Polley v Johnson

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.