De Belin (First Applicant) v The Queen (Director of Public Prosecutions); Sinclair (Second Applicant) v The Queen (Director of Public Prosecutions) (Respondent)

[2020] NSWDC 487

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

De Belin (First Applicant) v The Queen (Director of Public Prosecutions); (Respondent); Sinclair (Second Applicant) v The Queen (Director of Public Prosecutions) (Respondent) [2020] NSWDC 487

Hearing dates:

3, 4, 5, 6, 7, 10, 11, 12, 13 February 2020;
22, 23, 24, 25, 26 June 2020;
9, 31 July 2020.

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Criminal

Before:

A Haesler SC DCJ

Decision:

1. Refuse orders sought in the Notices of Motion.
2. Listed for trial - 2 November 2020 at Wollongong District Court;
3. Readiness hearing and DC Practice Note 19 compliance - 7 September 2020;
4. Pre-trial mention - 27 October 2020.

Catchwords:

CRIME – Trial - sexual intercourse without consent - two accused - multiple counts - pre-trial application – permanent stay application - jury empanelment delayed – further delay due to COVID 19 pandemic precautions - suppression order to protect possible disclosure of legal professional privilege.

PRACTICE AND PROCEDURE - procedures designed to protect legal professional privilege - two prosecution teams engaged - suppression orders- non-publication of pre-trial proceedings required - special arrangements for publication of judgment - matters containing legal professional privilege in separate Addendums - restrictions of access to whole of judgment to judicial officers and staff and nominated persons in the ODPP and Crown Prosecutors – applicants to have access to whole of judgment except Addendums particular to the other applicant’s legal professional privilege.

CRIMINAL PROCEDURE – pre-trial application - permanent stay - search warrant executed after trial dates confirmed - seizure of accused’s phones and computers - access to private communications- potential access to legal professional privilege - was there gross unlawfulness by police and prosecution – actual use by police of privileged material - potential use of privileged material - legality of search warrants - validity of search warrants - can human right protections be read into Law Enforcement (Powers and Responsibilities) Act - right to privacy - right to silence - protection of legal professional privilege - prosecution duty of disclosure – alleged breach of that duty - application of principle.

EVIDENCE – privilege - whether legal professional privilege breached - whether investigators had access to legal professional privilege - whether prosecution team had access to legal professional privilege- extent of use of privilege by investigators - extent of derivative use of legal professional privilege – extent of any dissemination of legal professional privilege.

EVIDENCE – use of Cellebrite technology to gather records and organise evidence.

EVIDENCE – search warrants – legality of warrant- legality of process for obtaining warrant - breach of right to silence – access gained to legal professional privilege- absence of police protocols - ignorance of Law Society Commissioner of Police protocols - application of the companion rule.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Crimes Act 1900

Criminal Procedure Act 1986

Director of Public Prosecutions Act 1986 (NSW)

Evidence Act 1995

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Law Enforcement (Powers and Responsibilities) Act 2000

Legal Profession Uniform Conduct (Barristers) Rules 2015 Rules

Privacy Act 1988 (Cth)

Search warrants & Telecommunications (Interception and Access) Act1979 (Cth)

The NSW Police Force Standards of Professional Conduct’ - Code of Conduct and Ethics

Cases Cited:

Abbas v NSW Commissioner of Police [2019] NSWSC 1841

Attorney-General (NT) v Emmerson [2014] HCA 13; 88 ALJR 522

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199;.

Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52;

Baldwin v State of New South Wales [2020] NSWCA 112

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Clubb v Edwards; Preston v Avery [2019] HCA 11; (2019) 93 ALJR 448

Coco v The Queen [1994] HCA 15 (1994) 179 CLR 427

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] HCA 6; (1984) 156 CLR 385;

Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314;

Dupasv The Queen [2010] HCA 20; (2010) 241 CLR 237;

Edwards v R [2020] NSWCCA 57

Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ;(1993) 178 CLR 477

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326

George v Rocket [1990] HCA 26; (1990) 170 CLR 104.

Glencore International AG v Commissioner of Taxation [2019] HCA 26: (2019) 93 ALJR 967

Goldberg v Ng [1995] HCA 39;(1995) 185 CLR 83;

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23;

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125

Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190

Mickelberg v The Queen (No 3) (1992) 8 WAR 236

Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456

Neat Holdings [1992] HCA 66; (1992) 67 ALJR 170

NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252: (2008) 72 NSWLR 456

NSW v Robinson [2019] HCA 46

Potter v Minehan (1908) 7 CLR 277

R v Day [2017] HCA 2

R v Derby Magistrates Court Ex p. B [1996] AC 487

R v Edwards (2009) 83 ALJR 717; [2009] HCA 20

R v Grant [2005] EWCA 1089; [2006] QB 60

R v McCarthy [2015] NSWCCA 76

R v Seller; R v McCarthy [2015] NSWCCA 76

R v Tillett; Ex parte Newton (1969) 14 FLR 10

R v WRC [2003] NSWCCA 394; (2003) 59 NSWLR 273;

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251;

Ronen v R (2004) NSW CCA 67

Rowell v Larter (1986) 6 NSWLR 21

Smethurst v Commissioner of Police [2020] HCA 14

Sorby v The Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281

Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; [2018] HCA 53

Tozer Kemsley v Colliers Interstate Transport (1955-56) 94 CLR 384

TS v R [2014] NSWCCA 174

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378;

Warren v Attorney General for Jersey [2011] UKPC 10; [2012] 1 AC 22

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509;

X7 v NSW Crime Commission [2013] HCA 29; (2013) 248 CLR 92

X7 v The Queen [2014] NSWCCA 273; (2014) 292 FLR 57

Texts Cited:

Coercive questioning after charge, S Donaghue, (2000) Vl 28 Federal Law Review 22

Criminal Practice and Procedure, Butterworths, Howie and Johnson [21s 48.40] p. 625,570.

Cross on Evidence, 10th Aust. Ed (2015)

Cross on Evidence, JD Heydon, [25090] ‘Privilege against Self-incrimination’, March 2020

International Covenant on Civil and Political Rights

Category:

Principal judgment

Parties:

Jack De Belin (First Applicant)
Callan Sinclair (Second Applicant)
The Queen (Respondent)

Representation:

Counsel:
Mr D Campbell SC and Mr E Anderson (First Applicant)
Mr C Smith SC (Second Applicant)
Mr C Young, Crown Prosecutor (Respondent)

Solicitors:
RMB Lawyers (First Applicant)
Morrisons Law (Second Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2018/00384312 (First Applicant);
2018/00387623 (Second Applicant).

Publication restriction:

Pursuant to s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the complainant.

This judgment has been redacted as publication of the entire un-redacted version of this judgment including Addendums is restricted to specific Crown Prosecutors, specific ODPP staff, judicial officers and their staff. A Suppression Order for the entire judgment, designed to preserve each applicant’s legal professional privilege still has effect. Legal professional privilege has not been waived by either Applicant: Court Suppression and Non-publication Orders Act 2010.

