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Providing False or Misleading Information in an Application for a Digital Evidence Access Warrant

Providing false or misleading information in an application for a digital evidence access order is an offence under section 76AG 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 applied for a digital evidence access order,
  2. You did so to an eligible issuing officer,
  3. The information you gave in the application was false or misleading in a material particular, and
  4. You knew the information was false or misleading in the material particular.

A digital evidence access order empowers an officer to whom it is granted to direct a specified person to give the officer any information or assistance that is reasonable and necessary to:

1. Enable the officer to access data held in or accessible from a computer specified in, or within the scope of, the order, or

2. Allow the officer to:

(i) copy data from a computer specified in, or within the scope of, the order to another computer, or

(ii) convert the data into a documentary form or another form intelligible to a computer used by the officer.

The order allows the officer to require the specified person to provide reasonable and necessary assistance in accessing data on a computer that is secured by biometric means, including fingerprints or retina scans.

An ‘eligible issuing officer’ for the purposes of a digital evidence access order is an ‘eligible judge’.

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

The offence applies whether or not the information was verified on oath or affirmation.

The information accessed by way of a digital evidence access order may only be for the purpose of the order, and no other purpose.

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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