REMEDIES
434 In his application, Mr Caratti sought various declarations, as well as the issue of writs certiorari and mandamus.
435 The declarations sought by Mr Caratti included declarations that the "search warrant decisions" were void and of no effect; that the execution of each search warrant (or alternatively the Irwin Street warrant alone) was invalid; and that the Commissioner is "not entitled to possess things seized pursuant to each of the warrants". For the reasons already given, declarations along the lines sought by Mr Caratti should not be made. The decisions to issue the search warrants were not void or of no effect. The search warrants were not invalid on their face. The execution of the warrants, as a whole, was not beyond power. The Commissioner is entitled to retain possession of the items seized pursuant to the terms of the Crimes Act, subject to appropriate orders being made in relation to the items of electronic equipment that have been found to have been unlawfully seized.
436 Mr Caratti did not seek any declaratory relief in respect of the seizure of individual items, including electronic devices. The writ of certiorari sought by Mr Caratti was directed at quashing each of the search warrant decisions. For the reasons already given, such a writ should not issue.
437 The writs of mandamus sought by Mr Caratti were directed at causing the Commissioner to "deliver up" all of the items seized pursuant to the warrants and to destroy any "material" derived from the seized materials. Such writs should not issue for the reasons already given.
438 Mr Caratti initially sought, but did not press for, the issue of writs of prohibition against the Commissioner of Taxation.
439 Mr Caratti did not seek writs of mandamus in relation to specific items, including electronic storage devices, which would have had the effect of requiring the Commissioner to return any specific items. Mr Caratti's submissions, however, proceeded on the basis that the Court should order the return of any electronic devices which are found to have been unlawfully seized.
440 The Commissioner did not appear to take issue with the fact that Mr Caratti's application did not seek any specific orders, or the issue of any writs, directed at any specific items. He contended, however, that the Court should decline to grant any such relief.
441 The issue of a writ of mandamus is discretionary. So too is the making of an order requiring the Commissioner to return items which have been found to have been unlawfully seized, either because the warrant has been found to have been invalid, or because the seizure was outside the terms of the warrant or any statutory authority. Mr Caratti conceded as much in his submissions.
442 It appears to be generally accepted that the relief that may be granted upon a finding that items purportedly seized pursuant to a search warrant were in fact unlawfully seized is discretionary. There is, however, an issue in the authorities concerning the nature and scope of the discretion. The debate, at least in the earlier authorities, to an extent centred around the decision of Court of Appeal of the United Kingdom in Ghani v Jones [1970] 1 QB 693 concerning the common law power of search and seizure without a warrant. That appears to have been because in some cases where a warrant was declared invalid, it was argued that the seizure of some items was nonetheless legal on the basis of the common law power to seize.
443 It is worth noting that the Commissioner did not contend that, if the warrants were declared to be invalid or not lawfully issued, the items purportedly seized pursuant to the warrants were nonetheless lawfully seized pursuant to the principles in Ghani v Jones. Nor did the Commissioner contend that, if it was found that the individual items of electronic equipment were not lawfully seized under either s 3F or s 3L of the Act, the seizure of those items was nevertheless authorised pursuant to the common law principles. It is in these circumstances at the very least doubtful that Ghani v Jones provides a particularly useful guide to the principles that should be applied in determining whether the Court should order that the items found to have been unlawfully seized should be returned.
444 It is unnecessary to conduct a review of the early authorities. They were reviewed at length by Hill J in Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393. The circumstances in which items were unlawfully seized in Puglisi were, as Hill J pointed out, a clear demonstration of the operation of Murphy's law. The items were initially seized pursuant to invalid warrants. The police sought to rectify that problem by applying for and obtaining a second set of warrants, but they too were ineffective. A third set of warrants were issued, and the items were then "re-seized" pursuant to those warrants from the back of a police car. His Honour found that the items were not lawfully seized for a number of reasons, including that items held by the AFP without authority cannot be seized by the AFP from the AFP. Having found that the items were unlawfully seized, his Honour considered whether he should order the return of the items. Having reviewed the authorities at length, his Honour concluded as follows (at 405):
I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice. Should the court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated.
