[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
EX TEMPORE Judgment
This application concerns the possession of a MacBook laptop, known as "item 24", by reference to a list of items prepared by police executing a search warrant on 27 August 2018 on premises owned by the first appellant, Mr Phillip William Doyle.
There are two active parties to the application before me. The second appellant, Mr Mark Barbeliuk, was as I understand it residing in the premises at the time while Mr Doyle was serving a custodial sentence following his conviction for a number of offences against young boys, and he is the owner of the laptop in question.
The Commissioner for Police and Detective Senior Constable O'Neill are presently in possession of the laptop, but have limited access to its contents by reason originally of injunctions issued by the Supreme Court shortly after the execution of the warrant, and more recently, undertakings the substance of which is that access has been restricted for the sole purpose of making submissions and supplying evidence in relation to Mr Barbeliuk's application either for its return or destruction.
Doyle v Commissioner of Police [2020] NSWCA 290 | Case summary | Zoe
Mr Barbeliuk seeks orders that the laptop and all copies of its hard drive be destroyed. The Commissioner of Police and Detective Senior Constable O'Neill seek to be released from the restraints presently binding them, so that they may investigate the child abuse material contained on the laptop.
It is common ground that the laptop was owned by Mr Barbeliuk, that at some stage (as I understand it, shortly after the warrant was executed, and in accordance with ordinary practice) one or more images of its hard drive were made, and it is also common ground that the hard drive contains child abuse material.
The hard drive was inspected last month, and a solicitor has sworn the following:
"On my inspection of item 24 I saw that it contained images (including some that may have been doctored) of boys clearly under the age of 18 (including prepubescent boys) in various states of undress (including some in swim wear and others completely naked, some displaying their genitalia), some engaged in sexual activity."
It is common ground that I am asked to exercise a discretion. That is established order 5(b) of this Court's judgment of 14 February 2020: Doyle v Commissioner of Police [2020] NSWCA 11. By that decision, this Court, constituted by Justices Payne, Simpson and me, allowed an appeal from a judgment of the Court of the Common Law Division, holding that the warrant executed on 27 August 2018 was invalid. However, the Court rejected the application made by Messrs Doyle and Barbeliuk for the automatic return of items seized pursuant to the invalid warrant, but rather reserved for the consideration of a single Judge of Appeal "the exercise of discretion in relation to items seized by the police pursuant to the warrant, and copies of those items": order 5(b) made 14 February 2020. That was confirmed in this Court's subsequent decision in Doyle v Commissioner of Police (No 2) [2020] NSWCA 34.
Mr Barbeliuk sought, as was his right, special leave to appeal to the High Court of Australia from those orders. Special leave was refused: Barbeliuk v NSW Commissioner of Police [2020] HCASL 187.
The situation then is whether as, Mr Barbeliuk contends, his rights based on ownership of the MacBook, coupled with his entitlement that police exercising a search warrant necessarily invasive of his privacy adhere to the law, entitle him to equitable relief by way of destruction of his laptop and copies made of it. (I note that Mr Glissan QC who now appears for Mr Barbeliuk acknowledged, candidly and succinctly and in my view entirely properly, that no entitlement based on confidential information or intellectual property could be relevantly maintained in support of this application.)
Alternatively, as the Commissioner contends, should as a matter of discretion this Court deny Mr Barbeliuk equitable relief, having regard primarily to the public interest in there being a criminal investigation of the material now known to exist on the laptop. The destruction sought by Mr Barbeliuk would inevitably impede, and perhaps might entirely prevent, any investigation of how the child abuse material came to be created and how it came to be found on the laptop.
Mr Barbeliuk makes essentially four points in support of his application. The first and second I have already mentioned. They are that there was a serious breach of the statute by the issuing officer, and that he is entitled to remedies vindicating the ordinary rights of a citizen to private enjoyment of his residence.
Mr Barbeliuk adds that, at the time the warrant was executed, he was not the subject of the search warrant, and that there was no evidence of any reasonable suspicion on the part of the police that the laptop was evidence of the commission of a crime.
I do not think any significant weight attaches to either of these last two considerations. The position more than two years ago, when the warrant was executed, is well removed from the exercise of discretion I am called upon today to make. That will be informed by the up to date evidence before me. Favourably to Mr Barbeliuk, it includes the breaches of statute that this Court found in its first judgment. Unfavourably to Mr Barbeliuk, it also includes the material now known to reside on his laptop.
In support of Mr Barbeliuk's submission that the issuing officer's breach of statute was serious, he relies upon what this Court said at paras 73 and 74 of its first judgment. I accept his submission. The circumstances in which the warrant came to be issued are set out in some detail at [59]-[75] of this Court's first judgment Doyle v Commissioner of Police [2020] NSWCA 11. It is important that the issuing officer squarely attend to the statutory obligation to give separate and independent attention to the application made by a police officer under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
I also accept Mr Singleton's submission, who appears for the Commissioner, that the gravamen of this Court's earlier criticism was directed to the issuing officer, rather than to the police officers who oppose the relief now sought by Mr Barbeliuk.
