Providing False or Misleading Information in an Application for a Search Warrant

Providing false or misleading information in an application for a search warrant is an offence under section 63 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 search warrant,
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.

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.

The offence 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.