Of course, the question whether the items in the present case, if otherwise admissible, should be admitted in evidence in the pending prosecution, despite the fact that they were obtained without lawful authority, will be a matter for the judicial officer hearing the prosecution: Bunning v Cross (1978) 141 CLR 54; 19 ALR 641. The existence of this discretion suggests to me that I should not interfere with the pending prosecution by requiring the documents seized to be returned but leave instead to the judicial officer presiding on that prosecution the question whether the material illegally obtained should be admitted into evidence in the prosecution.
445 Hill J declined, in the circumstances, to order that the items be returned. The circumstances included that, following the purported execution of the third set of warrants, criminal proceedings were commenced against Mr Puglisi. His Honour noted that at least some of the seized items could be "expected to be used" in the prosecution. There is, however, no indication that Hill J actually considered the seized items and concluded that they had any evidentiary relevance.
446 A similar view in relation to the existence and nature of the discretion was reached, at about the same time, by Dunford J in Cassaniti v Croucher (1997) 37 ATR 269. In Cassaniti, Dunford J rejected arguments that a search warrant was invalid, but upheld a complaint that certain items were unlawfully seized because the seizing officer did not, at the time of seizure, turn his mind to whether seizure could be justified under the warrant. Rather, he seized them for the purpose of taking them away to determine, at a later time, whether seizure could be justified. As to whether he should order the unlawfully seized items to be returned, his Honour said as follows (at [280]):
Seizure of documents without a valid warrant or unlawful execution of a valid warrant does not necessarily mean the return of the documents and items seized, but there is a discretion to permit the police to retain items illegally seized which appear to provide evidence of the commission of criminal offences and which are required for the prosecution of such offences: Ghani v Jones [1970] I QB 693 at 706; Walker v West [1981] 2 NSWLR 570 at 584; Parker v Churchill (1985) 9 FCR 3I6 at 330-333; Rowell v Larter (1986) 24 A Crim R 222 at 230-2 citing Marinko v Rames (unreported, 13 August 1971, Hope J). In some of those cases there is reference to existing prosecutions and here no prosecution has yet been instituted but subject to the outcome of these proceedings, the police have completed their investigations and are in a position to seek the advice of the Director of Public Prosecutions on whether the evidence is such as to justify the commencement of criminal proceedings. In those circumstances and bearing in mind that the police had a valid warrant and were acting in purported execution of such warrant, I consider that sufficient grounds have been shown and the police should be permitted to retain any relevant material seized for the purpose of obtaining that advice.
447 His Honour held that the seizing officer was entitled to retain the unlawfully seized items for the purpose of obtaining advice from the Director of Public Prosecutions and any criminal prosecutions arising from that advice. No criminal proceedings were on foot at the time his Honour made that order. There is also no indication that his Honour himself turned his mind to whether the unlawfully seized items would afford evidence of any offence.
448 In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J found that a search warrant purportedly issued pursuant to an Act was invalid. His Honour found, however, that it did not necessarily follow that he should order the return of the items seized pursuant to the invalid warrant. His Honour referred to the authorities, including both Puglisi and Cassaniti. It is important to note that criminal proceedings had already been commenced. Not surprisingly, therefore, his Honour's review of the authorities included cases where courts had refused to order the return of unlawfully seized items in circumstances where criminal proceedings were already on-foot. Having reviewed the authorities. Holmes J concluded as follows (at 683-684 [57]):
The overwhelming weight of persuasive authority, in my opinion, supports the existence of a discretion to be exercised in considering an application for the return of illegally seized items; and moreover points to a refusal to exercise that discretion where criminal proceedings are on foot. On balance in this case, the greater interest lies in preserving the evidence; the question of admissibility may properly be left to the trial judge. Accordingly, I would not be prepared to make any order for the return of items seized pursuant to the invalid warrant if they are required for the prosecution of the first applicant, nor for the delivery of the videotape of the search if it affords evidence of the commission of the alleged offence. There is however, no material presently before me as to the evidentiary value of the seized items. I would be prepared to receive further material and hear argument, should the parties so wish, as to whether any or all of the material seized does in fact afford evidence of an offence. It may be that the question can be resolved between the parties.
