Abbas v NSW Commissioner of Police

[2019] NSWSC 588

Supreme Court

New South Wales

Medium Neutral Citation:

Abbas v NSW Commissioner of Police [2019] NSWSC 588

Hearing dates:

17 May 2019

Date of orders:

17 May 2019

Decision date:

17 May 2019

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   Orders 2, 3, 4 and 5 made by McCallum J on 6 December 2018 pursuant to the Court Suppression Non-Publication Orders Act 2010 are vacated.

 

(2)   Within 14 days of today an officer of the New South Wales Police Force, or a civilian employee of the New South Wales Police Force, is to commence to undertake a review of all electronic devices listed in annexure A to these orders for the limited purpose of identifying data which is relevant to the investigation leading to the charges against the plaintiff.

 

(3)   The plaintiff is entitled to be present, either personally or through a representative, to monitor the review of the devices referred to in annexure A and to assert a claim for privilege over any particular data which is reviewed.

 

(4)   In the event that the plaintiff indicates a desire to be present during that review, the officer-in-charge of the investigation must put in place reasonable arrangements within normal business hours for the plaintiff or his representative to be present, at a mutually convenient location, for the purposes of the review.

 

(5)   The review must conclude within 60 days of today and is to be recorded in its entirety by audio visual means.

  

(6)   During the review each piece of information which is examined is to be categorised as follows:

 

(a)   information which is irrelevant;

 

(b)   information which is relevant, and in respect of which a claim for privilege is made and accepted;

 

(c)   information which is relevant, but in respect of which no claim for privilege is made and no third parties have been identified;

 

(d)   information which is relevant, and in respect of which a claim for privilege is made by the plaintiff, but is disputed;

 

(e)   information which is relevant, in respect of which no claim for privilege is made by the plaintiff but in respect of which third parties are identified by whom a claim may possibly be made;

 

(7)   Any information falling into categories (a) or (b) will be ignored and will not be saved by investigating police.

 

(8)   Any information which falls into category (c) will be saved by investigating police.

 

(9)   Any information which falls into categories (d) or (e) will be saved and will be given to the plaintiff or his legal representative for the purposes of completing an affidavit to prosecute a claim for privilege or will otherwise be distributed to a person who may have an entitlement to make that claim.

 

(10)   Within seven days of being provided with any material falling within categories (d) or (e) the plaintiff's representatives will write either directly to any interested party (if that contact information is known) or to the legal representative of any interested party, to notify those persons that proceedings in which legal professional privilege is an issue in respect of information which has been seized, and for which they may have a claim for privilege, will be mentioned before me on 5 August 2019, and advising that if any person wishes to assert a claim for privilege that he or she should appear before me at that time.

 

(11)   When the matter is before the court on 5 August 2019 any person who has an interest and who appears and asserts a claim for privilege will be entitled to receive a copy of any material relevant to them. The court will then make orders in that event for facilitation of the resolution of any claims.

 

(12)   The proceedings are stood over before me for directions on 5 August 2019 at 9.15am.

 (13)   The question of costs is reserved.

Catchwords:

EVIDENCE – Privilege – Where plaintiff a legal practitioner charged with serious criminal offences – Where search warrants were executed by police in the course of their investigation resulting in the seizure of electronic devices containing large numbers of documents – Where “blanket” claim for client legal privilege was made over those documents at the time of their seizure – Question of appropriate protocol to be adopted to determine if any claims for privilege were to be pursued – Necessity to balance the interests of the plaintiff and those who may wish to make a claim for privilege against the interests of the police in reviewing and assessing the material for the purposes of finalising a brief of evidence – Orders made setting out procedure to be adopted.

Legislation Cited:

Court Suppression Non-Publication Orders Act 2010 (NSW)

Cases Cited:

Allitt v Sullivan [1988] VR 621
JMA Accounting Pty Ltd v Carmody [2004] FCAFC 274
Kelly v Mina [2014] NSWCA 9

Category:

Procedural and other rulings

Parties:

Ali Abbas – Plaintiff
NSW Commissioner of Police – Defendant

Representation:

Counsel:
F Maghami - Plaintiff
M Hutchings - Defendant

  Solicitors:
Uther Webster and Evans Solicitors - Plaintiff
Makinson d'Apice Lawyers – Defendant

File Number(s):

2018/376397

Publication restriction:

Nil

Judgment – ex tempore (revised)

1. The plaintiff in these proceedings is a legal practitioner who was arrested by police in October 2018 and charged with a number of serious offences, including an offence of being an accessory after the fact to murder. When these proceedings first came before the Court in December 2018, McCallum J (as her Honour then was) made a number of orders, the effect of which was to anonymise the identity of the plaintiff and restrict publication of any evidence given, and judgments delivered, in the proceedings. It is accepted by those representing the plaintiff that the necessity for the making of those orders has now passed and accordingly I propose to vacate them in due course.

