Johnson v Commissioner of New South Wales Police

1. [1]

   The plaintiff is a solicitor specialising in criminal law. As with many practitioners, he relies heavily on his mobile telephone which he uses for both personal and professional purposes. The plaintiff’s mobile telephone contains a large number of electronic documents and emails relating to his clients, many of whom have been charged with criminal offences.

2. [2]

   On 25 August 2023, police seized the plaintiff’s mobile telephone under a search warrant issued pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) (“the first warrant”). It was seized in relation to a shooting investigation and the plaintiff was informed by police that he was not a suspect. The plaintiff agreed to supply the password for his telephone to police once he was assured by them that the relevant New South Wales Law Society protocol (“the protocol”) would be implemented to protect his numerous clients’ legal professional privilege (“the privilege”). Once that arrangement was in place, police met with the plaintiff, and reviewed the data that was downloaded on to an external drive. Whilst tentative arrangements were made for the return of his phone, it remained in the custody of Bankstown Police Station.

3. [3]

   On 1 October 2023, Senior Constable Bradley Goodhart (the second defendant) made an application to an eligible issuing officer, Buddy Semrany, (the third defendant) for a search warrant authorising the search and seizure of the applicant’s mobile telephone, and the device which contained the data extracted from it, from where it remained at Bankstown Police Station (“the second warrant”). The phone was seized and has remained in the possession of the Criminal Groups Squad within New South Wales Police. For reasons I will explain below, discussions to implement the same protocol as was adopted following the first warrant broke down which led to the plaintiff commencing these proceedings on 15 November 2023. The contents of the plaintiff’s telephone remained unexamined.

4. [4]

   The plaintiff brings these proceedings in this Court’s supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW). He seeks a declaration that the second warrant is invalid, an order in the nature of certiorari that the decision to issue the search warrant be quashed and an order that his mobile telephone and any storage device containing any duplication of the plaintiff’s data be returned to him. All orders sought are opposed.

5. [5]

   The plaintiff was represented at the hearing by Dr G D Woods KC with Mr T Woods of counsel. Mr D Hume of counsel appeared for both the first defendant, the New South Wales Commissioner of Police, and the second defendant. The third defendant filed a submitting appearance save as for costs.

6. [6]

   During the hearing, I made orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Court Suppression Act”) in relation to the plaintiff’s identity. That order was not opposed. The plaintiff will be referred to by the pseudonym of “Eric Johnson” for the purposes of this judgment.

7. [7]

   Section 7 of the Court Suppression Act provides that a court may, by making such order on grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information that comprises, inter alia, “information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court…”. The grounds upon which such an order may be made are set out in s 8(1) and include that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)), that the order is necessary to protect the safety of any person (s 8(1)(c)), and that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice (s 8(1)(e)). Each of the grounds set out in s 8 of the Court Suppression Act imports a test of “necessity”.

8. [8]

   Having heard evidence from the plaintiff in closed court as to the nature of both his practice and the material contained in the data in his telephone, I was satisfied that it was necessary to order that there be no publication of the plaintiff’s name. In doing so, I was satisfied that an appropriate balance was struck between the need to protect his safety and principles of open justice.

9. [9]

   Accordingly, I ordered that that there be no publication of the name of the plaintiff in these proceedings, or any other material that could otherwise identify him until 31 December 2060 or until further order of the Court.

Grounds of review

1. [10]

   In the further amended summons filed on 28 March 2024 the plaintiff seeks that the second warrant be declared invalid on the basis that the third defendant did not have reasonable grounds to issue it. Three sub-grounds are relied upon in support of that claim. They are that:

   1. (1)

      There can be discerned no sufficient connection between the things sought on the warrant and the searchable offences described on the warrant including because:

   2. (2)

      The third defendant must have known that the things sought would include documents which would be privileged from disclosure or production in the course of legal proceedings and could not thereby constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA.

   3. (3)

      In the alternative, the third defendant was misled as to the fact that the things sought would include documents which would be privileged from disclosure or production in the course of legal proceedings and could not thereby constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA.

2. [11]

   During the hearing, the scope of the argument under sub-ground 1 was broadened so as to include the contention that the second warrant is invalid on its face for being too general. The Commissioner did not suggest any prejudice nor need to amend the summons to reflect that shift in argument.

3. [12]

   As for the second and third sub-grounds, in their terms they rely upon the Court having access to the application for the second warrant and the authorised officer’s record for granting it. To that end, by notice of motion filed on 2 February 2024, the plaintiff sought access to these documents. That motion was listed for hearing at the same time as the hearing of the further amended summons. For reasons I will explain below, the hearing pressed on without access to the documents sought. Although it was accepted that it is difficult to establish sub-grounds 2 and 3 without examining the relevant application and reasons, the plaintiff maintained that I could infer the facts alleged in sub-grounds 2 and 3 from the available material, including the warrant itself, even without knowing what was put before the third defendant nor the basis for issuing the second warrant.

4. [13]

   The Commissioner’s position was that the plaintiff has not established any jurisdictional error as a basis for the relief sought. Further, even if jurisdictional error was established, the order seeking the return of the applicant’s phone and the data, should not be granted, having regard to the principles derived from Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14 (“Smethurst”).

The evidence

1. [14]

   At the hearing, the plaintiff relied on two affidavits. The affidavit of Michael Ayache (the plaintiff’s solicitor) sworn on 15 November 2023, which included a number of annexures, and the plaintiff’s affidavit sworn on 19 July 2024 which also included a number of annexures. Many of the annexures concerned the communications with police about the return of the plaintiff’s phone prior to the execution of the second warrant.

2. [15]

   Although objections to portions of the affidavits were made on the basis of relevance, it was accepted that some of the conduct of police could be relevant to the exercise of the discretion whether to grant the relief sought. On that basis, the Commissioner did not object to them being read subject to relevance in respect of the pleaded case.

3. [16]

   The background material below has been taken from those affidavits.

Background

1. [17]

   I have already set out a brief summary above. Some further relevant factual background is as follows.

2. [18]

   The first warrant authorised police to enter the plaintiff’s residential premises (which were identified by address and description) and search those premises:

3. [19]

   The pro forma search warrant document (Form 11) had an explanatory note by way of footnote “(1)” after the word “things” which read: “List and describe the things to be searched for with particularity. If space is insufficient continue overleaf or attach a separate sheet”. The pro forma form also had an explanatory note by way of footnote “(2)” after the words “searchable offence(s)” which read: “Specify relevant offences”.

4. [20]

   A Digital Evidence Access Order (“DEAO”) was also issued at that time which required the plaintiff to provide access to his mobile telephone by providing his password.

5. [21]

   When the plaintiff handed over his mobile telephone to Detective Michael Hohnen, who executed the first warrant, he told him that he did not wish to provide him with the password until he could obtain instructions in relation to making a claim for privilege over applicable, but necessarily unidentified, data on the device.

6. [22]

   In correspondence on 25 and 26 August 2023, the plaintiff’s solicitor and representatives of the Commissioner of Police agreed on a protocol for the handling of the plaintiff’s phone. At all times, the plaintiff’s solicitor maintained that the plaintiff intended to co-operate with police and that the withholding of the password was merely pending clarification that the detectives would follow a process of handling the phone consistent with the protocol.

7. [23]

   By 3:19pm on 26 August 2023, the parties had reached agreement on the appropriate protocol save for two issues, which were to be worked out at a later date. In accordance with that agreement, the plaintiff attended Granville Police station that day with an external hard-drive and provided the password to his mobile phone to the police.

8. [24]

   The plaintiff subsequently liaised with Detective Hohnen, both directly and through his solicitor, on 27 and 28 August 2023 to confirm whether, in accordance with the protocol, the review scheduled to commence on 29 August 2023 would take place. At 4:23pm on 28 August 2023, the plaintiff was informed by Detective Hohnen that the review would need to be postponed.

9. [25]

   On 30 August 2023, at 7:38am, Detective Hohnen informed the plaintiff that the download of the device was complete, and they discussed possible dates to conduct the review. On 4 September 2023, at approximately 7:00am, the plaintiff attended Bankstown Police Station and met with Detective Nathan Blake from the Robbery and Serious Crimes Squad for the prearranged review of the data download. This process was completed that day and took approximately 12 hours.

10. [26]

    On 7 September 2023, the plaintiff sought the return of his mobile phone and of the copies made of the data from the phone by Detective Blake. The first defendant did not comply with this request.

11. [27]

    Subsequently the Criminal Group Squad made an application for the second warrant directed to, inter alia, the plaintiff’s phone and data.