449 Mr Caratti accepted that the relief sought by him, in particular the order in the nature of mandamus requiring the return of unlawfully seized items, was discretionary. He advanced two submissions in relation to the exercise of the discretion.
450 First, he submitted that if he established that the warrants were invalid on their face (ground 1A) or that the decision to issue the warrants was invalid (ground 1B) the authorities established that the discretion can only be exercised one way: the items seized pursuant to the invalid warrant must be ordered to be returned. Second, Mr Caratti submitted, in effect, that the Court retained a discretion not to order the return of unlawfully seized items in only two circumstances: first, where criminal proceedings were already on foot; and second, where it had been shown that the items seized may afford relevant evidence of the commission of the alleged offence. In support of those submissions, Mr Caratti relied primarily on the decision of Commissioner Sleight in CC v Rayney (2012) 42 WAR 498.
451 In Rayney, the police intercepted Mr Rayney's motor vehicle and arrested him for the murder of his wife. He was charged later that day with murder. Also later that day, the police seized items from Mr Rayney's motor vehicle. The police did not have search warrants. The Criminal Investigation Act 2006 (WA), however, gave the police power to seize items if they had reasonable grounds to suspect that the items were "things relevant to an offence". That expression was defined in terms relevantly the same as the definition of the equivalent expression in the Crimes Act. The problem for the police was that a magistrate subsequently found that the police officers who seized the items did not, at any time prior to or at the time of seizure, reasonably suspect that the items were things relevant to an offence. Nor was there any evidence before the magistrate which would have allowed the court to make an objective assessment of whether it was reasonable to suspect that the items were things relevant to an offence. The magistrate ordered that the items be returned. Commissioner Sleight dismissed an appeal from the magistrate's decision.
452 In dismissing the appeal, Commissioner Sleight referred to the judgment of Hill J in Puglisi and expressed the following opinion (at 511 [49]):
In my opinion, the authorities reviewed by Hill J, in reaching the conclusion that he had a discretion, do not suggest that a discretion can arise in a situation where the invalidity of the warrant arose because there were no reasonable grounds for suspecting that the material provided evidentiary material in support of the commission of an offence by the suspect person.
453 Commissioner Sleight then referred to the judgment of Homles J in Wright. He then concluded as follows (at 512 [52]):
I conclude from these decisions that at common law the discretion not to make an order that items seized unlawfully be returned to the owner only arises where there is material suggesting that the items may afford relevant evidence to the commission of the alleged offence.
454 A number of points should be made about the findings and reasoning of Commissioner Sleight in Rayney.
455 First, Commissioner Sleight's opinion that the discretion not to order the return of items seized does not arise where "the invalidity of the warrant arose because there were no reasonable grounds for suspecting that the material provided evidentiary material in support of the commission of an offence by the suspected person" is obiter dicta and should not be followed. The matter before Commissioner Sleight did not concern items seized pursuant to an invalid search warrant. It concerned the seizure of items by the police in circumstances where they did not turn their minds to the matter that the relevant statute required them to turn their minds to: whether there were reasonable grounds to suspect that the items would afford relevant evidence of the commission of the alleged offence.
456 Nothing said by Hill J in Puglisi or Holmes J in Wright indicates that the discretion does not arise where the invalidity of the warrant arose from the fact that the information before the issuing officer was not capable of satisfying the officer that there were reasonable grounds for suspecting that there was evidential material (as defined) at the premises to which the warrants relate. The judgments of both Hill J and Wright J support the proposition that the discretion arises in any case where it is found that items were illegally seized: whether the illegality arose from the fact that the warrant was found to be invalid, or was invalidly issued, or because seizure of the item was found to be illegal for some other reasons. So too does the judgment of Dunford J in Cassaniti, which involved facts and circumstances not dissimilar to Rayney: seizure by a police officer in circumstances where the police officer did not have reasonable grounds to suspect that the items would afford evidence of the commission of an offence. The fact that none of the authorities referred to by Hill J in Puglisi directly concerned the circumstance where a warrant was declared invalid because the statutory precondition for its issue was not satisfied does not mean that the discretion not to order the return of an illegally seized item does not extend to that circumstance.
