The Commissioner of Police, by notice of motion, seeks access to documents that are within the Court to enable those documents to be inspected and copied. The documents were lodged with the Court as a condition of a grant of bail made on 30 November 2017 by Fullerton J. The defendant, a solicitor, had been charged with a number of offences concerned with the way he dealt with his clients' money, namely, deducting moneys without the consent of his clients contrary to s 192E of the Crimes Act 1900 (NSW).
A search warrant had been executed, as part of an investigation into possible further offences, at the defendant's work premises but, by the time the defendant made the bail application, it had not been possible for the police to download all of the material from the LEAP system, which provided the evidence of the database of the clients of the defendant.
At present, the criminal proceedings, the subject of the bail application, have been fixed for hearing in the District Court on 26 August 2019.
At the time of the bail application the defendant wished to access material that was on his computer systems for the purpose of preparing his defence of the charges then laid. The police wished to have access to the material and they expressed a concern that they did not want the evidence interfered with before they had that opportunity.
Accordingly, it was made a condition of the defendant's bail that he was not to access the material on his system until the police had a reasonable opportunity, with the assistance of Maatouks Law group, the law firm acting for the defendant, and representatives of the software company that provided the software, to copy that system and associated record systems. The condition further provided that the copied material was to be marked and deposited with the Court and not to be accessed until a further order of the Court. It is in respect of this material that the present application relates.
The application is resisted by the defendant, first, on the basis of the width of the material which the police wish to inspect. Inspection is sought of the whole of the material on the hard drive of the system. The second basis upon which it is resisted is that it is said that client legal privilege is relevant, and until such time as that privilege has been waived by each of the clients, the police should not have access to the material. In that regard, reference was made by analogy to the situation where a subpoena was issued for this material. It was submitted that privilege would operate, at least until those claims were assessed by a Court.
In relation to the claim for privilege, it does not seem to me that the analogy with a subpoena is apt in the circumstances. The police issued a search warrant, but were not able to complete the task of accessing all of the material identified on that search warrant because it was necessary for the material to be extracted manually. That was time consuming and only a selection of the documents was able to be downloaded and copied. Had it not been for the intervention of the bail application that process could, no doubt, have been completed.
Were it not for what occurred at the bail application, it seems to me, it would have been open to the police to obtain a further search warrant to access the material that they did not manage to access on the execution of the first search warrant. In those circumstances, the police would not, by law, have been prevented by any claim of client legal privilege from being able to access the material, provided it was legitimately accessed pursuant to the search warrant that was obtained.
What is now being investigated is a searchable offence or offences as defined in s 46A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The police officer seeking a warrant in connection with the investigation had only to demonstrate a belief on reasonable grounds that within the specified time the material connected with the searchable offence was likely to be at the premises under s 47 of that Act. If, pursuant to s 48, an eligible officer considered that there were reasonable grounds for issuing the warrant, that warrant could be issued.
I am informed that under the proposed arrangement with the material in Court, in the first instance, that material will be inspected by an independent reviewer who will identify from the material clients or former clients who may have the right to claim privilege over the material. Those clients would then be contacted to see if they were prepared to waive privilege with respect to the material. It would only be after that time that the police would be able to inspect the material. That seems to me to be an adequate answer to the issue of privilege that has been raised.
As to the width of the claim, it is submitted that any documents which should be made available to the police should be confined to those set out in paras 16 and 18 of the affidavit of Detective Senior Constable Emma Edwards sworn 14 February 2019. By contrast, what is sought by the police is access to the hard drive which contains the LEAP database.
The difficulty of limiting the material to that which is contained in Detective Edwards' affidavit, is that the majority of that material consists of paper documents of some of the defendant's files. The police wish to examine the hard drive as part of their investigation into seeing whether further criminal offences have been committed. It does not seem feasible to limit the examination of the hard drive because it is, in effect, one document. That is where the procedure that is to be implemented by the police will come into operation with the independent reviewer first examining the material downloaded from the hard drive to ascertain the relevance of the material to be inspected, as well as matters pertaining to privilege. There will, in all probability, be a considerable amount of irrelevant material on the hard drive which will ultimately not be used by the police.
As noted earlier, if a further search warrant had been issued before the bail application issue was raised, I can see no basis upon which the police would not have been entitled to examine the hard drive and the material that they now seek. What Fullerton J did was designed to preserve the status quo in a way that would prevent that material being interfered with, but which would nevertheless enable both the defendant and the police to inspect the material each for the purpose that they desired to do so.
In those circumstances, I consider, in the exercise of my discretion, that the orders sought by the Commissioner should be made.
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Decision last updated: 22 February 2019