AB v CD [No 2]
[2019] WASC 301
•22 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AB -v- CD [No 2] [2019] WASC 301
CORAM: TOTTLE J
HEARD: 15 AUGUST 2019
DELIVERED : 15 AUGUST 2019
PUBLISHED : 22 AUGUST 2019
FILE NO/S: CIV 1571 of 2019
BETWEEN: AB
Plaintiff
AND
CD
First Defendant
EF
Second Defendant
GH
Third Defendant
Catchwords:
Practice and procedure - Application to issue subpoena or for non-party discovery - Whether application constitutes 'fishing expedition' - Where reasonable grounds for believing that non-party is in possession of relevant documents - Where documents confined by reference to indorsement of writ - Where interests of justice favour grant of application for non-party discovery
Defamation - Case management principles - Where defendants allege irregularity in procedural steps taken by plaintiff - Whether plaintiff confined to particular course of procedure - Where administration of justice aided by procedure adopted by plaintiff
Criminal investigations - Seizure of mobile telephone - Criminal Investigation Act 2006 (WA) - Whether records of information made from seized property are seized property for purposes of Criminal and Found Property Disposal Act 2006 (WA) - Whether disclosure of the nature of the record constitutes 'dealing with' seized property
Statutory interpretation - Criminal Investigation Act 2006 (WA) and Criminal and Found Property Disposal Act 2006 (WA) - Disclosure of records produced in the course of criminal investigations for the purposes of civil proceedings - Whether legislation manifests intention for records not to be disclosed - No legislative intention discernible
Legislation:
Criminal and Found Property Disposal Act 2006 (WA) s 10
Criminal Investigation Act 2006 (WA) s 3, s 68, s 146, s 148, s 152
Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B, O 26A r 5(1)
Result:
Application for non-party discovery granted
Category: A
Representation:
Counsel:
| Plaintiff | : | Mr R J Anderson QC |
| First Defendant | : | Mr J Maclaurin |
| Second Defendant | : | Mr J Maclaurin |
| Third Defendant | : | Mr J Maclaurin |
| First interested non-party | : | Mr S B Watters |
| Second interested non-party | : | Mr M Holgate |
Solicitors:
| Plaintiff | : | Bruce Legal Consultants (Perth) |
| First Defendant | : | Barry Nilsson Lawyers |
| Second Defendant | : | Barry Nilsson Lawyers |
| Third Defendant | : | Barry Nilsson Lawyers |
| First interested non-party | : | Equitas Lawyers Pty Ltd |
| Second interested non-party | : | Commissioner of Police (WA) |
Case(s) referred to in decision(s):
Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246
Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177
Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382
Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142
TOTTLE J:
Introduction
In this defamation action the plaintiff wishes to inspect documents she believes are in the possession of the Commissioner of Police. The plaintiff has not prepared a statement of claim. She contends that she requires access to the documents to enable her to do so. In order to obtain access to the documents the plaintiff has applied for an order that she have leave to issue a subpoena to the Commissioner, alternatively for an order for non-party discovery against the Commissioner.[1]
[1] The application was made by a chamber summons filed on 17 June 2019.
The documents in question are documents brought into existence between 1 April 2018 and 31 December 2018 contained within the electronic image of W's mobile phone that were sent by any one or more of the defendants and which refer to the plaintiff or to ['M'].
'W' denotes a person with whom the plaintiff had a relationship in 2018 and 'M' is a nickname the plaintiff says was used by the defendants to refer to her.[2] W's mobile phone was seized by a police officer in December 2018 in circumstances described more fully below. An electronic image of the data recorded on the mobile phone was taken and the electronic image is in the possession of the police. The plaintiff alleges that the electronic image includes messages sent by the defendants to each other and to W by electronic means that are defamatory of the plaintiff. The messages were received by W on his mobile phone. The messages include the publications that form the basis of the plaintiff's claim. The plaintiff believes that the messages are stored on W's mobile phone and that they have been reproduced as part of the electronic image.
[2] On 5 July 2019 non-publication orders were made restricting the publication of the parties' names. Conformably with the intention behind those orders I will not identify W by name in these reasons nor use the nickname by which the plaintiff alleges she was described in the messages.
The plaintiff's solicitors have conferred with counsel for the Commissioner and there is no objection to either order. The Commissioner has confirmed that the description of the documents sought by the plaintiff as set out above is sufficient to enable those documents to be identified and produced in answer to a subpoena, or, inferentially to be listed in a list of documents. It appears that the documents sought by the plaintiff are a subset of the documents contained within the electronic image and I have determined this application on the basis that the Commissioner is able to identify the documents the plaintiff wishes to inspect and discover only that subset of documents as opposed to all the material on the electronic image.
