Medium Neutral Citation: Polley v Johnson [2015] NSWCA 256
Hearing dates: 24 July 2015
Decision date: 27 August 2015
Before: Beazley P at [1]; McColl JA at [2]; Simpson JA at [3]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords:
APPEAL - search warrant - Law Enforcement (Powers and Responsibilities) Act 2002, s 48 - whether validly issued - whether issuing officer had reasonable grounds for issuing warrant - searchable offence nominated by applicant police officer - offence against Crimes Act 1900, s 326(2) - reprisals against judges, witnesses, jurors - connection with any judicial proceeding - whether judicial proceeding encompasses judicial proceeding contemplated but not commenced - role of issuing officer in deciding whether reasonable grounds for issuing warrant - whether required to consider or determine complex legal issues - Baker v Campbell [1983] HCA 39 - search warrant validly issued
APPEAL - whether search warrant had been sought for an ulterior motive - proposition never put to the witness - Browne v Dunn (1893) 6 R 67 - no evidence supporting proposition - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 326(2)
Crimes Act 1900 (NSW), ss 311, 315, 315A, 326
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 5, ss 3, 46, 46A, 47, 48, 62
Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cll 4, 6
Cases Cited: Baker v Campbell [1983] HCA 39; 153 CLR 52
Browne v Dunn (1893) 6 R 67
George v Rockett [1990] HCA 26; 170 CLR 104
O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1
Polley v Johnson and Anor [2014] NSWSC 1191
Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328
R v Lansdell (NSWCCA, 22 May 1995, unreported)
R v Orcher [1999] NSWCCA 356; 48 NSWLR 273
Category: Principal judgment
Parties: Michelle Elizabeth Polley (Applicant)
Belinda Johnson (First Respondent)
Holly Wraith Smith (Second Respondent)
Representation:
Counsel:
P Skinner (Applicant)
M England (Respondents)
Solicitors:
Legal Aid NSW (Applicant)
NSW Crown Solicitors Office (Respondents)

File Number(s): 2015/48647
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

Polley v Johnson and Anor [2014] NSWSC 1191

Date of Decision:

29 August 2014

Before:

Bellew J

File Number(s):

2012/271413

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Simpson JA. I agree with her Honour’s reasons and with the orders she proposes.
McCOLL JA: I agree with Simpson JA’s reasons and the orders her Honour proposes.
SIMPSON JA: This is the concurrent hearing of an application for leave to appeal and, if leave is granted, an appeal against a decision of Bellew J in the Supreme Court of NSW.
By Summons filed on 27 August 2012, the applicant (Michelle Polley) sought a series of orders arising out of the issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Polley v Johnson

Details

AGLC: Polley v Johnson [2015] NSWCA 256
Case: [2015] NSWCA 256
Decision Date: 27 August 2015

CaseChat Overview and Summary

The appeal in *Polley v Johnson* concerned the validity of a search warrant issued under section 48 of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). The applicant, a police officer, sought the warrant to search for evidence relating to an alleged offence against section 326(2) of the *Crimes Act 1900* (NSW), which prohibits reprisals against judges, witnesses, or jurors. The central dispute revolved around whether the issuing officer had reasonable grounds to believe that the offence had been, or was reasonably suspected of being, committed, and whether this encompassed a judicial proceeding that was contemplated but not yet commenced.

The court was required to determine two primary legal issues. Firstly, whether the issuing officer properly exercised their discretion in concluding that there were reasonable grounds for issuing the search warrant, particularly in relation to the nominated offence and its connection to a judicial proceeding. Secondly, the court considered whether the search warrant had been sought for an ulterior motive, a proposition that had not been put to the relevant witness during the proceedings.

In addressing the first issue, the court affirmed that the role of an issuing officer is not to determine complex legal issues but to be satisfied that there are reasonable grounds for suspecting an offence has been committed. Applying the principles from *Baker v Campbell*, the court found that the issuing officer was entitled to consider a contemplated but not yet commenced judicial proceeding when assessing reasonable grounds. Regarding the second issue, the court noted that the proposition of an ulterior motive was not supported by evidence and had not been put to the witness, thus contravening the principle established in *Browne v Dunn*.