2. On 29 October 2018, as part of the investigation into the allegations brought against the plaintiff, police applied for warrants to allow searches to be undertaken of the plaintiff's professional offices, his residence, and another set of residential premises. Those applications were granted and search warrants were issued which were executed on 30 October 2018. As a result of the execution of those search warrants, police seized a large number of items, including a number of electronic devices. What can be described as a “blanket” claim for client legal privilege was made by those then representing the plaintiff over the entirety of the material seized.

3. The matter has been before me on a number of occasions for the purposes of determining the most appropriate method by which any claim(s) for privilege can be resolved. There remains a large volume of material within the possession of the police which was seized pursuant to the warrants. There is a fundamental issue as to what is to be done with that material, in circumstances where a claim for privilege has been made, and where there is an understandable desire on the part of the police to further their investigation by examining the material seized, and completing the service of a Brief of Evidence.

4. In JMA Accounting Pty Ltd v Carmody [1] a number of observations were made as to the task which confronts the court in a situation such as the present. Fundamentally, the court is called upon to devise a mechanism by which any claim(s) for privilege can be prosecuted and determined. This is addressed by formulating what has been referred to as "judicial legislation", or in other words, a code of procedure, based not on statute or on the common law, but on a judge's notion of what is fair and reasonable. [2]

   1. [2004] FCAFC 274

   2. JMA Accounting at [8].

5. The parties have each proffered a protocol to be followed for the purposes of resolving the impasse which presently exists. There is one fundamental difference between them. That proposed by the plaintiff involves the Commissioner copying everything seized under the warrants and providing it to the plaintiff’s solicitors, following which the plaintiff would view the material, identify any potential claim(s) for privilege, and notify those who might have such a claim.

6. The Commissioner's proposed protocol involves an officer of the New South Wales Police, in the presence of the plaintiff, viewing the material and then categorising it according to whether or not a claim for privilege is likely. In that way, it is suggested that material can be appropriately quarantined, and a determination made as to whether or not any privilege claim(s) might be made. In either case, of course, any claim for privilege would be ultimately resolved by the court.

7. Counsel for the plaintiff advanced a number of propositions against the adoption of the Commissioner’s proposal. Firstly, he submitted that the proposal placed "an intolerable burden” on the plaintiff. That intolerable burden was said to manifest itself, amongst other things, in the fact that the plaintiff would be required to sit in close proximity to the officer-in-charge of the investigation during the assessment process. As I understood it, another aspect of the intolerable burden was said to stem from the fact that the plaintiff would have to view each and every one of the documents seized.

8. As to those matters, I would simply observe that whatever course is adopted, the plaintiff will have to view the documents. I do not regard the Commissioner's proposal as placing any burden on the plaintiff, intolerable or otherwise, in that regard. Moreover, whilst it might be (to use a neutral term) uncomfortable for the plaintiff to be seated in close proximity to the officer-in-charge of the investigation when this process is undertaken that is not, in my view, a basis on which to reject the Commissioner’s proposal.

9. A further matter upon which counsel for the plaintiff relied was that the Commissioner's proposal “imposed, upon an unqualified person, the task of determining difficult claims of legal professional privilege”. That proposition overstates the position, and reflects a misunderstanding of the process. As I observed a moment ago, the determination of claims for privilege is a matter for the court, not for either party. The process of identifying material which might be the subject of a claim does not impose the task of determining any claim(s) for privilege on any person whatsoever.

10. A further matter upon which counsel for the plaintiff relied was that the Commissioner's proposal encouraged what he submitted was the adoption of a "clandestine approach by the police". In developing that submission, counsel argued that if the Commissioner's proposal was adopted it would inevitably result in a police officer becoming privy to the contents of material which was potentially privileged. Counsel submitted that once that line had been crossed, it would give the police an unfair advantage, to the point that once a document was read by a third party (in this case, a police officer) any privilege would be lost.

