Robert Cramp v Commissioner of Police

Subsequent to the filing of SC Waddell's affidavit the drug matter was concluded. This meant that based on SC Waddell's affidavit (as highlighted by the above underlining) there was no longer any purpose to retain the phone.
The argument now being made for the respondent is that retention of the mobile phone should be permitted on a basis perhaps best expressed by Adams J in McQueen v Hawi [2008] NSWSC 136 at [17] (and with which Adams J disagreed) namely "for the purpose of investigating whether it might be implicated in some crime or other which had not been identified or indeed might not even yet have been discovered".
The phone cannot be relevant to the drug matter because it has been completed. It is not relevant to the Crown case in traffic matter as the Crown does not seek to rely on it as evidence in that case. The respondent raises the prospect that the Crown should retain the phone as the applicant has said the phone is potentially a source of evidence for the applicant in the traffic matter. If necessary that will be addressed below. The real issue being agitated by the respondent is what was put in submissions (and is far from clear on the evidence), that the police wish to retain the phone so that they may attempt to remove information from it which they say they now have the capacity to do and which it is said they did not earlier have (a position I consider is not made out on the evidence if par 11 of SC Waddell's affidavit is, as I take it to be, a reference to the email he received from David McLoughlin) so as to discover evidence of a crime the police are presently unaware of. That the police are unaware of it is a conclusion based on the fact that there is no evidence on this application of there being any other crime having been committed nor for that matter being investigated beyond the drug matter and traffic matter.
Hawi was a case where the bloodstained shoes of a member of an outlaw motorcycle gang were in police possession and not unreasonably thought by the police as possibly being evidence of some crime given that the owner of the shoes was a criminal, involved in a criminal organisation which had committed a number of criminal offences and therefore it might be that at sometime in the future the shoes may be relevant to some crime. Adams J considered this to be sensible but then went on to say at [19]: But it seems to me that a general wish to hold property belonging to someone else for the reason that it might turn out at some time or other to be material to some criminal activity about which we presently have no information is not a retention for the purposes of investigation within the terms of section 218 and it is not a basis for properly refusing an application for return of goods under section 219. The protection of the right of the citizen to his or her property is an important legal principle
Hawi was decided in 2008 and was not the subject of any appeal. It has been referred to in cases in 2013 and 2020 at least. The more recent case, Joukhador v Cmr of Police [2020] NSWSC 227, was a case where documents had been seized from a solicitor's office who was at that time facing certain charges. The case is one with something of a history but the relevant application was made at a point after the DPP advised there would be no further proceedings in respect of all the charges in the matter. Influencing the outcome of the matter was an order by Davies J previously made allowing the police to have access to the documents "for the purposes of conducting any prosecution". It was common ground that the police investigation into the solicitor was ongoing despite the fact that the original charges were not to proceed and it was also established that no referral for any possible prosecution had subsequently been made. Joukhador was an application dealing with s218 (see at [68]) but it does assist in understanding when property may be retained. At [69] Beech Jones J relevantly said that the absence of a pending prosecution or a referral to the DPP is not determinative in forming the necessary state of satisfaction required by section 218 (1) (a), namely, that the retention of the seized thing as evidence is not required.
Beech Jones J referred to Fantakis v Commissioner of Police [2013] NSWSC 685, a decision of Adamson J and being the second post Hawi decision referred to earlier. At [27] of that case her Honour explains the operation of sections 218 and 219 as follows: The wording of s 218 provides context to the Court's power under s 219 to make orders regarding property in the custody of police. Whether seized property is required for investigation of a specific crime or is potentially required as evidence is a relevant factor in deciding if property, whether lawfully seized or otherwise, ought be returned to its owner: see the summary of authorities in Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J (Tye).
The items the subject of the application in Fantakis were all items subject to ongoing investigation or an existing charge or the proceeds of crime; see at [23]. It is therefore distinguishable on its facts from the present as the investigation the respondent seeks to carry out is not in respect of any specific crime.
Adamson J then referred to Malone v Metropolitan Police Commissioner [1980] 1 QB 49. Her honour cited a passage from Roskill LJ from page 64 of that judgment which notes the competing issues of the duty of courts to protect the freedom of property of the individual against arbitrary action by the executive on the one hand and on the other to have in mind that the administration of justice must not be hampered and that from time to time the rights of individuals have to yield to a wider public interest which requires the abridgement of individual rights.