JUDGMENT

Introduction

1. The jury trials of Jack De Belin (De Belin) and Callan Sinclair (Sinclair) were listed to commence at Wollongong District Court on 3 February 2020, the first day of the new law term. In the week before that date each accused filed a Notice of Motion seeking, among other related orders, that the prosecution of the counts in the indictment presented against each of them be permanently stayed. The hearing of the applications was protracted and prevented a jury being empanelled in the time then available to the court.

2. The applications, as ultimately formulated, relied on a number of grounds, that went to whether a fair trial could be had by both accused and to significant matters of principle of fundamental importance to the criminal justice system. These are my reasons for refusing the applications.

Factual Background

3. On Saturday 8 December 2018, Wollongong’s licenced premises held their annual ‘Santa Pub Crawl.’ That evening the complainant met up with De Belin and Sinclair. Early in the morning of Sunday 9 December 2018, as they moved from one venue to another, the three went to an apartment in central Wollongong. Later that morning the complainant told police and others that she had been sexually assaulted by both men at that apartment. Later that day a crime scene warrant was executed at the apartment and forensic procedures were carried out there.

4. The Officer in Charge of the police investigation was Detective Senior Constable Adams (Adams). The Investigation was given the code name EERIE. The principle police investigators were Adams, Detective Sergeant Joerdens (Joerdens) and Detective Constable Sutton (Sutton).

5. On Thursday 13 December 2018, De Belin attended Wollongong Police Station. He exercised his right not to speak with police. He was charged with sexually assaulting the complainant, arrested and bailed.

6. From 12 to 14 December 2018 police, pursuant to a Listening Device, had access to phone calls made by both applicants. This intercept product was served on the parties before December 2019. Police have reviewed that material. If it contained legal professional privilege material none has been disclosed. No admissions against interest in those phone calls forms part of the Crown case against the accused. In fact intercept product exhibited to me may assist the defence: Exhibit B tabs 7 to 17.

7. In the intercepted calls each accused gave accounts to relatives and friends consistent with innocence and a possible defence based on consent. Both suggested motives why the complainant may have made a false complaint. Accordingly, in December 2018 police, and soon after those prosecuting the charges, were aware that the most likely defence case for both De Belin and Sinclair would be consent and the active participation by the complainant. That information did not come from sources subject to legal professional privilege.

8. Investigating police were also aware that De Belin and Sinclair had communicated with each other but not by voice calls subject to the telephone intercept warrants or able to be intercepted.

9. On Monday 17 December 2018, police interviewed Sinclair at his home. He was arrested for sexually assaulting the complainant and soon after, charged and bailed. He too, as is his right, declined to speak with police.

10. Both men later appeared before Wollongong Local Court. The matters proceeded through the Local Court; with service of a brief, charge certification and case conferences: Chapter 3 Part 2 Criminal Procedure Act 1986. On 24 July 2019 both accused were committed for trial to the District Court at Wollongong.

11. On 20 August 2019 both accused appeared at the District Court, Wollongong. An indictment was filed alleging that both De Belin and Sinclair had each committed four (4) counts of aggravated sexual assault; s 61J(1) Crimes Act 1900; and one (1) count of aggravated sexual assault; s 61JA(1) Crimes Act 1900. A trial date was set for 2 March 2020. The matter was later relisted so an earlier trial date of 3 February 2020 could be fixed. The matter was listed on 17 December 2019 to confirm readiness for trial.

12. In November 2019 police were investigating raw data from both accused’s phone records to determine contact between them: Ex C.501- 544.

13. In November 2019 De Belin issued subpoenas seeking access to the complainant’s electronic communication records. Some photographs of her phone’s contents had been taken on 10 December 2018: Ex C.773. ^[1]

    1. I note the dates given in this statement are not correct - in a number of his statements Sutton has trouble with correctly recording dates.

14. In response to the defence subpoena Adams and Sutton met the complainant on 5 December 2019. They obtained her phone and material from her device, including her “snapchat” history, was downloaded using Cellebrite technology: Ex 3.787, 801-804, 997, 998 [see [19] and [123] below]. Some of that material was produced on subpoena and after discussion between the Crown Solicitor, for the Commissioner of Police and the defence, made available to the parties. No statements was taken from the complainant about that material until 23 January 2020: Ex E tab2.

15. Cellebrite technology is designed to download electronically a copy of the phone contents. Those items can be subject and an extraction report, that enables a summary for the contents to be viewed an accessed as required.. A Cellebrite download does not discriminate; everything is downloaded. Manual photography does allow for discrimination. A Cellebrite manual camera allows an Extraction Report to be produced noting all the images digitally captured and allowing for them to be accessed using that report as, effectively, an index of what is recorded. .

16. Adams said he was advised in late 2019 that police had improved their capacity to access and retrieve communications stored on electronic devices using an improved Cellebrite process. He said an investigative decision had been made in 2018 not to seize and access either accused’s phone but his advice about improved capacity motivated the search warrants executed on both accused in late 2019. The logic of events does not cause me to doubt that evidence, as it was only in December 2019 he was able to access more information from the complainant’s phone than was obtained in December 2018.

17. In November and December 2019 a number of defence subpoenas were dealt with by the court. The parties ultimately obtained access to some material from the complainant’s mobile phone. There were communications between police and RMB Lawyers after De Belin’s subpoenas in November and December 2019. There was also correspondence about what was to be produced following resolution of subpoena issues in December 2019.

18. In November 2019 investigating police suspected that witnesses had come forward to Dragons Rugby League Club (De Belin’s employer) and that Dragons had passed on this information to RMB and not them. Mr Craig Osbourne a partner at RMB lawyers also has an association with the Dragons.

19. In November and December 2019 investigating police were also prosecuting a parallel case involving allegations Ms Melina Henry had interfered with a witness in the trial. They suspected/had information Ms Henry was in communication with Ms Taylor, De Belin’s partner and De Belin.

20. In November 2018 investigating police had a name [redacted see Addendum A] of a potential witness they believed had contacted the Dragon’s Club: Ex C.770.

21. On 17 December 2019 I confirmed the trial date of 3 February 2020 at a Wollongong District Court readiness hearing. I directed that a jury panel be available for that date.

22. On 17 December 2019 Joerdens applied to, and obtained from, Wollongong Court Registry a search warrant for De Belin’s home. On 18 December 2019, police executed that search warrant. They seized three items from the premises: a white Apple iPhone; a yellow Nokia mobile phone and a white iPad. The phones were not password protected. Ms Taylor gave police her access code and thumb print to allow the white iPad to be accessed.

