Lee v NSW Commissioner of Police [2019] NSWSC 694 | Case summary

Supreme Court of NSW|2019-03-29|Before: Garling J

Solicitors: Lenz Legal (P) Makinson & d'Apice (D1, D2, D4) File Number(s): 2017/367939 Publication restriction: Not Applicable

The First Search Warrant

In order to understand the proceedings, the subject of this judgment, it is necessary to note the facts, matters and circumstances surrounding the issue, and execution of, a previous search warrant.
On the morning of 22 February 2017, in the purported execution of a search warrant issued on 21 February 2017, a number of police officers attended the plaintiff's residential premises in Rushcutters Bay. Ms Peebles was the officer responsible for the execution of that warrant (the "first search warrant").
The application for the first search warrant relied upon an allegation that the plaintiff had committed the offence of stalking or intimidation contrary to the Crimes (Domestic and Personal Violence) Act 2007 against a former partner. The alleged offence occurred between November 2015 and January 2017 and involved sending her former partner (the primary male target) and his new partner (the primary female target), as well as other individuals associated with the primary male and female targets, thousands of text messages and emails, which police assessed as being threatening, offensive or abusive.
In the course of the execution of the first search warrant, the police seized hard copy documents including a notebook with handwritten notes in it, and several electronic items including an iPhone, two iPads and two laptops.
The plaintiff commenced proceedings in this Court on 24 February 2017, seeking various orders with respect to the first search warrant ("the 2017 proceedings").
The Summons which was initially filed on 24 February 2017, claimed relief against the Commissioner on two principal grounds which were expressed in this way: "2. A declaration that any documents seized by NSW Police are privileged. … 4. A declaration that any documents seized by NSW Police are not reasonably connected to the alleged offences."
The Summons in its initial form did not claim any general invalidity of the first search warrant, nor did it, at that stage, claim any form of administrative law relief with respect to the application for the issue of the first search warrant, the grant of the first search warrant or the execution of it. The relief which was initially claimed was directed to a right to privilege with respect to a number of documents, that they were the subject of privilege or else fell outside the terms of the first search warrant. This latter claim was described using the shorthand "irrelevant".
The plaintiff asserted that documents should be returned because they were irrelevant and were not properly seized. The circumstances in which such claims arose are relevant in these proceedings.
On 28 February 2017, N Adams J made consent orders in which, for the time being, the police undertook not to inspect the hard copy documents that had been seized from the premises on the execution of the first search warrant on 22 February 2017. Her Honour noted that, in the event that privilege was claimed in respect of any hard copy documents, the police agreed not to inspect those documents until after the claim had been determined or by agreement.
The orders of N Adams J did not finally resolve the claims for relief which were then being made in the initial form of the plaintiff's Summons. As noted earlier, what was there sought included declarations as to the existence of privilege, and orders for the return of the documents. These orders required the Court to examine, beyond the basis of evidence to be led, whether any document was privileged or irrelevant. The orders of N Adams J only addressed a process which enabled a claim for privilege to be made, and which, in the meantime, preserved the status quo. The orders were clearly by their terms not intended to finally resolve the controversy between the parties. They were clearly interlocutory orders.
As is later described in more detail, investigating police, in the period prior to when an Amended Summons was filed, accessed and read the documents over which no claim of privilege was made. The documents to which access was permitted had included a notebook containing handwritten notes known as the "Strava information", a term which is later explained. In so doing, the police were not in breach of the orders of N Adams J of 28 February 2017.
After the orders of N Adams J were made, at an early point in the proceedings, Mr Dean Lenz, the solicitor for the plaintiff, attended the Kings Cross Police Station where the documents were being held, on three separate days. There, he was provided access to the documents and read through each of them. He then produced a schedule of the documents ("the Schedule"), describing each document or group of documents and making a claim for privilege. The Schedule was provided to the solicitor for the police.
About six weeks after the Schedule was provided, the solicitor for the police responded to each of those claims by reference to the Schedule. In respect of some documents, the solicitor indicated that access was not pressed by police. In respect of others, further information was sought with respect to the basis which justified the privilege claim.
There was further correspondence between the solicitors for the parties, including the provision of further information by the solicitor for the plaintiff in a final version of the Schedule, prior to the filing of the Amended Summons.

The Amended Summons

With leave of the Court, an Amended Summons was filed in the 2017 proceedings on 28 July 2017. The Amended Summons joined the second defendant because she was the police officer who made the application for the first search warrant; it also joined Mr Tim Henderson as the third defendant, who was the person who issued the first search warrant.
The Amended Summons reformulated the whole of the relief sought. For the first time, it sought administrative law relief based upon the invalidity of the first search warrant. It articulated that the first search warrant was invalid because it failed to properly specify the searchable offence - this ground was ultimately upheld. It asserted that the first search warrant was also invalid because it failed to properly nominate items to be seized. The plaintiff was unsuccessful on this ground. The Amended Summons also added grounds addressing the manner of execution of the search warrant, including a failure to produce the first search warrant for inspection by the plaintiff at the time it was executed. This ground was not pursued at the final hearing.
Of importance, the relief that was sought included an order in the nature of certiorari or, alternatively; a declaration setting aside or declaring invalid the decision by the second defendant to make an application in writing for the first search warrant; the decision of the third defendant to issue the first search warrant; the decision of the second defendant together with other police to execute the first search warrant in the manner they did or at all; and the decision by the second defendant and other officers to search and take material and items from the plaintiff's premises.
The Amended Summons also maintained the claims with respect to privilege and relevance. Other relief was sought, but those details are not presently material.
The evidence of the solicitor for the plaintiff, Mr Lenz, was that during the course of his inspections of the hardcopy documents at the Kings Cross Police Station on various occasions, not every document was made the subject of a claim that would have denied the police access to that document. Mr Lenz described in his affidavit that he had placed some documents into a sealed envelope marked "Privileged"; he had placed documents over which privilege might be claimed into a separate unsealed envelope; and he placed documents over which there was no claim for privilege back into the original police exhibit bag. Once a decision had been made about the documents potentially the subject of a privilege claim, they were appropriately categorised.
Ultimately, by the end of the whole process of inspection by Mr Lenz, the documents in respect of which a claim for privilege was to be asserted had been placed in sealed envelopes with the word "Privilege" marked on them. The balance of the documents were then returned to the original police exhibit bags into which they had been put at the time of the search.
It was in respect of the documents sealed in envelopes marked "Privilege" that the Schedule to which I have earlier referred was compiled. As became clear from the final version of the Schedule, some documents that were in the envelopes marked "Privilege" were not the subject of privilege claims, but rather were documents to which police access was opposed because they were irrelevant.
The final determination of the (expanded) suit was made by me in Lee v NSW Commissioner of Police [2017] NSWSC 1594 ("the first judgment"), with the relief granted set out in Lee v NSW Commissioner of Police (No.2) [2017] NSWSC 1789 ("the second judgment").
The proceedings were heard on 6 October 2017 and I delivered the first judgment on 23 November 2017. In that judgment, for the reasons which I then gave, I concluded that the content of the first search warrant did not comply with the Law Enforcement (Powers and Responsibilities) Act 2002 ("the LEPRA"), nor with the Regulation made pursuant to that Act. In light of that non-compliance, I concluded that the first search warrant was invalid. I also held that the search undertaken by the second defendant and other police officers was not authorised by the first search warrant.
I did not conclude that the first search warrant was invalid on the basis of another argument advanced on behalf of the plaintiff. This argument was with respect to the description given in the warrant, of things connected with the searchable offence as being an inappropriate or vague description of a kind which made the warrant invalid.
Upon delivery of the first judgment, I directed that the parties bring in appropriate short minutes.
The issue of what orders were to be made was considered by the Court and made the subject of the second judgment, which was delivered on 1 December 2017.
In that judgment I said: "5. Another issue has arisen as to what should happen to the property which was seized, purportedly pursuant to the warrant. There are a number of issues surrounding that property. One is whether it was all seized pursuant to the warrant or whether some were seized legitimately on the authority of another basis; a second is whether part of the material is legally professionally privileged; and a third is whether there is any ready mechanism by which the seizure of the property can be in effect reversed but that a properly sworn and issued warrant, could nevertheless be issued. 6. In the absence of any agreement between the parties which might reasonably resolve this issue, it seems to me that the most expedient and rational course is to fix a time for the return of the items that were seized, and to leave to the parties themselves such conduct as they may wish to engage in."
The orders which followed in the second judgment provided that the items seized by reason of the first search warrant (which I held was invalid), were to be delivered up to the plaintiff at 10am on Tuesday 5 December 2017. In light of my orders requiring the return of all the documents to the plaintiff, the Court did not finally address the claim for privilege or the claim that the documents were irrelevant because there was no utility to be served by the determination of those outstanding issues.

Local Court Criminal Proceedings

After the first search warrant was executed, and prior to the finalisation of the 2017 proceedings, the plaintiff was charged with a number of criminal offences against the Crimes (Domestic and Personal Violence) Act.
Those proceedings have been conducted in the Local Court. In accordance with the usual practice, the police were ordered to serve on the plaintiff the prosecution brief within a period determined by the Court. As the application for the second search warrant and the evidence in these proceedings discloses, the police took the view that in order to complete service of their Brief, they needed to have access to the documents and electronic items seized under the first search warrant.
The police examined a number of documents including handwritten notes in the plaintiff's handwriting in a notebook over which no claim of privilege had been made. The handwritten material included GPS co‑ordinates, locations, times and distances which it could be inferred were obtained by the plaintiff accessing an on-line exercise tracker application called "Strava", which was used by each of the primary victims to record and store details of their individual exercise events ("Strava information").
A police brief was served on 11 October 2017, although with a reservation as to its completeness. Included in that brief were a number of statements of the primary male and female victims, and various attachments. Although the evidence is imprecise, I am satisfied that parts of the statements of the primary victims either directly included reference to, or were derived from, or else related to, the handwritten notes made by the plaintiff, or else the Strava information in the notebook. Putting it differently, from the time the police brief was served, it would have been clear to the plaintiff and those advising her that the police had read and used the handwritten pages in the notebook for the purpose of their investigation and to put evidence before the Local Court.
After the police brief was served and between the hearing of the 2017 proceedings and delivery of the first judgment, Detective Senior Constable Cruikshank, the police officer leading the investigations into the criminal offences, determined that it would be appropriate to travel to Melbourne to conduct further interviews of witnesses with respect to this material. Prior to the delivery of the first judgment in the 2017 proceedings, Ms Cruikshank had sought approval for herself and the second defendant to travel to Melbourne to obtain statements from various witnesses that she had identified. As well, Ms Cruikshank sought approval to interview the two primary victims further "… in relation to specific documents seized at the time of the search warrant". In evidence, those documents were identified as being the plaintiff's handwritten notes in the notebook. The travel was undertaken and witnesses were in fact interviewed towards the end of November, which was in the period between the delivery of the first and second judgments.
The hearing of the prosecution in the Local Court ultimately commenced on 4 February 2019. It continued for seven days. It was then adjourned by the Local Court to 29 March 2019, when it was anticipated that the prosecution case would conclude. Then, depending on whether the plaintiff chose to give evidence or else call on further evidence, the Local Court would be in a position to take final submissions.
After the commencement of the hearing of these proceedings on 27 March 2019, I was informed that the Local Court proceedings were adjourned pending the delivery of this judgment.