Her Honour then cited a passage from page 72, the effect of which is to say that in respect of the item in question in that case, namely money, it was not difficult to envisage circumstances where it may become highly material for it to be produced even though it was not yet exhibited as part of the police evidence. The first points of distinction of that case to our present case is that the money was found upon a search discovering not only the money but also alleged stolen goods and in respect of which there was an ongoing trial. Furthermore in my view to better understand how the passage being cited may apply to the present case the whole of the passage from page 72 should be referred to. That passage is as follows, and for convenience, I have italicised the passage referred to by Adamson J; the underlined passages are my own emphasis: It seems to me that the line of authorities to which Mr. Serota referred, and to which I do not find it necessary to refer in detail, show that there is no general power in the police, when they have lawfully seized property which is thereafter not the subject of any charge and is clearly shown not to have been stolen, to retain that property as against the person entitled to possession of it against some uncertain future contingency. The police must be able to justify the retention of such property in such circumstances upon some clearly ascertainable ground. To my mind the only question in this case is whether it can be predicted with sufficient certainty that under no circumstances irrespective of the fact that that money was not exhibited in the committal proceedings, will it become necessary to adduce that money in evidence at the trial which starts next month, so that it can now, without risk to the administration of justice, be safely returned to the plaintiff. If it became necessary for the prosecution to adduce that money in evidence, it would obviously gravely hamper the administration of justice if that money had been handed back and spent, so that it was no longer available to be put in evidence whenever required. Whatever Mr. Serota's present instructions are (and, of course, I unreservedly accept that he has received those instructions I have mentioned) as to the course which the plaintiff at present intends to take at the trial, this will be a long trial and it seems to me quite impossible to predict, at this juncture, every turn which that long trial may ultimately take. It is not difficult to envisage circumstances in which it might become highly material for that money to be produced, either on behalf of the prosecution or of the defence, even though the prosecution do not seek to say that the money itself was stolen and have not so far exhibited it as part of the police officer's evidence. I think, therefore, on this narrow ground the defendant is entitled to retain this money until the conclusion of the criminal proceedings against the plaintiff, and in this respect I venture to disagree with the judge. On this ground, I would allow the appeal and discharge the injunction.
The underlined passage shows how factually different Malone is to the present, in that in Malone there was to be a trial in which the seized property may be required. Both Malone and Fantakis stand for the authority that seized goods of some potential relevance to an ongoing trial or current charge or investigation may be retained pending the conclusion of the trial, charge or investigation. That this is the position concerning Fantakis is made expressly clear at paragraph 30 and 31 of the judgement of Adamson J. At paragraph 30 her honour said: Where property is seized in the course of execution of a search warrant the police are not entitled to retain it for longer than is reasonably necessary in order to complete investigations or to preserve it for evidence: Gollan v Nugent [1988] HCA 59; 166 CLR 18 at 29; see also R v Elomar and Ors [No 11] [2009] NSWSC 385 at [54]- [55] per Whealy J and Ghani v Jones [1970] 1 QB 693 at 706 at 708-709 per Denning LJ.
This passage is particularly relevant in the present case by reason of the reference to retention being permissible but for no longer than is "reasonably necessary". I am not satisfied by the evidence of the police that there has in fact been any change in the capability of extracting material from the phone and if there has been a change then the time at which that change occurred. I have reached this position based on the email of David McLoughlin of 5 March 2021, and the fact that the request for the extraction was so plainly reactive to the request for access to the phone.
At paragraph 31 of Fantakis Adamson J with obvious approval refers to paragraph 19 of the judgement of Adams J in Hawi and which with respect in my view is a form of words which closely describes the current position. Against the argument for the respondent is that unlike the cases discussed, there is not in the present case an investigation of any identifiable crime, unlike for example in Joukhador, or Smethurst (see below), nor is there any upcoming trial.
Favouring the respondent however I note the sentence from Malone preceding the underlined words above. Those words allow for retention of the property on "some clearly ascertainable ground". It is well arguable, that such a ground is the retention of the phone for a limited further period to allow the extraction spoken of to occur if that course is in all the circumstances justified.
