Abbas v Commissioner of NSW Police

1. [1]

   HIS HONOUR: By his amended summons dated 31 July 2023, Mahmoud Abbas sought the following orders and relief:

2. [2]

   In the events that have since occurred, Mr Abbas now seeks only the relief referred to in prayers 3 and 4 of the amended summons. His claims arise out of the following circumstances.

3. [3]

   Mr Abbas is a solicitor. On 26 July 2023, he was shot and wounded outside his home in Greenacre by an unknown assailant. Members of the NSW Police Force and paramedics attended in response to the incident and Mr Abbas was taken to hospital. The police seized Mr Abbas’ personal mobile phone at that time. Mr Abbas did not consent to the seizure. Later the same day, the police obtained a crime scene warrant with respect to Mr Abbas’ residence and it was searched by the police. In the course of executing the warrant, the police seized more of Mr Abbas’ electronic devices pursuant to s 95(1)(m) of the Law Enforcement (Powers and Responsibilities) Act 2002. Based upon Mr Abbas’ occupation as a solicitor specialising in criminal law and the nature of the assault, the police are investigating what occurred as a targeted attack.

4. [4]

   Mr Abbas is not under investigation with respect to the shooting or at all. He is not charged with, nor is he suspected of having been involved in, the commission of any offence. However, the police maintain that it is possible that the electronic devices that they have seized will contain information that could be relevant to their investigation of the crime committed against Mr Abbas. Without limiting the generality of the police concerns, they contend that as Mr Abbas is a solicitor with a significant practice in criminal law, material relating to his clients may yield information of assistance to them in their investigation.

5. [5]

   In response to the application, the police have read a series of open and confidential affidavits. One of the open affidavits that deals with these initial suspicions, contains the following material:

6. [6]

   Since having seized Mr Abbas’ electronic devices, the police have proceeded to examine the data that they contain. That includes examining the material with programmes to facilitate the recovery of stored data, including encrypted information. That process is not yet complete. The police have specifically and uncontroversially acknowledged that they are not permitted to examine material that is properly the subject of lawyer/client privilege beyond an initial or threshold assessment to determine whether, despite apparently having been created or retained in what appear to be circumstances potentially attracting such a privilege, the material could in fact be of a kind to which they are legitimately entitled to have access. That would be so because it relates to the investigation pursuant to which the devices were originally seized or to the investigation more widely of organised crime, of which the attempt to kill Mr Abbas may be an example.

7. [7]

   Sections 218 and 219 of the Act are in these relevant terms:

8. [8]

   It is not in dispute that the electronic devices that are the subject of these proceedings are property to which these provisions apply. There would, however, appear to be some doubt concerning the proposition that the information stored on the devices also amounts to a form of property. In Joukhador v Commissioner of Police [2020] NSWSC 227, Beech-Jones J said this at [63] and [65]:

9. [9]

   For present purposes, that issue, if it remains in doubt, does not arise for determination. Subject to what appears below, the police have now managed successfully to download, or will shortly have downloaded, the entire contents of the seized devices: Mr Abbas does not seek the return of these data, although maintains that lawyer/client privilege attaches to many of them.

10. [10]

    The essence of the remaining dispute may be described as follows. On the one hand, Mr Abbas maintains that physical possession or custody of the devices is in effect essential for the conduct of his professional practice as a solicitor. The following paragraph from the affidavit of Tracey Randall, Mr Abbas’ solicitor, dated 7 August 2023, makes his position clear:

11. [11]

    It is not in dispute that Mr Abbas conducts his professional activities with a particular reliance upon electronic collection and storage of data. Although that approach may at one time have been considered to be unconventional, it would no longer appear to be so. It is not contested by the police that Mr Abbas’ avowed method of conducting his practice is genuine.

12. [12]

    On the other hand, the police maintain that retention of the physical devices is important for their purposes for a number of reasons. First, even though the data on the seized devices have been captured by use of the Cellebrite Extraction, the police retain concerns about whether that process has been completely successful. Senior Constable Nathan Costick refers to this in his 3 August 2023 affidavit as follows:

13. [13]

    Secondly, quite apart from the question of whether or not the data extraction process has been completely successful, Detective Senior Constable Nathan Blake expressed additional concerns about the evidentiary strength of data recovered from the seized devices, without the devices themselves being available for tender in any later criminal proceedings concerning the shooting. Detective Blake’s affidavit of 4 August 2023 referred to this concern:

14. [14]

    The following matters deposed to by Detective Blake on 8 August 2023, continuing with that theme, should also be noted:

15. [15]

    It will be apparent that no officer exercising a function conferred under the Act has expressed the satisfaction to which s 218 refers that retention of the seized electronic devices as evidence is not required.