The Second Search Warrant

On 4 December 2017, the second defendant applied for a further search warrant in respect of the plaintiff's premises at Rushcutters Bay.
The application identified offences of which the plaintiff was accused which were searchable offences within the meaning of the LEPRA and then went on to set out grounds in support of the application. These were lengthy. An issue has arisen as to what was disclosed in the application to Mr Lister, the third defendant, about the first search warrant and the claims by the plaintiff for privilege. It is appropriate to set out what the third defendant was told by the second defendant, in the written application. I note that no information was provided to the third defendant, the issuing officer, orally.
The following was contained in the application: "The emails continued up until 21st February 2017. On 22nd February 2017, [police] executed a search warrant at the residential address of Denise LEE, being 416/4 Neild Avenue, Rushcutters Bay. LEE was arrested at the time. During the search warrant, police located and seized the following items believed to contain evidence of the offences for which LEE was being charged (relevant particularly to the intimidating and harassing text messages and emails which had been sent to the victims …: 4 x USB flash drives 1 x WD external hard drive 1 x iPhone mobile phone 2 x Apple iPads with charging cables 1 x HP brand laptop with charging cable 1 x Apple Mac laptop with charging cable A large number of handwritten notes and documents. The documents and devices were all seized. Prior to police examining the documents and devices they were contacted by the accused legal representative who claimed that many of the seized items were subject to legal privilege. The defence requested that the items not be further accessed until the matter was resolved. The items were therefore sealed and not viewed. Sometime later the accused's legal representative attended Kings Cross Police Station and viewed the handwritten notes and documents. A small number were returned to police on the basis that legal privilege did not apply. Others were marked as 'Privilege claimed' and re-sealed. To date these have not been viewed, nor have the electronic devices. Examination of the documents over which no claim was made, was conducted with police discovering that a large number of the handwritten notes were GPS co-ordinates, locations, times and distances. Investigations have shown that these co-ordinates, locations and notes all directly corresponded to bike rides that … have taken. At the time, [they] were using an online application called Strava which uploads data from a device worn to a website which helps athletes keep track of their exercise and activity. The detail contained within the handwritten notes makes it clear that the accused was accessing the secure site and directly copying down the data. Also contained on the handwritten notes were names of the victim's colleagues and associates and phone numbers and email addresses used to contact them. Investigations into phone numbers and email addresses used have been undertaken and show that the recovery phone numbers attached to the email addresses used to contact the victims and their associates, primarily belong to patients of the I-MED radiology clinic where the accused worked at the time of the offence. In addition to the argument in relation to legal privilege, LEE successfully argued at the Supreme Court of NSW that the search warrant was invalid due to the fact that the 'Searchable offence' was not sufficiently particularised. The Court therefore made an order that all items seized pursuant to the previous search warrant should be returned to the place from which they were seized at 10.00am on 5th December 2017. Judge GARLING made mention during the proceedings that although the items should be returned, there was nothing to prevent the police from re-seizing the items under a new search warrant immediately after having returned them. Arrangements have been made for police to attend (as directed by Justice Garling) 416/4 Neild Avenue, Rushcutters Bay at 10.00am on Tuesday 5th December 2017 and hand the seized items back to the accused at which time they intend to execute a warrant and seize the items described in this application as I believe that there will be information (including data and meta data) that requires analysis and will tend to prove that LEE is guilty of the offences with which she is charged."
At 10.15am on 4 December 2017, the third defendant issued the second search warrant. The third defendant concluded that there were reasonable grounds for issuing that warrant. He set out the relevant particulars of the grounds on which he relied in this way: "- Nature of application and its compliance with the provisions of LEPRA. - Good evidence as to the items being sought and location of same. - Correlation between the nominated items and the commission of the offence. - On consideration of the content of the search warrant application, I am satisfied that the belief of the informant is a reasonable belief and there are sufficient grounds for the grant of the search warrant application."
On 5 December 2017, the second defendant and a number of other police officers attended the plaintiff's premises to return the documents in accordance with the orders which I made on 1 December 2017, and to execute the second search warrant.
Present at the premises, in addition to the second defendant, was Ms Cruikshank, who was the officer in charge of the investigation which resulted in the criminal charges against the plaintiff, and a number of other police officers. The plaintiff was present, as was a barrister, Mr Peter Barham.
With a small exception, the entirety of the proceedings was recorded on a video camera operated by the police. Most of the conversations that occurred during the execution of the second search warrant were also recorded. A transcript of the video recording has been tendered in evidence as well as the video.
Immediately prior to the execution of the search warrant, when the police first arrived, they attended to the return of the documents and items which had previously been seized. The police returned a number of sealed police exhibit bags contained within several boxes. The sealed exhibit bags contained hard copy documents and electronic equipment that had previously been seized. Some of the documents in those exhibit bags were contained in envelopes marked "Privilege" which had been sealed by Mr Lenz. These envelopes included the documents in the Schedule which were claimed to be privileged or irrelevant.
The plaintiff and Mr Barham checked the exhibit bag numbers, but did not look inside any of those bags, which at that time were sealed. No explanation was offered in evidence for their lack of checking.
After the boxes had been carried into the apartment and the numbers of the exhibits bags checked, Mr Barham handed a letter to the second defendant, which she glanced through, as did Ms Cruikshank. The letter was from Mr Lenz to the Commissioner, addressed to the attention of "The Proper Officer". The letter included the following: "In the event that NSW Police seek to execute a second search warrant at my client's premises, I am instructed to take all necessary steps to: 1. Ensure that the search warrant is lawful on its face (before it is executed); 2. Ensure that my client is actually shown a copy of the warrant and given a copy of the occupier's notice; 3. Ensure that all electronic items and documents that are the subject of my client's claims for client legal privilege are not taken in the execution of the warrant. Please note that if electronic items and the documents that are the subject of my client's claims for client legal privilege are in fact taken in the execution of the warrant … my client has instructed me to approach immediately the Duty Judge of the Common Law Division of the Supreme Court of NSW … so as to seek to injunct the officers in the execution of the warrant and to secure the privileged items in the physical custody of the Registrar of the Supreme Court of NSW pending final determination of the privilege claims. I ask that my client's privilege claims be permitted to be made in an orderly and respectful manner. Documents, the subject of client legal privilege, should not be seized by police. NSW Police are in receipt of several very detailed and itemised claims that our client has made this year regarding these very same documents and electronic items. See, for example, our schedule of hard copy documents … Our client's claim for privilege should be respected by the NSW Police. … We trust that if a second warrant is to be executed at our client's home on Tuesday morning, that it will be done professionally, in an orderly fashion and with dignity and respect for our client." (emphasis in original)
After that letter was handed over, the recording of the execution of the second search warrant (by video) commenced. Copies of the second search warrant and the Occupier's Notice were handed to the plaintiff and to Mr Barham. The plaintiff and Mr Barham were informed that they could keep those copies.
The police officers who attended to execute the second search warrant were introduced by name and their role in the proceedings described. The transcript then records the following exchange: "Mr Barham: First, two points - we say that the warrant has got the wrong address. This is not Rushcutters Bay; it is in fact Darlinghurst. We've got a document to show you that it's Darlinghurst. So we say the warrant is invalid. Secondly, we say that all of these … [Plaintiff]: That's my council rates notice. Mr Barham: We wish to make a claim for privilege. Ms Cruikshank: Yes. Mr Barham: Legal professional privilege or client legal privilege over these documents. [Plaintiff] This is the Court Attendance Notice from NSW Police. This is from … Sydney Water. Mr Barham: And we put you on notice that if the warrant is invalid and bearing in mind the order that has already been made by the Supreme Court … proceedings will follow. … Mr Barham: I don't know if you have had the time - had any time to read that letter. Ms Cruikshank: I've had a quick read of it. Mr Barham: My client will wish to make an urgent application to the Duty Judge - the Common Law Duty Judge in relation to this warrant. Ms Cruikshank: In relation to? Mr Barham: So, are you prepared to … [Second Defendant]: Which part of the warrant? Mr Barham: Pardon? Ms Cruikshank: Which part of the warrant? Mr Barham: The execution of the warrant? [Second Defendant]: In what - on what grounds, sorry? Mr Barham: Well, on the grounds that it … [Second Defendant]: That there is legal professional privilege? Mr Barham: On the ground that it is invalid and on the ground that legal professional privilege is claimed. We're just wondering … [Second Defendant]: Ok. Well that can be done. Mr Barham: Yeh. We're just wondering if you'll desist from executing whilst that is done?"
It is apparent from this early exchange that, on behalf of the plaintiff, Mr Lenz and Mr Barham were advancing three propositions: 1. that the second search warrant was invalid because it incorrectly described the address as Rushcutters Bay, where it should have been Darlinghurst; 2. that any document or items with respect to which "legal professional privilege" was being claimed should not be seized by the police in the execution of the search warrant; and 3. that police ought permit any claim for privilege to be advanced by the plaintiff through an urgent application to the Supreme Court before proceeding with the execution of the search warrant.
It is also clear at this early stage that the claim for privilege was being advanced over all items and documents including those in respect of which privilege had not previously been claimed, and those previously described as irrelevant. This description of the claim on behalf of the plaintiff did not change during the course of that day. No reference was made to the Schedule which had been exchanged between the solicitors for the plaintiff and the police.
There was then a lengthy discussion about the methodology proposed by the police to separate the documents. It was proposed, desirably in the presence of the plaintiff and Mr Barham, that the police would open each of the sealed police exhibit bags (that had just been returned) and, with respect to any documents contained in envelopes marked "Privileged", the police would first inspect the documents and then decide whether to place the documents into a "claimed for privilege" pile or into a "not claimed for privilege" pile. The police did not intend to determine the claim for privilege. They also intended to separate out documents which were not relevant, some of which may also have been the subject of privilege claims.
Whilst either the second defendant or Ms Cruikshank were outlining their intended procedure, Mr Barham and the plaintiff were objecting to it. Often they were talking over each other. It cannot be doubted that each side understood what the other side was proposing to do. The plaintiff and Mr Barham opposed the police looking at any of the documents and were making a "… blanket claim of privilege on all paper documents until" the plaintiff had had an opportunity to inspect them. The plaintiff and Mr Barham asserted that all of the documents were subject to legal privilege and could not be viewed by the police. The police claimed an entitlement to view the documents.
With respect to the electronic items, the police proposed that the specialist police officers present at the scene would copy the contents of those items but leave the items themselves at the premises. This necessitated the provision by the plaintiff of passwords. She declined to provide the passwords and so, these items were ultimately re-seized. The items have not been accessed and were not the subject of any particular submissions in these proceedings.
In the course of the discussion, Mr Barham asserted that the police ought to have made an arrangement for "the police solicitor" to be present because the officers knew that there would be a claim for privilege. After further discussion, the second defendant informed Mr Barham that the police were proceeding in accordance with the advice that they had received. This exchange then took place: "Mr Barham: … Have you spoken to the police solicitor? [Second Defendant]: Yes we have. This is the advice we got. Mr Barham: The police solicitors says - the advice you got from the police solicitor is to go through the bags? [Second Defendant]: Yes. Mr Barham: I find that astonishing. [Second Defendant]: OK - that's the advice we got - to go through it with you. If you don't want to, we will just go through it on our own. That's not a problem."
This exchange was followed a short time later by a discussion over the telephone between Mr Barham and Mr Nicholas Regener, the solicitor who had acted for the police in the 2017 proceedings and who acts in these proceedings. The transcript does not record the contents of that telephone call. No evidence was called from either Mr Barham or Mr Regener about what was said.
Although the issue of the correct suburb had been raised by way of objection to the validity of the second search warrant in the course of the conversation which occurred, Ms Cruikshank informed Mr Barham that the "official RTA system" (by which I infer she meant the records kept by Roads and Maritime Services) described the address as being in Rushcutters Bay and that was the basis of the address contained in the second search warrant. No submission has been made in these proceedings that the second search warrant was invalid because the address included Rushcutters Bay and not Darlinghurst. That issue is not of any relevance and can be put to one side.
During the course of the execution of the second search warrant, both the plaintiff and Mr Barham spoke by telephone with Mr Lenz. In the absence of evidence of the content of their conversations, it seems likely that they were talking about what the police were doing in the execution of the second search warrant, and what the plaintiff or Mr Barham could or should do.
From time to time, there was discussion amongst police about whether one or other document or perhaps a pile of documents were privileged. On a number of occasions, either the second defendant or Ms Cruikshank asked if either Mr Barham or the plaintiff was willing to go through the piles which had been assembled and advise the police whether any of the documents were subject to a claim for privilege. In the course of one such discussion, Mr Barham said: "Mr Barham: What I want to do is get … [Plaintiff]: That's supposed to be done before you … all. Mr Barham: Please. See if I can get an undertaking from you that you will not look at the documents as part of your investigation until we have made the claim for privilege."
The answer was a little confusing because a number of people present were talking over the top of each other. However, in my view it was made plain, by the second defendant to the plaintiff and Mr Barham, that if they wished to make a claim for privilege, not as a blanket claim, but after looking at the documents, the police would seal up the documents in respect of which a claim was made and not open them until an adjudication about the claim had been finalised.
The execution of the second search warrant took about two hours. It would be unrewarding to continue to note in detail what occurred because it continued in much the same way as earlier outlined. Ultimately, the police seized the electronic items that had previously been seized, although the contents of those items were not examined. The hard copy documents relevant to the police investigation were all marked as being subject to a claim for privilege and were sealed and placed into boxes that were in turn sealed. Other hard copy documents deemed irrelevant to the proceedings were not seized. The police gave Mr Barham an oral undertaking that they would not look at the documents in the sealed boxes until any claims for privilege had been resolved. That undertaking has been complied with.
As noted earlier, the current proceedings were commenced in this Court on 5 December 2017, on the same day that the second search warrant was executed. By letter dated 21 December 2017, the plaintiff's solicitor described in a new schedule the documents that had been placed in 100 individual sleeves and the nature of the privilege or objection to access which the plaintiff had.
Each sleeve was individually numbered and in the course of the hearing of these proceedings, the parties agreed that a claim was not being made for privilege in respect of all of those sleeves. The balance are the ones upon which the parties have not reached agreement.
During the course of these proceedings, a procedure under r 28.2 of the Uniform Civil Procedure Rules 2005 was agreed between the parties to deal with the privilege claims at a later time.
Against this background information, it is necessary to identify the issues relied upon by the plaintiff in the proceedings. Broadly speaking, whilst there were nine Grounds raised as a basis for the relief which the plaintiff seeks, those Grounds fall into two categories. In the Third Further Amended Summons, the Grounds set out in paragraph 6A to 6F (inclusive) address the validity of the decision of the third defendant on 4 December 2017 to issue the second search warrant. The Grounds set out in paragraphs 6H to 6I (inclusive) fall into a second category which addresses the manner of the execution of the second search warrant.