Consequently, leave to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

(1) Leave to appeal granted;

(2) Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Polley v Johnson [2015] NSWCA 256

Most Recent Citation

Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132

Cases Citing This Decision

Johnson v Commissioner of New South Wales Police [2025] NSWSC 21
Citation 1

…& Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 Parker v Churchill (1985) 9 FCR 316 Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 Polley v Johnson [2014] NSWSC 1191 Quartermaine v Netto (Federal Court of Australia, Toohey J, 14 December 1984, unrep) R v Cranston (No 3) [2020] NSWSC 1…
Hunter Community Environment Centre Inc v Browne [2024] NSWSC 1449
Citation 2 (Para 135)

…In Polley v Johnson [2015] NSWCA 256 Simpson J (with whom Beazley P and McColl JA agreed) stated similarly at [45]:…
Harland v Murphy [2022] NSWSC 1376
Citation 3

…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 Rand…
Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133
Citation 4

…ill [1986] FCA 88; (1986) 9 FCR 334 Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Puglisi v Australian Fisheries Management Authority [1997] FCA 84…
El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 332
Citation 5 (Para 221)

…al available to them, not all of which may ultimately be held to be admissible; such considerations were considered by Simpson JA in Polley v Johnson [2015] NSWCA 256; 253 A Crim R 521 at [44]-[51]. And the question is whether there is a suspicion that an offence has been committed, not whether the person might hav…
Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132
Citation 6

…Churchill (1986) 9 FCR 334 Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 Polley v Johnson [2015] NSWCA 256 Propend Finance Pty Ltd v Commissioner Australian Federal Police (1994) 35 ALD 25 Puglisi v Australian Fisheries Management Authority [1997] FCA 846 Shaaban bin Hussien v Chong Fook Kam [19…
Michael Kevin Dumon v State of NSW; Amanda Matthews v State of NSW; Remia Dumon v State of NSW; Mikayla Dumon v State of NSW; Iziah Dumon v State of NSW; Savannah Dumon v State of NSW [2016] NSWDC 159
Citation 7

…missioner for Railways (NSW) (1964) 112 CLR 125 McMaster [2015] NSWCA 228 NSW v Tyszyk [2008] NSWCA 107 Ousley v R (1997) 192 CLR 69 Polley v Johnson [2015] NSWCA 256 R (Cth) v Baladjam and Ors [No 28] [2008] NSWSC 1449 Radaich v Smith & Anor (1959) 101 CLR 209 Category: Procedural and other rulings Parties: Michae…
High Court Bulletin [2016] HCAB 2
Citation 8

…FCAFC 138 Application dismissed with costs [2016] HCATrans 52 6. Polley Johnson & Anor (S227/2015) Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 256 Application dismissed [2016] HCATrans 51 7. Miller Uniting Church in Australia Property Trust (NSW) & Anor (S235/2015) Supreme Court of New South Wal…

See all citing cases →

Cases Cited

R v Orcher [2016] NSWSC 627
Citation 1 (Para 31)

…ing to influence witnesses or jurors in judicial proceedings. The applicant relied upon another decision of that Court, R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, concerning s 326(1), which relevantly created an offence of threatening injury or detriment to a public justice official in connection with any judi…
Polley v Johnson [2014] NSWSC 1191
Citation 2 (Para 4)

…ement (Powers and Responsibilities) Act 2002 (NSW) (“the LEPR Act”). On 29 August 2014, Bellew J dismissed the Summons: Polley v Johnson and Anor [2014] NSWSC 1191.…
R v Orcher [1999] NSWCCA 356
Citation 3 (Para 31)

…s an offence of acting to influence witnesses or jurors in judicial proceedings. The applicant relied upon another decision of that Court, R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, concerning s 326(1), which relevantly created an offence of threatening injury or detriment to a public justice official in connection…
George v Rockett [1990] HCA 26
Citation 4 (Para 45)

