Act Integrity Commission v Levy (a pseudonym) (No 2)
[2022] ACTSC 284
•6 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Integrity Commission v Levy (a pseudonym) (No 2) |
Citation: | [2022] ACTSC 284 |
Hearing Date: | 6 October 2022 |
DecisionDate: | 6 October 2022 |
Before: | McCallum CJ |
Decision: | See [10] |
Catchwords: | INTEGRITY COMMISSION — EXAMINATION POWER — Summons to produce mobile phone — Claim of client legal privilege — Where Court has authority to appoint an independent person to determine the claim for privilege — Protocol for extraction of data from mobile phone by Integrity Commission without viewing material subject to privilege claim |
Legislation Cited: | Integrity Commission Act 2018 (ACT), ss 161, 162, 163 |
Parties: | ACT Integrity Commission (Applicant) Catherine Levy (a pseudonym) (Interested Party) |
Representation: | Counsel S Robertson (Applicant) I King (Interested Party) |
| Solicitors ACT Integrity Commission (Applicant) Mills Oakley (Interested Party) | |
File Number: | SC 300 of 2022 |
McCALLUM CJ:
In these proceedings, the Integrity Commission has produced to the Court, in accordance with s 161 of the Integrity Commission Act 2018 (ACT), two telephone handsets produced to the Commission by the interested person, referred to by the pseudonym Catherine Levy, in response to summonses served on her by the Commission.
On 5 September 2022, for the reasons published that day, I determined an application by the Commission under s 162 of the Integrity Commission Act in relation to those handsets. At that time the Commission sought to have the handsets provided to it, notwithstanding the existence of a claim for client legal privilege over part of the contents of the handsets. I rejected the Commission’s submissions that it ought to be allowed to take possession of the handsets. As I said at [28] of my published reasons, on my interpretation of the relevant provisions of the statute, the Court has authority to appoint an independent person to assist it to determine a claim for privilege and the determination on that issue must, in accordance with the legislation, be made by the Court.
In accordance with that ruling, the Integrity Commission has now devised a protocol which would authorise the senior computer forensics expert employed by the Commission in the first instance to extract the data from the two handsets in digital form, that is in zeroes and ones, and then to secure that information and return it to the Court so that an independent expert can undertake the second stage of analysis of the data, being the first stage at which it would be reproduced in human readable form.
The interested party opposes the undertaking of the first step by a person employed by the Commission and contends that it should be undertaken by an independent expert to be agreed between the parties. The difficulty with that course is that, so far as the Integrity Commission’s evidence reveals, there is no person outside the Commission who can undertake that task at a reasonable price. A Cellebrite extraction could be undertaken, but the Commission has been informed that the relevant company would charge US$100,000 per handset. It was proposed on behalf of the interested party that a member of the Australian Federal Police might undertake the search, but there is no evidence before the Court to indicate whether that could occur.
In any event, I am satisfied that it is not inappropriate, consistently with the observations I made in my earlier judgment, for the forensics expert employed by the Commission to undertake the first extraction of data.
The person who would undertake that extraction, Mr Shaun Curtis, is employed by the Commission, but is not involved in the relevant investigation. He is the senior computer forensics technician for the Commission. His duties involve his providing technical assistance for the benefit of those engaged in investigations, but he has no professional interest in the investigations himself.
Separately, Mr Curtis holds a negative vetting level two security clearance which, apart from a positive vetting security clearance, is the highest level of security clearance a person can hold. I do not think it is inappropriate in those circumstances to permit the Commission, for reasons of expedience, convenience and cost, to undertake the first phase of the extraction.
The interested party opposed the regime devised by the Commission in only two limited respects. First, she submitted that the Court should order the Commission to provide to her legal representatives the search queries to be provided to the independent expert to be used to interrogate the data extracted by the Commission’s expert from the two handsets. Mr Robertson SC has submitted that the Commission should not be obliged to show its hand in this investigative phase and I agree.
