa be the subject of a police investigation. The use of “resulting” by SC Murphy more aptly describes the elements of public mischief.

265. Further, in her SEEB request, she referred to the six-month statutory time limit for a summary offence. SC Murphy was not able to explain why she instructed SEEB that a response was required within five months. The searchable offence she had executed a warrant in relation to only the previous day was an indictable offence with no statutory time limit. Although it was the plaintiff’s case that SC Murphy deliberately nominated s 314 of the Crimes Act as the searchable offence solely to obtain a warrant, I am not able to make that finding to the requisite standard. Rather, the SEEB request provides further support for my conclusion that SC Murphy did not turn her mind to the elements of the offence under s 314 and apply them to the evidence and what she was searching for.

266. Further, the use of the word “intent” by SC Murphy in the application (and SEEB request) was somewhat confusing. Did she mean that the intent was for something other than an investigation (which is what SC Murphy maintains she was investigating) or does it mean to subject another person to an investigation? SC Murphy’s evidence was that she was investigating Mr Harland for making a false representation in his application for an APVO. Although Ms New initially submitted that an offence contrary to s 314 could be proved if police relied on the police statement Mr Harland subsequently made on 4 March 2019, she accepted that there was no basis for that submission given SC Murphy’s evidence that that was not what she was investigating; her evidence was that she was specifically investigating the alleged falsity of what Mr Harland had put to the Registrar to obtain an APVO.

267. Not only am I satisfied that the searchable offence could never have been proved as a matter of law, I am satisfied that SC did not turn her mind to the elements of the offence. Her evidence as to how she arrived at the relevant searchable offence was unsatisfactory and went no further than that she thought it was the most “suitable offence”. Her inability to remember why she arrived at it did not assist her case. I have had regard to the delay in commencing these proceedings and the forensic disadvantage in that regard, but the delay was only a few years. Police officers routinely give evidence about matters years after the event with only their contemporaneous records, including their police statements, to refresh their memories.

268. As stated above, I have also had regard to the fact that SC Murphy was on maternity leave with a young baby when she gave her evidence. Nor did she have the assistance of a police statement made in 2019 when the events would have been fresher in her memory; that was because there was no basis to charge Mr Harland and thus no reason for her to ever make a police statement. The fact remains that her poor memory means that I have had to rely on inferences drawn from the contemporaneous documentation that do not always assist her case.

269. Having regard to all of the evidence before me I have come to the conclusion that the only available inference is that SC Murphy arrived at the searchable offence of s 314 of the Crimes Act because it was suggested to her by DSS Wilson in his email who told her to “work up” an offence of perverting the course of justice or “make false accusation”. There is no other conclusion open on the evidence other than that she proceeded on the basis that if her superior at the station, the acting crime manager, thought that was an appropriate offence then that was sufficient basis to act on it. In finding that SC Murphy adopted DSS Wilson’s suggestions in his email I expressly make no finding as to why DSS Wilson took the approach he did. It is not necessary for me to do so in order to reach my conclusion.

270. Given the cumulative effect of the factual inaccuracies in the application, the factual omissions in the application, the fact that the searchable offence under s 314 could never have been proved, the fact that there was no “deleted” document to search for and the fact that SC Murphy appears to have adopted the approach suggested to her by DSS Wilson to form her reasonable grounds, I have come to the conclusion that SC Murphy did not have reasonable grounds to seek Mr Harland’s computer and other hardware to establish an offence contrary to s 314 of the Crimes Act. There were insufficient facts to induce that state of belief in the mind of a reasonable person.

271. In so finding, I accept that there will be occasions when police officers identify a searchable offence which may not be able to be proved, and that fact alone may not invalidate a warrant: see Polley v Johnson. Nor will simply misnaming the section invalidate the warrant so long as it is otherwise properly described: New South Wales v Corbett. Nor will making factual errors in the application alone necessarily invalidate the warrant if there are otherwise sufficient facts to establish reasonable grounds: Vincent v Randall. It is to be accepted that police investigating indictable offences often need to act quickly and unintentional errors may be made as a result of time and resourcing pressures. But this case goes further than what occurred in any of those cases. I am satisfied that the plaintiff has established particular 1(a)(i) in the amended summons. The long history of the common law in protecting the rights of the individual cannot be ignored.

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

272. Particular 1(d) contended that the issuing officer should not and/or could not have been satisfied that there were reasonable grounds to issue the search warrant. It was the common position of the parties that particulars 1(a)(i) and (d) stood or fell together; that is, if I upheld particular 1(a)(i) then it followed that the issuing officer could not have been satisfied that there were reasonable grounds to issue the search warrant. As Simpson JA noted in Polley v Johnson at [40] (extracted above), the issuing officer’s satisfaction must be that of the applicant. I am satisfied that the issuing officer did not have reasonable grounds to issue the warrant given my finding in relation to particular 1(a)(i).

