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Giving False or Misleading Information in a Search Warrant Report or About an Occupier’s Notice

Giving false or misleading information in connection with a report or occupier’s notice that relates to a search warrant is an offence under section 63(1A) of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You gave information to an eligible issuing officer,
  2. Your information was in or in connection with a report or occupier’s notice relating to a search warrant,
  3. Your information was false or misleading in a material particular, and
  4. You knew the information was false or misleading in the material particular.

An ‘eligible issuing officer’ is:

  1. An eligible judge for a covert or criminal organisation search warrant, or
  2. An authorised officer for any other search warrant.

An ‘eligible judge’ is a Justice of the Supreme Court of New South Wales or another judge nominated by the Attorney General.

An ‘authorised officer’ is a registrar of the Local Court, magistrate of the Local or Children’s Court or employee of the Attorney General’s Department authorised by the Attorney General to act in that capacity.

Sections 74 and 75 of the Act set out the requirements that relate to reports to eligible issuing officers regarding the execution of search warrants.

Section 74 requires a person to whom a search warrant other than a covert search warrant is granted to furnish a written report to the granting eligible officer within 10 days after the execution or expiry of the warrant, whichever occurs first:

  1. Stating whether or not the warrant was executed, 
  2. If it was executed, briefly setting out the result of the execution, including a brief description of anything seized,
  3. If it was not executed, briefly setting out the reasons why,
  4. Stating whether or not an occupier’s notice was served, giving a brief description of any digital evidence access order executed, and containing a copy of any telephone warrant obtained, 
  5. Containing the occupier’s notice if the document was not provided to the occupier, and
  6. Containing any other particulars that may be prescribed by the regulations.

Section 75 requires a person to whom a covert search warrant is granted to furnish a written report to the granting eligible officer within 10 days after the execution or expiry of the warrant, whichever occurs first:

  1. Stating the address or other description of the subject premises,
  2. Stating whether or not the warrant was executed, and
  3. If it was executed:
  1. Stating the date on which this occurred,
  2. Stating the name or code-name of the person in charge when it was executed,
  3. Stating the name or code-name of any person who executed it as well as the nature of the person’s involvement,
  4. Stating the powers that were exercised, and
  5. Briefly setting out the result of the operation, including a brief description of anything seized, substituted or examined, and any data accessed.

The offence of giving false or misleading information in connection with a report or occupier’s notice applies whether or not the information was verified on oath or affirmation, and extends to applications in person as well as over the phone or by way of other electronic link.

General legal defences to the offence include duress, necessity and self-defence.

If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.

You are entitled to an acquittal if the prosecution is unable to do this.

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