23. On 18 December 2020, Sutton conducted a mobile device examination of the three devices using Cellebrite software. Data was able to be extracted from the iPad and the iPhone. The software was however unable to extract usable data from the Nokia mobile phone. Sutton then used a Cellebrite camera to take individual photographs of SMS messages and other images saved on the yellow Nokia. Those digital photographs were saved electronically: Ex 3.857. ^[2]

    2. The date of these actions as recorded in Sutton’s statement 13 January 2020 (Ex 3.857), is incorrect.

24. On 18 December 2019 at 3:21pm, Mr Foster, a solicitor acting for De Belin, sent an email to Ms James, a Director of Public Prosecutions (ODPP) solicitor with carriage of the prosecution. In it he advised her of the search warrant and that De Belin’s devices and those of his partner had been seized and that he expected full disclosure of this material in due course. He noted that the material will “very likely contain privileged items:” Affidavit Foster; Ex 1, tab O p 89. It is not in dispute that the yellow Nokia and the white iPad contained material over which De Belin had a legitimate claim for legal professional privilege.

25. The iPad was returned on 18 December 2019. The yellow Nokia and the iPhone were returned on 17 January 2020.

26. Adams looked through De Belin’s the devices. He made a note that “nothing relevant” was on the iPad. He himself took photographs or screen shots of some messages on the yellow Nokia. He used information from the Nokia to set tasks. He then went on leave having also tasked Sutton and Joerdens with obtaining and executing a search warrant for Sinclair’s mobile phone.

27. On 2 January 2020, Sutton applied for, and obtained, a search warrant to search Sinclair’s home. The warrant was executed on 3 January 2020. Sinclair’s iPhone was seized. Sinclair was asked for, and gave Sutton, the password for the device: Ex 3.857. A Cellebrite extraction was successfully performed on this device.

28. Sutton accessed that phone. He had the passcode and he needed to verify the Cellebrite download was successful. The iPhone was returned to Sinclair later that day. When Sinclair checked his phone he saw it had been opened and the most recent file opened was his Gmail account. The first attachment to the last “sent email” was a document of considerable importance to Sinclair’s defence case and subject to legal professional privilege. Other legal privileged material was on the device.

29. On 7 January 2020, Mr Morrison, Sinclair’s solicitor sent an email to Joerdens asking for a copy of the warrant and expressing his displeasure at the seizure of the iPhone: Ex 5, tab 2, annexure B.

30. All Cellebrite downloads were placed on USB sticks and those USB sticks formed part of the third service of outstanding evidence gathered by police on the parties by Sutton on 16 January 2020: Ex3.872.

31. It is uncontroversial that the usual practice in preparation for any criminal trial is for both parties to follow up with key witnesses to see if they have anything to add to earlier statements. It is uncontroversial that prosecutors will make requisitions of investigating police to carry out such last minute tasks. No such requisitions in this matter were made available to the defence or the court as legal professional privilege was claimed by the ODPP.

32. If they receive any fresh material investigating police have a duty to serve that material on the parties. During that follow up investigating police here became aware the complainant had made a contemporaneous statement. It was obtained and served, along with a statement explaining how it had come about and statement confirming that account from the complainant’s mother: Ex E. Investigating police also chased up additional electronic communications revealed by their post defence subpoena review and clarified some maters with an expert, Dr Ellicott: Ex D.

3. On 22 January 2020 De Belin filed a Notice of Motion applying for a permanent stay of the trial and consequent orders.

4. On 28 January 2020 Sinclair filed a Notice of Motion applying for a permanent stay of the trial and consequent orders.

5. On 3 February 2020 both accused were arraigned and said they were not guilty of the charges alleged against them. The summonsed jury panels were initially deferred but as hearing of the Motions went on for some days the trial date had to be vacated.

6. The prosecution were initially represented by both Mr Scully, Deputy Senior Crown Prosecutor, who had the carriage of the trial and Mr C Young, Crown Prosecutor, who with Mr A Barnes, solicitor ODPP had come into the matter to respond to issues relating to legal professional privilege. Mr Scully soon withdrew and the respondent’s case was conducted by Mr Young.

7. Only two witnesses gave evidence. The principle witness was the police Officer in Charge, Adams. The other was Mr Barnes. It is accepted that, although a solicitor with the ODPP, his role is separate from, and independent of the ODPP team prosecuting the trials.

8. Adams was cross-examined by Mr Campbell SC, who appeared with Mr Anderson, for De Belin on 6, 7, 10 February 2020. On 11 February 2020 a note was sent to the court indicating Adams was too ill to attend court. There were short hearings on 12 and 13 February 2020. A date was then fixed in April 2020 to continue the hearing of the application. The restrictions following the COVID-19 pandemic required the matter be adjourned to a later date.

9. The applications resumed on 22 June 2020. Mr Campbell’s cross-examination of Adams continued that day and on 23 and 24 June. On 24 June Mr Smith SC, for Sinclair, cross-examined Adams briefly; as did Mr Anderson. Mr Young re-examined. Mr Barnes then gave short evidence.

10. Legal argument continued with closing submissions on 25 June (Smith SC), 26 June (Campbell SC) and 9 July (Campbell SC). Mr Young responded on 31 July 2020. Mr Smith and Mr Campbell replied that day. Written submissions were filed: MFI 11 (Applicant - Sinclair); MFI 12 (Respondent Crown re De Belin); MFI 13 (Respondent Crown re Sinclair); MFI 14 (Applicant – De Belin).

Summary of Issues

41. Mr Campbell, for the applicant De Belin, submitted that this was an exceptional case involving deliberate illegality affecting the fundamental substantive rights of each applicant. That illegality he said includes not just a deliberate intrusion into legal professional privilege but also other unlawful and improper acts. Those acts include:

1. Gross illegality and impropriety in the police conduct of their investigation of both applicants;

2. Lies told by Adams the officer in charge of the police investigation and the effect of his dishonesty;

3. Conduct by an ODPP solicitor and a Crown Prosecutor that breached their professional obligations;

4. Actual and indeterminable derivative use of the legal professional privilege material; and

5. Significant additional prejudice to the applicant’s in addition to any prejudice from the derivative use of legal professional privilege material.

42. Accordingly, he submitted a fair trial of the applicant De Belin according to law was impossible and any continued prosecution of him would necessarily bring the administration of justice into disrepute.

43. Mr Smith SC, for the applicant Sinclair, adopted Mr Campbell’s submissions relating to gross illegality and derivative use of legal professional privilege. He submitted that access to the legal professional privilege material by investigating police meant Sinclair’s trial now differed in a fundamental respect from that which the criminal justice system seeks to provide. Access to Sinclair’s legal professional privilege material, he said, had altered the balance between Crown and accused.

44. He submitted that, given the nature of the privileged material accessed by police, Sinclair was, in effect, being required to testify for the prosecution contrary to the fundamental rule that an accused is not competent to give evidence for the prosecution; a protection which cannot be waived.