273. Particulars 1(b) and (c) collectively contend that the issuing officer spent less than a minute considering the warrant. There was thus a second basis upon which the plaintiff contended that the issuing officer could not have had reasonable grounds to issue the warrant under s 48(1) of LEPRA. On one view, it is unnecessary for me to consider this second basis for upholding particular 1(d) but I propose to do so in the event that I am wrong in my primary conclusion.

274. The issuing officer reported that she received the application at 11.02 am and issued it at 11.02 am. Both parties relied upon the decision in Doyle regarding the consequences of this. The first defendant distinguished the decision in Doyle on its facts, given that there was no suggestion in the present case that the issuing officer had been provided with a pre-filled application. Rather, it was submitted that the Court could be satisfied that the second defendant had properly considered the application. The plaintiff, on the other hand, submitted that given that the Court of Appeal in Doyle had considered 10 minutes to be an inadequate time to consider that warrant, it followed that the (less than) one minute reported on the search warrant application to have been taken in this matter was considerably more problematic.

275. If I was satisfied that the issuing officer had in fact spent less than one minute considering the application and issuing the warrant, then it would follow that I would also be satisfied that she could not have been satisfied that there were reasonable grounds to issue it; it could reasonably be inferred that she had simply “rubber-stamped” it. The plaintiff bears the evidentiary onus of establishing that the issuing officer spent less than a minute considering the application. I am unable to be so satisfied on the material before me. In particular, I am satisfied that it would have taken her longer than one minute to have handwritten her reasons and otherwise complete the paperwork in the way she did. Instead, I am satisfied that the issuing officer incorrectly completed the form; either the first or second entry of the time as being 11.02am is wrong.

276. The plaintiff’s challenge relied solely on the times of 11.02am entered by the issuing officer. I am not satisfied that he has discharged his evidentiary onus in establishing that less than a minute was spent considering and issuing the application, as opposed to an error in the way that the times were recorded.

277. I am unaware of any decision in which a search warrant has been declared invalid on the basis that the issuing officer has failed to properly record the time the application was received and the time that the warrant was issued. But I have had regard to the principles derived from the decisions I have referred to above, in particular, Doyle. In that decision the Court had regard to how long the issuing officer took to consider the warrant as part of the challenge to its validity.

272. 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.

273. 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.

274. I would not uphold particulars 1(b), (c) and (d) to extent that it was contended that the issuing officer took less than one minute to consider the warrant application.

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

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

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

281. Under s 62(3)(a) of LEPRA an issuing officer is required to consider the reliability of the information on which the application is based, including the nature of the source of the information, and under s 62(3)(b) of LEPRA an issuing officer is required to consider whether there is sufficient connection between the thing sought and the offence. Despite ambiguity in the form of the amended summons, as indicated above at [26], I understood that the plaintiff contended that there had been a failure to comply with both subsections.

282. Relying on s 62(3)(a), the plaintiff contended that there was an onus on the issuing officer to seek further documentary information as to the observations of the relevant police officers (DS Herps and SC Gleaves). I do not accept that there was anything on the face of the application that suggested that she needed to do so. There is no requirement for an issuing officer to do so and it would be a considerable burden should there be such a requirement in each case.

283. Under s 62(3)(b) the issuing officer is required to consider whether there is a sufficient connection between the thing sought and the offence. For the reasons stated above, I am not satisfied that there was such a connection in this matter.

284. Given the longstanding principles that an issuing officer is not to “rubber stamp” an application, the fact that I have found that there was no deleted document to search for and even if there had been it could not have established an offence contrary to s 314 of the Crimes Act, it follows that I am also satisfied that the issuing officer could not have complied with s 62(3)(b).

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

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

The appropriate orders

286. I am satisfied that the plaintiff has established one or more bases to declare the warrant invalid.

287. The relief sought is discretionary in nature. Although the summons was strongly defended, it was not contended that there were any discretionary reasons why, should the plaintiff be successful, the relief sought should not be granted.

288. A declaration would resolve the dispute as to the validity of the warrant but by itself it does not have an element of coercion. It is for that reason that the plaintiff also seeks consequential relief in the form of an order in the nature of certiorari quashing the decision to issue the warrant. In the present case, there was no agreement as to the consequences that would flow from the declaration sought. As Barwick CJ and Jacobs J observed in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307, it is generally undesirable that a court make a declaration without consequential orders in such circumstances. Accordingly, I would make an order quashing the decision as well.

289. No submissions were advanced to suggest that I would depart from the ordinary rule that costs follow the event.

ORDERS

290. Accordingly, I would make the following orders:

1. Grant an extension of time to the plaintiff to commence proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005.

2. I declare that search warrant number 81 of 2019 issued on 8 April 2019 at Blacktown Local Court is invalid.

3. The decision by Adele Andrews, Registrar at Blacktown Local Court, to issue search warrant number 81 of 2019 on 8 April 2019 is quashed.

4. The first defendant is to pay to the plaintiff’s costs of these proceedings on an ordinary basis.

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Amendments

13 October 2022 - Caselaw formatting

Decision last updated: 13 October 2022