12. [28]

    On 1 November 2023, the third Defendant issued the second warrant. It authorised police to enter Bankstown Police Station at 2 Meredith Street, Bankstown NSW 2200 and search those premises:

13. [29]

    The warrant expired at 2:20pm on 4 November 2023. No evidence was before the Court as to when it was in fact executed.

14. [30]

    The material before the Court suggests that the plaintiff did not become aware of the execution of the second warrant until 9 November 2023 when he was served with a second DEAO, which had been issued on 7 November 2023. Upon serving the plaintiff with the second DEAO, police demanded he provide his password to the telephone to them. When he indicated that he would do so but not until the protocol was implemented, as occurred in relation to the first warrant, he was issued with a Court Attendance Notice for failing to comply with the second DEAO. During that time, the plaintiff telephoned his solicitor who spoke with police and asked for the name of their solicitor so he could liaise with them regarding implementation of the protocol, but police refused to provide it.

15. [31]

    Later that morning, the plaintiff’s solicitor contacted the Criminal Groups Squad to communicate the plaintiff’s position in respect of the second DEAO and implementation of the protocol. He requested an undertaking from police not to take any steps to access any data until they either determined the scope of what they were seeking so that the plaintiff could identify and contact affected clients, or until proceedings to determine the question of privilege could be finalised. The appropriate procedure was discussed during a phone call between the plaintiff’s solicitor and the solicitor for the police (the Commissioner’s solicitor) and a request was made that the plaintiff be provided with a copy of the second warrant (which had not been provided to the plaintiff when he was served with the second DEAO).

16. [32]

    On 10 November 2023, the Commissioner’s solicitor confirmed via email the process to be undertaken regarding the plaintiff’s phone and Cellebrite downloads, which replicated the protocol undertaken in respect of the first warrant. A further request was made for the plaintiff’s password at that time. A further request was also made by the plaintiff for a copy of the second warrant and it was provided to the plaintiff on 11 November 2023. The plaintiff’s solicitor immediately raised concerns as to the general nature of the warrant.

17. [33]

    At 6:10pm on 13 November 2023, the Commissioner’s solicitor wrote to the plaintiff’s solicitor (by email) advising that if he did not provide his password, police would proceed to review the material in his absence and have any privilege claims determined at a later date. In that letter, the Commissioner’s solicitor stated, inter alia, that:

18. [34]

    The following morning, at 8:44am on 14 November 2023, the plaintiff’s solicitor wrote to the Commissioner’s solicitor and noted the short time frame suggested by the Commissioner. He emphasised that at all times the plaintiff had indicated that he wished to co-operate and would do so once a protocol was agreed on. The Commissioner was informed that given its refusal to narrow the scope of the search he had instructions to have the warrant set aside on the basis that it:

19. [35]

    That same day, the Commissioner’s solicitor informed the plaintiff that if he did not provide his password by 10:00am on 15 November 2023, police would begin the search in his absence.

20. [36]

    Following receipt of this letter, the plaintiff instructed his solicitor to file the summons commencing these proceedings.

21. [37]

    During the hearing, counsel confirmed that the data in the plaintiff’s telephone remains unexamined.

Part 5 of LEPRA

1. [38]

   The key provisions of LEPRA relating to the application for and issuing of a search warrant are in Pt 5 Div 2. Part 5 is entitled “Search and seizure powers with warrant or other authority” and Div 2 is entitled “Police and other law enforcement officers’ powers relating to warrants”. Section 47(1) is in these terms:

2. [39]

   Section 46 defines “eligible issuing officer” as follows:

3. [40]

   An application for a search warrant such as that the subject of these proceedings can be made to an “authorised officer” which is defined in s 3 of LEPRA as a Magistrate or a Children’s Magistrate, a registrar of the Local Court, or an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office. Otherwise, a covert search warrant or a criminal organisation search warrant can only be made to an “eligible judge” which is defined in s 46B as a judge of the Supreme Court who is declared to be an eligible judge by the Attorney General.

4. [41]

   The term “searchable offence” is defined in s 46A(1)(a)(i) as, relevantly, an indictable offence.

5. [42]

   The requirement for “reasonable grounds” is found in both s 47(1) of LEPRA as to the police officer’s state of belief (see above at [38]) and also in s 48(1) of LEPRA as to the issuing officer’s relevant satisfaction:

6. [43]

   In support of his application that the second warrant be declared invalid, the plaintiff submitted that there had not been compliance with ss 62 and 65 of LEPRA. Those sections pertain to the information provided in the application for the warrant and the issuing officer’s reasons. As will be discussed further below, such grounds are most commonly relied upon when the application for the warrant and the issuing officer’s reasons are before the court.

7. [44]

   Section 62(1) of LEPRA sets out the information that must be included in an application for a search warrant:

8. [45]

   The plaintiff also contended that the second warrant was, in effect, a covert warrant. Relevant to that submission, s 62(2) of LEPRA provides that:

9. [46]

   In relation to the need for the eligible issuing officer to have reasonable grounds to issue the warrant, sub-ss 62(3) and (4) provide:

10. [47]

    Section 65 of LEPRA provides:

11. [48]

    Section 75A of LEPRA provides for the removal of things from premises to examine. It is in these terms:

Division 4A of Part 5 of LEPRA

1. [49]

   On 1 February 2023, the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW) commenced. The amendments to LEPRA permit police to access digital evidence in connection with search warrants and crime scene warrants. A DEAO can be applied for in connection with an application for a search warrant or crime scene warrant.

2. [50]

   Section 76AB provides that:

3. [51]

   It is an offence to fail to comply with a DEAO as provided for in s 76AO as follows:

The LEPR Regulation

1. [52]

   Clause 13(1) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (“the LEPR Regulation”) provides that certain documents in relation to search warrants must be kept and can be inspected by the occupier including any written application for the warrant or order and any record relating to the warrant or order made by or on behalf of an authorised officer or eligible issuing officer (as the case requires). Clause 13(7) relevantly provides as follows:

2. [53]

   An exception to cl 13(7) (and cl 13(6)) is provided in cl 14 which provides as follows:

3. [54]

   Thus, although usually an occupier is permitted to examine the application and reasons for granting the warrant, an eligible issuing officer may issue a certificate under cl 14(2) precluding an occupier from being able to inspect these documents. As can be seen from the terms of cl 14(1), the basis for issuing such a certificate reflect principles of public interest immunity.

The protocol

1. [55]

   Before turning to consider the parties’ submissions, it is pertinent to briefly note in general the terms of the relevant protocol which was the subject of much of the correspondence between the parties following the execution of the second warrant.

2. [56]

   The protocol was adopted by the Council of the Law Society of New South Wales on 29 September 1994 and was the subject of agreement with the Commissioner of Police for New South Wales on 3 May 1995. It is headed “Guidelines as to the execution of search warrants”. It provides an overview of the principles that govern the issue and execution of search warrants in NSW, as well as the principles governing the exercise of the common law right of a client’s legal professional privilege.

3. [57]

   The protocol sets out the general guidelines for the execution of search warrants on the premises of solicitors. In summary, it stipulates that upon attendance at the premises of a solicitor, the officer-in-charge should explain the purposes of the search and should invite the solicitor to co-operate with the police in the conduct of the search. The solicitor should be advised that documents outside the scope of the warrant or subject to privilege will not be seized. The solicitor should be provided with a copy of the search warrant in addition to being shown the original warrant if they so demand.

4. [58]

   Reasonable time should be allowed to permit the solicitor to consult with the client(s) concerned and for the solicitor to obtain legal advice. This time will also permit the solicitor to obtain instructions from impacted client(s) as to whether they wish to make any claims for privilege. After informing the relevant client(s) of the position or obtaining legal advice, the solicitor should co-operate with the police officers by assisting them in locating all documents which may be within the warrant.

5. [59]

   The documents claimed by the solicitor to be caught by legal professional privilege should be placed into a container by the solicitor or their staff and the container sealed. If necessary, the solicitor should be prepared to indicate to the police officer involved in the search the grounds on which the claim for privilege is made, as well as in whose name the claim is made. The solicitor is entitled to copies of those documents, created under the supervision of police.

6. [60]

   The search team must then compose a list of seized documents, in co-operation with the solicitor, containing general information as to the nature of the documents. That list and the container of privileged documents, pursuant to an agreement being reached between the solicitor and the officer-in-charge and in recognition of the claims of legal professional privilege made by the solicitor, is given into the custody of the clerk of the authorised justice who issued the warrant or an independent third party in acknowledgement of the conclusion that the warrant has not been executed in respect of the documents set out in the list.