457 The precise circumstance which gave rise to the finding of illegality would no doubt be a relevant consideration in the exercise of the discretion whether or not to order the return of the unlawfully seized items. Depending on the particular circumstances of the case, it may well be the case that considerable weight should be given to the reason why the seizure had been found to be unlawful. That would particularly be the case where the illegality arose from the fact that the warrant pursuant to which the item was purportedly seized should never have been issued because the material before the issuing officer was insufficient to satisfy the statutory preconditions for the issue of the warrant. However, that may be only one of a number of relevant considerations to be weighed in the balance. The effect of Mr Caratti's submission is that it would be the only consideration.
458 Second, Commissioner Sleight's conclusion that the discretion not to order the return of an illegally seized item only arises where there is material suggesting that the item may afford evidence of the commission of the alleged offence is not supported by authority and should not be followed. The authorities do not establish that there is any such rigid or immutable rule. In Puglisi, Hill J declined to order the return of the illegally seized items in circumstances where it would appear that there was no evidence before the court which positively established that the seized items would afford evidence against Mr Puglisi. His Honour proceeded on the basis that the items "may" be "expected" to be used in the prosecution. Both Holmes J in Wright and Dunford J in Cassaniti also declined to make orders returning the goods in circumstances where it appears that there was no material suggesting that the seized items would necessarily afford evidence of the commission of the alleged offence. Their Honours did, however, allow the parties to lead further evidence, or present further arguments, on that issue.
459 A number of difficulties would arise if the discretion not to order the return of illegally seized items only arose where there was positive evidence that the items would or may afford evidence of the alleged offence. One difficulty would be that it may not be possible for the police to put such material before the court in a case, like the present one, where the police have effectively been prevented from inspecting the seized items. A second difficulty is that such a rigid requirement or restriction would in many cases impose a significant and difficult burden on the Court. It would effectively require the Court to put itself in the shoes of an executing officer and decide, in relation to each item seized, whether there are reasonable grounds to suspect that the item may afford evidence of the suspected offences. That may well be a very difficult exercise where the alleged offences are complex and the investigation is at an early stage. The burden would be particularly onerous in a case where a particularly large volume of material was seized.
460 It is generally for the issuing officer (in relation to the issue of the warrant) or the police (in relation to the seizure of the item) to determine whether there were reasonable grounds to suspect that there may be evidential material at the relevant premises (in the case of the issue of a warrant) or that the item would afford evidence of the commission of an offence (in the case of the decision to seize an item). It is not for the court to substitute its own opinion for the opinion of the issuing officer, in relation to the issue of the warrant (Williams v Keelty at 213 [166]) or the executing officer, in relation to the seizure of an item (Adler at 33-34 [39]). The effect of Mr Caratti's submission, based on Rayney, is that in every case where the seizure of an item has been found to be unlawful, the Court has to effectively stand in the shoes of the executing officer and decide whether there are reasonable grounds to suspect that reach unlawfully seized item would afford evidence of the commission of the offence. Only if such grounds were found to exist could the Court exercise its discretion not to order the return of the item.
461 The better view is that the discretion not to order the return of illegally seized items is not necessarily restricted to cases where it has or can be shown that the seized items may afford evidence of the suspected offences. That would no doubt be a relevant consideration, and in many cases would be a very weighty consideration, to be taken account in the exercise of the discretion. Much will, however, depend on the particular facts and circumstances of the case. Where, for example, it is apparent that the executing officer suspected, on apparently reasonable grounds, that the seized items could afford evidence of the commission of the offence, but the seizure was found to be invalid because there was a technical deficiency in the warrant, the genuinely held views of the officer may be sufficient to show that the seized item may be relevant. It would not, in such circumstances, be necessary for the Court to consider for itself the potential relevance of the seized item. The position may well be different in a case, like Rayney, where the police seized the items without turning their minds to whether there were reasonable grounds to suspect that the items would afford evidence of the commission of the offence. In such a case, the absence of any evidence that the seized item may afford evidence of the commission of the offence may well be a very weighty consideration in the exercise of the discretion. Even in such a case, however, it may well be appropriate for the Court to give the parties a further opportunity to lead evidence or advance arguments on that issue, as was done in both Cassaniti and Wright.