…tigative stages of the criminal process, and relied upon, often, to produce the very evidence that will provide that foundation: see George v Rockett [1990] HCA 26; 170 CLR 104.…
Baker v Campbell [1983] HCA 39
Citation 5 (Para 44)

…igible issuing officer is acting administratively, or ministerially, although the discretion to do so is to be exercised judicially: Baker v Campbell [1983] HCA 39; 153 CLR 52 at p 70, per Gibbs CJ (noting that his Honour was in dissent as to the principal issue in that proceeding). It is not the role of the eli…
O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47
Citation 6 (Para 48)

…ssues to individuals exercising administrative functions: Baker v Campbell , at p 75-76; O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 at 26. A similar approach was taken by Brennan J (as he then was) in relation to s 155(1) of the Trade Practices Act 1974 (Cth), which requi…
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9
Citation 7 (Para 48)

…n supplying the information to the risk of penalty: Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 at 355. Yet that is the very nature of the exercise, it was implicit in the applicant’s argument, upon which Ms Smith ought to have embark…
Browne v Dunn 113 ER 1206
Citation 8 (Para 34)

…ation had never (in lengthy cross-examination) been squarely put to Constable Johnson, and ought to be (and was) rejected on the principles stated in Browne v Dunn (1893) 6 R 67.…

Legislation Cited

Crimes Act 1900 (ACT) 311, 315, 315A, 326, 326(2)
6 mentions (from Para 5)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 48
2 mentions (from Para 4)
Trade Practices Act 1974 (Cth)
1 mention (from Para 48)

Medium Neutral Citation:	Polley v Johnson [2015] NSWCA 256
Hearing dates:	24 July 2015
Decision date:	27 August 2015
Before:	Beazley P at [1]; McColl JA at [2]; Simpson JA at [3]
Decision:	(1) Leave to appeal granted; (2) Appeal dismissed.
Catchwords:	APPEAL - search warrant - Law Enforcement (Powers and Responsibilities) Act 2002, s 48 - whether validly issued - whether issuing officer had reasonable grounds for issuing warrant - searchable offence nominated by applicant police officer - offence against Crimes Act 1900, s 326(2) - reprisals against judges, witnesses, jurors - connection with any judicial proceeding - whether judicial proceeding encompasses judicial proceeding contemplated but not commenced - role of issuing officer in deciding whether reasonable grounds for issuing warrant - whether required to consider or determine complex legal issues - Baker v Campbell [1983] HCA 39 - search warrant validly issued APPEAL - whether search warrant had been sought for an ulterior motive - proposition never put to the witness - Browne v Dunn (1893) 6 R 67 - no evidence supporting proposition - leave to appeal granted - appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 326(2) Crimes Act 1900 (NSW), ss 311, 315, 315A, 326 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 5, ss 3, 46, 46A, 47, 48, 62 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cll 4, 6
Cases Cited:	Baker v Campbell [1983] HCA 39; 153 CLR 52 Browne v Dunn (1893) 6 R 67 George v Rockett [1990] HCA 26; 170 CLR 104 O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 Polley v Johnson and Anor [2014] NSWSC 1191 Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 R v Lansdell (NSWCCA, 22 May 1995, unreported) R v Orcher [1999] NSWCCA 356; 48 NSWLR 273
Category:	Principal judgment
Parties:	Michelle Elizabeth Polley (Applicant) Belinda Johnson (First Respondent) Holly Wraith Smith (Second Respondent)
Representation:	Counsel: P Skinner (Applicant) M England (Respondents) Solicitors: Legal Aid NSW (Applicant) NSW Crown Solicitors Office (Respondents)
File Number(s):	2015/48647
Decision under appeal	Court or tribunal: Supreme Court Citation: Polley v Johnson and Anor [2014] NSWSC 1191 Date of Decision: 29 August 2014 Before: Bellew J File Number(s): 2012/271413