Application, Issuing and Execution of the Second Search Warrant

Within the Grounds, there are two central themes. The first theme is that in applying for the second search warrant, the second defendant relied upon information obtained from documents invalidly seized during the execution of the first search warrant. This theme gives rise to the submission that the third defendant took into account a legally irrelevant consideration, namely the information provided to him which had been obtained in that way (Ground 6B(a)). In relying upon that information, the third defendant could not have reasonably (or legally) been satisfied that there were reasonable grounds to issue the second search warrant (Ground 6B(b)).
It is also claimed that the third defendant failed to take into account a legally relevant consideration, namely that the belief of the police officer applying for the second search warrant was based upon material which was unlawfully obtained under the first search warrant (Ground 6C(a)). The plaintiff further submitted that even if this was not a mandatory consideration, the third defendant's failure to engage it as a discretionary consideration meant that he misconceived the correct nature of his statutory task (Ground 6C(b)).
In respect of this theme, the plaintiff alleged in Grounds 6F and 6A that those applying for the second search warrant were acting in furtherance of an improper purpose and that the third defendant's decision to issue the second search warrant was: "… affected by fraud in that the application of the [third defendant] was made in breach of an equitable obligation of confidence owed to the plaintiff in relation to the material and information unlawfully seized."
Finally, it is said that each of these matters canvassed in those Grounds lead to the conclusion that the third defendant's decision was affected by "legal unreasonableness" (Ground 6E).
The second theme is that the third defendant failed to take into account a legally relevant consideration, namely, that the things in relation to which the second search warrant was sought included communications and documents over which a claim for privilege had been made (Ground 6D).
In dealing with the Grounds relating to the execution of the second search warrant (Grounds 6G and 6H), the plaintiff concentrated on the conduct of the police officers in opening the sealed packets of documents that were marked as being subject to claims for privilege. The police officers inspected those documents and purported to determine that some of them were not privileged. The plaintiff contends this had the consequence that those police officers (including the second defendant and for whom the first defendant is liable) acted in breach of orders made by N Adams J on 28 February 2017 and/or an undertaking or implied undertaking given to the Court on 6 October 2017, that the first and second defendants would not inspect the documents over which the plaintiff claimed privilege until the claim had been determined.
Based upon this, it was claimed that the second search warrant was executed for an improper or unauthorised purpose, was otherwise an unlawful exercise of power, and that the officers executing the second search warrant failed to permit the plaintiff a reasonable opportunity to make or maintain a claim for privilege.
Finally, in Ground 6I, it was alleged that the police officers acted on the illegally erroneous basis that privilege is a rule of evidence and not a substantive right.
Relief is sought in respect of these Grounds.

Application for the Second Search Warrant

To deal with these submissions, it is first necessary to be persuaded that the application for the second search warrant ought to have, but did not, contain relevant material. As well, other discrete issues of fact need to be addressed.
Significant parts of the application have been referred to at [44]. The application for the second warrant also included facts, including part of the evidence, upon which the charges constituting a searchable offence were based.
The second defendant informed the third defendant that over a period of about three months an estimated 8,880 text messages were exchanged between the plaintiff and the primary male victim. The second defendant noted that on numerous occasions the primary male victim had asked the plaintiff to stop sending him texts, but that she continued so to do. The second defendant also noted that on one particular day, within the space of one hour and 20 minutes, the primary male victim had received 69 intimidating text messages from the plaintiff.
It is noted in the application that the primary male victim took steps to block the plaintiff's phone number and about five days later he started receiving email messages from 31 different email accounts. The facts disclosed that in the following six week period the victim received 3,796 emails from 31 different email accounts.
In the application, the facts also noted that during 2016 and 2017, over approximately eight months, 49 different email addresses were used to send a large number of emails to many recipients including individuals closely related to the primary male victim and his friends, staff at the employer of the primary male victim and staff at the employer of a mother of one of the victims. The content of those emails included allegations which were said to be, at least by inference, wholly unfounded.
The application noted that the emails continued up until 21 February 2017, which was the day before Dr Lee's premises were searched, and she was arrested and charged. It then included the following statement: "On 22 February 2017, police executed a search warrant at the residential address of Ms Lee being [address inserted]. Ms Lee was arrested at the time. During the search warrant, police located and seized the following items believed to contain evidence of the offences for which Lee was being charged (relevant particularly to the intimidating and harassing text messages and emails which had been sent to the victims …). … The documents and devices were all seized. Prior to police examining the documents and devices, they were contacted by the accused's legal representative who claimed that many of the seized items were subject to legal privilege. The defence requested that the items not be further accessed until the matter was resolved. The items were therefore seized and not viewed."
The application went on to refer to the handwritten notes in the notebook (in respect of which no claim for privilege had been made) and which are described in the fifth and sixth paragraphs of the material extracted at [44] above.
The fact was noted that there had been proceedings in the Supreme Court and that the plaintiff had successfully submitted that the first search warrant was invalid. That the Court made an order that all items seized pursuant to the first search warrant were to be returned was also noted, as were the arrangements that the police had made to return the items. It was further noted that at the time the seized items were returned to the plaintiff, the police intended to execute the second search warrant (if granted) and seize the "items described", a reference to the electronic devices and hardcopy documents earlier described in the application.
It is necessary to examine the evidence touching upon the subjective motivation of the second defendant (the applicant for the second search warrant) with respect to her examination of the documents she referred to in the application.
The notebook containing handwritten notes of Dr Lee was seized by police in the execution of the first search warrant. It was not made the subject of any claim for privilege by the plaintiff's solicitor when he first inspected the documents and, accordingly, was not the subject of the orders of N Adams J regarding restrictions or police access to any documents over which privilege was claimed.
The notebook once examined by Mr Lenz became available to be used by police legitimately because no claim was made for privilege, and at that time no claim was being made that the first search warrant as a whole was invalid. Accordingly, the police were free to examine the notebook and use the information in it.
The notebook and the Strava information were used, and the initial statements of the two primary victims were obtained. Although those statements are not before the Court, it is apparent from the evidence of the second defendant that they contained accounts of fact which related to the Strava information. It is not clear whether those accounts of fact were drawn directly from the Strava information alone or from some other source as well. Clearly, however, the contents of the statements relate to, identify and deal with the contents of the Strava information.
Those statements of the two primary victims were served as part of the prosecution brief in the Local Court on 11 October 2017. At that time, although a hearing had been held in which claims were made about the invalidity of the first search warrant, no determination was been made that the first search warrant was invalid. The contents of the police brief of evidence contained, as well as the statements just referred to, an item described as: "10. Copies of documents seized from LEES [sic] address (not subject to claim of privilege) with relevant phrases and passages highlighted by [primary male victim]."
Item 18 was described in an identical way except that the highlighting was by the primary female victim. Other items in the brief index related to the execution of the first search warrant. They included: "89. Copy of handwritten notes seized during the search warrant (not subject to a claim for privilege. 90. Copy of notebook seized from the accused [sic] at the time of arrest (not subject to a claim for privilege)."
It seems from the description that, at least, Item 89 refers to the Strava information.
Although no date was given on the application for the second search warrant as to when that examination of the notebook (containing the Strava information) occurred, the evidence is clear that it first took place at a time prior to the completion of the statements of the primary victims in May 2017.
As well as the Strava information, there was a reference in the application to handwritten notes seized during the first search warrant containing details of names, phone numbers and email addresses of the victims and their colleagues and associates. These notes were not the subject of any claim for privilege and were examined at the earlier point in time when investigations were made.
It was suggested to the second defendant in cross-examination that it was wrong for her to have referred to this material in the second search warrant application, as the Court had declared the first search warrant to be invalid by the time the application was prepared. The second defendant rejected such a suggestion. The effect of her evidence was that since the documents were not the subject of any claim for privilege after they were seized, the original access to and use of the information in them had been appropriate. The second defendant said that although the first search warrant had been declared invalid, that was not on the basis of any matter relating to these documents.
Accordingly, the second defendant reasoned that the documents could be re‑seized with a further valid warrant (for which she was applying) and that, accordingly, referring to and relying upon the documents was not inappropriate.
It was also apparent from the evidence that the Strava information had been used by the police to further their investigations in the period between the delivery of the first and second judgment by me.
I am satisfied from both the oral evidence of the second defendant and also that of Ms Cruikshank, and the documentary evidence which was tendered, that the arrangements for the interview of witnesses in Melbourne had been in contemplation for some time prior to the delivery of the first judgment. I am also satisfied that a few weeks prior to the delivery of the first judgment, formal approval was sought to travel to Melbourne to interview the witnesses as a part of the investigations. The index to the police brief made it clear to the plaintiff and her solicitor that police investigations were ongoing and not complete, because statements of identified individuals or from an identified class of individuals were being obtained, and although included in the index, had not been finalised or served.
It was put to the second defendant and Ms Cruikshank (and rejected by them) that they had deliberately set about using the Strava information contained in the seized notebook knowing that they would be obliged to return them before any formal order was made to that effect. I am not satisfied that that is the appropriate conclusion. It is a suggestion which derives from hindsight - that is, in the knowledge that the Court in the second judgment ordered the return of the documents. As the second judgment shows, the parties did not agree what orders the Court ought make. The defendants submitted that it was unnecessary to make any formal orders other than to dismiss the proceedings.
It is difficult to accept, against that background, that either the second defendant or Ms Cruikshank deliberately used documents knowing that an order for their return would be made by the Court. Rather, as it seems to me, neither the second defendant nor Ms Cruikshank saw anything wrong with using the information and documents which had been a part of their investigations and which were served on the plaintiff and her lawyers in the police brief. They did not regard the use of them as being in any way contrary to any order of the Court.
I am not satisfied that there was anything inappropriate with respect to this usage, particularly since the information and the documents had been considered and had formed part of the original statements of the primary victims, included in the police brief. It follows that the second defendant's conduct in including the information in the application was not inappropriate. The third defendant did not make any error of law in considering any of the material placed before him.
It is convenient now to turn to the individual grounds upon which the plaintiff seeks relief.