45. The respondent accepts that the legal profession privilege material was on some of the devices seized on 18 December 2019 (De Belin) and 3 January 2020 (Sinclair).

46. The respondent now accepts that some of De Belin’s privileged communication was accessed by police and acted upon in a limited way but they say that did not and could not impact on the evidence to be presented at trial or the fairness of the trial.

47. The respondent now accepts that some of Sinclair’s privileged communications could have been accessed by police but does not concede any privileged material was acted upon in any way. They submit no breach of Sinclair’s privilege could impact on the evidence to be presented at trial or the fairness of the trial.

48. The respondent asks I reject as unfounded any allegation of impropriety by ODPP staff or the Crown prosecutor and notes that any legal professional privilege material has been effectively quarantined from those conducting the trial. Further, with the exception of Adams, the police team who had access or potential to legal profession privilege material have been effectively quarantined from further investigation of the offences for trial; as has an ODPP clerk may have had access to legal profession privilege material to a limited extent.

49. The respondent’s case is that no product of any investigation that may have been based on legal profession privilege material will be tendered at trial nor will any evidence that might or could possibly derive from legal profession privilege material. No new evidence will be sought to be led based on any privileged material and reliance will primarily be placed on what is set out the briefs served prior to December 2018.

50. The additional statements taken and served after 3 January 2020 were subject to normal requisitions. Some were responses to material generated by the defence subpoenas others were typical of finding, at the last minute, some tasks that need completion or clarification.

51. Mr Young, Crown Prosecutor, for the respondent’s, fundamental point is that a permanent stay is a drastic remedy reserved for an extreme case. He submitted that nothing put to the court justified that remedy; as gross unlawfulness was not demonstrated and any breaches of legal professional privilege did not warrant a finding of irredeemable prejudice in the particular circumstances of these matters; police impropriety could not of itself justify a permanent stay.

Introduction to legal issues

The interests of justice

52. “The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice:” Mickelberg v The Queen (No 3) (1992) 8 WAR 236, per Malcolm CJ at 251.

Prosecution disclosure

53. Apart from any obligation under the general law, investigating police officers are subject to a duty set out in the Director of Public Prosecutions Act 1986 (NSW) (DPP Act). That duty requires they disclose to the Office of the Director of Public Prosecutions (ODPP) all relevant information, including documents, obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the accused. The duty of disclosure continues until the accused person is convicted or acquitted.

54. Police and other law enforcement officers are not required to disclose information, documents or other things that are subject to a claim for privilege. They have a duty in such a case to notify the Director of the existence of the information, documents or other things and the nature of any privilege claim: s15A DPP Act.

55. An example of what can happen when the police are allowed to determine what is relevant and what should be disclosed is Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125. There police withheld from the prosecution material that might well have assisted the accused. The prosecution itself did not deliberately withhold information from the defence. It relied on the police to provide all relevant information. Nevertheless, the High Court of Australia set aside the conviction and ordered a new trial

56. Crown Prosecutors, and those who instruct them, are obliged to act fairly in discharging the functions they perform at a criminal trial, in order to assist the attainment of justice between the Crown and the accused: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 664-665, 675; Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345 at [353]-[354]; Attorney-General (NT) v Emmerson [2014] HCA 13; 88 ALJR 522 at [63]; R v Seller; R v McCarthy [2015] NSWCCA 76 at [147].

57. That duty extends to distancing themselves or their prosecution team from material that should not have come into their possession. If necessary a new team of prosecuting lawyers, that has had nothing to do with any witness, or investigator, who may have read privileged or illicitly obtained material, or some report or analysis based upon it, will be engaged: Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455.

58. Prosecutors are entitled to claim legal professional privilege themselves; “If they become aware of their acting on wrongly disseminated legal professional privilege material or have acted on it such information it would be revealed (regardless of any privilege status) in discharge of the discharge of the prosecutors duty of disclosure:” Crown Written Submissions (De Belin) MFI 12; citing R v Sellar; Legal Profession Uniform Conduct (Barristers) Rules 2015 Rules 83, 87, 88 & 91.

59. That said, the prosecutor's duty to disclose “cannot be converted into an accused's obligation to find out:” Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708, Kirby at [50]. If police and prosecution duties have been properly discharged the defence will be supplied with all the relevant evidence.

Legal profession privilege

60. The law attaches particular importance to legal professional privilege. It is a fundamental common law right: Baker v Campbell (1983) [1983] HCA 39; 153 CLR 52; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. Legal professional privilege has its basis in the rule of law: Glencore International AG v Commissioner of Taxation: [2019] HCA 26; (2019) 93 ALJR 967. The rationale for legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client: GlencoreInternational at [10].

61. Legal professional privilege is a rule of substantive law. It provides important common law immunity. It is not merely a rule of evidence: GlencoreInternational at [23].

62. In Glencore International the High Court set out the historical origins of the rule as a response to the exercise of powers by the State to compel disclosure of confidential communications between lawyer and client.

“Legal professional privilege has been described as a right which is fundamental to persons and to our legal system. It has also been described as "a practical guarantee of fundamental, constitutional or human rights.” Such descriptions point up the importance of the privilege. They serve to show that it is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest:” Glencore International AG at [21], citations omitted.

63. The privilege has been extended beyond curial processes to search warrants authorised by statute: Baker v Campbell; Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501. Generally privileged documents need not be produced if allegedly subject to a search warrant: Part 3:10 Evidence Act 1995.

64. The High Court has explained the public interest policy reasons for the privilege:

“The rule promotes the public interest because it "assists and enhances the administration of justice by facilitating the representation of clients by legal advisers". By keeping secret their communications, the client is encouraged to retain a lawyer and to make full and frank disclosure of all relevant circumstances to the lawyer. …the public interest which supports the privilege is paramount to the more general public interest. In the provision of the privilege the law has struck the balance between two competing public interests. Consequently, once the privilege is found to exist, no more is required for effect to be given to it. In that sense it may be described as absolute:” GlencoreInternational AG at [27] to [30], Citations omitted

65. Similar sentiments have been expressed and acted on by the Court of Appeal in England and Wales:

"Legal professional privilege is… much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests:" R v Derby Magistrates Court Ex p. B [1996] AC 487 at [507].

66. In R v Grant [2005] EWCA 1089; [2006] QB 60 abuse of the privilege by police deliberately taping conversations between an accused and his lawyer founded a permanent stay; even though it is not shown that in consequence the accused could not have a fair trial. That decision has attracted criticism and may not now have significant value as a precedent either in England and Wales or Australia: see Warren v Attorney General for Jersey [2011] UKPC 10; [2012] 1 AC 22.

Search Warrants

67. A search warrant is a creature of statute requiring specific application. Section 47 Law Enforcement (Powers and Responsibilities) Act 2000 (LEPRA) reads:

“A police officer may apply to an eligible issuing officer for a search warrant …in respect of any premises if the police officer believes on reasonable grounds that there is …in or on the premises a thing connected with a searchable offence in relation to the warrant.”