The respondent also relied upon Smethurst & Anor v Commissioner of Australian Federal Police & Anor (2020) A Crime R 356; [2020] HCA 14. In the passage quoted by the respondent from [101] of Smethurst reference is made to Malone in approving terms. The High Court noted that the original seizure of the money had been valid but more than a reasonable time had since passed. Thus the police would have been obliged to return the goods (money) had the court not held it should be retained until the conclusion of the criminal proceedings. From this can be seen the accuracy of the summary of the position by Adamson J justifying retention, namely either to allow within a reasonable time completion of investigations or to preserve the item until the conclusion of the trial. I would note that whether there has been more than a reasonable time for completion of the investigation turns on whether there has been any change in capacity to extract material from the phone and if so when and that relevantly the trial to be considered is no longer to proceed. As noted above, I am not satisfied by the respondent's evidence that a reasonable time has not passed.
In Smethurst the High Court at [101] observed that Malone was referred to in Gollan v Nugent (1988) 166 CLR 18. In that case there was no question of the articles being required as evidence in any future trial. The case is perhaps of limited assistance given that the question there was whether an application for the return of goods could be resisted on the basis that it was intended by the owner to commit offences with those goods. More relevantly for present purposes the passage at page 43 referring to "any prospective trial" was to the effect that where there is a prospective trial there is a legitimate ground for retention of the goods and reference was made to Malone. I take the word "prospective" here to mean, given the reference to Malone, a trial that is upcoming and not one that is speculative. Viewed that way this authority does not assist the respondent.
The High Court in Smethurst then went on to say at [102], immediately following the statement permitting retention for a prospective trial: This statement reflects the practice which has been adopted in many cases involving things illegally seized. As Hill J observed in Puglisi v Australian Fisheries Management Authority[109], the preponderance of opinion in relation to the exercise of discretion tends to be in favour of refusing to order the return of things, even when they have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence.
Smethurst was a case in which documents had been seized pursuant to a warrant which was found to be illegal. Despite that illegality the documents were not required to be delivered up. Rather the materials were able to be retained to be used for their intended purpose of further investigation of a possible offence. Such investigation was one of the legislated purposes of issuing the warrant; see at [57].
I note that the case of Puglisi is another example of the use or retention of the item being permitted where there are proceedings pending. Smethurst follows that principle in connection with an ongoing investigation, though that circumstance was authorised by the legislation concerning the warrant.
In this case there is no suggestion of there being any relevant investigation other than in respect of the drug matter prior to 3 March 2021. To the extent there is any investigation presently ongoing nothing is known about it other than it is hoped that something suggesting illegal behaviour is extracted from the phone.
Adamson J in Fantakis made reference to the decision of Tye v Commissioner of Police (1995) A Crim R 147, a decision of Studdert J. That was a case where a man accused of sexual assault had given up a blood sample which it was agreed had been obtained without statutory authority. The purpose of the sample was comparative testing. The case determined that it would not be appropriate to return the sample before the pending criminal proceedings were finalised. In reaching this conclusion Studdert J noted the public interest in the detection and punishment of wrongdoers in the deterrence of crime. The judgement makes reference to the decision of Lord Denning MR in Ghani v Jones [1970] 1 QB 693. That case set out certain requirements that would justify the taking of articles upon a search without warrant and before laying of charges. The case therefore is not strictly on point to a retention case but does give some guidance. One of the requirements as set out at page 150 of Tye was that the article must not be kept any longer than is reasonably necessary to complete investigations or preserve it for evidence. This adds further to the authority set out above that there does not need to be proceedings on foot.
Despite that point the majority of cases referred to in this area are cases where proceedings are on foot for example Malone, and the cases mentioned in Tye at pages 152-154. Of course Smethurst is an example of an investigation, as is Ghani v Jones and also Joukhabor, though notably investigations more progressed than the present situation, to put it mildly.
At page 152 of Tye reference is made to a decision of Hope J of Marinko v Rames unrep NSWSC 13.8.71 which was a case concerning articles seized by police which were suspected of being kept for the purposes of committing a felony. Having referred to Ghani v Jones, Hope J said: And it seems to me, in the present case, there are the competing interests of the police to investigate and prosecute crime, and of the individual to have his freedom from interference, his privacy, and his right to retain his property. In balancing those interests, sometimes established rights are either ignored or not given effect to, that is rights of property, privacy and so on. In many respects, the matter must be dealt with on the basis of a legal right, but in many respects it seems to me, it must be dealt with on a basis of common sense and what is the just and proper thing to do in the light of all the circumstances.