7. [61]

   The solicitor will then have three days to institute proceedings to establish the alleged legal professional privilege, during which time no further steps should be taken in relation to execution of the warrant. The list and the container are to remain in the custody of this third party until any disputed privilege claims are resolved. If no proceedings are commenced, the documents are to be returned to police one day following the expiry of the three-day window.

8. [62]

   As is apparent from the chronology set out above, this procedure was complied with for the first warrant but was not complied with for the second warrant as it would appear that police formed the view that the protocol did not strictly apply to DEAOs, and the plaintiff was not the relevant occupier for the purposes of the second warrant.

Preliminary issue: Access to the Local Court file

1. [63]

   The sole ground of review in the amended summons filed on 28 March 2024 is that the third defendant did not have reasonable grounds to issue the second warrant. Of the three sub-grounds of review, the plaintiff seeks to establish invalidity both on the face of the warrant and by going behind it in support of sub-ground 1 but, in its terms, both sub-grounds 2 and 3 rely solely on going behind the warrant by challenging the material that was before the third defendant in relation to the question of privilege (“the issuing officer’s record”). The third defendant’s record pertaining to both the first and second warrants were required to be kept and stored at Parramatta Local Court.

2. [64]

   On 22 November 2023, the plaintiff made an application under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 33.13 for the third defendant’s record in relation to both warrants and DEAOs to be transferred to this Court. The documents were transferred to this Court on or around 11 December 2023.

3. [65]

   On 2 February 2024, the first and second defendants filed a notice of motion seeking an order that there be no access to the material produced by the Local Court at Parramatta. Written submissions were subsequently filed by both parties in relation to that motion for access.

4. [66]

   The plaintiff filed its written submissions in support of his request to access the files on 22 March 2024. At that time, it would appear that the parties presumed that a cl 14(2) certificate had been issued in relation to the relevant documents. On that basis, the plaintiff submitted that it was not clear how the entirety of the relevant records could properly be captured by the certificate and noted that no claim for public interest immunity had ever been made. It was submitted that the concerns regarding the dangers of access being given could not extend to all of the relevant records.

5. [67]

   It was further submitted that in order for this Court to properly consider the summons and the orders sought, it must examine whether the relevant record discloses the necessary independent assessment as well as the merits of the application. It was also submitted that the Commissioner’s position that the plaintiff should not be granted access to some or all of the documents could not extend to prevent this Court from having access to the relevant records.

6. [68]

   On 9 July 2024, the Commissioner filed submissions opposing access to the documents. It submitted that access should be refused because it would have no utility, does not pursue a legitimate forensic purpose and is contrary to a well-established principle concerning compulsory production of an issuing officer’s record.

7. [69]

   Reliance was placed on the decision of the Court of Criminal Appeal in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 273 A Crim 91 (“Gould”) and the decisions of Hamill J in Commissioner of Police, NSW v Taleb [2019] NSWSC 21, Payne JA in R v Cranston (No 3) [2020] NSWSC 1103 and Chen J in Gamage v Riashi [2023] NSWSC 390. The Commissioner submitted that in line with these authorities the plaintiff’s application must be refused, as he cannot “go behind” the warrant in an attempt to obtain the material used to procure it.

8. [70]

   The Commissioner foreshadowed that if, contrary to its position, I did order access to the material, then a claim for public interest immunity would be made in relation to the material.

9. [71]

   At the commencement of the hearing, senior counsel for the plaintiff accepted that the Court was bound by the decision of the Court of Appeal in Gould but submitted that they should be entitled to see what was in the material nonetheless given the unusual facts of this case.

10. [72]

    Although the plaintiff did not abandon his application for access to the application for the second warrant, the hearing proceeded on the basis that I could grant the relief sought without access to it.

Consideration of preliminary issue: access to application for warrant

1. [73]

   Given that the plaintiff accepted the Commissioner’s argument based on the decision in Gould, no detailed submissions were directed to that issue at the hearing.

2. [74]

   Having subsequently considered that decision and the others relied upon by the Commissioner, I am not satisfied that they stand in the way of access to the documents in the way contended for by the Commissioner.

3. [75]

   In Gould, the CCA considered an interlocutory appeal during a criminal trial against a refusal to grant a stay until such time as there was disclosure to the defence of “any affidavits, statements or other documents provided by the Australian Federal Police in support of its applications for the issue of warrants…”. In that context, Basten JA, with whom Adamson J (as her Honour then was) and Johnson J agreed, reviewed the leading authorities on search warrant challenges (at [33]-[51]). Those decisions include Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28; Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4; Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 and South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39. Having reviewed those decisions, Basten JA concluded the following at [52]:

4. [76]

   In Commissioner of Police, NSW v Taleb, Hamill J considered two subpoenas for production directed to the NSW Commissioner of Police during a criminal trial. His Honour summarised the relevant principles, including those considered in Gould, at [32]-[33] as follows:

5. [77]

   Similarly, in R v Cranston (No 3) [2020] NSWSC 1103 Payne JA, then presiding over a criminal trial, considered an application to set aside a subpoena seeking the material in support of a warrant issued under the Telecommunications (Interception and Access) Act 1979 (Cth). In that context, his Honour observed this at [23]:

6. [78]

   His Honour went on to review the same authorities as were considered in Gould, including the decision in Ousley v The Queen, and ultimately held that there could be no legitimate forensic purpose for the subpoena as the accused persons could not go behind the warrant in criminal trial proceedings.

7. [79]

   The decisions relied upon by the Commissioner were all concerned with attempts by accused persons in the context of criminal trials to mount a “collateral attack” on the validity of the respective warrant by seeking to examine the sufficiency of the material upon which it was issued. As those cases make clear, in such cases the validity of the warrant is determined by considering whether it is valid “on its face” and the accused person cannot (apart from the limited circumstances suggested in Gould at [54] and [56]) look at the issuing officer’s record to “go behind” the warrant to have it invalidated because, for example, the issuing officer did not have the state of satisfaction required by s 48 of LEPRA.

8. [80]

   The present proceedings are not a collateral attack on the warrant. Like the decisions in, for example, Doyle v Commissioner of Police [2020] NSWCA 11; (2020) 285 A Crim R 349 (“Doyle”), Lee v NSW Commissioner of Police (No.3) [2019] NSWSC 694 (“Lee (No.3)”), Harland v Murphy [2022] NSWSC 1376 and Polley v Johnson [2014] NSWSC 1191, they are proceedings for judicial review in which a challenge is made to the warrant on the basis that the issuing officer did not have reasonable grounds to issue the warrant as required by s 48 of LEPRA. In all of these decisions the court did go behind the warrant and examine the issuing officer’s record (I shall consider some of these decisions further below).

9. [81]

   Having arrived at this conclusion after reserving my decision, on 8 October 2024 I caused an email to be sent to the parties in these terms:

10. [82]

    The response to that email was sent on 31 October 2024 on behalf of the plaintiffs and is in these terms:

11. [83]

    Given that the plaintiff ultimately abandoned his application for access to the issuing officer’s record, it is not necessary to determine this issue. Rather, consistent with the plaintiff’s submissions at the hearing, I propose to consider the grounds for review in the amended summons based on the material before me which I have set out in the above chronology.

Sub-ground 1: No sufficient connection between things sought (phone) and the searchable offences described on the warrant

1. [84]

   The first sub-ground was described in the summons as a complaint that there was no apparent connection between the things sought on the warrant and the searchable offences given that neither the offences nor the data sought are described by date range or other limiting or identifying characteristics.

2. [85]

   It was submitted that the second warrant was, in effect, a “general” warrant and invalid on its face for want of specification because it did not identify the thing sought on the data and the phone. Reliance was placed on the decision in Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667 (“Wright”) at [31]-[32] as authority for the proposition that the purpose of specifying the offence in a warrant is to limit the free-ranging power of search of police officers and others involved in the execution of the warrant. The plaintiff also relied on the decision of Lee v New South Wales Commissioner of Police [2017] NSWSC 1594 (“Lee”) as an analogous decision. It was submitted that one of the purposes of the warrant is to appraise the occupier about what is being looked for.

3. [86]

   It was submitted that the “error” in the warrant is that a mobile telephone is not a single “thing”. Although it was accepted that police knew what they were looking for, the plaintiff did not. It was also contended that the warrant was a “fishing expedition” in that it was too wide. Although it was accepted that only two items were sought, it was submitted that the phone itself contains a vast number and variety of documents.

4. [87]

   It was submitted that the designation of the relevant offence provisions is helpful but not sufficient. The two physical things were said to be, “a doorway through which an entire cavern of the information entered becomes visible”. It was accepted that there is a balancing process between particularity and generality, but it was submitted that the second warrant is excessively general.

