Doyle v Commissioner of Police (No 3)

1. [1]

   LEEMING JA: In New South Wales, contrary to submissions repeatedly made on behalf of either or both appellants, there is no automatic entitlement to the return of things seized pursuant to a search warrant which is later found to be invalid. Any other position would be inconsistent with Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, and is confirmed by s 138 of the Evidence Act 1995 (NSW). That section expresses in the widest terms the policy discretion developed by the common law: R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [68]. The explicit assumption is that unlawfully obtained evidence may, subject to discretion, be tendered at a trial.

2. [2]

   A person in New South Wales whose thing is taken without lawful authority has rights at common law and equity as well as under any applicable statute. In such a case, the primary remedy will be injunctive: seeking to prevent the use or dissemination of the thing, and requiring its return or destruction. It is clear that such an injunction is discretionary. Relevant to the discretion will be the circumstances in which the absence of lawful authority came about – did the police officers act in wilful disregard of the law, or with reckless indifference to their obligations, or alternatively did they execute a warrant which was valid on its face in good faith, only to be confronted many months later with an appellate decision holding that the warrant was invalid (the present litigation arises out of facts much closer to the latter than the former).

3. [3]

   Even if there could be doubt about the discretionary, as opposed to automatic, entitlement to injunctive relief in a case such as the present, authority is now clear. In Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 94 ALJR 502, all members of the High Court held that the search warrant executed upon Ms Smethurst was invalid, all held that such relief as she might have was discretionary, and a majority declined to order any relief for the return of information copied from her mobile phone.

4. [4]

   None of this is to detract from the basal proposition that people, especially police officers upon whom is conferred power to trench upon people’s liberty and property, must obey the law. Failing to obey the law will have consequences. In the case of things seized pursuant to a warrant which turns out to be invalid, a variety of remedies may be available, including injunctive relief in equity.

Procedural background

1. [5]

   The dispute has now been confined to the laptop and the image of its hard drive, and it is accepted by both sides that because it was acquired after Mr Doyle commenced serving his sentence of imprisonment, such property rights as may be asserted in relation to it are those of its owner Mr Barbeliuk. Procedurally, what is occurring is the working out of relief consequent upon allowing an appeal brought by Messrs Doyle and Barbeliuk, but the outstanding issue only concerns Mr Barbeliuk. Consistently with this, the further appeal which is contemplated, and on which the present application for a stay is based, is confined to one brought by Mr Barbeliuk. Although Mr Doyle remains the first appellant in the proceeding, in substance the only moving party is the second appellant Mr Barbeliuk.

2. [6]

   In Doyle v Commissioner of Police [2020] NSWCA 11, the Court of Appeal constituted by Payne JA, Simpson AJA and me allowed an appeal and declared that the search warrant executed on premises owned by Mr Doyle and occupied by Mr Barbeliuk was invalid. However, this Court also rejected the appellants’ submission that the things seized should be returned to them, either as of right, or by exercise of this Court’s discretion but without permitting the Commissioner to inspect what had been seized by reason of ex parte injunctive relief obtained long ago by the appellants which had thereafter been continued. This was plain from what was said at [82]-[84]:

3. [7]

   The judgment concluded at [93]:

4. [8]

   The primary judge had considered the warrant valid, but that one item (item 25) had been taken outside its scope, and had declined to grant injunctive relief: at [164], [167], [176]-[177]. Because the Court of Appeal took the view that the warrant was invalid, it was necessary to exercise the discretion in relation to all that had been seized (and to re-exercise the discretion in respect of item 25). However, because of relief obtained by Mr Doyle and thereafter continued, the respondent had not had access to the material seized. Thus it was that the Court made the following order:

5. [9]

   I interpolate that the Court’s orders bind the parties. The Commissioner is bound by the declaration that the warrant is invalid, and cannot save in very special circumstances reagitate the matters determined by the Court of Appeal. So too, Mr Barbeliuk is bound by the orders explicitly premised upon there being an exercise of discretion concerning the return of the things seized.

6. [10]

   The orders made by the Court of Appeal on 14 February 2020 envisaged nominated representatives of the Commissioner giving undertakings, inspecting the documents, and there being a hearing before a single Judge of Appeal. In light of an impending trial, it had been contemplated that all of that would occur by the end of February. However, none of that has as yet occurred.