Studdert J noted in Tye that the admission into evidence at the trial of the blood sample and its analysis would depend upon the exercise of the discretion of the trial judge given the sample was obtained without authority. In post-1995 terms his Honour is referring to Section 138. That perhaps is not so much a point in the present case given there is no challenge to the legality of the item coming within the possession of the police but rather the complaint is they no longer have a need for it.
A similar point in terms more applicable to the present case was made by Nettle J in Smethurst at [161]-[162]: No doubt, it cannot yet be said, and it may not be, that the information will disclose criminality which it is in the public interest to reveal. So far, the Commissioner has been bound by undertaking - given shortly after the claim of unlawful seizure was first made - not to look at the information until the question of the lawfulness of the seizure is determined. But what can be said is that the information was seized because the executing officer considered that it related to the unlawful disclosure of secret information, which, if proved, would be a serious criminal offence of the kind inadequately described in the warrant, and that the Commissioner has offered to undertake - and, if needs be, can be enjoined to ensure - that the information is used only as if it had been seized lawfully under Pt IAA. Consequently, if, upon examination by the Commissioner, it appears to the Commissioner that the information does not assist in disclosing the commission of such an offence, the information will be returned to the first plaintiff as if it had been lawfully seized under Pt IAA, and no prejudice will have been caused to the first plaintiff. On the other hand, if it is determined that there is to be a prosecution, a question may then arise as to the admissibility of the information into evidence. But, if so, that will be a question that falls to be determined by the trial judge in accordance with s 138 of the Evidence Act 1995 (Cth). Contrary to the way in which the grant of injunctive relief has been approached in some other cases of this kind[216], the potential application of s 138 is not a relevant consideration for the purposes of determining whether to grant or withhold injunctive relief - not least, but not only, because there is as yet too little information to determine whether s 138 would be engaged.
The respondent's submissions argue that there is a discretion in the court as to whether or not the phone should be returned. The argument is that whilst there is no current proceeding in respect of which it may be evidence and therefore arguably fall outside the wording of section 218(1)(a), now that the information extraction can be carried out that should be permitted and the phone retained for that purpose given the likelihood based on the evidence of the police of the phone potentially containing information showing criminal conduct. In exercising that discretion it is relevant to consider the fact that the police had possession of this item since November 2019, made an express decision to do no further work on it in May 2020, made no steps of any type to see if there had been any technological advances in extraction prior to the actual week of the trial, and now say (based on the evidence discussed above) that there have been technological advances.
I also note that in the affidavit of SC Waddell no mention is made of extracting information from the phone other than for the purpose of the trial. He also says that he believes the phone will contain certain information based on his experience as a police officer. The type of information that he expects it would contain is set out in paragraph 13 subparagraphs (a) to (e) inclusive.
Subparagraph (a) is based on an alleged conversation that in earlier proceedings I was not satisfied occurred. Sensibly read that paragraph is relating to the supply matter. In my view that paragraph does not support the respondent's argument.
Subparagraph (b) is predicated on "in light of the female being with the defendant to buy drugs", a position dependent on the conversation that has been found (after the swearing of this affidavit) not to have been made out. This par also does not support the respondent's position.
Subparagraph (c) talked in general terms of photographs or other digital information such as messages that show the applicant has access to or possession of drugs. My view is that that is effectively what the respondent's submission amounts to; that is retention of the phone is warranted because it is thought that this particular person deals with drugs and the phone will reflect that.
Subparagraph (d) expresses the same expectation but in respect of firearms. There is a history of firearm offences with this offender but the most recent such offence according to his criminal history in evidence was in 2002 and my view could give no basis for retention of the phone.
Lastly subparagraph (e) deposes to an expectation of the officer that there will be admissions by the defendant bragging about getting away from the police. It may be said that some offenders are not terribly bright and may engage in such activity; it may also be said that other criminals may be somewhat more discreet. I view this paragraph as totally speculative and cannot support the retention of the phone. Furthermore that paragraph reads as if it is talking about admissions about getting away from police which is what the traffic matter was all about which is the matter the police position is they do not rely upon the phone.
On balance these matters weigh against an exercise of discretion in favour of the respondent save for sub par (c).