68. A search warrant authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue: George v Rocket [1990] HCA 26; (1990) 170 CLR 104. There is no presumption of regularity in favour of search warrants: R v Tillett; Ex parte Newton (1969) 14 FLR 10 at 106.

69. Legal professional privilege provides protection as against production pursuant to a search warrant: Baker v Campbell. If legal professional privilege is claimed any legal professional privilege material must be isolated, if and until, the issue of privilege, if disputed, is resolved.

70. If there is a risk that a search warrant might uncover documents over which a claim to legal professional privilege might be made it is prudent for a police officer to note in the record for the application that consideration has been given to legal professional privilege. In the modern age, where use of mobile phones and other electronic devices to store communications is ubiquitous, it would be prudent to assume that once charges have been laid a person might use such devices to communicate with their lawyers.

71. If a claim for privilege is made a client of a solicitor can initiate the Law Society – Commissioner of Police protocol or institute proceedings in the Supreme Court seeking appropriate relief: Criminal Practice and Procedure, Butterworths, Howie and Johnson [21s 48.40] p. 625,570.

72. There is no privilege for physical objects, only documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674. In Baker v Campbell, Mason J, although in dissent, noted:

“In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance …”

73. A search warrant is not a form of discovery it is a creature of statute, without antecedents in equity or (except in respect of stolen goods) in common law: Baker v Campbell. In Baker v Campbell, Justice Brennan, noted:

“If the prosecution, authorised to search for privileged documents, were able to open up the accused's brief while its own stayed tightly tied, a fair trial could hardly be obtained; in a criminal trial, to give the prosecution such a right would virtually eliminate the right to silence. It would deprive an accused of such right to an acquittal as he has by reason of a weakness in the Crown case which could be, but must not be, remedied by disclosure of the accused's instructions to his legal advisers”: citing Tuckiar v. The King (1934) 52 CLR 335 at p 346.

Search warrants & the right to silence

74. A search warrant does not compel a person or an accused to produce or identify any incriminating document. To respond to a search warrant requires no consent or the making of admissions. Privileges against self-incrimination and self-exposure to a penalty do not allow resistance to a search warrant: Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190 at [90]; Baldwin v State of New South Wales [2020] NSWCA 112.

75. It is necessary to identify precisely how the right to silence privilege is said to be engaged. A power to search and seize devices carries with it a requirement for a person whose property is the subject of the warrant to consent to a search and seizure under warrant. It cannot be read down by reference to the privilege against self-incrimination.

76. The privilege against self-incrimination, apart from any statutory exclusion, protects a person against a requirement that they produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion. It has no application to the seizure of items or their use for the purpose of incrimination provided they can be proved by some independent means.

“In relation to documents, the privilege against self-incrimination may be contrasted with legal professional privilege, which, in the absence of clear statutory authority to the contrary, affords protection against the seizure of documents which fall within the ambit of the privilege …The privilege is not a privilege against incrimination; it is a privilege against self-incrimination:” Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] HCA 6; (1984) 156 CLR 385; at [392] – [393].

Search warrants & Right to privacy

77. Article 17.1 of the International Covenant on Civil and Political Rights, to which Australia, is a signatory states:

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation but we do not have a Bill of Rights in New South Wales or Federally.”

78. As citizens we all have a right to expect our privacy will be respected. But enforcing that “right” is problematic, as “those who framed the Constitution conceived of parliamentary supremacy and the rule of law as administered through the courts as better protecting traditional freedoms than a bill of rights limiting legislative power:” Strickland(a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; [2018] HCA 53 at [101].

79. While the Privacy Act 1988 (Cth) has the object of promoting the protection of the privacy of individuals it recognises that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities. It establishes no general right to privacy. The LEPRA contains no privacy protections; unlike for example, s180F Telecommunications (Interception and Access) Act1979 (Cth).

78. If there is a tort of unjustified invasion of privacy it has not yet been extended to a substantive right operable in criminal proceedings: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.

79. A court will insist on strict compliance with the statutory conditions for a search warrant but it is accepted that when balancing “the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of their privacy, the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes, to the legislative purpose where prescribing conditions governing the issue of search warrants:” Smethurst v Commissioner of Police [2020] HCA 14, joint judgement at [24] and [25].

80. That is not to say courts are unconcerned with privacy and the corresponding issue of a person’s dignity, far from it. Both are consistent with the political sovereignty of the people of the Commonwealth: Clubb v Edwards; Preston v Avery [2019] HCA 11; (2019) 93 ALJR 448 at [60]. Privacy rights can be taken into account in determining whether evidence was obtained improperly and therefore admissible in criminal proceedings: s138 (3)(f) Evidence Act 1995.

81. Courts also recognise that fundamental principles of constitutional liberty and security must be protected by the courts. This requires recognition of contemporary practices and appropriate adaptation of them, “to the contemporary reality that digital technology has provided new means by which personal property can be a repository of privately held information as well as new means by which such information can be extracted through the invasion of that private property and afterwards retained and disseminated:” Smethurst, per Gaegler J at [126].

82. A police investigation of a serious crime is inherently inimical to the protection of the privacy of the individual under investigation. In many cases there is a tension between competing public interests. If issues about admissibility of evidence arise, s138 Evidence Act provides a considered legislative response, however no privacy right precludes a police review of private communications as part of their investigation of a serious offence.

83. The NSW Police Force is not required to comply with statute based information protection principles, except in the exercise of their administrative and educative functions: s27 Privacy and Personal Information Protection Act 1998. However, The NSW Police Force Standards of Professional Conduct’ - Code of Conduct and Ethics does require an employee of the NSW police force to “8. only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy:” ^[3]

    3.

No Bill or Rights in NSW

86. In New South Wales there is no foundational document or Bill of Rights available to the public or law enforcement that sets out what our rights as citizens are and how they will be enforced. Although rights founded on the rule of law can be restricted by statute, such statutes “must be perspicuously expressed and strictly construed:’’ Strickland at [101]. Without the benefit of a Bill of Rights, police training institutions and operational police have only guidance from manuals, Commissioner’s protocols or legislation such as the Law Enforcement (Powers and Responsibilities) Act 2000 (LEPRA), which is in turn like many rules, protocols and statues can be subject to differing legal interpretations: NSW v Robinson [2019] HCA 46.

Principles of proof

87. The ordinary standard of proof required of a party who bears the onus in applications such as this, is proof on the balance of probabilities: s142 Evidence Act. This remains so even where the matter to be proved involves serious allegations: R v Day [2017] HCA 2.

88. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal…”reasonable satisfaction" is not produced by inexact proofs, indefinite testimony, or indirect inferences:” Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at [712], citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at [362].