11. Counsel accepted, as I understood it, that even if a document which was later found to be privileged was read by a police officer, it could not be put to any use by the police. If that is the case, it is difficult to identify any unfair advantage which might be gained by the police if the Commissioner’s proposal were adopted. Moreover, the scenario envisaged by counsel’s submission has been described in the authorities as a "lawful violation" of privilege. [3] In JMA Accounting, the Full Court of the Federal Court of Australia observed[4] that providing any violation of the privilege is restricted to a reading of material for the limited purpose of deciding whether it might be privileged, there is no abuse of process and no loss of privilege. The Court also observed,[5] that the mere seizure of a document without it being read would not infringe privilege.

    3. Allitt v Sullivan [1988] VR 621

    4. At [23].

    5. At [13].

12. In those circumstances I am unable to accept the proposition that if material is read by a police officer, any privilege which might otherwise attach to it will be lost. Moreover, such suggested shortcoming in the Commissioner's proposal overlooks the nature of the procedure which is to be adopted. The documents will not be viewed in detail. They will be viewed in a preliminary way, purely for the purpose of making a prima facie determination as to whether or not any claim(s) for privilege might be made.

13. In determining the appropriate course to be taken, I must also have regard to the fact that police acting pursuant to the warrant are entitled, and indeed obliged, to review all of the material which has been seized. Whilst I accept the submission of counsel for the plaintiff that the fundamental rationale underlying legal professional privilege is one of confidentiality, the authorities to which I have referred recognise that in situations such as the present, protocols must be put in place which will ensure that although the confidentiality of material may, to some extent, be eroded, the prima facie privileged status of such material will remain, so as to allow any claim to be heard and determined.

14. In my view, the proposal advanced by the Commissioner is one which will allow the material to be assessed in a way which fully protects the interests of the plaintiff, as well as those of any person who may wish to make a claim for privilege. In coming to that view, I have also had regard to the necessity that any process put in place must be efficient. There were a large number of devices seized containing, I infer, a large number of documents. It seems to me that the Commissioner's proposal is an efficient one. Whilst that is not determinative, it is necessarily an important consideration. [6]

    6. Kelly v Mina [2014] NSWCA 9 at [48]

15. Accordingly, for those reasons, I make the following orders:

1. Orders 2, 3, 4 and 5 made by McCallum J on 6 December 2018 pursuant to the Court Suppression Non-Publication Orders Act 2010 are vacated.

2. Within 14 days of today an officer of the New South Wales Police Force, or a civilian employee of the New South Wales Police Force, is to commence to undertake a review of all electronic devices listed in annexure A to these orders for the limited purpose of identifying data which is relevant to the investigation leading to the charges against the plaintiff.

3. The plaintiff is entitled to be present, either personally or through representative, to monitor the review of the devices referred to in annexure A and to assert a claim for privilege over any particular data which is reviewed.

4. In the event that the plaintiff indicates a desire to be present during that review, the officer-in-charge of the investigation must put in place reasonable arrangements within normal business hours for the plaintiff or his representative to be present, at a mutually convenient location, for the purposes of the review;

5. The review must conclude within 60 days of today and is to be recorded in its entirety by audio visual means.

6. During the review each piece of information which is examined is to be categorised as follows:

1. information which is irrelevant;

2. information which is relevant, and in respect of which a claim for privilege is made and accepted;

3. information which is relevant, but in respect of which no claim for privilege is made and no third parties have been identified;

4. information which is relevant, and in respect of which a claim for privilege is made by the plaintiff but is disputed;

5. information which is relevant, in respect of which no claim for privilege is made by the plaintiff, but in respect of which third parties are identified by whom a claim may possibly be made.

7. Any information falling into categories (a) or (b) will be ignored and will not be saved by investigating police.

8. Any information which falls into category (c) will be saved by investigating police.

9. Any information which falls into categories (d) or (e) will be saved and will be given to the plaintiff or his legal representative for the purposes of completing an affidavit to prosecute a claim for privilege or will otherwise be distributed to a person who may have an entitlement to make that claim.

10. Within seven days of being provided with any material falling within categories (d) or (e) the plaintiff's representative will write either directly to any interested party (if that contact information is known) or to the legal representative of any interested party, to notify those persons that proceedings in which legal professional privilege is an issue in respect of information which has been seized, and for which they may have a claim for privilege, will be mentioned before me on 5 August 2019, and advising that if any person wishes to assert a claim for privilege that he or she should appear before me at that time.

11. When the matter is before the court on 5 August 2019 any person who has an interest and who appears and asserts a claim for privilege will be entitled to receive a copy of any material relevant to them. The court will then make orders in that event for facilitation of the resolution of any claims.

12. The proceedings are stood over before me for directions on 5 August 2019 at 9.15am.

13. The question of costs is reserved.

**********

Endnotes

Decision last updated: 11 July 2019