7. [11]

   In circumstances described by me in Doyle v Commissioner of Police (No 2) [2020] NSWCA 34 at [15]-[20], on 18 February 2020 senior counsel then appearing for the appellants contended that he was at liberty to contend that the police not be given access to the laptop computer. I set down that hearing on 25 February 2020.

8. [12]

   On the question of the nature of the appellants’ claimed entitlement to the return of the laptop, there was the following exchange:

9. [13]

   I rejected the application. I did so for two independent reasons.

10. [14]

    First, I was of the view that it was not open to the appellants to reargue this issue. I said at [54]:

11. [15]

    I explained that that was because of the orders made on 14 February 2020, which had determined that issue, and that if there were any doubt about that, it was confirmed by the Court’s reasons.

12. [16]

    Secondly, I regarded the submission as wrong in principle. The Commissioner is entitled to be heard against the equitable relief sought by the appellants for the return of Mr Barbeliuk’s computer and the destruction of the image. As it happens, by reason of orders obtained ex parte and subsequently continued by consent, the police have not as yet had access to the computer, save for a three day period after it was seized. I did not accept that the hearing should take place in circumstances where the police were precluded from inspecting the contents of the computer.

13. [17]

    I said at [73]-[76]:

14. [18]

    Further to the above, I noted, but did not rely upon, the evidence adduced by the police, in particular the unchallenged evidence of Detective Sergeant Karras that he believed that the computer is likely to contain child abuse material. I also noted that:

15. [19]

    I made the following orders which were in part derived from the form of orders to which the parties had consented in relation to other items seized:

16. [20]

    On 11 March 2020, the orders permitting representatives of the Commissioner to access the laptop upon giving a undertaking were stayed until the determination of a special leave application which was then proposed, and which eventuated (albeit not within time). Special leave, and the requisite extensions of time, was sought from the judgments delivered on 14 February and 5 March 2020. The application was refused on 9 September 2020: Barbeliuk v NSW Commissioner of Police & Ors [2020] HCASL 187. The reasons of Bell and Nettle JJ stated:

17. [21]

    It followed that the 7 day stay of order 1 effected by order 4 was extended until 9 September 2020, but thereafter ceased to be in force. On 10 September 2020, the access regime made on 5 March 2020 ceased to be the subject of a stay.

18. [22]

    The matter returned before me for directions on 22 September 2020. The parties had supplied proposed short minutes of order the previous day. Those of the Commissioner proffered certain undertakings, which were substantially identical to those proffered six months earlier, confining the use of any material recovered from the laptop to the application in the present proceedings for the return of the laptop and destruction of the image. Those from Mr Barbeliuk contemplated an application for leave to appeal from the orders made by me on 5 March 2020, and a further stay.

19. [23]

    It was confirmed at the commencement of the hearing that the only substantive issue was whether there should be a stay pending an as yet inchoate application for leave to appeal.

Oral submissions

1. [24]

   It is convenient to reproduce the entirety of what was said in support of the stay:

2. [25]

   I raised two further matters with Mr Stitt: the fact, as it seemed to me, that his submission was inconsistent with what had been held in Smethurst, and that the submission being made had been made before. Concerning the latter, I said:

3. [26]

   Although originally content to proceed on the basis of an intention to seek leave to appeal, Mr Stitt accepted my invitation to support his application by the summons seeking leave to appeal, draft notice of appeal and summary of argument in support. The orders I made permitted Mr Stitt to be heard as to Smethurst, a decision which he was unable to address at the hearing.

4. [27]

   Mr Singleton, who appeared for the Commissioner as he had in February, opposed the latest application for a stay, stating that the matter had already been considered by the Court of Appeal, from whose orders special leave to appeal had been refused. He continued:

5. [28]

   Both sides confirmed that although Mr Doyle’s second trial was to commence imminently, the outcome of the present dispute was not anticipated to impinge upon it. That seems correct so far as I can see.

Written submissions

1. [29]

   In accordance with directions made on 22 September, I received written submissions on 23, 24 and 25 September.