Ground 6A

Ground 6A is in the following form: "The first/fourth and second defendants acted in furtherance of an improper purpose, namely, to avoid or otherwise circumvent the operation of the judgment of the Supreme Court in Lee v Commissioner of Police [2017] NSWSC 1594 and the order made by Garling J in the proceedings on 1 December 2017, by examining the material unlawfully seized under warrant on 22 February 2017 for the purpose of making an application on 4 December 2017 to the [third defendant] for the issue of a warrant authorising the search and seizure of the same things as were seized pursuant to the invalid warrant executed on 22 February 2017."
Ground 6A is directed towards the conduct of the first and second defendants in the making of the application for the second search warrant.
The plaintiff's submissions start with the proposition that the consequence and effect of the declarations and orders made by the Court in the second judgment (that the first search warrant was invalid and that the decision of the third defendant to issue the warrant be quashed) was that, at the time the documents were seized during the execution of the first search warrant, there was no lawful basis for that to occur. Accordingly, the plaintiff submitted that the circumstances of the police being inside the plaintiff's home without lawful authority "… imparted an obligation of confidence in respect of the information contained in the items that they seized …".
The plaintiff argued that these circumstances, without more, established their confidentiality. The plaintiff submitted that, at least, as and from 1 December 2017 when final orders were made in the second judgment, the police must have known of the existence of the duty of confidence owed by them to the plaintiff and, accordingly, they must have known that they were not entitled to freely use the information contained in those documents. It was argued that the use of the documents, in the application for the second search warrant, was in furtherance of the improper purpose, which was to circumvent the operation of the first judgment.
The plaintiff also argued that a clear inference as to improper purpose arises, regardless of the subjective intention of the second defendant.
The improper purpose relied upon was said to be the circumvention of the operation of the first judgment. The argument was also put in terms of the second defendant and the police gaining an advantage. In oral submissions, senior counsel for the plaintiff said: "… the circumvention lies in the using [of] the documents in the search warrant application prior to them being returned and that was the seeking of an advantage that the order for return denied. … So it's all the things that flow from that data and annex a series of propositions, that the person in that position is putting themselves at an advantage to which we submit they are not entitled. They are not entitled because the material they are using is the material they have had to return, which they now want."
Senior counsel went on to submit that there was no relevant distinction to be drawn whether the invalidly seized documents and the information in them were used directly, or derivatively.
The plaintiff's case can, not unfairly, be summarised in this way: 1. documents are seized under a warrant which at the time was apparently valid, but certainly not claimed to be involved; 2. no claim for privilege or opposition to the police inspecting the Strava information, or any of the handwritten notes in the notebook was made; 3. police inspected the notebook, obtained information from the handwritten notes in it, carried out investigations arising from them and included the documents and statements which referred to the information in them, in a brief of evidence which was served in compliance with Local Court directions; 4. the first search warrant was declared invalid and the decision to issue it was quashed. Accordingly, although not known at the time of the execution of the first search warrant, the documents were seized without lawful authority; 5. although not known to be, or claimed to be, confidential at the time of seizure and at the time of use, by reason of the later orders declaring the first search warrant to be invalid and quashing the decision to issue it, an obligation of confidence came into being upon the police officers not to use any information contained within the relevant documents; 6. the police used the information in the documents, either directly or derivatively, to put material before the third defendant to obtain the second search warrant; 7. thereby, regardless of subjective intention, an improper purpose, in the administrative law sense, arose which affected the decision to issue the second search warrant, and which ought to result in that decision being set aside.
I have considerable doubt that any obligation of confidence existed in the contents of the notebook or any of the other seized documents.
McGarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 suggested that there are three bases necessary to establish the existence of confidentiality such that information ought not be disclosed. He said that the three bases were: 1. information had to have the necessary quality of confidence about it; 2. it must have been imparted in circumstances importing an obligation of confidence; and 3. there must be an unauthorised use.
Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 190-4, considered circumstances where equity would intervene to protect confidential information where there was no remedy available at common law. What was being considered was not one or more documents but rather, information which may or may not be regarded as property, such as intellectual property. In dealing with cases where information is not property, his Honour identified at 192 these matters as being instances: "… where the circumstances of its receipt by the defendant are such as to bind his conscience, by reason of some benefit received (analogous to consideration) to treat that information in a particular way only."
Fullagar J goes on to discuss the importance of the nature of the relationship which existed between the parties when the information was communicated, the particular circumstances in which the information was communicated, including whether it was given for a particular purpose, and whether the recipient obtained a benefit which was such as to bind their conscience.
The learned authors, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th Edition, Lexis Nexis Butterworths, 2015) at [42-100] concluded that it was unnecessary for detriment to be established before equity could intervene. They have also suggested at [42-135] that it is settled doctrine that equity acts, not because of any propriety right, but rather on an obligation of conscience arising from the circumstances: see also Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No.2) [1984] HCA 73; (1984) 156 CLR 414 at 438 (Deane J); Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] UKSC 31; [2013] 4 All ER 78 at [22].
The essence of the application of equitable principle is the identification, with some precision and care, of the relevant confidential information, including the "necessary quality of confidence" which it has: Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1947] 65 RPC 203 at 215; Moorgate Tobacco at 438. There is some authority to the effect that the law recognises exceptions to obligations of confidence that extend to crimes, frauds and misdeeds being those actually committed as well as those in contemplation. That exception is recognised because disclosure is justified in the public interest: see Gartside v Outram (1856) 26 LJ Ch 113 at 114; Initial Services Ltd v Putterill [1968] 1 QB 396 at 405; Fraser v Evans [1969] 1 QB 349 at 362; Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31 at 53-55. However, the defendants did not seek to rely upon such an argument, and no further consideration is necessary.
The breach of confidence relied upon relates to the notebook containing the handwritten Strava information which is said to provide evidence of the commission of the crimes nominated in the second search warrant. The actual notebook or handwritten pages themselves have not been tendered to the Court, nor have the statements of the primary victims which contain information apparently derived from the notebook. The Court has not been asked to assess the status of these documents. The plaintiff has not given any evidence at all about the Strava information, the handwritten notes or the notebook itself. Thus the circumstances in which she came by that information are not established in the evidence.
All that is known of the information in this notebook is that which is set out in the application at [44] above. It appears that the primary victims were using the Strava application to store information about their athletic activities. The information was not created by, nor was it personal to, the plaintiff. Rather, in the absence of any specific evidence, the only available inference is that the plaintiff accessed the Strava database and downloaded information without the consent of the primary victims. She had no lawful entitlement to that information nor any property in it.
The evidence is sufficient to establish that the primary victims have made available to police, or else agreed to make available, the Strava data recording their athletic activities. Statements which were obtained by police in late November 2017, at least (if not the earlier May 2017 statements), contained reference to the information in the notebook which connected that material to the primary victims.
There is no reason to conclude that the information contained in the notebook was confidential. Even if it was, the confidence was that of the primary victims and not the plaintiff. Put differently, the primary victims stored information about their athletic activity into an app. They, it can be inferred, did not authorise the plaintiff to have access to that information. The plaintiff obtained access to that information and recorded some or all of it in handwritten notes in the notebook. She has no confidentiality to assert against the police. The primary victims might, but they do not do so. The plaintiff cannot legitimately claim an entitlement to confidentiality of the Strava information.
The other material contained in the notebook was described in the application for the second search warrant as names of the colleagues and associates of the victims, and phone numbers and email addresses. This information is of a kind which is available in the public arena, and was already known to police. Charts prepared by police, which formed Items 91 to 94 (inclusive) of the police brief, appear to contain such information. The nature of the information from the description given to it in the application does not suggest that it could be regarded as confidential information.
My conclusions in this respect are reinforced by the fact that Mr Lenz, on behalf of the plaintiff, did not make any claim in the first half of 2017 that the notebook and information in it was the subject of privilege, or that it was confidential information to which the police should not have access. To the contrary, access by police to the notebook was not objected to. There is no basis for a conclusion that the information in this notebook was confidential information in the hands of the plaintiff to which the police could not properly have access, nor properly to be used by them.
Rather, the question is whether, as the information in the notebook was used by the second defendant to support the further investigation of the offence which had been charged, was the use of it in that way and for that purpose, improper in administrative law terms.
A question also arises whether the circumstances of the receipt of the information were such so as to give rise to an obligation of confidence resting on the second defendant, Ms Cruikshank, or other police officers.
The information was first received in the course of the execution of the first search warrant. That search warrant, issued under Division 2 of Part 5 of the LEPRA, authorises a police officer to enter the subject premises and search for things connected with a particular searchable offence: s 47A. The power to seize anything includes a power to remove the thing from the premises: s 49. There is no statutory restriction on the use of a document seized by police exercising powers under the LEPRA.
The purpose of the execution of a search warrant is to obtain material in the course of an investigation into whether a person, here the plaintiff, has committed one or more criminal offences. As well, anything seized may be tendered to a court as a part of the evidence in the trial for an offence. If a document is seized, it is open to police to submit that document for expert examination or testing. Once seized, the document can be shown to investigators, witnesses and others without any restriction flowing from the LEPRA.
It is also clear, as a matter of ordinary observation, that as between the police investigators and the subject of the search warrant, in particular where they are alleged to be criminal, there cannot ordinarily be said to be any commonality or confidentiality of relationship. The police are seeking to establish that the plaintiff has committed one or more criminal offences. As is clear, the plaintiff defends any such suggestion. This suggests that if there is any relationship, a proposition which is doubtful, then it is not one which contains any confidential element or one in which the police investigators would be subject to imposition of an equitable obligation of confidence.
This, in combination with the analysis set out earlier about the absence of any identified confidential information, means that I am not persuaded that the plaintiff has established that the second defendant had any obligation or duty of confidentiality to her. Thus, the second defendant was not precluded from using the information in the notebook in making the application for the second search warrant.
Information had come into the hands of the second defendant legitimately in circumstances, when there was no (even on the plaintiff's argument) obligation of confidence or restriction on its use. Even if an obligation of confidence was later imposed, and I am not persuaded that it was, it does not seem to me that such obligation would go so far as to include the contents of documents which had been openly available to be used for the purpose of the investigation without restriction being claimed by, at any time, the author (being the plaintiff) of the documents.
I am not satisfied that Ground 6A has been made out.