At the conclusion of the hearing of the application on 15 August 2019 I made an order for non-party discovery as sought by the plaintiff. I explained in brief terms why I considered such an order should be made and said that more complete reasons would be published as soon as practicable. These are those reasons.
At a directions hearing held on 27 June 2019 I directed the plaintiff's solicitors to serve the plaintiff's application on W so that if he wished he could be heard on the application. W instructed solicitors and written submissions were filed on his behalf. Counsel for W was given leave to appear at the hearing of the plaintiff's application and to make oral submissions on his behalf. W's submissions were critical of the conduct of the investigating officer and counsel for the Commissioner was permitted to respond, and did respond, to those criticisms.
The defendants had applied for orders that the amended indorsement of claim on the plaintiff's amended writ of summons filed on 2 May 2019[3] be struck out under O 20 r 19 of the Rules of the Supreme Court 1971 (WA). The defendants' application was listed for hearing at the same time as the plaintiff's application. After I gave my decision on the plaintiff's application, counsel for the defendant submitted that the strike out application should be adjourned until the plaintiff had considered the documents discovered by the Commissioner and filed and served a statement of claim. This course was opposed by senior counsel for the plaintiff. In the event, counsel for the defendants did not press the strike out application and it was withdrawn.
[3] The writ of summons was issued on 31 March 2019.
Even though the strike out application was not pressed, it is important to reproduce the amended indorsement of claim as it provides part of the context for the submissions advanced by the parties. It reads as follows:
AThe Plaintiff's claim is for damages and associated relief arising from the publication of defamatory publications of and concerning her between April 2018 and December 2018, authored by the First, Second and Third Defendants and published by each of them to each other, and to W as members of a group, by SMS (or similar electronic media) or by using the messaging or social media services known as iMessage, Facebook Group Chat, Snapchat and WhatsApp Messenger.
Paragraph B of the indorsement pleads the relief sought by the plaintiff and is presently immaterial.
The evidence
The plaintiff's evidence
The principal affidavit relied upon by the plaintiff was an affidavit sworn by her on 4 June 2019. The relevant effect of the plaintiff's evidence may be summarised as follows.
(a)The plaintiff is a business person with an established reputation in the field within which her businesses operate. In late March 2018 she began a relationship with W. The defendants and W were friends and exchanged messages as members of a social media group chat. They exchanged messages using messenger services known as iMessage, Facebook Messenger, SnapChat and WhatsApp.
(b)In April 2018 W told the plaintiff that she had become a topic of conversation in the messages exchanged between the defendants and him and that she was referred to by a nickname 'M'. W explained to the plaintiff why the defendants had adopted this nickname but it is unnecessary to record that explanation in this judgment.
(c)In the period between June and December 2018 in conversations between them W told the plaintiff that the defendants had made statements about the plaintiff in the messages exchanged between them. In her affidavit the plaintiff described the nature of the statements allegedly made. For present purposes it is unnecessary to record the details and it is sufficient to say that the statements, if made in the terms described, were defamatory of the plaintiff.
(d)The plaintiff deposed that W would sometimes read out the contents of messages to her and that he would sometimes show her the messages on his phone.
(e)The plaintiff deposed that in September 2018 she received an SMS message from W that contained a screenshot of the group chat. The plaintiff annexed to her affidavit a copy of the SMS message that she described was a true copy.
(f)The plaintiff deposed that in October 2018 W began to tell her more regularly what the defendants were saying about her and that he became increasingly upset and angry in his attitude towards her. The plaintiff deposed that on one occasion W showed her images taken from her Facebook and Instagram social media pages which were accompanied by comments of a defamatory nature written by one or more of the defendants.
(g)On 29 November 2018 the plaintiff ended her relationship with W.
(h)The plaintiff alleges that in the late afternoon of 6 December 2018 W broke into her home, assaulted her and held her against her will. The plaintiff deposes that during this incident W showed her messages sent by the defendants stored on his mobile telephone and that those messages were defamatory of her. The plaintiff deposed that she read messages from each of the three defendants.
(i)On 9 December 2018 the plaintiff reported W to the police and, arising out of the incident described in the previous paragraph, he has been charged with aggravated burglary, common assault in circumstances of aggravation or racial aggravation and deprivation of liberty. I interpolate that those charges have yet to be determined and it appears unlikely that a trial will occur in the short term.