89. There is a conventional perception that members of the legal profession do not ordinarily engage in improper conduct and a court should not lightly make a finding that, on the balance of probabilities, that a non-party has been guilty of such conduct: Neat Holdings [1992] HCA 66; (1992) 67 ALJR 170 at 171.

90. When serious allegations of impropriety are made careful weighing of testimony is required. A judge must take into account the nature of any allegation and make a close examination of facts said to found any inference. A judge must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, "there must be something more than mere conjecture, guesswork or surmise " Cross on Evidence, 10th Aust. Ed (2015) at 356 [9055]. There must be more than "conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture, guesswork or surmise." An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason, in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305.

Assessing Witnesses

91. An assessment of a witnesses’ credibility is founded upon what is known and established by the evidence, not by what is not known. Obviously if a witness tells a lie that could be a matter relevant to their credit as a witness. To tell a lie is to say something said which is untrue, knowing at the time of saying it that it is untrue. If a witness says something, which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. A mistake in memory is not a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.

92. Judges should remain cautious about drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness. Judges have no particular skills or greater capacity than anyone to tell truth from falsehood on the basis of appearances. Judges are however able to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118 at [30]-[31].

Failure to call witnesses

93. My focus must be on the evidence before me and inferences able to be drawn from that evidence. Objective probabilities and the logic of events can favour one inference over another. An applicant cannot simply rely on the failure of the respondent to reply to a point made. But where evidence is called to support a fact or allegation and silence is the response, that silence may resolve a doubt or an ambiguity, especially if the facts are peculiarly within the knowledge of the silent party: Tozer Kemsley v Colliers Interstate Transport (1955-56) 94 CLR 384.

94. Such tools to reasoning require care in their execution. For example; where it is likely there was an inconsequential error or other contemporaneous records or the logic of events dictate otherwise, to base a finding on a lack of response might be dangerous. In the face of silence a party making a positive proposition is not relieved of the necessity of calling some evidence. It is not enough to say that if a witness is not called or a witnesses’ evidence is rejected therefore the contrary proposition put must be true.

95. Any inference favourable to the applicant for which there were grounds in the evidence presented can more confidently be drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness and there is no sufficient explanation of their absence. If those circumstance are met it would be proper to conclude that had the absent person given evidence their evidence would not have assisted the respondent by throwing doubt on the correctness of the inference urged by applicant’s, if that inference was open on the available evidence. But I note again; some foundational facts are necessary before an inference urged on the court passes from the realm of conjecture and care must be taken not to confuse mere conjecture with a reasoned conclusion: Jones v Dunkel.

Institutional integrity of the court

96. The public interest in holding a trial does not warrant the holding of an unfair trial. Before a permanent stay is ordered a significant impact on the institutional integrity of the court must be established.  Courts are robust institutions; accordingly, not every instance of police or prosecution misconduct will be so serious to, in effect, cause there to be no trial at all. Not every act of misconduct could impact on the integrity of the criminal justice system. Further, if actual prejudice, going to the root of the proceedings, can be ameliorated the trial cannot be said to be unfair, as no fundamental defect would remain. In criminal proceedings, there are also significant countervailing considerations that must be taken into account, namely, the interests of the community and the victims of crime in the enforcement of the criminal law: X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57 per Bathurst CJ at [91] citing, Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 at [54].

97. Describing a case as extreme or singular is a means of signalling the rarity of the situation in which the unfair consequences cannot be relieved against by the trial judge during the course of the trial: Dupasv The Queen (2010) 241 CLR 237; [2010] HCA 20 at [35]. The High Court in Dupas said the question to be asked is, not whether the case can be described as extreme, but rather, whether the apprehended defect is of such a nature that nothing a trial judge can do will relieve against its unfair consequences?: see also X7 High Court at [88].

Permanent stay of a criminal trial

98. The District Court has an undoubted power to stay permanently a criminal prosecution because of an abuse of process but that power will be used only in most exceptional circumstances: Jago v District Court at 31. Because a permanent stay of criminal proceedings is a wholly exceptional step it should be ordered only in an extreme case: [2003] NSWCCA 394; R v WRC (2003) 59 NSWLR 273; at [55]-[56]. Permanent stays can be granted notwithstanding the “powerful social imperative for those who are charged with criminal offences to be brought to trial:” Strickland at [106]. Generally, the Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [23].

99. In some extreme cases, irrespective of whether or not particular or practical injustice, unfairness or oppression is demonstrated, a stay may be granted if the proceedings in question are such an abuse of process that the use of the court proceedings would necessarily bring the administration of justice into disrepute. This is because of another fundamental social concern; the need:

“to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, … a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court…:” Strickland at [106].

“Strickland was concerned with grossly unlawful interrogation of persons who it was known or believed would shortly be charged with criminal offences. In holding that the administration of justice would be brought into disrepute unless the extraordinary remedy of a permanent stay of prosecution were granted, the plurality relied on that gross unlawfulness and the indeterminate element of incurable prejudice arising, as a matter of practical reality, from the widespread, uncontrolled dissemination of the examination product, including to federal prosecutors:” Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466 at [21] (my emphasis).

Where an abuse of process is asserted the onus of satisfying the Court that there is an abuse of process lies upon the party alleging it: that onus is a heavy one: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at [529]. The mere risk of unacceptable injustice or unfairness is insufficient: TS v R [2014] NSWCCA 174 at [1].

100. Generally, a permanent stay should only be considered when the unfair consequences of an apprehended defect in a trial are fundamental and cannot be relieved against by the trial judge during the course of a trial. However, as the joint judgment in Strickland made clear, in some extreme cases continuation of the trial will offend against the very nature of a criminal trial. Such cases are not decided by simply considering questions of demonstrated "practical unfairness."

101. A permanent stay of criminal proceedings is, in essence, a refusal to exercise jurisdiction: in Jago, per Gaudron J at 76. In Jago, Brennan J, emphasised that whilst there are often obstacles to a fair trial, it is necessary to distinguish between unfairness to the accused caused by extraneous circumstances, which do not call for a permanent stay and abuses of the court’s process. As to extraneous circumstances, His Honour said, at 47: “[u]nfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness,” before continuing:

“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve … When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness.” at [47] - [48]

102. Relevant questions to be asked here are:

1. Would continuation of the trial involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process? 

2. Whether an apprehended defect in a trial is of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences?

3. Have either those responsible for law enforcement or the prosecution of the trial acted in a manner that fundamentally alters the accusatorial judicial process such that only a permanent stay could prevent bringing the administration of justice into disrepute?

103. These questions involve a weighing process involving a subjective balancing of a variety of factors and considerations. They can include:

1. Fairness to the accused;

2. The legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime;

3. The need to maintain public confidence in the administration of justice: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; at [395] - [396].