Ground 6B

Ground 6B is in the following terms: "The issuing officer relied upon material or information that was unlawfully obtained by police and thereby: a) took into account legally irrelevant considerations; and/or b) could not legally or reasonably have been satisfied that there reasonable grounds within the meaning of s 48(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 for issuing the search warrant. Particulars: 1. the unlawfully obtained material information was material or information seized from the plaintiff's residence in purported execution of an invalid search warrant on 22 February 2017."
Ground 6B is directed towards the conduct of the third defendant in issuing the second search warrant.
In issuing the warrant, the third defendant was acting pursuant to powers granted under the LEPRA. The relevant powers with respect to search warrants are to be found in Divisions 2 and 4 of Part 5 of the LEPRA. Section 48 provides that an eligible issuing officer to whom an application for a search warrant is made under s 47 of the LEPRA, may "… if satisfied that there are reasonable grounds for doing so …" issue the search warrant.
Section 62 specifies the minimum information required to be provided to an eligible issuing officer, and the mandatory matters for consideration by the issuing officer. It provides: "62 INFORMATION IN, AND CONSIDERATION OF, APPLICATION FOR WARRANT (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing--a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing--a description of the kind of thing, (f) if a previous application for the same warrant was refused--details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. … (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence--whether there is sufficient connection between the thing sought and the offence."
No submission was made that the information required by s 62 was not provided in the application for the second search warrant. Nor was any submission made that it was not open to the third defendant to issue the warrant by reference to that statutorily required information. Rather, what was submitted by the plaintiff was that the third defendant made an error by taking into account information from the notebook seized in the first search which he was not entitled to do, because it was irrelevant by reason of the fact that it was obtained unlawfully.
The plaintiff submitted that as the power to issue the search warrant is a discretionary one indicated by the word "may" in s 48 of the LEPRA; that discretion could be informed by the circumstances such as whether the information contained in the search warrant application was obtained lawfully or unlawfully. As well, the plaintiff submitted that a question as to whether or not the documents intended to be seized may or may not be subject to privilege would be a relevant consideration under s 48.
The plaintiff accepted that the LEPRA does not specifically identify any consideration which an issuing officer is prohibited from taking into account. Rather, the plaintiff submitted that it ought be implied by reference to the subject matter, scope and purpose of the LEPRA, that information obtained from the notebook which was seized unlawfully under an invalid warrant is precluded from consideration in circumstances where an application is made for a subsequent warrant to be issued.
The plaintiff submitted: "The Court should therefore consider if s 48 is impliedly precluding reliance upon material that was obtained pursuant to a purported warrant that was legally invalid because it transgressed the essential limits of power by which LEPRA constrains the extraordinary police powers it confers. A police officer should not be entitled to obtain a warrant in respect of things at or on private premises if the grounds on which he or she seeks that warrant are based on the police officer, in breach of LEPRA, having entered the premises to identify the things he or she wants under the warrant."
The defendants submitted that the plaintiff's asserted restriction on what the third defendant could consider is not found in the legislation. On this, both parties are agreed. The defendants submitted that the terms of s 62(3)(a) of the LEPRA stands against the importation of the implication for which the plaintiff contends. That sub-section, it was argued, obliges an issuing officer to consider the nature of the source of the information in the application, but it does not specify that an issuing officer should disregard material if it is obtained unlawfully or pursuant to an invalid warrant.
The effect of this submission is that the relevant matter for consideration by the issuing officer is the reliability of the information upon which the application is based. The assessment of that reliability is at large, subject only to the obligation to consider the nature and source of the information as a factor which informs the reliability of the information. If it was intended by the legislation that any information unlawfully obtained could not be taken into account in assessing reliability then, having regard to the terms of the section, such a restriction would be specified
The context in which that submission ought to be viewed is that police can receive documents (which may provide evidence of a crime) in many different circumstances. Some sources will be reliable, some will not. A person uninvolved in the commission of a crime may, without the authority of the owner of a document, take a copy of that document and provide it to police when reporting a crime. Based on the information in that document, police may investigate the crime and wish to seize the original document as evidence of proof of the crime. The source of the information is reliable - the copy document from the offender's possession. The fact that it was removed without authority may affect that reliability, but not necessarily. The same analysis would apply to information in a document obtained by a ruse or trick - features which often occur during an undercover police operation. If the information is to be used to ground an application for, and the issuing of, a search warrant then the issuing officer would need to be satisfied that the reliability of the information is such as to enable a conclusion that reasonable grounds exist for the warrant to issue.
In this well recognised context, I would not be prepared to imply the restrictions for which the plaintiff contends which would preclude reliance on such information, in circumstances where the legislation itself does not include such a restriction.
As well, the defendants submitted that s 63 of the LEPRA, insofar as it creates a criminal offence for the provision of false or misleading information to an issuing officer, is also against any implication of any restriction on the provision of information unlawfully obtained in an application. It was submitted that a warrant application might be misleading if the applicant were to withhold relevant and significant information known to the officer. The defendants pointed out that it would be curious if the Parliament intended that applicants for a warrant should be encouraged to omit information before a warrant was issued rather than provide more information.
I am unpersuaded that information obtained unlawfully by police cannot be relied upon as a basis for an application to obtain a search warrant or, by an issuing officer in issuing a search warrant.
As I have earlier said, the police receive information from a wide variety of sources. Information is assessed and determined to be relevant for the purposes of an investigation. If relevant, and an investigation is conducted, that investigation may itself depend upon unlawfully obtained information. Indeed, it is open to the police to seek to tender as evidence, information which is unlawfully obtained.
The entitlement of a Court, at common law, to admit evidence which is unlawfully obtained is one of long standing: see Regina v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335, where Barwick CJ said: "Whenever such unlawfulness or unfairness appears, the judge has the discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion." See also Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
That common law provision is now captured in New South Wales by the provisions of s 138 of the Evidence Act 1995. That section, in substance, provides that improperly or unlawfully obtained evidence can be admitted in circumstances where the interest in admitting the evidence outweighs the interest in the way evidence was obtained.
An exercise of discretion in accordance with the Evidence Act requires the weighing up of the probative value and importance of the evidence, the nature of the proceeding, the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless, and a number of other matters, including the difficulty of obtaining the evidence without any impropriety or contravention.
In circumstances where there is no absolute prohibition on the admission into evidence of unlawfully or improperly obtained material in a criminal prosecution, it would be surprising if at an earlier investigatory stage, that it was not open to rely upon unlawfully obtained information to further the investigation, in the absence of a specific statutory prohibition.
To import such a prohibition by implication into the LEPRA would be to, in my opinion, do something which is inconsistent with the long-standing discretion with respect to how a Court deals with evidence which is improperly obtained. After all, an issuing officer is not considering evidence that can be used to convict a person (as in a Court proceeding), but rather information upon which an investigating officer is relying to further investigate the crime and thereby obtain further information.
I observe that the third defendant was told that the information relied upon was obtained under the first search warrant; that no claim for privilege had been made in respect of it; that it had been used in the course of investigation; that the plaintiff had been successful in having the first search warrant declared invalid; and that this Court had ordered that all documents seized were to be returned. As well, it was disclosed to the third defendant that the police were intending to re-seize the documents.
The third defendant had before him details about the source of the information. He knew that the first warrant was invalid and, as a consequence, could not be relied upon as lawful authority for obtaining the documents seized under that warrant; and that the information came from those documents.
Having regard to the reasons recorded by the third defendant, it is sufficiently clear that he satisfied himself as to the compliance of the application with the provisions of the LEPRA which necessarily involved satisfying himself as to the source of the documents.
In those circumstances, I am not persuaded that this Ground is made out.

Ground 6C

Ground 6C is in the following terms: "The issuing officer failed to consider, or failed to give proper, genuine and realistic consideration to, the fact that the requisite belief of the police officer applying for the search warrant was based upon material or information that was unlawfully obtained and thereby: (a) failed to take into account a legally relevant consideration; and/or (b) misconceived the discretionary nature of his statutory task."
The plaintiff submitted that there was no record that the third defendant considered the issue, in any way, and so the Court should conclude that he did not do so. I disagree. The third defendant noted compliance of the application with the requirements of LEPRA. That included the provisions of s 62 which directed attention to the nature and source of the information. In those circumstances, there is no reason to believe that the third defendant failed to consider the fact that the application for the second search warrant was based on material that was unlawfully obtained. As I have earlier held, that fact was sufficiently disclosed. The fact that the information came from documents seized under an invalid warrant did not preclude the issue of a further warrant.
There is no basis upon which to conclude that this Ground has been made out.