5. [88]

   Overall, it was submitted that this is a significant case because the courts need to extend the law given that although a mobile telephone is a specific item, the data on it is not and a person’s phone has become “akin to their castle”.

6. [89]

   In addition to the argument relied upon in the sub-ground as pleaded, a number of other complaints were made regarding what were said to be “anomalies” in the warrant.

7. [90]

   The first alleged anomaly was said to arise from the identification of “the premises” in the warrant as Bankstown Police Station. It was submitted that, at the time of the application for the warrant, the items sought to be seized should have been in the property of the plaintiff pursuant to an undertaking that the plaintiff alleges the Commissioner made to return the objects via email communications with the plaintiff’s solicitor on 26 August 2023. The plaintiff identifies this as the first anomaly.

8. [91]

   The second anomaly was said to arise from the fact that the Commissioner executing a subpoena upon the Commissioner’s own premises renders the Commissioner as both the searcher and the occupier. The plaintiff submits that this has the effect of precluding him from inspecting the application and grounds for the warrant, as is the ordinary right of an individual affected by a warrant pursuant to cl 13(7) of the LEPR Regulation and s 65 of LEPRA.

9. [92]

   The third anomaly was said to arise from the plaintiff’s characterisation of the search as “covert”. It was submitted that the warrant is infected with error by virtue of not being issued by an eligible Judge pursuant to s 46 of LEPRA. It was submitted that the plaintiff was not informed, “and likely misled” as to the Commissioner’s intentions with his property. The fact that the plaintiff was kept in the dark as to the existence and execution of the warrant at the police station meant that by analogy this was in fact a covert search warrant. It was noted that a warrant other than a covert warrant does not require the eligible issuing officer to be a judge whereas a covert warrant does. Further, it was submitted that by executing the second warrant without the plaintiff’s knowledge the provisions of s 75A of LEPRA had been circumvented.

10. [93]

    Reliance was placed on the fact that the plaintiff’s data included inevitably privileged material and the circumstances of the execution of the second warrant defeated the plaintiff’s ability to assert a claim over the material now possessed by the Commissioner.

11. [94]

    Whilst not explicitly categorised as an anomaly, the plaintiff also submitted that he could not ascertain the identity of the authorised officer (at the time the DEAO was served) and nor had this information been disclosed to the plaintiff.

12. [95]

    In written submissions, reliance was placed on ss 62 and 65 of LEPRA. It was submitted that in order for this Court to consider whether the second warrant ought to be struck down, it must consider whether the third defendant independently considered and recorded the particulars of the grounds relied upon to issue the second warrant. Reliance was placed on the decisions in Carrol & Ors v Mijovich & Ors (1991) 25 NSWLR 441 and Doyle in support of the position that the failure to do both has been held to invalidate a warrant.

13. [96]

    Sub-grounds 2 and 3 were argued in the alternative. The primary contention was that the third defendant must have known that the things sought would include documents which would be privileged from disclosure or production in the course of legal proceedings and could not thereby constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA. In the alternative, it was contended that the third defendant was misled as to the fact that the things sought would include documents which would be privileged from disclosure or production in the course of legal proceedings and could not thereby constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA.

14. [97]

    It was submitted that there were matters from which material inferences could be drawn as to whether there has been compliance with ss 62 and 65 of LEPRA such as the matters raised in the decision in Doyle at [60]-[62] and [74].

15. [98]

    It was further submitted that there is no evidence before the Court that any steps were taken to ensure that the thing sought did not contain privileged communications or information. Thus, it was submitted, a question remains as to whether the third defendant enquired about the status of privileged information and whether an accurate response was conveyed.

16. [99]

    Reliance was placed on the fact that there is no “carve out” in its terms or identification of the privileged information. Although it is accepted that there is no requirement for a “carve out” for privilege, it was submitted that this does not mean it should not be done. It was submitted that the Court would consider the fact that there is no evidence that the issuing officer had any appreciation of the privilege issue.

17. [100]

    The plaintiff's argument was that even in the absence of access to the third defendant’s record, the warrant itself shows that the issuing officer did not have reasonable grounds in the respects identified in the pleading.

18. [101]

    The Commissioner submitted that the applicant had failed to articulate the statutory significance of there being an insufficient connection between the things sought in the warrant and the offences described therein, nor assisted the Court with guidance on what would reach the level of “sufficient connection”.

19. [102]

    It was submitted that the lack of a specified “date range” for data does not establish the absence of a “sufficient” connection” between the offence and the things sought. It would be open for a person to conclude that a mobile phone contained data relevant to the stipulated offences even without a specified date range. Further, the broad description of the offences increased the likelihood that the phone would contain relevant data.

20. [103]

    It was submitted that the purpose of the requirement to identify the offence is to delimit the scope of the search on the premises. Where the warrant provides that the premises can only be searched for two things the purpose and function of the requirement to state the offence is achieved by a precise identification of what can be searched for and seized: two physical things. There is also an identification of the three offence provisions relied on.

21. [104]

    The Commissioner submitted that the mere fact that some of the things the subject of the warrant would be protected by privilege did not affect the validity of the warrant. Reliance was placed on the decision of Garling J in Lee (No.3) at [158]. It was submitted that neither the iPhone nor the exhibit were privileged. Rather, it was the data stored on the iPhone and the storage device that could ground a claim for privilege.

22. [105]

    It was submitted that the mere seizure of a thing that contains within it privileged communications is not itself an infringement of the privilege because the document can be looked at it in a cursory way for the purpose of deciding whether a privilege claim is properly founded, or whether it is or might be privileged.

23. [106]

    At the hearing, the Commissioner submitted that the mere fact that the warrant could have been over different premises with a different occupier does not disclose a ground of jurisdictional error. The warrant authorises entry into premises, and the seizure of things. Police have data in their possession and are entitled to look at it for the purpose for which the warrant was issued.

24. [107]

    Further, it was submitted that steps taken after things are seized under a valid warrant do not render the warrant invalid. It was submitted that the privilege question arises afterwards and there is a process that can be agreed that will address that.

25. [108]

    Reliance was placed on the decision in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; [1991] FCA 475 at 543 (“Beneficial Finance”) in which Burchett J observed that the degree of particularity may vary with the nature of the offence and other circumstances.

26. [109]

    As for the need to issue the second warrant, as was held in Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 and subsequent cases, material obtained under compulsory statutory process can only be used, subject to contrary statutory provision, for the purpose it was seized. Police can only use the material for the purpose for which they obtained the warrant. They obtained the warrant for the purpose of investigating the offences that are described in the search warrant application.

27. [110]

    The Commissioner submitted that the Court would not find that the issuing officer was misled as to whether the things sought included privileged documents. The plaintiff has not discharged his onus of establishing that the officer was in fact misled. Nor is the question of whether material caught within the ambit of a warrant is privileged a mandatory consideration.

28. [111]

    It was further submitted that the warrant is not invalid merely because the applicant for the warrant has omitted relevant information from the application. If non-disclosure is relied upon to challenge a warrant, the non-disclosure must include elements of fraud or misrepresentation: Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555.

Consideration

1. [112]

   These proceedings raise important issues regarding the issue and execution of search warrants to seize the personal mobile telephones of legal practitioners, in this case a solicitor. “Smartphones” which are capable of containing very large amounts of data, have been in use in Australia since 2007. A solicitor’s mobile telephone can now contain a large number of documents including emails, annexures, file notes, briefs of evidence (as attachments or otherwise), letters, instructions, photographs and other documents over which a claim for privilege may be made. In that respect, seizing a solicitor’s mobile telephone to search for documents is in many ways analogous to executing a search warrant to search their office.

2. [113]

   Although numerous discrete arguments were raised by the plaintiff, the central complaint was that the second warrant was too general and did not provide sufficient particulars as to what was actually sought by police in the data on the plaintiff’s telephone. The Commissioner’s response to this was that the requirement for particularity as to what could be lawfully seized pertained to the physical thing seized; in this case the mobile telephone. Thus, the Commissioner contended that the second warrant was very specific about what was to be seized: the telephone.

3. [114]

   A further unusual aspect in this case is that the seizure of the plaintiff’s mobile telephone was not from his possession but rather from the possession of police. This raises further complications. The parties were unable to identify any decisions addressing the degree of specificity required when a solicitor’s telephone is seized from a third party; this is no doubt because it would be rare for a solicitor not to be in possession of his or her mobile telephone at all times.

