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

Judgment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 applicant will provide any consent or authorisation in writing to the NSW Police as necessary to permit and facilitate their access to the LEAP or other record keeping system for the purpose of copying the records as outlined above. Any copied material is to be contained in a clearly marked archive box(es) deposited with the NSW Supreme Court and not to be accessed until further order of the Court. The applicant or his lawyers is to be notified once the material is deposited with the Court.
7. 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.
8. 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.
9. 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.
10. 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.
11. Section 218 of LEPRA provides: 218 Return of seized things (1) A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that - (a) its retention as evidence is not required, and (b) it is lawful for the person to have possession of the thing. (2) This section is subject to any order made under section 219.
12. Section 216 deals with the property with which that Division (Div 2 of Pt 17) of LEPRA is concerned. Section 216(1) provides: 216 Application to property (1) This Division applies to the following property - (a) property that is in the custody of a police officer or member of the NSW Police Force in connection with an offence, whether or not proceedings for the offence have been commenced, (b) property that is lawfully in the custody of a police officer or member of the NSW Police Force other than in connection with an offence.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.

Orders Pursuant to the Court's inherent and implied powers, and/or in the alternative, pursuant to s 23 of the Supreme Court Act 1970 (NSW): Registrar of the Supreme Court

1. The Court directs the Registrar to release the material in sub-paragraphs (a) and (b) below to the principal of Harrow Legal Pty Ltd or their agent: a. Three archive boxes of hard copy files comprising of fifteen original client files and one photocopied file, deposited in the Registry on 15 December 2017 pursuant to orders made by Fullerton J on 30 November 2017 in proceedings 2017/346596; and b. Two computer hard drives prepared by LEAP Legal Software Pty Ltd (LEAP) containing Thomas Booler Lawyer's electronic records on the LEAP system deposited in the Registry on 20 December 2017 pursuant to orders made by Fullerton J on 30 November 2017 in proceedings 2017/346596;
2. The Principal of Harrow Legal Pty Ltd may authorise an employee or agent to attend and collect the items in 1(a) and (b) from the Registry of the Supreme Court by providing a signed letter to the Registrar identifying the name, date of birth, address, driver licence number and email address of the employee or agent who has been engaged and authorised;
3. The employee or agent of the Principal of Harrow Legal Pty Ltd is required to provide photographic identification to the Registrar to establish and record their identity prior to the release of the items in 1(a) and (b); Commissioner of Police
4. The Court orders the Commissioner of Police, to the extent an order is necessary, to release the documents seized by members of NSWPF during execution of search warrants 631/2017, 632/2017 and 633/2017, not already returned and save for those documents which are subject to separate application to the Local Court of NSW;
5. The Principal of Harrow Legal Pty Ltd may authorise an employee or agent to collect the items described in order 4 above from a police officer by providing a signed letter to the Commissioner of Police identifying the name, date of birth, address, driver licence number and email address of the employee or agent who has been engaged and authorised;
6. The employee or agent of the Principal of Harrow Legal Pty Ltd is required to provide photographic identification to the police officer to establish and record their identity prior to the release of the items in 4;
7. The Court orders the Commissioner of Police to dispose of the copies of the items held by her solicitor which was accessed and used for the purpose of, or created as a result of, the client legal privilege review: a. Copies of the material set out items in 1(a) and (b); b. Image of 1 x Apple iPhone A1524 (which was identified as police exhibit X0002448752); c. Image of 1 x white Apple iPhone A1387 (which was identified as police exhibit X0002448753); d. Image of black Apple iPhone A1429 (which was identified as police exhibit X0002448755); e. Image of black Apple iPhone in black case property of Marcel Joukhador (police exhibit X0002184886); and
8. The Court orders the Commissioner of Police to dispose of the image of the following items held on portable hard drive X0002183172: a. Image of 1 x Apple iPhone A1524 (which was identified as police exhibit X0002448752); b. Image of 1 x white Apple iPhone A1387 (which was identified as police exhibit X0002448753); c. Image of black Apple iPhone A1429 (which was identified as police exhibit X0002448755);
9. The Court orders the Commissioner of Police to dispose of the image of black Apple iPhone in black case property of Marcel Joukhador (police exhibit X0002184886) created for the purposes of providing her solicitors with police exhibit X0002184886;
10. The Court orders the Commissioner of Police to dispose of 1 x Verbatim USB containing results from 18_0859 Created by DFU (X0003762799).
11. Each party bear their own costs.

Amendments 14 February 2024 - Typographical error on cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2024