Ground 6D

Ground 6D is in the following form: "The application for the warrant did not disclose the circumstances of the plaintiff's claim for legal professional privilege, including the orders of N Adams J and the agreement before Garling J that the claim would be determined at a later time and the issuing officer failed to consider, or failed to give proper genuine and realistic consideration to the fact that the things in relation to which the search warrant was sought included communications and documents over which a claim for legal professional privilege had been made and thereby: (a) failed to take into account a legally relevant consideration; and/or (b) misconceived the discretionary nature of his statutory task."
In fact, the application for the second search warrant disclosed that a claim for privilege had been made with respect to those documents and devices that were seized under the first search warrant. The application noted that the plaintiff's lawyers had attended and viewed the documents and had returned a number of them to police on the basis that legal privilege did not apply. The application noted that the remainder of the documents were placed in sealed envelopes and that they had not been viewed. The application noted that an argument in relation to privilege had been part of the arguments before the Supreme Court in the 2017 proceedings. It also noted that it was the intention of the police to hand the seized documents back to the plaintiff "… at which time they intend to execute a warrant and seize the items described in this application …".
There can be no doubt that the third defendant was in possession of information indicating that the documents proposed to be seized may have been the subject of a claim for privilege.
No mention was made in the application for the second search warrant of the orders made by N Adams J. As I have earlier explained, those orders were, in their terms and having regard to the issues posed for determination, clearly interlocutory in nature. They ceased to have effect when final orders were made in the proceedings on 1 December 2017. These orders made by N Adams J were no longer relevant and did not need to be disclosed to the third defendant. In fact, the behaviour of the police as a consequence of the orders, namely that the documents over which a claim for privilege was made had not been looked at by police, was adequately put before the third defendant.
The assertion in Ground 6D of "an agreement before Garling J that the claim would be determined at a later time …" does not accurately reflect what in fact occurred in the 2017 proceedings. The issue in the 2017 proceedings was when, as a matter of management of the hearing, the Court would embark upon a determination of the claim for privilege. The parties agreed to defer that determination until after the question of validity of the first search warrant was determined. Because the plaintiff succeeded on that issue, it was not appropriate for the Court to determine the question concerning privilege in the proceedings. On 1 December 2017, senior counsel for the plaintiff did not seek orders for the determination by the Court of the privilege claim, but rather sought orders for the return of the documents and items seized. He accepted that if the Court ordered the return of the items and documents, there "… is no privilege issue".
In those circumstances and in considering this ground, the basic complaint of non-disclosure of the orders of N Adams J and the "Garling J agreement" are unfounded because the orders of N Adams J were interlocutory and ceased to have effect on 1 December 2017. It is incorrect to suggest that there was any agreement that the claim for privilege was to be determined later even if the plaintiff's claim of invalidity was upheld. No such agreement existed, and if, contrary to this conclusion, it existed at all, it did not survive the finalisation of the 2017 proceedings.
In my opinion, the fact that orders had been made by N Adams J which had the effect of preserving the documents from inspection (pending a determination of a claim for privilege) was not a relevant matter for the third defendant to take into account once the 2017 proceedings were finalised.
The other fact which is of significance in considering this ground is that a claim for privilege was not mounted over all of the documents which the police seized during the execution of the first search warrant. I have discussed the circumstances of that earlier. The third defendant was told that in terms in the application.
Privilege was capable of applying to the documents which were encompassed by the second search warrant: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. However, it did not automatically apply to them at the time the third defendant was considering the issue of the second search warrant, because, at the least, it was open to the plaintiff to waive any claim for such privilege. Whilst that may have been unlikely in the circumstances, the fact remained that at the time the second search warrant was sought and issued, it was unlikely that a claim of privilege would be made with respect to all documents, because some, including the notebook, had not been the subject of the earlier claim for privilege.
The fact that a claim for privilege may be made in respect of documents or items identified in an application for a search warrant, does not make the search warrant, without more, invalid. From time to time, lawfully issued search warrants have been directed to premises of legal practitioners seeking documents such as opinions or advices, or other like documents, which on their face would be covered by privilege. The strict obligation of a legal practitioner in such circumstances is to claim the privilege on behalf of their client, and to maintain such a claim. It would ultimately be a matter for their client as to whether that privilege was maintained or waived, but nevertheless, in such circumstances, it can be confidently anticipated that the legal practitioner would refrain from voluntarily compliance with the search warrant on the basis that client legal privilege existed.
Such a circumstance does not mean that the search warrant is invalidly issued. In Baker v Campbell, the search warrant was addressed to a firm of lawyers and sought documents falling within the following description: "correspondence, prospectuses, notes, opinions of counsel, contracts, agreements and other documents and instruments all of which have been produced or held by, for, or in respect of [the plaintiff and other named persons and entities]." (emphasis added)
The issue that was the subject of debate in Baker v Campbell, was what should happen to the documents intended to be seized under the warrant. There was no finding that the fact that the documents were privileged, or were likely to be, meant that a warrant could not issue for them.
In Arno v Forsyth (1986) 9 FCR 576, a search warrant was issued authorising entry into a barrister's chambers and the seizure of documents described in this way at 580: "Legal opinions and advices and correspondence, conference notes, appointment books … files, minutes, notes and records relating to legal opinions and advices prepared by the said [Queens Counsel] … in relation to the implementation of tax avoidance schemes associated with the following persons and entities …" (emphasis added)
The warrant in that case was held to be bad for uncertainty because the description of the documents was too wide and too vague, and the description of the alleged offences was too general. However, the majority of the Court did not consider that the warrant was bad merely because it authorised the seizure of documents which were ultimately be held to be the subject of privilege. Fox J at 581 held, explicitly, that the warrant was not invalid "… because it authorises search and seizure of documents which may prove to be the subject of legal professional privilege". In light of the description of the documents being sought set out in [171] above, the likelihood of a claim for privilege being claimed was very high.
At 597, Jackson J said, in circumstances where there was an outstanding issue of whether privilege did or did not attach to the particular documents, the warrant could not be said to be bad on its face "… because it referred to documents which might ultimately be held to be the subject of legal professional privilege". His Honour noted that the determination of whether privilege attached to a document was one to be determined "… by matters dehors the warrant itself". Put differently, the issuing officer for a warrant would not, on the information made available, ever be in a position to know what documents would actually be seized and whether those documents were created in circumstances where a claim for privilege would be likely to be upheld.
The terms of ss 48 and 62 of the LEPRA do not preclude the issue of a warrant for the seizure of documents which are the subject of privilege. Nor do the terms make the issue one for mandatory consideration by an issuing officer.
The plaintiff submitted that the non-abrogation of privilege, and the fact that it is a substantive right (having regard to the nature, scope and purpose of the LEPRA) means that the consideration is a mandatory one that ought to be implied into the legislation. I am unable to agree. In effect, the power is not to be exercised in the identified circumstances as it amounts to a fetter on the power of the issuing officer. There is nothing about the LEPRA which would lead to that conclusion. Particularly is this so when privilege is often a contested and contestable doctrine in its application to particular documents, where reliance upon it depends on the attitude of another person at a time later than the issuing officer's task, and in circumstances where it would not ordinarily be appropriate to seek information from the target of the search warrant before it is issued. Such early warning may well nullify the anticipated effect of a search warrant.
For similar reasons, and because the whole issue is one on which, to adapt the words of Jackson J in Arno, stands outside the issue for consideration of the issue of a warrant, I would not be prepared to conclude that in all cases it would be a relevant consideration.
The plaintiff sought to argue by reference to remarks in the dissenting judgment of Lockhart J in Arno that the existence of privilege over documents to be seized was a relevant consideration. In light of the fact that the statute makes no reference to it, and that in the authorities to which I have referred the principle is not established, I am not persuaded that the existence of privilege is always a relevant consideration.
In the alternative, the plaintiff argued that it is a relevant consideration which ought to have been taken into account in the particular circumstances but was not. In so arguing, the plaintiff accepted that the application disclosed to the third defendant that there may be a claim for privilege over many of the items that were sought to be re-seized. The plaintiff's submissions, that a possible claim for privilege was not considered by the third defendant, concentrated on the absence from the third defendant's record of the grounds relied upon and of any mention of a possible claim for privilege as indicating that it was not considered.
I do not accept this submission. The LEPRA requires an issuing officer to be satisfied having regard to the matters referred to in s 62, that there are reasonable grounds for issuing the warrant: s 48(1). It was not suggested either in the course of the 2017 proceedings or in the course of these proceedings that the grounds set out by the applicant were not sufficient to enable the third defendant to come to the conclusion that he did. The grounds upon which he relied to issue the second search warrant have been referred to at [45].
An issuing officer is not engaged in a judicial task. He or she is an administrative decision-maker called upon to make a discretionary decision as to whether he or she is satisfied that there are reasonable grounds for issuing the warrant: s 48(1). An applicant swears to an issuing officer that they have reasonable grounds to believe that certain things will be on the premises within 72 hours and that those things are connected with the searchable offences identified: s 47(1). The applicant is required then to set out in more detail the basis of that belief. An issuing officer does not have to be satisfied of all of those grounds, but can be satisfied on some of them if an issuing officer considers that those lesser grounds are adequate.
The plaintiff submitted that if this issue concerning privilege was considered then it ought to have been reflected by the third defendant in the identified particulars of grounds relied upon. She drew attention to Carroll v Mijovich (1991) 25 NSWLR 441; (1991) 58 A Crim R 243 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323. A reading of those cases suggests that they are authority for the proposition that the obligation upon an administrative decision matter to make a record, or set out findings or reasons will, in the first instance, depend on any statutory requirement. Here, the requirement in s 65 of the LEPRA is to cause a record to be made: "… of all relevant particulars of the grounds … relied on to justify the issue of the warrant." (emphasis added)
There is no statutory requirement to set out findings of fact, details of any reasoning process, resolution of competing arguments, nor reasons for discarding or not relying upon any matter. What is required is the grounds relied upon to justify the decision. There is no reason having regard to the subject matter of the decision, to require anything more of the decision-maker.
There is no contradictor present. The nature of the application is such that it will always be an ex-parte one. There is no right of appeal for any person against the decision to issue a search warrant. There is no procedural reason why extensive reasons would be required.
Because the particular legislative requirements here are quite restricted - a notation of the grounds justifying the issue of the warrant - it would not be rational to infer that no reference to the likelihood that privilege would be claimed, meant that no consideration was given to that question. The only mention of this issue would need to be if it was relied upon as a ground justifying the issue of the warrant.
Accordingly, I reject the argument that the Court ought find that the third defendant failed to consider the issue, including its relevance, of the possible existence of privilege.
In my view, the particulars of the grounds relied upon by the third defendant indicated that, in the circumstances of this case, he had considered the whole of the contents of the application and was satisfied that the belief of the informant was reasonable and that there were sufficient grounds for the grant of the second search warrant. There is no reason to believe that the third defendant ignored the material that he was told about, namely that there was a claim for privilege with respect to some of the documents that were seized under the first search warrant and which were to be returned, nor that there might not be a further claim.
I am unpersuaded that this Ground is made out.

Ground 6E

Ground 6E is in the following form: "The issuing officer's satisfaction that there were reasonable grounds for issuing the search warrant was legally unreasonable. Particulars: i. the matters referred to in Ground 6A, 6B, 6C and 6D; and ii the lack of rational explanation by the applicant for the warrant as to her reasonable belief of a connection between the searchable events and each of the things to be searched for under the warrant."
In this ground, the plaintiff relies upon previous failures, discussed in respect of the Grounds above, to justify the conclusion that the third defendant's decision was affected by legal unreasonableness.
In addition, the plaintiff submitted that there was a lack of rational explanation by the second defendant as to her reasonable belief of a connection between the searchable offence and each of the things to be searched for under the second search warrant. It was submitted that the second defendant's statement that the identified items were "believed to contain evidence of the offences for which [the plaintiff] was being charged" was an inadequate explanation of connection between the subject of the second search warrant and the searchable offence.
I have previously rejected the other Grounds and any basis upon which they suggest there can be found to be an inadequacy in the application for the second search warrant and the third defendant's consideration of it.
This additional submission is without merit. It does not have regard to the context of the whole of the application. In the application, the offences are identified and a description of the information that the police have which supports those offences is given. Having regard to the nature of the offences and that information, it is unsurprising that particular items of electronic equipment (including mobile phones and laptops) which were identified in the application, would contain evidence of the offences with which the plaintiff was charged.
As well, the other information that was sought was adequately set out in the first paragraph of the description of the things which were anticipated to be on the premises. No further explanation was required for the second defendant's belief, and there was no reason to think that the third defendant ought to have required more.
This Ground is not established.

Ground 6F

Ground 6F is in the following form: "The [third defendant's] decision to issue the warrant was affected by fraud in that the application of the [third defendant] was made in breach of an equitable obligation of confidence owed to the plaintiff in relation to the material and information unlawfully seized."
I have earlier held in dealing with Ground 6A that there was no equitable obligation of confidence which arose in all of the circumstances here. I have also held that the information which was relied upon, and about which it was said was confidential to the plaintiff, was not, in fact, confidential to her.
The claim of the existence of fraud was eschewed by the plaintiff as being personal to the second or third defendant. Consistently, the cross‑examination of the second defendant did not put to her that she was fraudulent or motivated by fraud. However, the allegation of fraud derived from the breach of the equitable obligation of confidence which resulted from a lack of an honest or genuine attempt to undertake the relevant statutory task.
I have not been persuaded of the existence of any equitable duty of confidence. Even if I was so persuaded, the plaintiff has not satisfied me that I should conclude that there was anything other than a real and genuine attempt by the second defendant to put all relevant material before the third defendant. There is no material upon which I could conclude that the third defendant did not undertake his statutory role within its limits and in a genuine and honest way.
This ground must fail.