4. [115]

   A starting point is to observe the strictness with which the law pertaining to search warrants is to be applied. In R v Tillett; Ex Parte Newton (1969) 14 FLR 101 (“Tillett”), Fox J observed (at 108) that a statutory power to grant a search warrant confers upon an issuing officer:

5. [116]

   The summons as pleaded contends that the third defendant did not have reasonable grounds for issuing the warrant. Section 48(1) of LEPRA requires the issuing officer to be so satisfied. A person seeking to impugn an exercise of the power under s 48(1) must establish that the issuing officer did not lawfully form the statutory level of satisfaction which, as stated in s 47 of LEPRA, is that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.

6. [117]

   The leading case concerning the requirement that the issuing officer had “reasonable grounds” to issue the warrant is George v Rockett (1990) 170 CLR 104; [1990] HCA 26. The High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) considered the construction of the relevant search warrant provision in Queensland legislation at that time, which required both the applicant and the issuing officer to have “reasonable grounds” for issuing the warrant. The Court examined the statutory scheme and was ultimately satisfied that the issuing officer in that case did not have the requisite reasonable grounds to issue the warrant in that he could not have been so satisfied on the material before him. The application for the warrant had simply stated that the specified documents (a bundle of handwritten A4 pages containing the suspect’s comments on evidence at the Fitzgerald Inquiry and part of the transcript of that evidence which had been annotated) would afford evidence of perjury. I note that the Court could not have reached this conclusion without access to the issuing officer’s record including the application before him.

7. [118]

   In considering the material before the issuing office in George v Rocket, the High Court considered the statutory requirements regarding search warrants generally and observed the following at 110:

8. [119]

   And further (at 110-111):

9. [120]

   After noting that a warrant should express the issuing officer’s satisfaction that there are reasonable grounds for the suspicion and belief, their Honours noted (at 111-112):

10. [121]

    The Court went on to observe (at 118):

11. [122]

    I pause to note that in relation to the plaintiff’s case before me it is not known whether there was a more specific description of what was sought in the application before the third defendant than appears on the warrant. As stated above, the plaintiff’s argument in relation to sub-ground 1 was both that the third defendant could not have had reasonable grounds to issue the warrant as there was insufficient connection between the thing sought and the relevant offences and that the warrant was bad on its face because of the lack of specificity in relation to both what was sought and the description of the searchable offences. The relevant principles concerning the latter of these complaints can be seen from the following decisions.

12. [123]

    As the terms of LEPRA make clear, the warrant must identify both what is being seized and the searchable offence it is to be seized in relation to.

13. [124]

    As to the degree of specificity required in relation to these statutory requirements, the Commissioner relied upon the following observation of Burchett J (with whom Sheppard J agreed) in Beneficial Finance at 533:

14. [125]

    Burchett J went on, after reviewing the relevant authorities at length, to state the following (at 543):

15. [126]

    Burchett J went on to observe (at 544) that the application in that case went beyond what the law required in that it named the suspects. His Honour cited Tillett (at 114), Parker v Churchill (1985) 9 FCR 316 and Quartermaine v Netto (Federal Court of Australia, Toohey J, 14 December 1984, unrep) in which Toohey J pointed out that “[g]reater precision is lent to the warrant” when the suspect is specified.

16. [127]

    Earlier, in Parker v Churchill at 319 Burchett J had observed this on the same requirement:

17. [128]

    In Arno v Forsyth (1986) 9 FCR 576, a case relied upon by the plaintiff, a search warrant was issued and executed on a barrister’s chambers. The warrant in that case was held to be bad for uncertainty because the description of the documents to be seized was held to be too wide and vague and the description of the alleged offences too general. The documents sought were described in this way:

18. [129]

    The searchable offences were described as “(a) Offences against Section 86(1)(a) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to commit an offence against a law of the Commonwealth, to wit, Section 231 of the Income Tax Assessment Act, 1936; (b) Offences against section 86(1)(b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit the Income Tax Assessment Act, 1936; (c) Offences against section 86(1)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth; (d) Offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth; (e) Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by an fraud, art or contrivance whatever.”

19. [130]

    In that context, Jackson J observed the following (at 595):

20. [131]

    I note in passing that Fox J observed (at 581) that the warrant was not invalid on the basis that the documents sought may prove to be the subject of legal professional privilege”. Similarly, at 597 Jackson J observed that the warrant could not be said to be “‘bad on its face’ because it referred to documents which might ultimately be held to be the subject of legal professional privilege”.

21. [132]

    The warrant in Arno v Forsyth was granted under s 10 of the Crimes Act 1914 (Cth) which required the following:

22. [133]

    More recently in Smethurst, Kiefel CJ, Bell and Keane JJ observed the following (at [23], [25]) in relation to search warrants generally, albeit in the context of the proper identification of the relevant offence and items being searched for (footnotes omitted):

23. [134]

    In Smethurst, the High Court unanimously held that the warrant relied upon by the Australian Federal Police was invalid on the ground that it misstated the substance of the relevant offence (s 79(3) of the Crimes Act 1914 (Cth)) as it stood at the relevant date and also failed to state the offence to which the warrant related with sufficient precision. The warrant in Smethurst was granted under s 3E of the Crimes Act 1914 (Cth). Section 3E(5)(a) provides that the issuing officer is to state in the warrant “the offence to which the warrant relates”. The offence stated was s 79(3) of the Crimes Act but at that date it had been repealed and replaced with provisions of the Criminal Code (Cth) which are in different terms.

24. [135]

    Turning to warrants issued under LEPRA, in Lee Garling J held that a warrant was invalid because the offence was not stated on the warrant with sufficient specificity. The offence was described as “s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)” but that subsection includes the offences of both stalking and intimidation and the failure to specify which one invalidated the warrant. His Honour helpfully summarised the relevant principles in relation to the specificity of the description of the offence at [90] to [98]. His Honour noted the principles stated in Crowley v Murphy and George v Rockett to which I have already referred (at [90]-[91]) and then observed this at [92]-[96]:

25. [136]

    In Majzoub v Kepreokis [2009] NSWSC 314; (2009) 195 A Crim R 63, Hall J considered the requirement to specify the relevant offences and stated this at [53]-[55]:

26. [137]

    In Corbett v State of New South Wales [2006] NSWCA 138, one of the grounds of invalidity concerned the fact that the searchable offence was a provision of the Firearms Act 1989 (NSW) which had been superseded. A police officer who was known to have firearms in his possession wrote a suicide note suggesting that police officers may be killed. His firearms licence was cancelled as a result of his poor mental health issues. A search warrant was then sought to seize his firearms on the basis that he was in possession of firearms whilst unlicensed under the superseded Act and section. The appeal was allowed on that basis and the warrant found invalid.

27. [138]

    That decision was overturned by the High Court. In New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32, Callinan and Crennan JJ cited Burchett J’s statement of principle extracted above with approval and went on to observe the following at 632 ([104]) (footnote omitted):

28. [139]

    Their Honours went on to observe the following at 632 and 633 ([105]-[106]):

29. [140]

    Consistent with the principles derived from these decisions, a warrant must contain sufficient particularity to enable both the searching officers and the occupier to know whether particular things are relevant or not.

30. [141]

    In Polley v Johnson, the plaintiff unsuccessfully sought a declaration that a search warrant was invalid. The searchable offence was s 326(2) of the Crimes Act 1900 (NSW) and described as “Reprisals against judges, witness, jurors etc”. After the search warrant was executed, Mr Polley was charged with offences of s 315(1)(a) (hindering the investigation of a serious indictable offence committed by another person) and s 315A(1) (threatening or causing injury or detriment to another person intending to deter the provision of material information about an indictable offence to a police officer or appropriate authority).

31. [142]

    The question of validity of the warrant turned on whether the issuing officer had reasonable grounds to issue the warrant in connection with the searchable offence under s 326(2) of the Crimes Act (as opposed to s 315(1) and/or s 315A(1)) because no substantive proceedings to interfere with had as yet been commenced. Although there was no authority directly on point, the parties relied on different lines of authority as to whether such proceedings had to be commenced thus the question of whether an offence under s 326(2) of the Crimes Act could be proved was one of statutory construction.

32. [143]

    On appeal, Simpson JA (with whom Beazley P and McColl JA agreed) observed (at [46] and [47]) that “it is not the role of the eligible issuing officer to consider the sufficiency of the supporting material to found a conviction for the searchable offence identified in the application. The question for that officer is whether that material provides ‘reasonable grounds’ for the issue of a warrant, which may yield relevant evidence or information. Nor is it the role of the eligible issuing officer to engage in the construction of the legislation in question”: Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521.