(j)The plaintiff deposes that she has been informed by one of the investigating officers that when W was arrested his mobile phone was taken from him and its contents copied. She deposes that she has been informed by her solicitor, Ms Jonelle Di Lena, that the investigating officer has confirmed that the electronic image taken from W's mobile phone contains messages sent by each of the defendants to W about the plaintiff and which the investigating officer described as being defamatory of the plaintiff. Ms Di Lena told the plaintiff that so far as the investigating officer was aware the police will comply with a court order to produce the documents.
The plaintiff also relied upon affidavits sworn by Ms Di Lena on 25 June 2019, 30 July 2019 and 14 August 2019. Ms Di Lena's affidavits are concerned with communications that the plaintiff's solicitors have had with counsel for the Commissioner. The principal point established by Ms Di Lena's evidence is that the description of the relevant documents contained in the plaintiff's chamber summons is sufficient to enable the documents to be identified by the police.
The defendants' evidence
In their written submissions, the defendants referred to seven affidavits that I understand they relied upon:
(a)an affidavit sworn by Mr Tobias Richard Barrie (the defendants' solicitor) on 1 July 2019;
(b)an affidavit sworn by Mr Barrie on 3 July 2019;
(c)an affidavit sworn by Mr Barrie on 19 July 2019;
(d)an affidavit sworn by Mr Barrie on 12 August 2019;
(e)an affidavit sworn by the first defendant on 3 July 2019;
(f)an affidavit sworn by the second defendant on 4 July 2019;
(g)an affidavit sworn by the third defendant on 4 July 2019.
Mr Barrie's affidavits of 1 and 3 July 2019 and the affidavits of each of the defendants are directed to the issue of whether the defendants' identities should be suppressed and they are not relevant to the application for non-party discovery.
Mr Barrie's affidavit of 19 July 2019 annexes correspondence exchanged between the parties' solicitors. I understand that passages in the correspondence from the plaintiff's solicitors are relied upon primarily for two purposes: first, to demonstrate that the plaintiff has given conflicting accounts of the form of the social media by which the messages were exchanged, and secondly, to cast doubt upon the plaintiff's account that she saw any of the messages on W's phone. I understand that a secondary purpose served by the correspondence was to demonstrate that the delay in bringing the defendants' strike out application is explicable by the attempts made by the defendants' solicitors to resolve the application by agreement - an issue that has fallen away.
Mr Barrie's affidavit of 12 August 2019 annexes correspondence exchanged with the plaintiff's solicitors concerning the particular SMS message that was attached to the plaintiff's affidavit. The correspondence discloses that Mr Barrie was not satisfied that the document described as a copy of the SMS message was in fact a complete copy. In addition to pressing for inspection of the SMS message pursuant to O 26 r 8 of the RSC, Mr Barrie sought inspection of any surrounding SMS messages from W to the plaintiff or from the plaintiff to W to enable the screen shot and the plaintiff's reaction to it to be read in its context. In response to the request for inspection of the SMS message, the plaintiff's solicitors produced a copy of the SMS message which attached the screenshot referred to by the plaintiff in her affidavit. The copy so produced contained information that was not shown in the copy attached to the plaintiff's affidavit. The additional information comprised W's initials and first name, the date and time at which the message was sent, and the words 'boys are on'. The plaintiff's solicitor explained that she had previously thought that the copy of the screenshot annexed to the plaintiff's affidavit was the entirety of the SMS message.
The applicable rule
An order for discovery from a non-party may be made if there are reasonable grounds for believing that a person who is not a party to the action - the non-party - had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the action.[4]
[4] Rules of the Supreme Court 1971 (WA) O 26A r 5(1).
The discretion to make an order for non-party discovery is enlivened
I am satisfied that the plaintiff's evidence establishes that there are reasonable grounds for believing that a non-party, the Commissioner, has in the Commissioner's possession documents that relate to a matter in question in this action namely whether the defendants published statements defamatory of the plaintiff by means of electronic messages exchanged between each other and W.
The focus of the parties' submissions was not whether the discretion to make an order for non-party discovery was enlivened but whether the court should exercise that discretion or the discretion to issue a subpoena to produce and that is the issue to which I now turn.
The impact of case management principles on the exercise of the court's discretion
Central to the determination of this application is a discretionary decision as to which procedural approach will serve the case management principles embodied in O 1 r 4A and 4B of the RSC most effectively.