Execution of the Second Search Warrant

The balance of the Grounds (6G-6I inclusive) referred to the execution of the second search warrant on 5 December 2017. However they were expressed, the contention was that the police officers, during the execution of the second search warrant, acted improperly by insisting on opening all of the packages, including those envelopes that were identified by the plaintiff and/or Mr Barham as subject to a claim for privilege, and looking through the documents within the envelopes and packages to determine that some (probably most) of them would be seized again.
Shortly put, the fundamental basis for these Grounds centres upon the police's view (apparently formed on advice from a lawyer) that they were entitled, before seizing any documents, to satisfy themselves that the documents fell within the terms of the second search warrant, even though a claim for privilege was to be made in respect of those documents.
The plaintiff submitted that it was improper and unreasonable in light of all of the things that had occurred during the 2017 proceedings, for the police officers to have looked at any of the documents that were to be seized before a claim for privilege could be made and adjudicated upon in an orderly way.
These submissions call up an underlying point of significance with respect to the way in which a search warrant obtained by police should be executed.
Importantly, as a matter of surrounding context, there were some differences in the contents of the first and second search warrants. The contents of the first search warrant contained the following description of items likely to be on the premises, namely: "Communication devices including mobile phones, laptop computer, desktop computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices"
The items were identified with greater specificity in the second search warrant. That description was as follows: "1. The following electronic devices believed to contain electronic documents, search history, data and metadata in relation to [primary victims and associates], Monash University, Pinnacle Investment, Melbourne University, Bike Gallery, Strava, Yandex, Protonmail, Channel 7 and any of the persons named, associates or colleagues, and data and search history in relation to the use of virtual personal networks and the creation of email addresses relevant to the offences stated below in 1(b): 4 x USB flash drives 1 x WD external hard drive 1 x iPhone mobile phone 2 x Apple iPads with charging cables 1 x HP brand laptop with charging cable 1 x Apple Mac laptop with charging cable. 2. Assorted handwritten notes and hard copies of documents relating to [primary victims and associates], Monash University, Pinnacle Investment, Melbourne University, Bike Gallery, Strava, Yandex, Protonmail, Channel 7 and any of the persons named, associates or colleagues."
Section 49 of the LEPRA provides for the seizure of items. It is in the following form: "1. A person executing a search warrant under this division: (a) may seize and detain a thing (or a thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence."
Section 49(2) of the LEPRA provides that the power in s 49(1) includes a power to remove an item from the premises where it is found.
The legislative provisions apply two different tests to a police officer in the execution of a search warrant. First, if a thing is mentioned in the warrant then the police officer is entitled without further consideration to search for, and seize it. If something else is identified on the premises in the course of the execution of the warrant and it is outside the description of the specific items in the warrant, then that can be seized but the individual police officer has to have reasonable grounds to believe that the item is connected with an offence. In particular, I note that this second power is not limited by the offences identified specifically in the warrant, but applies to any offence.
It is necessary to refer here to some relevant facts and the evidence, which may also have been referred to at an earlier time in this judgment.
The first evidentiary matter to be considered is the nature and contents of the police exhibit bags that were returned to the plaintiff pursuant to the orders of the Court which were made on 1 December 2017. As is apparent, there were three broad categories of items that were being returned.
The first category was a series of electronic devices and storage drives which had been previously seized but had not been examined by police and were being returned to the plaintiff. As outlined at [58], the devices were password protected and the items were re-seized. No access to the devices has, as yet, been obtained and these items are not specifically referred to in the present proceedings. They can, for all purposes, be put to one side.
The second and third category concern the two sets of hard copy documents: those over which privilege was claimed and were placed in a marked and sealed envelope, and those over which privilege was not claimed and were placed in the police exhibit bags.
The evidence of the plaintiff's solicitor in his affidavit of 9 March 2017, which formed part of the evidence in these proceedings, was that during the initial inspection at the Kings Cross Police Station, the hard copy documents were separated into three piles. The sorting process is described at [25] and [26] and also includes another inspection by Mr Lenz on a separate date. Ultimately, it is important to know that by the time the documents were returned to the plaintiff in December 2017, there were two sets of documents in police exhibit bags: those claimed to be privileged and those in respect of which there was no claim.
One bundle contained the notebook with some handwritten notes about which there was no claim suggesting that they were inappropriately seized, or covered by a privilege claim. Those documents fell under the Court orders of 1 December 2017, and they formed a part of the hardcopy documents that the police returned.
The second bundle of documents which the police returned were documents that had been identified by the plaintiff's solicitor as being privileged or else inappropriate to have been seized, and which were placed in a sealed envelope (or envelopes) that were clearly marked "Privileged".
The nature of the claims made on behalf of the plaintiff with respect to those documents can be found in the exchange of correspondence between the plaintiff's solicitor and the solicitor for the police and in the completed Schedule, during the 2017 proceedings.
As previously mentioned, because of the Court's decision in the first judgment that the whole of the first search warrant was invalid and that all of the documents should be returned, the competing positions between the parties outlined in the Schedule with respect to the claim for privilege and relevance, was not resolved in the 2017 proceedings.
On the evidence, the police did not have access to the documents seized in February 2017 contained within the sealed envelopes marked "Privileged" (provided in the Schedule as subject to a privilege claim or irrelevant). This was despite the fact that the position as to privilege was not agreed and, in respect of two of the documents identified, the claim for privilege was not even being pressed by the plaintiff.
It follows that at the time of the return of the documents, regardless of the envelopes in which they were contained and the markings on those envelopes (generally "Privileged" or words to that effect) there were four categories of documents, namely: 1. documents subject to a claim for privilege, which was not finally determined, and which was in contest between the plaintiff and the police; 2. documents not subject to such a claim, but which were said to have fallen outside the terms of the first search warrant and were therefore irrelevant and inappropriately seized; 3. documents over which no claim for privilege was being made and to which no objection to access had been made; 4. documents over which a claim for privilege had been made and which police did not seek access to.
Not all of these documents were clearly identified as being so categorised in the exhibit bags that were returned by police to the plaintiff's premises. Clearly, it was a job for the police officers executing the second search warrant to separate the hard copy documents to reflect the four categories described in [219] in order to decide what documents ought to be re-seized.
As such, in her affidavit of 25 May 2018, the second defendant said that her purpose in inspecting the hard copy documents: "…was to sort relevant documents from irrelevant documents". The second defendant said that she needed to independently form a view that each document could be seized and that by sorting the relevant documents from irrelevant ones she was able to "… narrow down the original exhibits from several hundred documents to around 100". She said that it was her understanding that a claim for privilege would be made once the documents had been narrowed down for relevance.
It is convenient to interpolate here that the Court was informed that these 100 documents had been placed into individual plastic sleeves, which were numbered. Senior counsel for the plaintiff informed the Court that claims for privilege were maintained over the documents in most, but not all, of the sleeves. He made no submission suggesting that any of the documents in the sleeves did not fall within the terms of the second search warrant.
Yet, as the evidence to which reference has been made at [53]-[55] demonstrates, when police attended at the plaintiff's premises on 5 December 2017, both the plaintiff and her lawyers made it plain that a claim for privilege was made in respect of all documents and all of the items which were being returned. This claim was repeated orally and insistently on a number of occasions without qualification.
The letter prepared by the plaintiff's solicitor and which was handed over at the time of the execution of the second search warrant, was to a similar but not entirely identical extent. The plaintiff's solicitor said that he was instructed to take all necessary steps to: "ensure that all electronic items and documents that are the subject of my client's claim for legal professional privilege are not taken in the execution of the warrant." (emphasis in original)
The plaintiff's solicitor then indicated that if such items were taken, an application would be made to the Court. He indicated in his letter that documents, the subject of client legal privilege "… should not be seized by police".
Importantly, the plaintiff's solicitor included this paragraph: "NSW Police are in receipt of several very detailed and itemised claims that our client has made this year regarding these very same documents and electronic items. See for example our schedule of hard copy documents provided to [the solicitor for the police] on 27 June 2017."
The letter of the solicitor for the plaintiff, by referring to the Schedule, would seem to have maintained the claims there made, namely, that there was a claim for client legal privilege with respect to some documents, and also that some other documents were irrelevant. Although the plaintiff's solicitor did not specifically refer to the documents for which no claim for privilege was made, there was no statement in that letter suggesting that those documents were the subject of any change or any reconsideration of the privilege claim with respect to them by the plaintiff.
In cross-examination, the second defendant gave evidence that the plan formulated by police before the execution of the second search warrant was to go through the documents with the plaintiff and her barrister to try and remove the irrelevant documents to reduce the numbers of documents that were to be re-seized.
The cross-examination continued to the following effect: "Q. OK. So first of all you would go through the documents to determine the relevance? A. Yes. Q. After you determined relevance, you would go through the documents to determine privilege? A. If that's what they wanted to do, it would give them that option to do it there and then, so it could be sealed there and then. But I didn't have any plans to do it. Q. Sorry, you didn't have any plans to do what? A. To determine privileged or non-privileged. That wasn't my concern. It was relevant or non-relevant. Q. So you were only concerned in determining relevance and non-relevance? A. Yes. But giving respect to them separating privileged from non-privileged out of the relevant pile."
Later in cross-examination, after being taken to an extract of the transcript of the conversation during the execution of the second search warrant, senior counsel for the plaintiff put this to the second defendant: "Q. And so, where this ended up was that you ended up with two piles, the ones that you thought were relevant and the ones that you thought weren't relevant? A. Yes. Q. And you took the relevant ones? A. Yes. … Q. No, I'm just asking you, you thought a privilege claim could be made at some later time? A. Yeh, I believed there would be another privilege claim on the documents."
In re-examination, the topic was again touched upon: "Q. You've given evidence that the first type of review you did in relation to the documents was in relation to relevance? A. Yes. Q. Could you explain to his Honour why it is that you took that approach? That you needed to form a view as to the relevance of the documents? A. That was the purpose of the search warrant, it was to obtain evidence of the offence and to obtain evidence by using items that were connected to the offence, so I had to determine if they were relevant or not relevant to the offence."
In a further exchange with the Bench, the second defendant said that there was the specifically identified subject matter of the documents that had been seized under the first search warrant, which she was concerned no longer properly fell within the documents she would be entitled to seize under the second search warrant. This seemed to be a further basis for the identified need to examine the documents before seizing them again.
There were further questions in cross-examination by leave. Those questions included the following exchange in respect of the documents returned to the plaintiff on 5 December 2017, the original source of which was Victoria Police. It was to the this effect: "Q. And you took the view that they were no longer relevant? A. Yes. Q. And in those circumstances, upon the execution of the second warrant, why didn't you ask Mr Barham to sit down with you and work out which documents were the documents served from the Victoria Police? A. That was not his job; that was my job. Q. Well, you were aware that there were some, is that all you were doing on that day, sorting out the documents that had been served from the Victoria Police and exclude them? A. I was sorting out - sorry? Q. Was all you were doing sorting out the documents returned from Victoria Police? A. Not just those documents, documents that were not relevant. … Q. OK, it was a brief from the Victorian Police in respect of proceedings in Victoria. A. It was documents from a brief, not a complete brief as you would see, a brief. Q. OK. It was documents from a brief in Victorian proceedings against [the plaintiff]? A. Yes. Q. And your view was that they were no longer relevant? A. Yes. Q. OK. And it would not have been a difficult task to identify those documents and exclude them on the execution of the second warrant would it? A. It was not an easy task to identify them, no. Q. Just to identify the Victorian documents? A. They weren't marked with identifying features on them from the police, they were all separate individual pages within a group. Q. Can you tell us why you didn't disclose to Mr Barham that that was your interest? Which was to satisfy yourselves that you didn't have the material from the Victorian police? A. I didn't think I needed to tell him what was relevant and what was not relevant to our matter. Q. I see. Well I suggest that once understanding that fact meant that your task on that particular day would have been a very straightforward one and easily facilitated if you had told Mr Barham that that was the situation. A. I don't agree."
Another explanation for what the second defendant was doing during the execution of the second search warrant was that having heard the oral claim for privilege being made and, in particular, the statement of the plaintiff that "I'm making a blanket claim of privilege on all plaintiff documents until I've had a chance to inspect and sort them", the second defendant concluded that she could not accept that statement as a proper and genuine claim for privilege: "as it was a claim of privilege that was made without reviewing the documents and in circumstances where the plaintiff's solicitor had previously identified a number of the documents as not being privileged."
Ms Cruikshank was also cross-examined regarding the process which was followed during the execution of the second search warrant. She gave evidence to the same effect. She said: "Q. Did it occur to you that if you looked at the documents in the sealed envelopes after the execution of the warrant that would put you in a better position than you were in in March 2017? A. No, not at all. Q. It didn't occur to you? A. Well, no because I was aware that we couldn't use any documents over which claim for privilege was claimed in the brief or in evidence. Q. When you say 'use', what do you mean by that? A. 'Use', deriving information from, to further investigate, include in the brief or present in court. Q. OK, but you thought you could look at them? A. Look at them for the purpose of determining relevance. Q. Look at them for the purpose of determining the issue of privilege? A. No. Q. So you could look at them for the purpose of determining relevance regardless of whether or not a privilege claim was made? A. Yes. Q. That was your understanding? A. I don't know if I had a clear understanding, but yes I believed that we could look at them to determine relevance."
Further cross-examination made it plain that Ms Cruikshank believed the police were entitled to examine the documents for the purpose of determining their relevance to the second search warrant, and that a claim for professional privilege did not prevent them from looking at the documents for that purpose. Her belief was that, insofar as there was a claim for privilege, the document could not be used in any investigation or in Court until that issue was determined.
She gave this further evidence: "Q. Was it your understanding that what would happen is that the documents in the privileged envelopes would be opened? A. Yes. Q. And that the defence could say if they thought it was privileged? A. Part of the plan was to cull documents in a number of ways. Q. For relevance? A. Yes. But we knew that we would be going through the bags and we knew that privilege was going to be a live issue. So if there were things that were clearly privileged, we were planning not to take them. Q. And if they weren't clearly privileged? A. If they were not clearly privileged and they were relevant, we would re‑seize them. Q. So if they were not clearly privileged, that involves you making an assessment as to whether or not they were clearly privileged? A. At a glance, yes."
In her affidavit, Ms Cruikshank also gave an account of the fact that, during the execution of the second search warrant, she did not review the documents to determine any claim for privilege but, rather, she was doing so on the basis of what she considered to be relevance.
The evidence about what occurred during the execution of the second search warrant plainly indicates that the police had taken the view, notwithstanding the claim for privilege, that they were entitled to inspect each of the hard copy documents prior to its removal from the premises. It is not unfair to note that the explanation given variously by the second defendant or Ms Cruikshank to the plaintiff and her solicitor at the time of the execution of the second search warrant, was not entirely clear as to the basis for their actions.