33. [144]

    For completeness, the reference to the decision of Wright by Hall J at [53] in Majzoub v Kepreokis (and Garling J in Lee) is a reference to the decision of Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667. In that decision, Holmes J (as her Honour then was) declared a search warrant to be invalid, inter alia, because there had been a failure to provide “brief particulars of the offence” which, unlike in LEPRA which only requires the offence to be stated, was a requirement of the statutory scheme in Queensland. In that context, her Honour stated this at [32]:

34. [145]

    The footnote 15 in the above passage is to the decision in Brewer v Castles (No. 2) (1984) 1 FCR 55 at 61 citing Fox J in Tillett; and Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 that “[t]he question is one of impression, looked at from the standpoint of the ordinary person reading the warrant”.

35. [146]

    Although the description of the offence in Wright may have been sufficient under LEPRA, the significance of Wright at [32] more generally is the statement of principle, adopted by Garling J in Lee, that it is insufficient that police know the relevant information because the question of whether a warrant meets the requirements of the Act must be answered objectively by reference to its contents. I note that the warrant in Wright was executed on a solicitor’s office, but the decision does not set out how the documents sought were described in the warrant.

36. [147]

    The focus of sub-grounds 2 and 3 was that the third defendant could not have had reasonable grounds to issue the warrant because he must have known the material sought could be privileged. I have already referred to the observations in Arno v Forsyth that the fact that material sought may attract a claim of privilege does not render it invalid. Similarly, the Commissioner relied upon the following observation of the Federal Court (Spender, Madgwick and Finkelstein JJ) in JMA Accounting Pty Ltd v Carmody (2004) 139 FCR 537; [2004] FCAFC 274 at [13]:

37. [148]

    In Lee (No.3), Garling J considered a challenge to the validity of a second search warrant issued after his first decision referred to above at [135]. The police had relied upon information they obtained under the first search warrant which Garling J had held to be invalid. It was contended that the issuing officer could not legally or reasonably have been satisfied that there were reasonable grounds within the meaning of s 47(1) of LEPRA. Again, the application and record of the issuing officer’s decision to grant the warrant were before the court. Garling J was not persuaded that that ground was made out given that there is an entitlement to admit evidence which is unlawfully obtained (see s 138 of the Evidence Act 1995 (NSW)): at [147].

38. [149]

    Relevantly, an additional ground in Lee (No.3) contended that the issuing officer “failed to consider ... that the things in relation to which the search warrant was sought included communications and documents over which a claim for legal professional privilege had been made and thereby failed to take into account a legally relevant consideration and/or misconceived the discretionary nature of his statutory task”. In dismissing that ground, Garling J surveyed and summarised the principles applicable to search warrants which seek material which may attract privilege at [168]-[170] as follows:

39. [150]

    His Honour then considered the relevant passages in Arno v Forsyth I have extracted above at [128] before concluding the following at [174]:

40. [151]

    Finally, the plaintiff relied upon a number of decisions in which search warrants have been held to be invalid on the basis that there has been a failure to strictly comply with the statutory scheme. In all of these decisions the court had access to the underlying material and the finding was made based on what was contained in that material. Although I cannot undertake that task in this case, I propose to briefly refer to some of these decisions.

41. [152]

    In Doyle, the Court of Appeal found that a search warrant was invalid because the issuing officer had not complied with the requirements of ss 48 and 65 of LEPRA. The Court was satisfied that the correct inference to draw from the issuing officer’s record was that he had not brought real attention to bear upon the application for the warrant and had not complied with s 65 of LEPRA (in relation to keeping a record of his reasons).

42. [153]

    One of the matters which led to the declaration of invalidity in Doyle is that it was apparent that the police officer had pre-filled those aspects of the application that the issuing officer was required to complete including those pertaining to the reasonable grounds held by the issuing officer.

43. [154]

    Relevantly, the Court of Appeal (Leeming and Payne JJA and Simpson AJA) was satisfied that the question as to whether the statutory provisions of LEPRA, in this case ss 48 and 65, were complied with was a question of fact to be determined in light of all the relevant evidence: at [61]. It was common ground that the appropriate inference to draw was that the application for the warrant was heard, determined and documented in around 10 minutes: at [62].

44. [155]

    Their Honours noted at [72] that s 62(3)(a) required the issuing officer to have regard to the reliability of the information on which the application was based, including the nature of its source. Their Honours went on to conclude the following at [74]-[75]:

45. [156]

    It is to be noted that the “things” sought in the search warrant in Doyle were particularised in far greater detail than in the present matter as follows:

46. [157]

    In Cassaniti v Croucher (2000) 48 NSWLR 623; [2000] NSWCA 95, the search warrant was held to be invalid for non-compliance with the statutory requirements. The application was not “in writing in the form prescribed” and the information provided in paragraph 4 of the application did not satisfy the separate and additional requirement of paragraph 2. It was held that the defect in the subject application was one of substance and consequently made the issue of the warrant unlawful and void. Similarly, in Carroll v Mijovich (1991) 25 NSWLR 441, the Court of Appeal (Kirby P and Handley JA (Meagher JA dissenting)) held, in reliance upon George v Rockett, that the failure of an authorised justice to record the grounds relied upon to justify the warrant renders such a warrant invalid.

47. [158]

    With these principles in mind, I turn to consider the three sub-grounds.

48. [159]

    The first sub-ground was described in the summons as a complaint that there was no apparent connection between the things sought in the warrant and the searchable offences, given neither the offences nor the data sought are described by date range or other limiting or identifying characteristics. As stated above, there were two aspects to sub-ground 1: that the issuing officer did not have reasonable grounds to issue the warrant because of the lack of particularisation and also that the warrant is invalid on its face for the same reasons.

49. [160]

    As to the requisite description as to what is sought, s 66(1) of LEPRA provides that a warrant is to be in the form prescribed by the Regulation. Clause 6(1)(a) of the LEPR Regulation provides that for the purposes of s 66 of the Act, Form 11 is the form for a Pt 5 search warrant (other than a covert search warrant or a criminal organisation search warrant). Form 11, provides, inter alia, that the warrant must:

50. [161]

    In purported compliance with the requirement to describe the things to be searched for “with particularity”, it should be recalled that, putting to one side the identifying features of the phone itself (such as the model, IMEI and carrier), the second warrant simply sought the phone and the “data contained” in it. That is the only description of what was to be searched for. Those items (the phone and the data) were then described as being connected with the searchable offence(s) of supply prohibited drug contrary to s 25 Drug Misuse and Trafficking Act 1985 (NSW), fire firearm in or near public place contrary to s 93G(1)(b) Crimes Act 1900 (NSW) and do act etc intending to pervert the course of justice contrary to s 319 Crimes Act 1900.

51. [162]

    Turning to the first argument under this sub-ground, it can easily be disposed of given that the plaintiff did not ultimately press for access to the third defendant’s record. Under s 62(3)(b) of LEPRA, an eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider, inter alia, whether there is sufficient connection between the thing sought and the offence. Sub-ground 1, as pleaded in the summons, adopts this statutory language.

52. [163]

    I am not able to make the first finding sought by the plaintiff under sub-ground 1 without access to the third defendant’s record. Without that record, I am unable to assess whether the third defendant considered the sufficiency of the connection between the thing sought and the searchable offences. The fact that the material sought is simply referred to as “data” with nothing further specified does not necessarily mean that the third defendant did not know what was specifically being looked for. There is no provision in LEPRA which requires the warrant to use exactly the same language in the warrant to describe what is sought to be seized as the description of those things in the application itself. It may be that the third defendant’s record would reflect that he did not turn his mind to this question. It may equally be the case that the record would show that he did. Without access to his record, it is a matter of speculation.

53. [164]

    To put this another way, the fact that an issuing officer may grant a search warrant which does not describe the things to be searched for with sufficient particularity may mean that the search warrant is invalid on its face, but it does not necessarily follow that the issuing officer did not have reasonable grounds to issue the warrant in the first place.

54. [165]

    Although the plaintiff submitted that I could draw inferences, as occurred in Doyle, about the third defendant’s approach to the granting of the warrant, the difficulty with that submission is that the Court had access to the underlying material in Doyle. In fact, the Court had access to the underling material in relation to all of the decisions I have referred to above except for in Beneficial Finance because in that case a successful claim of public interest immunity was made in relation to it.

55. [166]

    Overall, I am not satisfied that I can infer on the balance of probabilities that the third defendant did not have had reasonable grounds to issue the warrant based on the fact that the particulars on the warrant itself are in the sparse terms they are.

