Greer v Commissioner of NSW Police and Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE list

JUDGMENT 1 BELL J: These proceedings were commenced by summons filed on 16 January 2002. The plaintiff claims orders including an order to return to him, or an order for the destruction of, certain documents, photographs and videotape recordings held by the first defendant. The proceedings arise out of the execution by the second defendant of a search warrant on premises at 17 Rodd Road, Five Dock on 12 December 2001. The premises were occupied by the plaintiff and his mother. 2 The relief sought in prayers 1 to 3 of the summons was not pressed. It is common ground that the items referred to therein were returned to the plaintiff in the period between 16 January and 21 February 2002. 3 In the proceedings before me the plaintiff claimed the following relief: (i) that any and all photographs of item (06) (1 Collins one page per day diary) that have been made by and are in the possession of the defendants be returned to the plaintiff; (ii) that any and all photographs and/or negatives taken of the plaintiff on Wednesday, 12 December 2001, to include any and all video footage be returned to plaintiff or destroyed; (iii) that any and all questions asked by the defendants and any or all answers given by the plaintiff as a result of the plaintiff's detention at 17 Rodd Road, Five Dock on Wednesday 12 December 2001 that have been recorded in any way, be either destroyed or given to the plaintiff. 4 The plaintiff read two affidavits sworn by him on 16 January and 8 April 2002. He deposed to being spoken to by persons, apparently members of the New South Wales Police, some time after 1:30 pm on Wednesday 12 December 2001 in a lane at the rear of 17 Rodd Road, Five Dock. He was handed an Occupier's Notice issued pursuant to the Search Warrants Act 1985. A copy of that Notice is annexed to his first affidavit. 5 The plaintiff stated that his personal/business Collins diary for the year 2001 had been seized by police during the execution of the search warrant. A number of other documents and things were also seized pursuant to the warrant but it is not necessary to refer to these. 6 The defendants' relied on the affidavit of Todd Maxwell Barden sworn on 21 March 2002. Detective Barden was required for cross examination. 7 Detective Barden deposed that he applied to the clerk of the Local Court, Downing Centre, Liverpool Street, Sydney for a search warrant on 12 December 2001 in respect of premises at 17 Rodd Road, Five Dock. A warrant was issued upon that application and executed on that day. The execution of the warrant was recorded by means of a video recorder. Items were seized and listed in a Property Seizure/Exhibit Form. Subsequently a number of items had been returned to Mr Greer's solicitor, Mr Tony Barber. 8 Detective Barden went on to state in his affidavit: "A photocopy of the plaintiff's 2001 diary, as referred to in Property Seizure/Exhibit Form A35174 was made and retained to assist with ongoing police investigations into the $391,900.00 found at 19 Rodd Road, Five Dock on 13 December 2001." 9 In cross-examination Detective Barden was shown the original of the Collins diary and invited to identify entries in it said to be relevant to the ongoing police investigation into the finding of the money. He referred to entries contained on the pages marked 6, 7 and 9 December 2001 as significant in this regard. Photocopies of those entries were tendered. The entries identified by Detective Barden concern references to the police. In particular, the entry for 6 December appears to record that uniformed police were on that day observed by the author in the immediate vicinity of the premises at 17 Rodd Road. One officer was described as peering through the front window of the bedroom occupied by the plaintiff's mother. Some time later the author recorded that the police drove off in a marked white police vehicle. 10 The proceedings were conducted upon the basis that the entries in the Collins diary were made by the plaintiff. 11 Detective Barden said that the day following the execution of the search warrant at 17 Rodd Road the police discovered the sum of $391,900.00 in cash wrapped in some form of packaging lying on the ground in a location within one metre of the common boundary with 17 Rodd Road. There was no access to the location at which the parcel was found from either the front or the back of the dwelling at 19 Rodd Road. The parcel appeared to have been lying in these exposed conditions for some time. 12 The New South Wales Police and the New South Wales Crime Commission are jointly investigating the finding of this sum of money. Detective Barden considered it to be of relevance to that investigation that in the days leading up to the execution of the search warrant the plaintiff could be shown to have been aware of police interest in his premises. I understand the inferences that Detective Barden considers open include (i) that the sum of cash was unlawfully obtained, (ii) that the plaintiff had possession or control of it and (iii) that he stowed it on the neighbouring property when he became aware of the high level of police interest in his premises. 13 Detective Barden readily conceded that many entries in the Collins diary had no relevance to any ongoing police investigation. He did not confine himself to an assertion that the entries for 6, 7 and 9 December were the only relevant entries. He said it had been a while since he had read the diary and he believed there may be other notations of significance to the police in connection with the subject investigation. Principally reliance was placed on the entry for 6 December 2001. 14 Detective Barden photocopied the diary prior to returning the original to the plaintiff. Generally it was Detective Barden's account that he copied the whole of the diary because it may be appropriate to view individual entries by reference to their context in the entire text.