2. [30]

   The draft documents for bringing an application for leave to appeal were supplied on 23 September 2020. I do not think it is necessary to summarise them at any length, save to say that the summary of argument stated that I erred “in the exercise of [my] discretion in making an order giving the legal representatives of the first respondent access to item 24 in the circumstances that pertained at that time” and to note that the summary of argument (with respect correctly) identifies that there were two reasons for making the order, namely, that I considered (a) that it was a consequence of the decision on 14 February, and (b) that it was correct in principle (paragraph 16).

3. [31]

   The Commissioner was highly critical of Mr Barbeliuk’s application. He regarded Mr Barbeliuk’s prospects of success as “remarkably poor”, including because the appeal was from a discretionary interlocutory decision, and “the proposed appeal in substance [contended] that a decision already made by the Court of Appeal in the same case is wrong”. The submission continued that the summary of argument “presses the proposition that the laptop should be returned without any inspection by or on behalf of the police – a proposition that has been rejected by the Court of Appeal already, and regarding which the High Court has declined to intervene”.

4. [32]

   The Commissioner accepted that a refusal to grant a stay would have the effect of irreversibly permitting the Commissioner’s lawyers to inspect the laptop’s contents, which would infringe Mr Barbeliuk’s privacy. But the Commissioner emphasised that the infringement would be subject to strict confidentiality, and was outweighed by the legitimate interest in progressing the case. The submission continued:

5. [33]

   In his submissions in reply, Mr Barbeliuk maintained that Smethurst, far from standing in the way of acceptance of his submissions, should be regarded as warranting the matter being considered afresh. It was also submitted that Smethurst was distinguishable, on the basis that the High Court did not consider the position where the articles seized were not required for any prospective criminal trial. Reliance was placed on the judgments of Gageler, Gordon and Edelman JJ, who were minded to grant limited injunctive relief. It was said that:

Disposition

1. [34]

   I reject Mr Barbeliuk’s application for a further stay, pending his application for leave to appeal from the 5 March 2020 orders of the Court of Appeal constituted by me.

2. [35]

   First, Mr Barbeliuk remains bound by the orders made on 14 February 2020. The position is no different from that which obtained in Doyle v Commissioner of Police (No 2). The submission now advanced by Mr Barbeliuk, represented by different solicitors and counsel, was determined by the Court of Appeal by its decision on 14 February 2020. I do not accept that it is open to him to make this application.

3. [36]

   In substance, this latest application is a third attempt to relitigate the same issue. The submissions made by senior counsel newly briefed for Mr Barbeliuk are in substance identical to those made by Mr Agius reproduced in [82]-[84] of the first Doyle decision, which were reiterated before me in the second Doyle decision. The entitlement of the police to access to the laptop, for the limited purpose of a hearing as to whether the appellants should obtain injunctive relief, was determined by the Court of Appeal in its first judgment. It is explicit in order 5 made on 14 February 2020, from which the High Court has refused special leave to appeal.

4. [37]

   Attempting to re-litigate a matter that has already been determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [33] (to be clear, I do not in this judgment find, nor have I been asked to find, that there has been an abuse of process).

5. [38]

   Secondly, I continue to regard it to be correct as a matter of principle that such relief as Mr Barbeliuk may be entitled in equity is discretionary, for the reasons I gave on the last occasion.

6. [39]

   In short, even though the warrant has now been found to be invalid, Mr Barbeliuk is not entitled to the injunctive relief he seeks automatically. Instead, there is a discretion which falls to be exercised. The Commissioner is entitled to be heard as to the exercise of that discretion. The Commissioner is entitled to adduce evidence to that end. He has done so, including opinion evidence – presently uncontroverted – that the laptop computer is likely to contain child abuse material. There are difficulties with that evidence, but it is supported by the fact that the laptop was found in the same place (quite possibly, Mr Barbeliuk’s bedroom) as USB sticks which did in fact contain child abuse material. The only reason to date he has been unable to obtain access to the image of Mr Barbeliuk’s computer in his possession is the continuation of ex parte relief obtained initially by Mr Doyle, and continued thereafter. I do not accept that the substance of the Commissioner’s right to be heard as to the exercise of discretionary relief sought by Mr Barbeliuk is to be predetermined by the fact that Mr Doyle obtained such relief.