That said, I am not sure that much turns upon whether most blame can be attributed to the issuing officer or the applying police officer. From the perspective of Mr Barbeliuk, what has happened is that an invalid warrant has issued resulting in a trespass to his property and an invasion of his privacy. Further, although Mr Singleton is correct to observe that the conduct which most directly led to the breach of LEPRA was that of the issuing officer, the mode in which the application was made by the police officers applying for the warrant undoubtedly contributed to the breach which occurred. On the view I take, nothing turns on these considerations.
To my mind, the most important consideration in relation to the quality of the breach of statute which has occurred in this case, is what is absent from either the findings of this Court or the submissions made on behalf of Mr Barbeliuk. There was no evidence of any "malevolence" (to quote Mr Singleton's oral submissions). Still less was there any submission of any deliberate illegality by police officers or issuing officer, or reckless indifference to what statutes required. There was merely a misapprehension - albeit one which I would regard as serious - of what LEPRA required.
Mr Singleton invokes s 138 of the Evidence Act 1995 (NSW), correctly stating that it is not for me here and now to exercise that discretion, in support of the proposition that it represents a legislative imprimatur to the proposition that there must be some items of evidence which have been obtained unlawfully which nonetheless may be adduced, including at a criminal trial.
That submission has force, as does its corollary, which is that this Court should not now, in the exercise of an equitable discretion, make an order for destruction which would take out of the hands of any court in which any subsequent criminal prosecution might be brought, the exercise of a discretion under s 138, if indeed material found on the hard drive is sought to be adduced by the prosecution.
The Commissioner also relies upon the decision of the High Court of Australia delivered earlier this year (but after the first two decisions in this litigation) in Smethurst v Commissioner of The Australian Federal Police [2020] HCA 14; 94 ALJR 502. It is said that, although the outcome cannot bind the exercise of a discretion on this application, Smethurst is a stronger case insofar as the non compliance with the statute was more extreme, and a majority of the Court refused all equitable relief to the journalist, in circumstances where a copy of the data from her mobile phone had been taken pursuant to an invalid warrant.
What is most significant from Smethurst, in my opinion, is the principle underlying the judges constituting the majority on the exercise of discretion. The joint judgment of Kiefel CJ, Bell and Keane JJ, said at [104] that there was nothing hypothetical about the possibility of prosecution in the present case. That reflected a submission made by Ms Smethurst that she was exposed to the risk of prosecution. The joint judgment then continued:
"The public interest in both the investigation and the prosecution of crime would not suggest as appropriate an order that the information be taken from the AFP and given to the plaintiffs. The prospect of criminal conduct may be disclosed is a sufficient reason to decline the relief sought."
The other member of the majority, Nettle J, wrote to similar effect at [160]. After referring to the potential for Ms Smethurst's prosecution for a criminal offence, his Honour said:
"The claim for injunction thus confronts the difficulty that, generally speaking, injunction will not go to restrain publication of information where the consequences of restraint would be to prevent disclosure of criminality which, in all of the circumstances, it would be in the public interest to reveal."
The minority judges in the High Court favoured a regime whereby the material would be returned to Ms Smethurst, but subject to provisions which would ensure that a narrower, valid warrant might issue to intercept some of that material.
Those considerations, to my mind, are applicable to the present case. Mr Barbeliuk, for sensible reasons, of which no criticism can be made, does not seek the return of his laptop or the image which has been made of its hard drive. On the evidence before me, there is more than the mere "prospect" of criminal conduct which should be investigated.
Mr Barbeliuk does, however, seek orders compelling the police to put out of their power any investigation of the material. (I use the word "any" advisedly. The effect of the interlocutory relief, originally injunctive, now by way of undertaking, is that the police to date have been permitted only to access this material for the purpose of making submissions relating to the exercise of discretion.) There is no authority of which I am aware which supports the issue of equitable relief designed to stop in its tracks an inchoate investigation into conduct which has led, it is uncontroversial, to images likely to amount to child abuse material being found on the laptop.
I put entirely to one side whether such relief might be available in the case of a flagrant or deliberate breach of statute, or even a breach made with reckless indifference to the obligations upon police and the entitlements of members of the public. That is not this case.
While I fully accept the importance that citizens have both to insist upon compliance with the law by police officers who are given special and invasive functions under LEPRA, and also their fundamental entitlement to privacy, I do not consider, consistently with what was stated by a majority of the High Court in Smethurst, that this is a case where the relief which Mr Barbeliuk seeks should issue.
For those reasons, it is appropriate to discharge the regime presently binding the police. The history of those orders is complicated, but as I understand it, it is common ground that it is sufficient merely to make this order, namely, discharge order 4 made by the Court in its Common Law Division on 20 December 2019 in respect of the laptop known in the proceedings as item 24.
[DISCUSSION AS TO ORDERS]
HIS HONOUR: Then I will make the following order as well:
To the extent necessary, the undertakings given by the legal practitioners retained by the Commissioner and members of the Digital Forensics Unit, which have been provided pursuant to the regime in Doyle v Commissioner of Police (No 3) [2020] NSWCA 240 are discharged.
[3]
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: 17 November 2020