15 Detective Barden agreed in the course of his cross-examination that some still photographs depicting the plaintiff had been taken by police during the execution of the search. Some or all of these depict the plaintiff standing in the rear lane behind the premises. 16 The plaintiff did not challenge the validity of the search warrant issued to Detective Barden on 12 December 2001. No challenge was mounted to the seizure of the Collins 2001 diary pursuant to the warrant. It was the plaintiff's contention that the retention of photocopies of the diary was not justified by reference to any on-going investigation into the location of the cash at 19 Rodd Road, Five Dock or otherwise. 17 In Ghani v Jones [1970] 1 QB 693 Lord Denning MR enunciated a number of principles governing the common law power of police to seize articles in connection with an investigation. Ghani v Jones was concerned with the seizure, without a warrant, of certain property that included passports in connection with an investigation into the disappearance of a woman believed to have been murdered. His Lordship articulated five principles governing the seizure of articles in connection with an investigation in circumstances where no person has been arrested or charged (at pp 708 -709): " First: the police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offender's should be caught and brought to justice. Second : the police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber); Third: the police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable; Fourth : the police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally: the lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards. 18 Ghani v Jones has been followed in this jurisdiction in a number of cases: see Tye v Commissioner of Police (1995) 84 A Crim R 147 at 151.

19 Where property is seized pursuant to the execution of a search warrant the police are not entitled to retain it for longer than is reasonably necessary in order to complete investigations or to preserve it for evidence: Gollan v Nugent (1988) 166 CLR 18 at 29. Lord Denning's fourth principle in Ghani v Jones provides support for the proposition that it is lawful for police to copy a seized document so that the original may be restored to the owner promptly. There may be cases where to photocopy a document seized during the execution of a search warrant would constitute dealing with the property otherwise than for the purposes of the powers conferred by the warrant and that in such a case the owner of the original may have a basis for seeking relief in this Court to restrain an abuse of the criminal process: Donnelly v Amalgamated TV Services (1998) 45 NSWLR 570 at 575. I am not persuaded that this is such a case. 20 The evidence establishes that there is a current investigation into the possible commission of a criminal offence associated with the finding of the sum of cash at 19 Rodd Road, Fivedock on 13 December 2001. I am satisfied that Detective Barden considers that certain of the entries in the plaintiff's 2001 Collins diary are relevant to this investigation and may have evidentiary significance in the event of a prosecution. This is not a case in which the photocopying of the document seized or the retention of the copy raises any question of an improper purpose on the part of the police or an actual or threatened abuse of the criminal process. 21 The plaintiff submitted that in the event that I declined to order the delivery up or destruction of the copies of the whole of the diary, I should order that the copies of entries other than those for 6, 7 and 9 December be delivered up to him or destroyed. 22 I am mindful that the Collins 2001 diary was described by the plaintiff in his affidavit as being a "personal/business" diary. The personal nature of the diary taken together with the acknowledgment that much of it does not relate to any ongoing investigation might be thought to favour the making of such an order (assuming for present purposes the power of the Court so to do). However, I bear in mind that the defendants seek to retain the copy of the diary for its evidentiary value in the event of a prosecution. I accept that in the event that the entries identified by Detective Barden were proved in evidence in support of a prosecution it may become relevant to prove other entries or indeed the whole document. In this respect I have regard to the observations of Studdert J in Tye v Commissioner of Police: "Quite apart from those cases where a litigant has sought the return of some property, there are many other authorities which reflect the unwillingness of the civil courts to act in such a manner as would interfere with the process of contemplated criminal proceedings: see, for example, Sankey v Whitlam (1978) 142 CLR 1 at 25; Cain v Glass [2] (1985) 3 NSWLR 230; Peek v New South Wales Egg Corp (1986) 6 NSWLR 1 at 3; Yates v Wilson (1989) 168 CLR 338; and Sergi v DPP (unreported), Court of Appeal, NSW, (File Number 40518 of 1991; 10 September 1991), per Kirby P at p 7. If I ordered the return this sample of blood to the plaintiff now, the effect of such an order would be to deprive the court in the criminal proceedings of what may later be considered to be material and important evidence. Whether such evidence should ultimately be admitted is a matter properly to be decided by the trial judge at the plaintiff's trial. This Court ought not to make an order now such as would have the effect of excluding the admission into evidence of material which the trial judge may later, in the setting of the trial, have decided should be admitted (at p 155)". 