The defendants submit that the approach described by Master Newnes (as his Honour then was) in Hambly v Joseph Charles Learmonth Duffy Pty Ltd[5] should be followed. In Hambly Master Newnes observed:[6]
Where a plaintiff knows that defamatory words of a certain nature were spoken, but does not know the actual words used, the appropriate course is for the plaintiff to set out, as best as he or she can, the words which are believed to have been spoken by the defendant. The plaintiff may then interrogate the defendant as to what words were used on the occasion in question. Such an interrogatory is only likely to be allowed, however, where the plaintiff can show by uncontradicted affidavit that the defendant has at a certain place, in the presence of certain persons, made a slanderous imputation against the plaintiff of a definite nature. Interrogatories will not be permitted to ascertain whether defamatory words were spoken, but only what defamatory words were spoken. The Court will only assist a plaintiff who can demonstrate that he or she has good cause of action, but is unable to find out the precise form in which to frame it: Gatley on Libel and Slander, 9th ed, par 26.16, Atkinson v Fosbroke [1866] LR 1QB 628.
[5] Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142 (Newnes M).
[6] Hambly v Joseph Charles Learmonth Duffy Pty Ltd [14].
The defendants submit that the plaintiff should do the best she can to plead a statement of claim. They draw attention to the account of some of the alleged defamatory statements given in the plaintiff's affidavit and make the point that if the plaintiff is able to say what the effect of the statements made about her was, then she can plead a statement of claim. Counsel for the defendants submitted that this is not a case of a plaintiff who cannot plead a statement of claim but it is a case of a plaintiff who is not willing to do so until she has obtained the advantage of inspecting the messages contained in the electronic image.
The defendants submit that they will be prejudiced if the plaintiff's application is successful because they will be deprived of the benefit of the action proceeding in accordance with the orthodox procedure of the definition of issues by pleadings followed by discovery determined by reference to the issues on the pleadings. The defendants submit that the issues have not been defined and the plaintiff should not be permitted to conduct a 'roving audit' through months of messages that may be found on the electronic image.
The defendants reinforce their submissions with the proposition that the proper course for the plaintiff to have taken was to make an application for pre-action discovery under O 26A r 4 of the RSC (though they contend that the plaintiff would not have been permitted to proceed with an application for pre-action discovery on the basis of such wide and unparticularised claims as are made in the existing indorsement of claim on the amended writ).
The plaintiff submits that the messages are probative material and without access to them she cannot advance her case effectively. The only people who know what is contained in the messages are the defendants and W. Thus, the electronic image is the critical source of the messages and access to it is required so the plaintiff can identify the particulars of the causes of action required to plead her case and avoid the prospect of multiple strike out applications. It is not possible for the plaintiff to obtain access to the material in any other way and given the circumstances in which she first learned of the messages and the contents there are limits upon what she could reasonably be expected to remember. The Commissioner does not object and the defendants are not prejudiced and have not identified any valid ground of objection.
At the risk of understatement, defamation actions are notorious for generating arguments about pleadings that are productive of delay and significant cost. Such arguments consume a disproportionate amount of the court's limited resources. In my judgment, the case management objectives of obtaining a just determination of the claim and doing so efficiently are best served by making an order for non-party discovery against the Commissioner. This is not a case in which it is in the interests of justice, or in the interests of the administration of justice, for the plaintiff to be obliged to attempt to plead a statement of claim and then defend what will almost certainly be an inadequate pleading. To proceed in that way would be inefficient and it would create unnecessary and expensive procedural obstacles for the plaintiff. In addition, there is the prospect of the plaintiff suffering real prejudice if she is denied access to the messages at this stage - the action is likely to be beset with interlocutory arguments about the pleadings engendering delay and expense that can be avoided without causing prejudice to the defendants or, for the reasons explained below, to W.
This case is distinguishable from the situation in Hambly. In this case, the precise terms of the allegedly defamatory statements may be ascertained by looking at the messages. There is no rational basis for adopting a procedure which obliges the plaintiff to rely on her memory of the limited number of messages that were read to her, or which she read, if recourse can be had to the text of the messages themselves.
The circumstances of this case are unusual but the court's processes are sufficiently flexible to be able to address unusual circumstances. Making an order for non-party discovery at this stage of the proceedings involves a departure from the usual procedure of defining the issues by pleadings and then undertaking discovery. I do not accept, however, that this departure from the usual or conventional approach causes the defendants any material prejudice. Indeed, in the particular circumstances of this case, I consider it is to their benefit because it is likely that the interlocutory disputation that would follow from the service of an inadequate statement of claim prepared without the benefit of access to the messages will be avoided.