56. [167]

    The plaintiff is on stronger ground in relation to the second way in which sub-ground 1 was argued which contended that the warrant was invalid on its face for failing to sufficiently identify what was being searched for and its connection with the searchable offences. The point, distilled, is whether simply identifying the thing to be seized as a mobile phone including all of its data is sufficient. By way of analogy, a search warrant executed on a solicitor’s office that described the “thing” to be searched for as “all documents held at the solicitor’s office” referable to specific searchable offences would likely be found to be invalid for lack of specificity as to what was in fact to be searched for and seized. The question is whether that analogy is an answer to the ultimate question raised in this matter.

57. [168]

    The authorities establish that the description of the object of the search is a reference point for delimiting the scope of the warrant: George v Rocket at [18] and sets bounds to the area of search: Beneficial Finance at 533. A search warrant must contain sufficient particularity to enable both the searching officers and the occupier to know whether particular things are relevant or not. In the context of these well-established principles, the object of the search in the second warrant was effectively all of the data in the plaintiff’s telephone in connection with three specified offences. There was no description of what sorts of documents were sought nor was any date range provided.

58. [169]

    As for the description of the searchable offences, again the authorities establish that the reason the relevant offence(s) must be specified is because the person whose home is being searched is entitled to know the object of the search: Tillett at 113. In the second warrant the three searchable offences were described as supply prohibited drug, discharge firearm and pervert the course of justice with the relevant offence provisions identified. No dates or other limiting factors were provided. Although it may be possible to understand what sorts of documents held in the data in the plaintiff’s phone could be connected with offences of drug supply and discharging a firearm, it seems to me that the offence of perverting the course of justice contrary to s 319 of the Crimes Act could have potentially related to many if not all of the documents in the telephone without more detail being provided.

59. [170]

    I have considered the observations of Burchett J in Beneficial Finance at 543 that the warrant should disclose the nature of the offence so as to indicate the area of search and that the precision required in a given case may vary having regard to other factors. Those factors include the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole. Thus, the practical application of the requirement for particularity will vary from case to case.

60. [171]

    In many cases simply describing the relevant offence(s) by description and section number (as occurred here) will be adequate particularisation. But the question of adequacy of the description of the offences is not to be determined by considering the bare description of the searchable offences alone. In considering whether the second warrant meets the statutory requirements in this respect, I have considered the question objectively by examining the warrant in its entirety including by looking at the specificity of the description of the items to be searched for as well as the description of the searchable offences.

61. [172]

    I, ultimately, am unable to accept the Commissioner’s argument that the warrant specified what was to be seized with specificity because the only physical item which was seized was the phone. The difficulty with this submission is that the second warrant does not only seek the phone and nor was it suggested that the phone itself without its data had any connection with the searchable offences.

62. [173]

    It is to be accepted that many of the decisions from which the relevant principles governing search warrants are derived were decided prior to the introduction of mobile telephones which are capable of containing significant amounts of data. The principles developed to protect persons from intrusion into their homes with the associated breach of privacy. But given the significant number of documents that can be held in data on a mobile telephone, I see no reason to limit those principles to physical searches of premises insofar as the requirement for specificity is required. This is particularly the case when the phone is that of a practising solicitor.

63. [174]

    A significant factor in my consideration is that despite the fact that the phone (and its data) was temporarily in the possession of the Commissioner at the time the second warrant was executed, it was clearly the telephone of a practising solicitor. It would have been obvious to the second defendant that the plaintiff’s phone would not just contain his own documents but also extensive documents relating to a large number of clients who would no doubt wish to make a claim for privilege in relation to the data on the phone before it was accessed. As Garling J observed in Lee (No.3) at [168], although a claim of privilege does not make a search warrant, without more, invalid, the relevant legal practitioner has a strict obligation to claim the privilege on behalf of their client, and to maintain such a claim. His Honour went on to observe that it can be “confidently anticipated” that the relevant legal practitioner would refrain from voluntarily compliance with the search warrant on the basis that client legal privilege existed.

64. [175]

    I have considered whether the fact that the second warrant was executed on Bankstown Police Station (at which time it was already in the possession of the Commissioner) as opposed to the plaintiff’s premises is a relevant factor in considering the degree of specificity required. The authorities refer to the need for the occupier to know the scope of the search. Although the plaintiff was not served with an occupier’s notice, he was served with the second DEAO.

65. [176]

    Prior to the most recent amendments to the further amended summons, the plaintiff also sought a declaration that the second DEAO served on him on 9 November 2023 be declared invalid. That order is no longer pressed. It is not difficult to see why. As s 76AB of LEPRA makes clear, a DEAO can only be applied for and issued in connection with either a search warrant or a crime scene warrant. If the second warrant is declared to be invalid it follows that the DEAO is also invalid as its validity turns on the validity of the warrant.

66. [177]

    After police applied for the second warrant, they then applied for the second DEAO to require the plaintiff to provide his password. The second warrant and the second DEAO were inextricably linked. The phone could not be legally accessed without the plaintiff’s password. It seems to me that it will almost always be the case that a DEAO will be served on an occupier at a time when their electronic device (whether it be a computer or telephone or otherwise) is being seized from their possession. Although the plaintiff’s telephone was not seized from his possession, the nexus between the seizure and the need for the second DEAO is such that, for the purposes of determining the validity of the warrant on its face, I can see no basis for treating the warrant differently on the basis that the plaintiff was not the relevant “occupier” at the time.

67. [178]

    Further, the fact that the question of validity is to be assessed objectively means that it is not to the point that police, who were the relevant “occupier” for the purpose of the second warrant, no doubt knew what they were looking for.

68. [179]

    I have taken into account that search warrants are investigative tools and there is no requirement for police to disclose everything they know at the time of executing a search warrant. Investigations will often be at an early stage and disclosure at an early stage may jeopardise an investigation. It is to be accepted that there is a fine balance to be had between disclosing information to an occupier and retaining the integrity of the investigation.

69. [180]

    Given that the practical application of the requirement for particularity will vary from case to case, I have considered the question of the description of what was to be searched for in the context of how the searchable offence(s) were described, the warrant as a whole, and other relevant circumstances which include that the phone belonged to a practising solicitor. Considering the matter objectively, I am satisfied that the particulars as to what was to be searched for in this case did not comply with the requirements in LEPRA.

70. [181]

    Some further limited support for my conclusion can be found in the terms of s 75A of LEPRA. That provision permits police officers to, inter alia, take computers and electronic devices away from premises to be searched and then return them when the relevant documents (which fall within the terms of the warrant) have been located and copied. It seems to me that such a provision would be otiose if a search warrant could simply seek all of the computers and electronic devises and all documents or data held in them in connection with multiple offences as occurred in this case.

71. [182]

    Finally, it was argued on behalf of the Commissioner that it was necessary for the Commissioner to, effectively, execute the second warrant on itself because decisions following Johns v Australian Securities Commission have held that items seized can only be used for the purpose they were seized. Although that is undoubtedly correct, I have some doubts as to whether the Commissioner can in practical terms compulsorily seize a thing from itself. Further, there was no explanation before the Court as to why the phone was not returned to the plaintiff and then immediately seized from him again under a new warrant.

72. [183]

    Despite my concerns as to whether the Commissioner can ever compulsorily seize something from himself or herself, this matter was not raised as a separate argument. In any event, it is ultimately not necessary for me to determine it further given I am satisfied that the warrant is invalid on a different basis.

73. [184]

    I would uphold sub-ground 1.

74. [185]

    Given that I have found that the warrant is invalid under sub-ground 1, it is not strictly necessary for me to consider the other two sub-grounds, which both concern the fact that the things sought would include privileged material. Despite this, I propose to do so as they can be disposed of shortly.

75. [186]

    Under sub-ground 2, it was contended that the issuing officer must have known that the things sought would include privileged material and therefore could not constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA. Under sub-ground 3, relied upon in the alternative, it was contended that the issuing officer was misled by police that the things sought would include privileged material and therefore could not constitute a “thing” validly seized pursuant to the warrant by the terms of s 46(3)(a)(b)(c) of LEPRA.

76. [187]

    As stated above, the plaintiff did not identify any decision in which a search warrant has been held to be invalid on the basis that the issuing officer did not hold the requisite satisfaction in s 48 of LEPRA without access to the issuing officer’s reasons for having that state of satisfaction being made available to the Court.

77. [188]

    The central difficulty with these grounds is that the fact that “things” identified in a warrant may be protected by privilege does not affect the validity of the warrant as Garling J observed in Lee (No.3) at [158]-[164] set out above.