7. [40]

   Thirdly, the appellants’ submission is irreconcilable with what has more recently been held by the High Court in Smethurst. All members of the High Court acknowledged that Ms Smethurst was not entitled as of right to the recovery of a copy of data taken from her phone pursuant to an invalid warrant. A majority of the High Court held that Ms Smethurst was not entitled to any injunctive relief at all. Even the minority considered that such injunctive relief as might issue should be tailored so as to enable a further warrant to be executed upon her mobile phone.

8. [41]

   With respect to Mr Barbeliuk’s submissions to the contrary, neither the reasoning nor the outcome in Smethurst warrants reconsideration of any of the existing decisions. To the contrary, it confirms their correctness.

9. [42]

   Fourthly, in substance the application is for a stay pending an (anticipated) application for leave to appeal. (Actually, it is for a substantial extension of time to seek leave to bring an appeal, but I put that to one side.) The ordinary principles in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5 apply. The onus lies on Mr Barbeliuk to make out a case why it is just to deny the Commissioner the entitlement to examine the contents of the laptop in advance of any hearing of his application for injunctive relief. He has in my view conspicuously failed to do so. Invidious though it is to review the prospects of success from my own order, I think the prospects are very weak, particularly because I regarded the matter as determined by what had already been decided. In terms of the balance of convenience, it overwhelmingly favours access. What will occur is that there will be limited inspection confined to persons who have given an undertaking to the Court to use the material only for the purposes of the application for injunctive relief. It may be that following a hearing for injunctive relief, Mr Barbeliuk obtains the orders he seeks. Alternatively, it may be that the police are permitted to retain all or part of the material copied by them. Either or both sides will have a right to have the orders reconsidered by the Court of Appeal constituted by three Judges of Appeal (as was mentioned by the High Court in refusing special leave). No answer has been given to the case advanced by the Commissioner, based on the uncontested evidence of child abuse material found near the laptop and Det Sgt Karras’ belief that it is likely that there is child abuse material on the laptop.

Conclusion

1. [43]

   Order 1 made on 5 March 2020 confirmed the entitlement of counsel and solicitors for the Commissioner who had given an undertaking. There is no dispute concerning the sufficiency of the undertakings proffered by the Commissioner. They extend to officers in the Digital Forensics Unit of the NSW Police, and that is appropriate. It follows that the limited stay of order 1 effected by order 4 made on 5 March 2020, and extended pending the determination of the application for special leave, has expired.

2. [44]

   What should happen now is that persons who have given the undertaking to the Court and provided copies of it to the appellants may examine the laptop, solely for the purpose of determining whether to adduce evidence in support of an application to oppose injunctive relief being granted to the appellants. It is not presently clear how long that will take. In the first instance, I will relist the matter for directions in three weeks’ time, with a view on that occasion to making any further timetabling orders and setting down the remaining issues for hearing.

3. [45]

   It may be that I am wrong about the effect of this Court’s decision and orders of 14 February 2020, and about the question of principle, and about Smethurst being contrary to the application being made. In circumstances where there is no longer any suggestion of urgency, I shall continue the operation of the stay until 7 days from today. The effect will be that after 5pm next Wednesday 7 October 2020 legal practitioners and officers from the Digital Forensics Unit who have provided a copy of an undertaking to the Court in the terms mentioned above may access Mr Barbeliuk’s computer, for the limited purposes of that undertaking. They may not use anything they obtain for any other purpose.

4. [46]

   In light of Mr Doyle’s second trial, this judgment will not immediately be made available on Caselaw.

5. [47]

   I make these orders:

   1. (1)

      Note that for the purposes of order 1 made on 5 March 2020 entitling access to persons who have given an appropriate undertaking to inspect item 24, the undertakings contained in the short minutes of order provided on 21 September 2020 are appropriate.

   2. (2)

      Continue the stay of order 1 made by order 4 of 5 March 2020 until 5 pm on Wednesday 7 October 2020.

   3. (3)

      List the proceedings for directions before me at 9.30am on 21 October 2020.

   4. (4)

      Reserve the question of costs.