I am not persuaded that the fact that the plaintiff did not apply for pre‑action discovery against the defendants is a matter that weighs against her application. Unless the defendants could say that, had the plaintiff made an application for pre‑action discovery, the defendants would have discovered the documents, the argument is, as senior counsel for the plaintiff described it, hollow. Although each defendant has sworn an affidavit and their solicitor has sworn four affidavits, there has been no suggestion made on the defendants' behalf that no messages of the nature described by the plaintiff in her affidavit were sent by them. Nor have the defendants said that they have, or have had, messages of the kind described by the plaintiff in their possession, custody or power that they would have discovered if the plaintiff had made an application for pre-action discovery. Indeed, counsel for the defendants could not confirm whether the defendants still had the messages in their possession.[7]
[7] ts 109.
Two further factors favour the exercise of the discretion in the plaintiff's favour:
(a)first, the confirmation from the Commissioner that documents answering the description of the documents sought by the plaintiff are in the Commissioner's possession and can be discovered (and the Commissioner's willingness to discover the documents); and
(b)secondly, I am also satisfied that the class of documents sought by the plaintiff is not wider than is required for the purposes of enabling the plaintiff to plead her claim.
The plaintiff's application is not a fishing exercise
The defendants submitted that the plaintiff's application was a fishing expedition of the nature described in Cummings v 2KY Broadcasters Pty Ltd by Hunt J as follows:[8]
In order to obtain an order for discovery to enable him properly to frame his statement of claim, a plaintiff must, of course, identify with some precision the purport of the defamation upon which he intends to rely. In other words, the plaintiff is not permitted to conduct a fishing expedition. Such an expedition, as I apprehend the term, occurs where a person who has no evidence that fish of a particular kind are in a pool seeks liberty to drag it for the purposes of finding out whether there are any there or not. (citations omitted)
[8] Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246, 247 - 8 (Hunt J).
In this case, the fishing expedition metaphor is not an apt one. The plaintiff's affidavit of 4 June 2019 provides evidence that there are reasonable grounds to believe both that the electronic image contains messages and that those messages are relevant because they contain defamatory statements about her. The plaintiff's application is not a speculative exercise undertaken in the hope that some relevant documents may be discovered. Rather, it is an application directed to a specific class of documents containing statements made by the defendants which she believes on the basis of cogent evidence were stored on W's mobile phone and are now contained in the electronic image.
Discovery of the messages will not prejudice W's defence
W submitted that allowing a plaintiff to have access to the messages might be significantly prejudicial to him in his defence of the criminal proceedings because the plaintiff is the complainant in those proceedings. In support of that submission, W cited the decision of Gypsy Fire v Truth Newspapers Pty Ltd.[9] Gypsy Fire is authority for the proposition that if a defendant in a civil defamation action has been charged with a criminal offence arising out of the same subject matter, or if there is a real prospect that he or she will be so charged, the defendant may seek a stay of the civil action until the conclusion of the prosecution if he or she is able to show that the obligation in civil litigation to disclose the case in answer to the criminal charge might lead to an unintentional miscarriage of justice in the prosecution. The decision has no relevance to the present circumstances. W will not be required to disclose his defence and, in any event, the prosecuting authorities have the documents.
[9] Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382.
Counsel for W submitted that disclosure of the messages to the plaintiff might result in the loss of some forensic advantage if and when the plaintiff is cross-examined in the criminal proceedings. As I understood the submission, counsel suggested that there was a possibility that the messages would not be shown to the plaintiff in the lead up to a trial in the criminal proceedings and that if they were available to the plaintiff in this action some advantage in cross‑examination might be lost. I am not persuaded that disclosure of the messages to the plaintiff will involve prejudice to W of the nature identified by W's counsel.
There has been no impermissible dealing with seized property
The defendants and W asserted that by commenting upon the content of the electronic image the investigating officer had contravened the provisions of the Criminal and Found Property Disposal Act 2006 (WA) (the Disposal Act). In the context of this issue, a number of related contentions were made to the effect that making an order that compelled disclosure of the messages for the purposes of the plaintiff's claim would be contrary to either an express provision of the Disposal Act or contrary to a legislative intent discernible from the provisions of the Disposal Act and the provisions of the Criminal Investigation Act 2006 (WA).
The questions raised by the parties' submissions and my answers to them are as follows:
(a)First, is there any statutory provision that would prevent the Commissioner from complying with an order for non‑party discovery or producing documents in answer to a subpoena to produce?
Answer: No.
(b)Second, has there been a contravention of s 10(1) of the Disposal Act - in particular:
(i)Is the electronic image of the messages taken from W's phone 'seized property' for the purposes of the Disposal Act?
Answer: No.