78. [189]

    Once the plaintiff abandoned his application for access to the issuing officer’s record, establishing these sub-grounds became difficult. Despite this, the plaintiff contended at the hearing that the Court could infer from the available material that the issuing officer did not have reasonable grounds to issue the second warrant.

79. [190]

    The material before the Court from which the inferences relevant to these two sub-grounds are to be drawn are: that the owner of the mobile telephone was a solicitor and inevitably there was privileged material on his telephone, that the telephone was not returned to the plaintiff after being assured that it would be but was instead kept by police, that a different group within NSW Police somehow learned that the plaintiff’s telephone was at Bankstown Police Station and may have relevant information on it, that they then obtained a second warrant to seize it from the police station rather than returning it to the plaintiff and seizing it from him and that the telephone that was ultimately seized was taken from Bankstown police rather than from the plaintiff.

80. [191]

    It is unsurprising that the timing and circumstances of the issue of the second warrant would give rise to concerns on the part of any solicitor in the circumstances of the plaintiff that proper procedures may not have been followed. Those concerns may well have been answered by an examination of the application and the issuing officer’s record. Without that material, I am simply not in a position to infer on the balance of probabilities that the issuing officer did not have the requisite state of satisfaction.

81. [192]

    As for sub-ground 3, there is simply no basis, given the limited material before the Court, to infer that the issuing officer was misled by police as to the fact that the data sought might contain privileged material. The onus is on the plaintiff to do so. In the absence of any evidence on this issue, there is insufficient basis to draw such an inference.

82. [193]

    It seems to me that a situation could well arise in which it would be possible to infer from the face of a warrant that the issuing officer could not have had the requisite level of satisfaction; the fact that I was not provided with any decisions in which that has occurred does not stand in the way of reliance upon such a ground in the absence of the underlying material. Despite this, there is simply insufficient material before the Court to draw such an inference in this case.

83. [194]

    Finally, I note that an eligible issuing officer as defined in LEPRA is not confined to magistrates and registrars but also includes an employee of the Attorney General’s Department authorised by the Attorney General for that purpose. It seems to me that, given the potential sensitivities arising from issuing a search warrant on a practising solicitor’s telephone, consideration ought to be given to adopting a practice whereby such applications are made to an appropriate issuing officer within the Attorney General’s department.

84. [195]

    For these reasons, sub-grounds 2 and 3 have not been established.

85. [196]

    The granting of relief in such matters is discretionary. Much of the chronology of events I have summarised from the plaintiff’s affidavits is relevant to this issue.

86. [197]

    I am well satisfied that the plaintiff has not acted in any way that would lead me to refuse to declare the warrant to be invalid.

87. [198]

    The remaining order sought was that the plaintiff’s mobile telephone and any storage device containing any duplication of the plaintiff’s data be returned to him.

88. [199]

    The Commissioner opposed the making of any order that the plaintiff’s phone be returned to him. It was submitted that even if the warrant was infected by jurisdictional error, the Court would nonetheless decline to order the return of either the mobile phone or the storage device. The decision of Smethurst was relied upon in support of this position.

89. [200]

    It will be recalled that the High Court unanimously declared the search warrant in that matter to be invalid because the offence had been incorrectly described. The majority in Smethurst went on to find (4-3) that because the information possessed by Ms Smethurst did not belong to her, no juridical basis existed for seeking a mandatory injunction that it be returned to her. It was also held that a further basis to refuse the relief was that it would be contrary to the public interest in being able to investigate and prosecute crimes. As Kiefel CJ, Bell and Keane JJ observed at [99]:

90. [201]

    The Commissioner submitted that a finding that the material was obtained pursuant to an invalid warrant would not, alone, bestow upon the applicant a juridical right to release or return the material: Smethurst [67]-[85]. It was further submitted that there was a strong public interest weighing against the exercise of discretion to return the material because there is a strong public interest in the investigation and prosecution of crimes. It was also submitted that in the event that any evidence obtained by the warrant is sought to be tendered in a proceeding, s 138 of the Evidence Act may nonetheless operate to preclude the admission of that evidence.

91. [202]

    I note that a similar argument was considered by Leeming J in Doyle v Commissioner of Police (No 2) [2020] NSWCA 34 and Doyle v Commissioner of Police (No 4) [2020] NSWCA 290 following the declaration that the search warrant in that matter was invalid. The first of these decisions was delivered prior to the decision in Smethurst and the second one after Smethurst was delivered. His Honour refused to return the material which included images of child abuse material in the context of pending criminal proceedings.

92. [203]

    I have considered the Commissioner’s submissions and the decision in Smethurst. I am satisfied that there are a number of factors in this matter which differentiate it from both Smethurst and the two single judge decisions of the Court of Appeal in Doyle.

93. [204]

    First, I am satisfied that the plaintiff does have a legal right to his phone as it contains documents on it in relation to which he has a duty to consult with clients and determine whether one or more of them wishes to exercise a claim of privilege. The plaintiff attempted to follow this course after being served with the second DEAO but would not appear to have been given adequate opportunity to do so.

94. [205]

    Secondly, unlike in either Doyle or Smethurst, the relevant data has not as yet been “obtained” under the second warrant because it has not been accessed as yet. This is relevant on three bases. First, the process of downloading it could not occur in the future as the warrant has been declared invalid and the decision to issue it quashed. Secondly, the question of whether there is material relevant to an investigation on the phone remains hypothetical; it may be that there is no material on the phone which is relevant to the investigation of the three specified offences. Thirdly, there is no means of accessing the material in any event as the effect of declaring the second warrant to be invalid is that the second DEAO is also invalid and there are no means for the police to obtain such an order unless they obtain a new warrant.

95. [206]

    Thirdly, I am satisfied that the discretionary matters relied upon by the plaintiff militate in favour of his phone being returned to him. A number of the complaints made by the plaintiff in written submissions did not squarely go to the validity of the warrant or the pleaded further amended summons, but it was accepted that they could be relevant to the exercise of the court’s discretion.

96. [207]

    Complaint was made that police breached their undertaking to the plaintiff to return the phone seized under the first warrant to him. During the hearing, it was conceded on behalf of the plaintiff that he was not contending that there had been any undertaking in the strict sense. I accept the Commissioner’s submission that such an allegation is a serious matter which ought to be pleaded and particularised. Even if there had been evidence of any such undertaking to the plaintiff on the part of police, the existence or otherwise of any such undertaking could not be relevant to whether the second warrant is valid on its face. Despite this, I am satisfied that the conduct of police in failing to return the phone after indicating that they would do so is relevant to the exercise of the court’s discretion as to whether his telephone should now be returned to him.

97. [208]

    I have also considered the plaintiff’s complaint that in executing the second warrant upon the Commissioner’s own premises the plaintiff was precluded from receiving an occupier’s notice and being able to inspect the application and grounds for the warrant, as is the ordinary right of an individual affected by a warrant pursuant to cl 13(7) of the LEPR Regulation. Although that was a consequence of the course adopted by police, that is not something that could invalidate the warrant. Again, although not relevant to the validity of the warrant, it is a further matter I have considered in the exercise of my discretion.

98. [209]

    It is to be accepted that the plaintiff’s telephone was not in his possession at the time of the execution of the second warrant. Despite this, I am satisfied that police have not established that they have a legal basis to retain it.

99. [210]

    For these reasons, I am satisfied that, on the unusual facts of this case, the plaintiff’s telephone should be returned to him. As for the external drive, it contains data that was validly seized under the first warrant. It was not made clear during the hearing why it should be returned to the plaintiff rather than kept by police under the first investigation. Clearly, it cannot be accessed for the purpose of the second warrant but given that the first warrant was not challenged police would still be permitted to retain it under the first warrant. I will hear further argument on that question if necessary.

Costs

1. [211]

   It was not submitted that I would depart from the usual rule that costs follow the event.

ORDERS

1. [212]

   Accordingly, I make the following orders:

   1. (1)

      Declare that the search warrant SW1367/23 is invalid.

   2. (2)

      The decision of the third defendant on 1 November 2023 issuing SW 1367/23 is quashed.

   3. (3)

      The plaintiff’s mobile telephone seized under the search warrant SW1367/23 be returned to him.

   4. (4)

      The first defendant is to pay the plaintiff’s costs of the summons on the ordinary basis.

   5. (5)

      The plaintiff’s notice of motion filed on 2 February 2024 is dismissed.

   6. (6)

      The plaintiff is to pay the defendants’ costs of the motion on the ordinary basis.

   7. (7)

      The parties have 14 days to agree upon redactions, if any, to this judgment if necessary to reflect the non-publication order I made on 23 July 2024.

   8. (8)

      The summons is otherwise dismissed.