23 A distinction between Tye and the present case is that in Tye criminal proceedings had been brought against the plaintiff. Here the defendants seek to retain the photocopy of the diary for what was described in written submissions as "the legitimate purpose of police investigation" and, as the matter was developed in oral argument, the preservation of material of potential evidentiary significance to a possible criminal proceeding. 24 The plaintiff contended that nothing in the contents of the entries to which Detective Barden drew attention could be thought to have any material bearing on any offence associated with the finding of the cash on the adjacent premises. In my view the process of reasoning identified by Detective Barden in his evidence is one which is reasonably open. The original of the diary has been returned to the plaintiff. I consider that the retention of the photocopy of the diary is reasonable in connection with the on-going investigation. For this reason I decline to grant the plaintiff the relief he seeks in prayer 4 of his summons without further consideration of the basis of any power to order the defendants to deliver up photocopies made by them of documents seized pursuant to a valid warrant. 25 The plaintiff also seeks to have the videotape recording of the execution of the search warrant, photographic stills depicting him taken during the execution of the warrant and any record of questions asked of him and answers given by him during the execution of the warrant delivered up to him or destroyed. 26 The plaintiff has no proprietary claim over the videotape recording the execution of the search warrant. 27 On the defendant's behalf it was submitted that it is legitimate for police executing a search warrant to electronically record their activity. It provides an objective record of their conduct and affords protection against allegations of wrong-doing, theft or the planting of evidence. I accept that is so. 28 Ms Roberts, who appeared on behalf of the defendants, referred me to the decision in Regina v Jiminez [2000] NSWCCA 390. In that case the Court upheld the appellant's appeal against conviction and entered a verdict of acquittal. Smart J (in a judgment with which Ireland AJ agreed) observed that the Crown case had a number of unsatisfactory aspects of which the most important was the absence of a videotape record of the execution of the search at the premises occupied by the appellant. In his judgment Fitzgerald JA also placed emphasis on the failure to record the whole of the execution of the search warrant in conformity with the Police "Education package for video/audio recordings of search warrants and planned operations". 29 During the course of submissions the plaintiff did not seek to contend otherwise than that the police had a legitimate reason to record the execution of a search warrant. He focused his submissions on the taking of still photographs of him during the execution of the search warrant. Detective Barden said that he believed some photographs had been taken of the plaintiff.

30 The photographs are the property of the Police and not that of the plaintiff. 31 In the plaintiff's submission the taking of the still photographs could not be justified by reference to the need to have an objective record of the search it being common ground that a videotape recording of the whole had been made. It was contended that the police had abused the coercive powers conferred on them by the warrant in taking the still photographs. I should note that no such proposition was put to Detective Barden. In the event it is not necessary to give further consideration to this aspect of the plaintiff's claim. Ms Roberts conveyed to the Court an undertaking on behalf of the defendants that the still photographs taken on 12 December 2001 depicting the plaintiff would be destroyed. It is sufficient for me to note that undertaking. 32 The plaintiff did not press his claim for an order to deliver up to him or an order directing the destruction of all records of the questions asked of him and answers given by him during the execution of the search warrant. Any questioning of the plaintiff during the execution of the warrant was recorded on videotape. For the reasons already given I consider it was entirely proper for the police to electronically record the whole of the execution of the search warrant. The videotape recording is the property of the Police. There is no basis for granting the plaintiff the relief he claims in this respect. 33 For these reasons I dismiss the summons. 34 The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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