(ii)Did the investigating officer deal with property that she knew was seized property in contravention of s 10(1) of the Disposal Act by informing the plaintiff's solicitors that the electronic image contains messages about the plaintiff sent by each of the defendants to W and describing those messages as defamatory?
Answer: No.
(iii)If the investigating officer did contravene s 10(1) of the Disposal Act how does that affect the exercise of the court's discretion on the plaintiff's application?
Answer: The question does not arise.
(c)Third, is it possible to discern from the provisions of the Disposal Act and the Criminal Investigation Act a legislative intent that evidentiary material obtained by police officers as a result of the exercise of their coercive powers should not be disclosed for use in civil proceedings?
Answer: No.
In the paragraphs that follow I set out my reasons for the answers I have given to the questions set out above.
The Criminal Investigation Act
The relevant provisions of the Act are as follows.
Section 68 confers power on a police officer to search people and seize things. Section 68(1) states:
68. Searching people for things relevant to offences
(1) If an officer reasonably suspects that a person has in his or her possession or under his or her control any thing relevant to an offence, the officer -
(a) may do a basic search or a strip search of the person; and
(b) may, subject to section 146, seize any thing relevant to an offence that the officer finds, whether or not it is a thing that the officer suspected was in the possession or under the control of the person; and
(c) whether or not the officer seizes the thing, may do a forensic examination on it.
Section 146 provides that an officer may seize a thing that is relevant to an offence but that the officer may do so only if the officer reasonably suspects, among other things, that it is necessary to seize the thing for one or more of the following purposes:
(i) to prevent it from being concealed, disturbed or lost;
(ii) to preserve its evidentiary value;
(iii) to do a forensic examination on it;
(iv) to prevent it from being used in the commission of another offence.
Section 148 empowers a police officer to make a copy of a record that may be seized or to take extracts from the record. Section 148 is in the following terms:
148. Records relevant to offence
(1) If a record may be seized, the officer authorised to seize it may, if practicable, reproduce the record, whether or not in the same form, and instead seize the reproduction.
Example for this subsection:
A record on a computer could be reproduced by printing it out on paper or copying it on to a disc and the paper or disc could then be seized.
(2) If a record is seized, the officer authorised to seize it may copy or take extracts from the record.
(3) If a record is seized and a person -
(a) who appears entitled to possession of the record; and
(b) who does not already have a copy of the record,
so requests, the officer in charge of the investigation must -
(c)if it is reasonably practicable to do so, give a copy of the record to the person as soon as practicable after it is seized; or
(d) unless the officer reasonably suspects that doing so will jeopardise the evidentiary value of the record, allow the person to inspect the record and to make and keep a copy of it,
unless it would be an offence for the person to possess the copy.
'Record' is defined in s 3 of the Criminal Investigation Act in expansive terms to mean:
... any record of information, irrespective of how the information is recorded or stored or able to be recovered and includes -
(a) any thing from which images, sounds or writings can be reproduced, with or without the aid of anything else; and
(b) any thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;
I interpolate that W's mobile phone is a 'record' for the purpose of the Criminal Investigation Act as is the electronic image taken by the police. Under s 146(3) of the Act, W has a right to request a copy of the electronic image and the police are obliged to provide it to him unless one of the circumstances specified in s 146(3)(d) exists.
Section 152 provides that the Disposal Act applies to anything seized under the Act. It states:
152. Criminal and Found Property Disposal Act 2006 applies
(1) If under this Act any thing is seized, the Criminal and Found Property Disposal Act 2006 applies to and in relation to it.
(2) Subsection (1) does not apply to a sample taken or seized under Part 9.
I note that s 152(1) does not apply the Disposal Act to copies of records or to extracts taken from a record seized.
The Criminal and Found Property Disposal Act
The long title of the Disposal Act is as follows:
An Act to provide for the disposal of -
· property seized in the course of certain criminal investigations; and
· property that has been found and that is in the possession of the police or certain government agencies,
and for related matters.
Part 1 of the Act (s 1 - 4) deals with preliminary matters including, in s 3, the interpretation of terms used in the Act. 'Prescribed agency' is used in the Act and it is defined to include the 'Police Force'. 'Chief officer' is another term used in the Act and it is defined to include the Commissioner.
'Seized property' is defined as meaning:
property that has been seized in the course of a criminal investigation other than -
(a)any sample taken or seized under the Criminal Investigation Act 2006 or any other written law; and
(b)any thing used in obtaining an identifying particular of a person under the Criminal Investigation (Identifying People) Act 2002.