Judicial consideration

1. [16]

   The Commissioner referred to several recent authorities in this Court and beyond. There was no contest before me that they accurately describe the principles that I am required to apply.

2. [17]

   In McQueen v Hawi and Anor [2008] NSWSC 136 at [17], Adams J posed the following question for consideration concerning the police retention of blood stained shoes:

3. [18]

   In the present case, there is no issue that the seized electronic devices might themselves be implicated in any crime which has not been identified or indeed in any crime at all. Their only significance for the purposes of investigating the crime perpetrated against Mr Abbas consists in the data that they contain.

4. [19]

   Adams J answered his own question at [18]-[19] as follows:

5. [20]

   Adamson J considered the relevant provisions in Fantakis v Commissioner of Police [2013] NSWSC 685 at [27]-[31] as follows:

6. [21]

   The following consideration by the High Court in Smethurst and Another v Commissioner of Australian Federal Police and Another (2020) 272 CLR 177; [2020] HCA 14 should also be noted:

Consideration

1. [22]

   Much of the argument before me emphasised what I might refer to as balance of convenience considerations. For example, Mr Abbas maintained that he required the seized devices to conduct his legal practice, without which he would be seriously inconvenienced and the rights of his clients potentially irrevocably compromised. The police in response offered to transfer all of the data held on these devices to alternative devices with similar characteristics so as entirely to obviate the asserted inconvenience. This was to be compared to difficulties that the police maintained they would experience if access to the data were to be restricted to the Cellebrite Extraction, or its equivalent, in association with police concerns that they may not as yet have secured access to all of the data contained on the devices. In particular, the police do not believe that their attempts to open Signal and Wickr applications on Mr Abbas’ phone have so far been entirely successful.

2. [23]

   The police are also concerned that, even after the data on the seized devices have all been secured, retention of the physical devices themselves is necessary lest some challenge is mounted at any subsequent criminal trial to the provenance of any material recovered from them. That concern seems to raise the spectre of the devices themselves becoming physical evidence in such proceedings. I confess not to understand that submission. There can hardly be a legitimate concern about the continuous possession or provenance of downloaded or recovered data if the police are able, as in my experience they regularly are, to give evidence of how and when they gained access to information on devices that they wish to rely on in court. It would be otherwise if the devices were said to be relevant in themselves, as opposed to the information that they contained, or that there were, for example, DNA traces or other forensic material attached to the devices that was to be relied upon as evidence.

3. [24]

   I accept and adopt, with respect, the accuracy of the proposition expounded in Puglisi, that the preponderance of opinion in relation to the exercise of discretion tends to be in favour of refusing to order the return of things, even when they have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. In the circumstances of the present case, I am not satisfied on the evidence before me that the seized devices will themselves be used as evidence in any proceedings that may in due course be commenced with respect to the attack upon Mr Abbas. In that respect, I place no importance upon the fact that such proceedings have not yet been commenced and are not pending. It is a reasonable assumption that such proceedings will, or may, be commenced when the police investigation appears to warrant such a course.

4. [25]

   The single, and difficult, point of contention is whether, in circumstances where there is a doubt that all of the information which the seized devices contain has been retrieved, the police ought to be entitled to retain possession of those devices against the currently uncertain contingency that they might yet yield further data potentially relevant to their investigation. I accept that the “seized data” are required for investigation of a specific crime or are potentially required as evidence. I do not accept that the devices are required as evidence.

5. [26]

   In the course of submissions, reference was made to the prospect that Mr Abbas might deliberately or inadvertently delete material from his devices so as to, or at least with the unintended consequence that it might, frustrate the police in their attempts to gain access to the suspected balance of the data which they were thought to contain. I discussed that prospect with Mr Ozen of senior counsel for Mr Abbas:

6. [27]

   As at 8 August 2023, the state of retrieval by the police of data from the seized devices, or what Detective Blake described as the estimated review status of each seized item, was said by him to be as follows:

7. [28]

   Having regard to these estimates, and upon the basis that Mr Abbas will proffer an undertaking in acceptable terms, I consider that the seized devices should be returned to him by no later than 4pm on Wednesday 16 August 2023. In anticipation of the making of orders to give effect to my conclusion, I will list the proceedings before me at 10am on that day, and direct the parties to provide me at that time with agreed short minutes of order for that purpose or, in the absence of agreement, with competing versions of the orders for which they respectively contend. The question of costs, if not agreed, can also be argued at that time.