104. Relating those general considerations to the issues raised by the present applications I must ask:

1. Has there has been unlawful conduct or other defect in proceedings?

2. How, if at all, does or might, the unlawful conduct or other defect affect the proceedings?

3. If so whether it or they, individually and in combination, are fundamental or profound?

4. Whether court processes can ameliorate the impact of any illegality and or defect in proceedings?

5. Would permitting the proceedings to continue erode public confidence in the court's administration of justice?

6. Whether any defect or defects, in combination, are so fundamental that in order to protect the integrity trial process it is necessary the trial be stayed?

Other Permanent Stay Cases

105. Decided cases can be useful guides but they do not chart the boundaries of abuse of process or define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings: Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314; In X7 v R NSWCCA; (2014) 292 FLR 57 and Hamzy examples were given of circumstances where the use of the court’s procedures were found to be substantially unfair to the accused. They include:

1. where the prosecution’s proposed tender of records of interview of an accused would constitute a direct challenge to an earlier court determination on different charges that the accused’s confessions were not made voluntarily: Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251;

2. where unlawful conduct of officers of the executive procured the accused’s presence in the jurisdiction so as to meet a precondition to the commencement of proceedings against him: Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456;

3. where the unlawful obtaining of evidence resulted in forensic prejudice suffered by the accused: Strickland (joint judgment).

106. By contrast, cases in which the despite some apparent unfairness on balance a stay was refused include:

1. where there had been unreasonable delay in the prosecution: Jago v District Court of NSW;

2. where the apprehended unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity was found to be capable of being relieved against by appropriate directions by the trial judge: Dupas v The Queen;

3. where there was no indeterminate element of incurable prejudice despite widespread, uncontrolled dissemination of the examination product to police and prosecutors:  X7 NSWCCA;

4. where police deliberately knowing it was unlawful used listening devices to monitor the suspects: Warren v Attorney General for Jersey..

107. In Lee v The Queen; Lee v The Queen (Lee No 2): [2014] HCA 20; (2014) 253 CLR 455; the High Court reiterated that our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The Court concluded that in a fundamental respect the accused’s right to a fair trial was compromised by the prosecution having his evidence in its possession: at [43] and [44]. No application for a permanent stay was before the court. The High Court ordered a new trial and noted some steps that could be taken to ensure that the new trial was not affected. One suggested step was to engage another prosecutor and other ODPP personnel not privy to the impugned evidence.

108. The Court of Criminal Appeal in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252: (2008) 72 NSWLR 456, a contempt of court case, made the fundamental point that the prosecution must discharge their onus of proof and cannot compel the accused to give evidence for it.

109. In Strickland, the applicants were unlawfully subjected to a pre-charge compulsory examination conducted for the extraneous, unlawful purpose of assisting the AFP to compel the person to give answers to questions about offences of which he or she is suspected and in respect of which he or she has declined to be interviewed. That process was found by the majority to be both unlawful and to have fundamentally altered the accusatorial process for the investigation, prosecution and trial of that offence by unlawfully compelling the person to provide the prosecution with information.

107. It was held that the prosecution derived the forensic advantage of compelling the appellants to answer questions that they had lawfully declined to answer thereby locking the appellants into a version of events from which they could not credibly depart at trial. As a consequence the appellants could no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial.

108. Such was the nature of what was disclosed at that examination it was no answer to the forensic disadvantage created to say that it may be overcome by the appointment of prosecutors who know nothing of the examinations. Similarly, the joint judgment rejected other procedural considerations, designed to remove unfairness, such as having a witness not explain his or her actions by reference to what he or she learned, or believed he or she had learned, from the unlawfully obtained material.

109. Strickland stands as an exception to the general rule that the accused must indicate what disadvantage they suffered. As the illegality there went to the heart of the accusatorial nature of the criminal justice system it was not necessary that “the court be informed or persuaded of specific respects in which the person's defence will or may be compromised in order to conclude that the forensic disadvantage resulting from the subjection of a person to an unlawful compulsory examination in relation to a matter in respect of which he or she is subsequently charged is significant:” at [79]. As a consequence the majority held it would be practically impossible to try the appellants without subjecting them to the forensic disadvantages.

110. Edelman J in Strickland, raised, as an example of a case resulting in a permanent stay where a suspect is charged after "the deliberate invasion by the police of a suspect's right to legal professional privilege." He made reference to Warren v Attorney General for Jersey. In Warren the Board of the Privy Council commented on R v Grant.

111. In Grant, the accused was charged with conspiracy to murder. His successful application to stay the proceedings as an abuse of process was based on the fact that the police had deliberately eavesdropped on, and tape recorded, privileged conversations which took place in the police station exercise yard between the accused and his solicitor following his arrest and in parallel with the interview process. The deliberate breach of legal professional privilege was held to be an unlawful act and a such a deliberate violation of a suspected person's right to legal professional privilege, “… so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.” The stay was granted even though nothing was recovered from the illicit intercepts that was of any value to the prosecution and the police misconduct caused him no prejudice. The Board in Warren however, respectfully, considered that the decision in Grant was wrong.

Evidence

Introduction - Case Management

115. I am aware of the history of these matters as I am the Wollongong District Court List Judge with responsibility for case-managing these trials: Chapter 3 Part 3 Division 3 Criminal Procedure Act 1986. I presided over objections to access or leave to issue, of the various subpoenas sought by De Belin in November and December 2019. This fact was known to the parties. Matters relating to the history and management of the matter are recorded on the Court’s files: s 144 Evidence Act.

116. An accused facing a criminal trial has no onus to prove their innocence and retains their absolute right to silence. We have an accusatorial system of criminal justice. But the modern criminal trial is also subject to strict case management. These compulsory procedures are designed to isolate the key issues in dispute and avoid unnecessary delay and expense: Chapter 3 Part 3 Division 3 Criminal Procedure Act 1986. The range and number of pieces of legislation required to be applied in a criminal trial demand that these pre-trial procedures be complied with well before the date fixed for trial so that as far as practicable the issues required to be determined by a jury can be understood in advance and so avoid unnecessary delay and trial time being taken up by matters that are not in dispute.

117. This trial was no exception. By December 2019 committal proceedings, case –conferencing, call-overs and the resolution of subpoena issues made it clear that the trial would take up to two weeks and the critical issues would revolve around whether or not the complainant had given her consent to the acts of sexual intercourse alleged and the applicant’s knowledge of any lack of consent. That in turn would require, at least initially, a close examination of the complainant’s evidence about whatever occurred between her and each applicant on the night of 8 December and morning of 9 December 2018.

118. Given each accused had said they were not guilty of the charges it was expected that the complainant’s credibility and the veracity of her account would be subject to close scrutiny. This is an inevitable consequence of our trial process, the maximum penalty of 25 years imprisonment and the indisputable fact that a conviction would lead to a lengthy custodial sentence.