Part 2 of the Act (s 5 - 6) deals with general matters. Section 5 provides that the chief officer of a prescribed agency - in this case the Commissioner - is taken to be in possession of, among other kinds of property, any seized property seized in the course of a criminal investigation by the agency. Section 6 provides that the chief officer of a prescribed agency has the control and management of property in the officer's possession by virtue of s 5 and must take reasonable steps to ensure the property is kept safely, and is appropriately stored, managed and maintained, until the property is disposed of under the Act.
Part 3 of the Act (s 7 - 10) regulates the possession of seized property. Division 1 is concerned with the retention of, and dealing with, seized property. Section 7 of the Act defines the expression 'deal with' in inclusive terms as follows:
Interpretation
In this Part -
deal with seized property, includes to lease, sell, transfer, mortgage, give away, move, use and destroy the property.
Section 9 authorises a chief officer of a prescribed agency to retain any 'seized property' subject to any order made under s 13 in relation to the property. Section 9(2) sets out the circumstances in which a chief officer's authority to retain seized property as seized property ceases. Those circumstances include that it is no longer necessary for the property to be retained for one of the following purposes: to do a forensic examination, to preserve its evidentiary value or to prevent it from being used in the commission of an offence. Subject to any order made under s 13, when a chief officer's authority to retain seized property ceases, the property is no longer seized property and becomes held property and the chief officer must dispose of it under Pt 5.
Section 10 prohibits unauthorised dealing with seized property. It states that:
(1)A person who deals with property that the person knows is seized property commits an offence unless the dealing is authorised by:
(a) an order made under section 13;
(b) a written authorisation given under subsection (3).
Penalty: a fine of $12,000 and imprisonment for 12 months.
(2)Subsection (1) does not apply to the chief officer of a prescribed agency who is in possession of the property, or any employee or officer of the agency, acting lawfully in the course of duty.
(3)The chief officer of a prescribed agency who is in possession of any seized property may give a person a written authorisation to deal with the property.
(4)Despite any other written law, if a lease, sale, transfer, mortgage or gift of, or any other legal transaction involving, seized property contravenes this section, it has no effect, whether in all, equity or otherwise.
Division 2 of Pt 3 (s 11 - 13) contains provisions enabling applications to be made to 'the appropriate court' for the release of or permission to deal with seized property. The determination of which court is the appropriate court is made on the basis of the value of the property and the jurisdictional limit of the court. Section 13 provides that on an application made to it an appropriate court may make any order it thinks fit but that it must not order that seized property be released to a person unless satisfied that the person is a person entitled to the property, and that it would be lawful for the person to possess the property and, under s 9, the chief officer's authority to retain the property as seized property has ceased.
Part 4 of the Act (s 14 - 16 inclusive) regulates how 'found property' is to be treated by the agency, its employees and officers.
Part 5 of the Act (s 17 - 20 inclusive) regulates the disposal of held property.
Part 6 of the Act (s 21 - 27 inclusive) sets out a regime for determining proprietary rights; pt 7 (s 28 - 29 inclusive) regulates the disposal of forfeited property; and pt 8 (s 30 - 36 inclusive) contains miscellaneous provisions, including a provision (s 30) enabling a chief officer in possession of property to make an application to the court for orders in relation to that property. The court is empowered to make any order that is just in the circumstances.
Analysis
There is no provision in either the Criminal Investigation Act or the Disposal Act that has the effect of making the electronic image of W's mobile phone immune either to production in answer to a subpoena or to discovery and inspection pursuant to a non‑party discovery order.
The electronic image is not seized property because it was not in existence when the mobile phone was seized. It was brought into existence after the mobile phone was seized by the police officers using the resources of the Police Force for investigative or evidentiary purposes. Not only was the electronic image not 'seized', but it constitutes a separate item of property owned by the police. Although the electronic image is a reproduction of information stored on the mobile phone, its essential quality is that it is a record of that information prepared for investigative and evidentiary purposes and it is owned by the police in the same way that other records of information derived from seized property and prepared for investigative and evidentiary purposes are owned by the police (for example, photocopies of entries in paper books of accounts or a manuscript record of data stored on the mobile phone hand prepared by a police officer). Moreover, to hold that property of the nature of the electronic image brought into existence in the course of a criminal investigation constituted seized property would have the consequence that when it ceased to be seized property and became held property it would be subject to the provisions of Pt 5 of the Disposal Act. I do not accept that this result was intended by the legislature. The primary object of the provisions of Pt 5 of the Act is to return seized property that has become held property to those who are entitled to it. It is not intended to regulate how documents, derived from seized records, brought into existence by police officers for investigative or evidentiary purposes are to be dealt with at the conclusion of a criminal investigation.