462 Third, Rayney provides no support for Mr Caratti's contention that the discretion not to order the return of an illegally seized item only arises where there are criminal proceedings on foot. Nor is that contention supported by either Puglisi or Wright. In each of those cases criminal proceedings were on foot. It does not follow that the discretion only arises, or should only be exercised, in such circumstances.
463 There is no basis in principle for limiting the exercise of the discretion to cases where criminal proceedings are already on foot. That would be a particularly significant limitation, given that many, if not most, search warrants in complex matters are executed before charges are laid. Often charges cannot be laid until the seized material is considered by the police or the relevant prosecuting authority. Often that cannot occur until the proceedings challenging seizure of the material are heard and determined. That is because interlocutory relief is often granted, or undertakings are frequently given, that have the effect of preventing the police from inspecting the seized material until the search warrant proceedings are resolved.
464 Dunford J in Cassaniti did not consider that the discretion not to order the return of illegally seized items only arose only if criminal proceedings were on foot. His Honour was, with respect, correct in not limiting the discretion to that circumstance.
465 If criminal proceedings are on foot, that would no doubt be a relevant consideration, perhaps a highly relevant consideration, in deciding whether or not to order the return of unlawfully seized items. That does not mean, however, as Mr Caratti effectively contended, that the Court's discretion not to order the return of unlawfully seized items only arises if criminal proceedings have already commenced.
466 It follows that the discretion whether or not to order the return of unlawfully seized items is not as narrow as Mr Caratti would have it.
467 What then is the nature of the discretion? What are the relevant considerations that should be taken into account in deciding whether unlawfully seized items should be returned?
468 The starting point, perhaps, is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods. That consideration would support the return of the unlawfully seized goods. That is not, however, the end of the matter. Weighed against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The result is that a number of additional considerations would ordinarily come into play.
469 The list of relevant considerations is not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. All of the facts and circumstances surrounding the unlawful seizure must be considered. Relevant considerations may include: was the unlawful seizure deliberate, reckless or contumelious, or was it the product of mere technical deficiency or less serious conduct on the part of the seizing officer or agency; what is the nature of the items seized (for example, are they items that the party from whom they were seized requires to conduct their business); is there a risk that, if returned, the seized items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced (as in Cassaniti); and the possible importance and probative value, if any, of the seized material. That is not intended to be a complete list of potentially relevant considerations. It is intended to be no more than indication of the types of matters that might be relevant.
470 Ultimately the question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained. Or, put in another way, whether the undesirability of a person being unlawfully deprived of their goods is outweighed by the public interest in the police or investigating agencies being permitted to investigate and prosecute serious criminal conduct without undue interference. In that regard, the discretion is somewhat similar to the discretion to admit unlawfully obtained evidence under s 138 of the Evidence Act. That is not to suggest that the discretion is the same as the discretion in s 138 of the Evidence Act. That discretion arises in a different context and at a different stage of the administration of criminal justice. The point is that the exercise of the discretion, like the exercise of many discretionary powers, ultimately involves an exercise of balancing competing private and public interests.
471 In the present case, the unlawful seizures appear not to have been deliberate, contumelious or even reckless. They appear to have been the product of an inadequate understanding, or perhaps a misunderstanding, of the circumstances in which an electronic storage device can be seized. Officers appeared to proceed on the basis that if the electronic device contained relevant files, that was sufficient to justify seizure. They did not appear to appreciate, or know about, the terms of s 3L of the Crimes Act. They also did not appear to appreciate the difference between the contents of the device meeting the conditions of the warrant, and the device itself satisfying those conditions.
472 Another relevant consideration is that it appears that the officers responsible for seizing the particular items genuinely formed the view that there were reasonable grounds to suspect that the files or data on the devices would afford evidence of the commission of the offences in the warrant. The possible exceptions to this are the seizure of the Compaq and Toshiba computers and the TDK storage device, where the evidence tended to suggest that the consideration given to the third condition of the warrants was at best cursory. In the case of the computers, for example, it appeared to be believed that it was sufficient for files on the computers to refer to one or more of the condition two entities. Even in that case, however, the officers genuinely believed that the files on the computers were properly seizable under the warrants.
