Commissioner of Police, NSW Police Force v Harrow Legal Pty Ltd

In 2017 the police were investigating possible criminal offences committed by a solicitor Marcel Joukhador, and some of his associates. The offending was said to involve the way Mr Joukhador conducted his legal practice, with the police having reasonable grounds for believing that offences under s 192E of the Crimes Act 1900 (NSW) had been committed.

On 5 April 2017, two warrants issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). The warrants authorised the seizure of a large number of documents including hard drives and flash drives containing electronic diaries and documents. The material seized included hard copy documents, electronic devices and data downloaded from the “LEAP legal practice management system” used by Mr Joukhador’s firm, Thomas Booler Lawyers.

A third warrant, issued on 9 May 2017 in respect of a rehabilitation centre, “Physio Rehab Centre”, said to be associated with the fraud being investigated.

In September 2017 Mr Joukhador was arrested and charged with one count of knowingly directing the activities of a criminal group contrary to s 93TG(4A) of the Crimes Act and 11 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act.

When Mr Joukhador was eventually granted bail one of the conditions imposed was that he not attend the premises of his law firm or access directly or through a third party the LEAP system or any other record system of that firm. The concern was that he might alter the system and in that way tamper with evidence.

When Mr Joukhador sought a variation to his bail conditions in order to continue to conduct his legal practice, Fullerton J suggested that a ghost copy of the LEAP records be kept. Accordingly, it was a condition of his varied bail that:

The matter subsequently came before me on an application by the Commissioner of Police to inspect and make copies of the material deposited: R v Joukhador [2019] NSWSC 112.

On 25 July 2019 the NSW Director of Public Prosecutions directed that there be no further proceedings against Mr Joukhador in respect of all of the charges in the matter.

On 18 November 2019, Mr Joukhador sought by summons the delivery up by the Commissioner of Police of all the documents being held pursuant to the bail conditions imposed by Fullerton J and the additional material referred to in my judgment in R v Joukhador. Justice Beech-Jones refused Mr Joukhador’s application on the basis that the police investigations into other possible offences were still continuing: Joukhador v Commissioner of Police [2020] NSWSC 227.

By summons dated 24 November 2023 the NSW Police Force seeks orders that the Registrar now release the material held in Court to the principal of Harrow Legal Pty Ltd, the firm of which Mr Joukhador is now a principal. The basis for the orders is, in substance, that there are no ongoing investigations relevant to the documents being held in the Court.

Section 218 of LEPRA provides:

Section 216 deals with the property with which that Division (Div 2 of Pt 17) of LEPRA is concerned. Section 216(1) provides:

Section 219 gives power to “a court” to make an order in relation to property to which Div 2 of Pt 17 applies, including the return of property to the person lawfully entitled. In Joukhador v Commissioner of Police, Beech-Jones J held at [61] that ss 218 and 219 had no application because the documents were not “in the custody” of the police force as s 216(1) requires. Accordingly, the present proceedings have been commenced so that the documents can be removed from the custody of the Court and returned to Mr Joukhador’s firm which is lawfully entitled to the documents.

There is evidence from Detective Acting Sergeant Sing Lee in his affidavit of 13 December 2023 that there are no ongoing investigations relevant to the documents described in paragraphs 5 and 6. Both Harrow Legal Pty Ltd, and Mr Joukhador, the first and second defendants to the present summons respectively, consent to the orders being made.

Some additional documents have been identified. First there are documents identified in para 1(c) of the summons. These were documents seized pursuant to search warrants that are in the custody of the police. Strictly speaking, an order is not necessary in relation to those documents because they are documents that fall within Div 2 of Pt 17 of LEPRA and s 218 applies to those documents. Nevertheless, it is not inappropriate for an order to be made in all the circumstances.

The second group of documents are those identified in a further affidavit of Detective Acting Sergeant Sing Lee of 12 February 2024. These are documents that were provided to the Commissioner's lawyers, Norton Rose Fulbright, who were conducting what has been called a client legal privilege review. This was a review put in place subsequent to the search warrants being executed and the matter coming before the Court in various forms. It was considered that before inspection was to be allowed by the police the question of any privilege attaching to clients of Mr Joukhador and his firm should be considered by an independent legal adviser. Mr Sing Lee's affidavit discloses that the Commissioner now has no need for her lawyers to retain any of those documents, and she seeks orders for the deletion of them.

In Joukhador v Commissioner of Police [2020] NSWSC 227, Beech-Jones J considered at [41]-[44] that the source of power for this Court to make orders in relation to the documents was s 23 of the Supreme Court Act 1970 (NSW) or the Court’s inherent power. I respectfully agree.

In all the circumstances it seems to me that with proceedings against Mr Joukhador and others relevantly concluded and no further investigations being conducted, the orders now sought by the Commissioner should be made.