R v Joukhador

Judgment

1. 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).
2. 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.
3. At present, the criminal proceedings, the subject of the bail application, have been fixed for hearing in the District Court on 26 August 2019.
4. 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.
5. 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.
6. 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.