The belief of SC Waddell is said to be based on the information in the affidavit and in that regard is unhelpful for its lack of particularity. What the affidavit contains is set out at paragraph 7 which are numerous statements of police involved in dealing with the applicant. None of that information is specifically referred to at paragraph 13 where the beliefs are set out other than for the reference to the conversation that has been held not to have been established. There are however matters that assist the respondent including the following: 43.1. The finding of approximately 40 g of methamphetamine in the vehicle hired by the applicant and for which he had the keys. That search has been found to be illegal but it is clear on the authorities that despite the illegality of that search the existence of that amount of drugs should be taken into consideration in determining this application; for example in Smethurst the whole argument concerned a warrant that was found to be illegal. 43.2. A set of digital scales were also found in the vehicle; 43.3. The allegation of the traffic matter is amongst other allegations that he drove away from police having been stopped by them and that a police pursuit then followed suggesting a desire not to come under scrutiny of police. 43.4. At the time of the initial arrest by Constable Zylstra the applicant did not identify himself. 43.5. The applicant's criminal history for New South Wales shows a history of offending from the year 2000 but shows no drug matters other than a possess prohibited drug and cultivate prohibited drug charge in 2002 and a drive vehicle with illicit drug present in 2009. There were convictions for possessing drugs in Queensland in 2004 and 2013. These matters in my view would not assist the respondent. However his record from the Northern Territory shows that he had convictions for cultivating cannabis in 2017 and was sentenced to a term of three years and nine months at that time for a range of such offences.
These matters known to SC Waddell justify an examination of the phone of the type that is sought to now be carried out. The argument of the applicant that what is occurring is simply the authorities engaging in a fishing expedition is not made out because the above matters give a solid basis for the view that the phone may indeed contain information connected to drug offences.

Determination

I have reached the following conclusions: 45.1. The police have lawfully come into possession of the phone and it has not been suggested otherwise. 45.2. The police attempted but found they could not extract information from the phone and took no further steps prior to this motion being filed to do so. It is reasonable to infer that it was not intended by the police to rely on anything contained in the phone on the prosecution of the drug matter. 45.3. The evidence of the police that there now exists a better capability to extract information from the phone I consider to be inadequate and unpersuasive and I am not satisfied on the evidence that is the case. I am further of the view that the police have had more than a reasonable time to carry out whatever investigations they suggest they need to carry out on the phone. 45.4. It is not necessary that there be proceedings on foot for the retention of the phone to be justified. 45.5. There is no ongoing investigation at present of the type existing in the various cases canvassed above that justified retention of property. 45.6. This however is not determinative of this application. The unchallenged position of the police is the extraction capability exists and they can within a short period of time subject the phone to whatever process is necessary for that extraction to occur if indeed it be the case that it can occur. 45.7. Whilst there is no ongoing investigation of the type the cases show permits the retention of property, the cases also show that it can be sufficient if there an "ascertainable ground" (per Malone) for the retention of the phone. 45.8. Further, regard is to be had to the public interest in the detection of and punishment of criminal offending which competes against the public interest of the citizens right to privacy and property. 45.9. As was said by Hope J in Marinko one approach is to deal with the matter on a basis of common sense and what is the just and proper thing to do in the light of all the circumstances.
Based on the information available to SC Waddell outlined above that I accept was available to him at the time of forming the belief set out at paragraph 13 (c) there is a basis (or "ascertainable ground") justifying examination of the phone. There was within a car connected to the applicant an indictable quantity of methylamphetamine. That fact together with the other matters referred to above distinguish this case from Hawi. In the case of the bloodstained shoes there was no matter of illegality that could be connected to them at the time the shoes were in the possession of the police and the proposal seemingly was that they be retained forevermore to be analysed should some crime possibly related to them become known at some point in the future. In our present case the matters referred to by SC Waddell show that there is at the time the phone was seized criminal activity potentially involving the applicant.
It follows that the retention of the phone is justified for a further period of time. I reach the same conclusion based on the "common sense" approach of Justice Hope.
The point made by the applicant is understandable. At no time after May 2020 and prior to the applicant asking to inspect the phone in February 2021 did the police on this evidence show any intention of carrying out the type of investigation they now assert to justify retention of the phone. Indeed that intention could be said to have only emerged in the course of this application. That is, even after the motion was filed the predominant if not only basis for retention was said to be in connection with the drug matter. This may show the thought processes of those acting for the applicant to be more logical and consistent than the assertions of the police but in my view it does not overcome the public interest in detecting crime. In this case, where the circumstances are such as to suggest some criminal activity, to do so deprives the citizen of his phone only for a short further period of time such that the privacy and property rights issues do not outweigh the competing public interest just identified.

At a glance

Court

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Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)