Separately, it was submitted that the legal representatives for the interested party should have an opportunity to inspect the data obtained in response to the search queries provided to the independent expert. There is much force in the contention that she should. However, as submitted by Mr Robertson, that is an argument better heard on a later occasion when the parties and the Court have the results of the extraction of the data in response to the search queries and there is a better understanding of the volume and kind of material needed to be dealt with in order to determine the privilege claim.
For those reasons I make the following orders:
(1) Direct the Supreme Court Registrar on or before 10 October 2022 to provide the sealed bag (Evidence Seal Number 0048) provided to her on 18 August 2022 and that is presently in the custody of the Court (“Sealed Bag”) to Shaun Richard Curtis, Senior Computer Forensics of the Applicant (“Commission Digital Forensics Expert”) to be dealt with in accordance with orders 2 and 3 of these orders;
(2) Order pursuant to s 163(4) of the Integrity Commission Act 2018 (ACT) and all other enabling powers that the Commission Digital Forensics Expert is authorised by the Court to open the Sealed Bag and inspect the mobile telephone handsets (“Handsets”) contained within that bag in accordance with these orders;
(3) Order the Commission Digital Forensics Expert to:
(a) With respect to each of the Handsets, take such steps as are necessary or convenient to:
(i) extract such data as he is able to extract from the storage medium forming part of the Handsets;
(ii) store a copy of the extracted data on each of two portable electronic storage devices (collectively Portable Storage Devices);
but without taking any steps that reproduce the content of any communication;
(b) secure one of the Portable Storage Devices in relation to each of the Handsets in a sealed bag marked “Not to be opened without leave of a judge” and provide those bags to the Supreme Court Registrar;
(c) after complying with subparagraph (a) of this order:
(i) secure the Handsets in a sealed bag;
(ii) provide that bag to the Supreme Court Registrar; and
(iii) provide one of the Portable Storage Devices in relation to each of the Handsets to Zoran Iliev of CBIT Pty Ltd trading as CBIT Digital Forensics Services (“Independent Digital Forensics Expert”) to be dealt with in accordance with order 5 of these orders;
(4) Order that any sealed bags provided to an officer of this Court as contemplated by paragraph (b) of order 3 of these orders not be opened without leave of a judge of this Court;
(5) Order the Independent Digital Forensics Expert to, as soon as practicable after receiving Portable Storage Devices as contemplated by subparagraph (c)(iii) of order 3 of these orders:
(a) take such steps as are necessary or convenient to form an opinion as to whether it appears that the Portable Storage Devices have stored on them data that constitutes a successful extraction of data stored on an iPhone storage device;
(b) advise the parties of his opinion formed as contemplated by paragraph (a) of this order by email sent to the solicitors for each of the parties (such email not to disclose the substance of any communication capable of being reproduced from the Portable Storage Devices or any of them);
(c) take such steps as are necessary or convenient to produce:
(i) one or more electronic files containing the data corresponding with such search queries as are provided by the Commission to the Independent Digital Forensics Expert (“Subset Data File”);
(ii) one or more printed and paginated reports containing, in a human-readable form, the content of all records of communications capable of being produced using the Subset Data File (“Printed Search Report”);
(d) secure:
(i) the Subset Data File in a sealed bag; and
(ii) the Search Report in a sealed envelope or bag,
and provide it to the Supreme Court Registrar; and
(e) advise the parties in writing by email sent to the solicitors for the parties:
i) when paragraph (d) of this order has been complied with; or
ii) if paragraph (c) or (d) of this order is unable to be complied with for any reason before 24 October 2022, the reasons why those paragraphs were unable to be complied with (but without disclosing the content of any communication capable of being reproduced using the Portable Storage Devices or any of them);
(6) Order that these proceedings are listed for further directions on 27 October 2022;
(7) Order that the parties and the Independent Forensics Expert have liberty to apply for directions in relation to these orders. An application for such directions may be made by email to the Chief Justice’s associate copied to the solicitors for the parties;
(8) Direct the Commission to serve the orders on Mr Illiev by close of business today by email.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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