Plaintiff's Submissions

The plaintiff did not submit that it would not in any circumstance be open to a police officer executing a warrant to examine a document that might be privileged. Rather, the plaintiff submitted that the obligation of a police officer in the execution of a warrant was to act reasonably in all of the circumstances: see Caratti v Commissioner of Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 at [43]-[44]; Dunesky v Commonwealth of Australia [1996] FCA 624; (1996) 33 ATR 491 at 501.
As Lockhart J said in Crowley v Murphy (1981) 52 FLR 123 at 155: "The overriding obligation of a searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case, he has whatever documents are necessary to answer the terms of the warrant. Plainly this must vary from case to case. What is permissible on one occasion is impermissible on another. Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched."
Crowley was a case dealing with a search warrant relating to premises occupied by a solicitor. Lockhart J went on to give various examples which demonstrated that it was not realistic for a greater specificity to be given to the obligation of a searching police officer than that the officer needed to act reasonably. He said this at 156 : "Take the case of a solicitor who is a sole practitioner with only a few clients, one of whom is his principal client and accounts for most of his work. The warrant is to search the documents relating to the affairs of that client may properly involve the police officer in searching all of the files of that client to find only a few documents relevant to an offence. The search may involve, in another case, the policeman reading all the files in the solicitor's office - for instance if the solicitor's office system is so haphazard and disorganised that no reliance can be placed on it. Again, the solicitor may tell the officer that he will not find the documents he is looking for as he has misplaced them in the files of other clients. A negative search may then be justified."
In light of these authorities and in the circumstances, the plaintiff submitted that the conduct of the second search warrant was unreasonable because, no reasonable opportunity was given to the plaintiff or her lawyer to put forward a claim for privilege. The plaintiff submitted that the Court should conclude that that failure occurred in the context where the second defendant had an improper purpose in executing the second search warrant, which was to improve the police position having regard to the earlier second judgment. The plaintiff submitted that the violation of the plaintiff's privilege claim gives rise to an entitlement to a declaration that the execution of the second search warrant was unlawful and that it ought be quashed.
The plaintiff went on to make the submission with regard to quashing the second search warrant, even though she recognised that the submission depended upon facts which occurred after the issue of the second search warrant. She put her submission in this way: "The manner of the execution of the warrant supports the inference that the application for the second search warrant was actuated by an improper purpose: the violation of the privilege claim represents the consummation of the earlier formed purpose to use the second search warrant procedure to circumvent the orders of Garling J and to examine documents subject to a claim of privilege."
In further submissions, the plaintiff argued that it was relevant that the correct characterisation of the orders of N Adams J made on 28 February 2017, was that they were not interlocutory, but rather that they continued to prevent the police from accessing the documents over which privilege was claimed until a determination had been made by this Court with respect to that claim, or else by agreement. It was submitted that the police, in executing the second search warrant, acted contrary to those orders and had acted unreasonably.
In aid of that submission, the plaintiff sought to draw on a statement made in the first judgment at [7]. In that statement, during the course of recounting the history of the proceedings in the Court and in particular noting an exchange between the parties which took place on 1 October 2017, I remarked that the parties agreed that the matters relating to privilege would be dealt with on a future occasion after judgment was handed down.
Although the plaintiff submitted that the orders of N Adams J of 28 February 2017, continued after that point in time, they did not. Nor does the plaintiff gain any comfort from the contents of [7] of the first judgment.

Defendants' Submissions

The defendants submitted that the effect of s 49(1) of the LEPRA was to require the searching officers to turn their minds to whether the document or thing that they were seeking to seize was covered by the terms of the second search warrant and, if it was not, and they did not have another appropriate belief, they were not entitled to seize it.
This position reflects the remarks of Dunford J in Cassaniti v Croucher [1997] 37 ATR 269 in dealing with the Search Warrants Act 1985 (which is not dissimilar to the current provisions in the LEPRA) where his Honour said at [22] and [23] : "… but he had no reasonable grounds for believing that the cassettes related to offences under the [Listening Devices Act 1984], the offences he was investigating or any other offences - indeed he had no reasonable grounds to believe anything about the tapes (which were not labelled) until and after he had listened to them. He was not entitled to seize them merely for the purpose of taking them away to determine, at a later time, whether their seizure could be justified under the warrant … Similar considerations apply to the documents seized: it was necessary to examine them before their removal to determine whether their removal could be justified not take them away and consider at a later stage whether their removal could be justified as appears to have been what happened." (emphasis added)
The defendant emphasised the fact that the plaintiff's solicitor had previously claimed, with respect to the documents seized under the first search warrant, that some of those documents fell outside the terms of the warrant. The defendant pointed to this as providing the context in which the searching officers needed to inspect all of the documents including those in the sealed envelopes, so as to satisfy themselves before seizing them, that the documents were relevant and within the terms of the warrant.
The defendant put that, on the totality of the evidence, the conduct of the searching officers was reasonable and not of a kind that would lead a Court to grant any form of relief with respect to the way in which the search was carried out.

Discernment

A careful viewing of the video record of the execution of the second search warrant reveals that, notwithstanding the presence of Mr Barham as her legal adviser, the plaintiff herself forcefully expressed her views in a way which suggested that the police were not acting appropriately in the execution of the second search warrant. Such an approach was open to the plaintiff to take. It also reveals that the plaintiff was prone to making exaggerated claims and was not willing to consider or discuss any compromise arrangement which adequately provided for the task the police were embarked upon.
The clearest example of this is that, in light of the fact that the plaintiff had herself inspected documents at the Kings Cross Police Station after her solicitor had done so, she must have known that the documents had been divided by her solicitor into the two categories described earlier. Some documents in respect of which no claim for privilege was made were contained in the police exhibit bags and available at that time to be viewed; others were in sealed envelopes marked with the word "Privileged".
As well, having regard to the content of the police brief which included statements partially reliant upon documents that had been seized (and in the absence of any evidence to the contrary, I would infer that they had been read by the plaintiff) she nevertheless maintained a claim in respect of all of the documents that were being returned. The plaintiff objected to the police looking at any of the documents or seizing them, any of them including those over which no claim for privilege had been made.
Given that the plaintiff had previously objected to the police retaining documents that fell outside the terms of the second search warrant (such as those that were termed to be irrelevant by her solicitor) it was clear that police would need to carefully determine that the documents did fall within the terms of the second search warrant, otherwise they could expect a similar objection to be mounted.
The plaintiff could have, but did not, suggest to the searching police that in order to avoid their looking through documents that she claimed to be privileged, she was prepared to accept that the documents contained in the envelopes marked "Privileged" were all relevant and that it was open to the police to seize them. Of course, the plaintiff had no obligation to do so. However, having regard to the bases upon which she claimed that the police had wrongly seized documents in the first search warrant, her failure to make such a concession or suggest such an agreement, had the result that the police were not able to seize all the documents and determine at a later point in time after any claim for privilege had been resolved, whether or not they were relevant.
Against that background, I am not prepared to hold that the second defendant or any police officer acted unreasonably. Before a document could be seized, the second defendant had to satisfy herself that it was either within the description of specific items given in the second search warrant or else from the contents of it, that she had reasonable grounds to believe it constituted evidence of any offence. Whether or not that document may have been the subject of a claim for privilege would not prevent the second defendant from satisfying herself that the document ought be seized. After all, as can be seen from the course of these proceedings, a claim for privilege, contrary to what the plaintiff asserted in the video recording, is not being maintained by her with respect to all of the documents.
The fact that a police officer, in the course of the proper execution of a search warrant, may have read and received information that would be covered by privilege, may lead to a different claim for relief to that sought here.
Another factor contributing to my conclusion about the reasonableness of the actions of the searching police is that it appears from the oral evidence that the police sought and received legal advice about their obligations, prior to the execution of the second search warrant. In the course of the execution of the second search warrant, even after the plaintiff's solicitor spoke with the solicitor for the police, there was no suggestion that the police were informed by their lawyer that they should desist from what they were doing. I infer they were acting in accordance with that legal advice.
In my view, there is no basis for the criticisms mounted against the second defendant and the police with respect to the execution of the second search warrant which suggests that they acted unreasonably. The execution was not done for any improper purpose.

Conclusion

I have concluded that the application for, and the issuing of, the second search warrant by the third defendant in this case was lawful. I have concluded that the execution of it by the second defendant and fellow police officers was also lawful. Accordingly, it will be appropriate to refuse to grant the relief claimed in the Summons.
It will be necessary for the parties to formulate the orders which are to be made including any order for costs, and also any order for the determination of the balance of the claims for client legal privilege made by the plaintiff.

Orders

I make the following order: 1. Direct the parties within seven days to confer and agree upon the form of orders which are to be made to reflect the reasons for judgment. 2. Stand the proceedings over for any further submissions about the orders to be made to 28 June 2019 at 9.30am.

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: 19 June 2019

Lee v NSW Commissioner of Police

At a glance

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Decision date

Before

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Judgment (21 paragraphs)

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Cases Cited (21)

Cited By (2)