473 In all the circumstances, it would be reasonable to infer that there are files or data on the devices that may afford evidence of the third condition offences, though it is not possible to say how important the evidence might be. Criminal proceedings are not on foot against Mr Caratti or Ms Bazzo. It may be inferred, however, that the AFP may need access to the seized material before considering and possibly taking advice on the question whether there are grounds to commence criminal proceedings. The alleged offences are serious offences.
474 Another relevant consideration is that the exercise of the discretion in the circumstances of this case does not involve a stark choice between returning or not returning the items. There is an available alternative course which allows for the retention of evidential material and the return of the electronic equipment that was unlawfully seized. That alternative course is to permit the AFP to do what they should have done, or considered doing, in the first place: to copy or take an image of the data or files on the unlawfully seized devices to the extent that that is practicable. The computers and devices can then be returned. That course would ensure that any evidential material is retained and preserved, but the devices themselves are returned.
475 On balance, and taking into account all the relevant facts and circumstances surrounding the unlawful seizure of the electronic devices, it would not be appropriate to simply order the return of the unlawfully seized equipment. The more appropriate course would be to permit the Commissioner to further inspect or interrogate the seized electronic items in order to confirm that there is data stored on them that satisfies the three conditions in the warrant. If that is confirmed to be the case, the Commissioner should be permitted to take an image of the device, or copy the data, in accordance with s 3L(1A) of the Crimes Act. The further inspection, and any forensic imaging or copying, should take place within a reasonable time (perhaps 28 days would be appropriate) and should occur in the presence of Mr Caratti's representatives, if that is what he requests. Once the further inspection and any copying or imaging has taken place, the relevant devices should then be returned. There is no evidence to suggest that the devices themselves have any evidential value.
476 In the event of any dispute arising between the parties as a result of, or in the course of, the further inspection and copying, the parties should have leave to relist the matter for further argument concerning the process. Such a dispute may arise, for example, if upon further inspection of the devices, Mr Caratti contended that there could be no reasonable basis for a suspicion that any data or file on one or more of the devices fell within the terms of the warrant.
477 The exercise of the court's discretion in this way is, to a certain extent, consistent with the approach taken by Holmes J in Wright and Dunford J in Cassaniti. It is also consistent with the view expressed by Burchett J in Parker v Churchill, where his Honour indicated (at 332) that had he found that documents were illegally seized "by reason of matters not involving deliberate or reckless disregard of the law", he would have permitted inspection of the documents to enable more detailed argument to be advanced upon any claims that particular documents ought be retained.
478 Contrary to Mr Caratti's apparent contention, the course that has been proposed would not undermine the need to ensure that warrants are lawfully executed. Mr Caratti has achieved some measure of success. He will have the electronic devices returned to him. He will have the right to advance an argument that there could be no reasonable basis for suspecting that any data on the devices falls within the terms of the warrant. He will also have the benefit of the Court's findings that the electronic devices were, in the first instance at least, unlawfully seized. If criminal proceedings are ever commenced against him, he may be able to argue that the data copied from these electronic devices was, at least in the first instance, unlawfully obtained evidence. He could argue on that basis that the evidence should therefore be excluded pursuant to s 138 of the Evidence Act.
479 Subject to entertaining further submissions on this point, if necessary, Mr Caratti's success in relation to this aspect of the matter should also probably be reflected in the costs order or orders made in these proceedings.
480 Finally, and perhaps most significantly, it should be emphasised that the Commissioner and the AFP should not approach this aspect of this proceeding as providing some sort of precedent for what will occur in cases where electronic equipment is seized in circumstances where the requirements in either s 3F or s 3L are not satisfied. The fact that the Court has permitted the devices to be further inspected and copied in the particular circumstances of this case does not mean that the same approach will necessarily be taken in every case. Much will depend on the particular facts and circumstances of the case. The message that the Commissioner and the AFP should take from this matter is that they should pay closer attention to the relevant provisions of the Crimes Act, complex as they may be, because there may in due course come a case where the Court will order the return of unlawfully seized electronic devices where the relevant provisions are either ignored or overlooked.