As noted above, s 152 of the Criminal Investigation Act is not expressed to apply to copies of records seized by a police officer or to an extract taken from such a record and I consider that this provides an additional basis for concluding that the electronic image is not seized property for the purposes of the Disposal Act.
I turn now to the issue of whether the investigating officer dealt with W's mobile phone in a manner that contravened the prohibition in s 10(1) of the Act. Two questions arise: did the officer 'deal with' the mobile phone and, if she did, did she do so otherwise than 'acting lawfully in the course of duty'.
Accepting that the expression 'deal with' is defined in inclusive terms in the Disposal Act, I do not accept that the investigating officer's conduct in disclosing to the plaintiff's solicitor the existence and nature of data stored on a mobile phone and expressing a subjective judgment about messages that form part of that data is a 'dealing with' the mobile phone. The investigating officer's conduct did not involve parting with possession of the mobile phone or disposing of or purporting to create any property interest in it. She did not use the mobile phone. Although the investigating officer disclosed in general terms the nature of some of the data stored on the mobile phone, I do not consider that this disclosure constitutes either a use of the data or the mobile phone. I do not consider that the expression by the investigating officer of her subjective judgment that the messages were defamatory involves a use of the data that could in turn amount to a 'dealing with' the mobile phone in contravention of s 10.
The evidence of the investigating officer's conversation with the plaintiff's solicitor, Ms Di Lena, is confined to the hearsay account of the conversation I have set out at [9(j)] and a statement in a letter sent by Ms Di Lena to Mr Barrie on 3 April 2019 in which she stated that she had spoken to the investigating officer and that 'she has confirmed the existence of the documents but is unable to voluntarily provide me with a copy of them'.
Counsel for W argued that the investigating officer's communications with the plaintiff's solicitor were undertaken for an improper purpose, namely, to assist the plaintiff in civil litigation, and thus the investigating officer was not acting lawfully in the course of her duty. He also argued, in effect, that it was the disclosure by the investigating officer of the existence of the messages and the nature of their content that led the plaintiff to commence a defamation action. Counsel for W contended that allowing the plaintiff to employ the court's processes to obtain access to the messages would be to condone the investigating officer's improper conduct.
In written submissions counsel for the Commissioner accepted that information obtained as a result of the exercise of coercive powers in the course of a criminal investigation ought to be used by police in a manner which is consistent with the purpose for which the power was conferred but argued that a consistent use of such information might quite properly include the communication of, or the disclosure of, the information to a potential witness such as the plaintiff.
Save for the provisions in s 122 of the Criminal Investigation Act (that apply to audio visual recordings of interviews with suspects) there are no express legislative constraints on the disclosure of evidentiary material gathered in the course of a criminal investigation. The disclosure of such material is left to the discretion of the investigating authorities and, once proceedings have been commenced, to the inherent powers of the court to control access to evidence and pre‑trial publication and the general principles relating to contempt of court.[10] The investigating officer has a wide discretion as to how she manages the evidentiary material available to her and how she communicates with witnesses and victims. In my view, there is no evidentiary basis upon which the serious allegation that the investigating officer has acted either improperly or unlawfully can be sustained.
[10] Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177 [59] - [61] (Martin CJ with whom Newnes JA agreed).
Further, I do not accept that the disclosure made by the investigating officer to the plaintiff's solicitor should be regarded as the genesis of, or the catalyst for, the plaintiff's defamation action. On the plaintiff's evidence, she knew about the content of the messages and she knew that they were defamatory of her before she reported W to the police.
Counsel for the defendants and counsel for W did not identify specific provisions in the Criminal Investigation Act or the Disposal Act from which a legislative intent can be inferred that evidentiary materials gathered in the course of a criminal investigation should be immune from disclosure to parties involved in civil litigation in accordance with the court's rules and established procedures and I have not found any such provisions. In my view, no such legislative intent may be discerned.
The plaintiff has not conducted herself in such a way that the court should not exercise its discretion in her favour
In their written submissions the defendants argued that the plaintiff's conduct has been unsatisfactory and that she has failed to disclose relevant matters and has made varying and inconsistent statements about 'key' matters such as:
(a)the mode of publication of the alleged defamatory statements;
(b)the basis for the plaintiff's knowledge that W's phone contains the allegedly defamatory statements.
I do not understand on what basis it is submitted that the criticisms of the plaintiff's conduct are relevant to the present application. It is unnecessary to refer to them in detail or to make an assessment of whether the criticisms are justified. I am not satisfied that they have any material bearing on the exercise of the court's discretion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle22 AUGUST 2019
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