Cellebrite

119. As at December 2019 Cellebrite UFED 4PC and Cellebrite UFED Physical analyser enabled an operator to identify forensically, acquire and present data stored on a mobile device and associated media. Samples of the extraction are verified as accurate by comparing selected values with corresponding data on the device: Ex 3.857.

Chronology of events

Date	Event
Saturday 8/12/18 & Sunday 9/12/18	Complainant attends Santa Pub Crawl and meets De Belin & Sinclair. - Events subject to trial [Ex A]
Sunday 9/12/18 - 9pm	Crime scene warrant executed at 5/49-53 Gipps St.
Thursday 13/12/18	De Belin attends Wollongong Police Station. De Belin arrested & refuses ERISP [Ex A.43]. Bail granted
Monday 17/12/18	Police speak to Sinclair at his home. Sinclair arrested & refuses ERISP [Ex A.44] Bail granted.
5 February 2019 Wollongong LC	Sinclair only – Listed for subpoena access orders. Discs of security CCTV: General access From 5 February 2019 [court records]
12 February 2019 Wollongong LC	Listed for Further Mention on 17 April 2019. [court records]
March 2019	1st brief service
17 April 2019 Wollongong LC	Local Court Noted Brief served. Listed for Charge Certification on 29 May 2019. [court records]
14 May 2019	Charge certificate filed [court records]
29 May 2019 Wollongong LC	Listed for Further Mention on 24 July 2019. Case Conference Certificate to be filed by 24 July 2019 [court records]
22 July 2019	Charge Certificate filed – amended [court records]
24 July 2019 Wollongong LC	The accused is committed for trial to the District Court. Listed for First Mention on 20 August 2019 at District Court, Wollongong. [court records]
20 August 2019 Wollongong District Court	1. Listed for Trial WDC on 2 March 2020. Indictment 201817785_4.8 filed. 2. Listed for Mention WDC on 25 February 2020 to confirm trial date. [court records]
11 September 2019 Wollongong DC	Matter re-listed WDC to change trial date – Counsel for Sinclair now available in February 2020. 1. Vacate trial date on 2 March 2020 2. Listed for Trial WDC on 3 February 2020 (2 week estimate) 3. Listed for Mention WDC on 17 December 2019 to confirm trial date. [court records]
November 2019	2nd brief service
22 November 2019 Wollongong DC	Return of Subpoena –protected confider issues. Adjourned to 28 November 19 for further subpoena & to allow HH to review subpoena material. [court records]
28 November 19 Wollongong DC	Orders made re subpoena [court records]
17 December 2019 Wollongong DC	Trial ready to proceed. Pre-trial issues to be dealt with on Day 1 of the trial. Jury to be empanelled on Day 1. Further orders re subpoena [court records] Police application for De Belin warrant [Ex C.9]
18/12/2019	6:50am – Search warrant at De Belin premises Seizure of three devices (Nokia, Taylor phone, iPad) 8:00am – Cellebrite of Taylor phone by Sutton [Ex 3.857 + 3.1158] 1:42pm – Attempted Cellebrite of Nokia by Sutton [unsuccessful] [Ex 3.1-2 + 3.858] 1:43 Note Physical successful…Physical analysis of/photos required.” [Ex3 1160] 2:10pm – Cellebrite of iPad by Sutton [Ex 3.261] 7:05pm – Taylor’s phone returned [Ex 3.1146]
22/12/2019	Adams manual review of Nokia [Ex 3.453] Adams manual review of iPad [Ex 3.935] Adams review of Taylor’s phone Cellebrite and extracts messages from certain dates [Ex 3.808] 3:24pm – Adams sends email to Joerdens and Sutton [Ex 3.453] 5pm Adams goes on leave until 20/01/2020
02/01/2020	Police application for Sinclair warrant [Ex C.21]
03/01/2020	7:00am – Search warrant at Sinclair premises Seizure of one device [white iPhone] [Ex3.859 & 864] Sutton requests and receives Sinclair’s iPhone passcode [Ex3.859] 8.18am Sutton Cellebrites iPhone {Ex3.859] 9:24am – Search Exhibits officer checks in iPhone [Ex 3.912, 913 &1130] 12:46pm – Sutton checks out iPhone [EX 3. 1128] 1:10pm – iPhone returned to Sinclair [Ex 5, tabs 8-10] USB of Cellebrite extraction entered as Exhibit:[Ex3.861]
06/01/2020 – 07/01/2020	Sutton successfully completes Cellebrite White iPad [EX 3.1 + 3.1160-1161 + dates as indicated on photos in Ex 3.15-3.260]. Sutton photographs yellow Nokia” MSGS” [Ex 3 1159=-1161]
11/01/2020	Sutton prepares Nokia and iPad Cellebrite extraction report [Ex 3.1 + Ex 3.261]
16/01/2020	Third brief service including material from devices of De Belin and Sinclair [Ex 3.871-874]
17/01/2020	Rankin, ODPP clerk, exposed to legal professional privilege material Quarantines material in ODPP [Ex K.5-9] . 4:10pm – Nokia and iPad returned to Foster [Ex 3.1145]
20/01/2020	Adams returns from leave
22 January 2020	Notice of Motion filed (De Belin) for stay of proceedings
28 January 2020	Notice of Motion filed (Sinclair) for stay of proceedings
03/02/2020	ODPP return all electronic material relating to devices seized served on Office to the court [Ex K.14]. First day of trial

Evidence on behalf of De Belin

120. The evidence relied on by the applicant De Belin consists of, the affidavits of Mr Foster from RMB lawyers and annexures, of 22 January 2020 and 5 February 2020 and evidence from the applicant Sinclair supporting his motion, other than that subject to Sinclair’s legal professional privilege. Reliance is also placed on the evidence of Adams and inferences drawn from the detective’s evidence. Mr Foster was not required for cross-examination.

121. As some of the De Belin evidence was subject to a claim for legal professional privilege it was tendered subject to the Suppression Orders made by me and access to it was restricted in accordance with those orders; accordingly, where De Belin maintained his privilege that material did not form part of Sinclair’s application.

122. Three devices belonging to De Belin or his partner, Ms Taylor, were seized on 18 December 2019. The yellow Nokia phone was opened by Adams who inspected some of its contents, specifically SMS messages to and from “Craig Lawyer.” He photographed some of those messages: TT p.15-25/6/20 closed; Ex H. The yellow Nokia was not able to have its contents downloaded but each page was later photographed by Sutton and that content stored on a USB capable of Cellebrite extraction analysis. What was extracted from the Nokia using Cellebrite is annexed to Mr Foster’s affidavit: Ex 3.1-260.

123. The contents of the iPad were down loaded using a Cellebrite program and stored. Those contents were included in part in a ‘third service’ of documents on the ODPP and applicants on 16 January 2020: Ex 3.872.

124. This ‘third service’ was in accord with then current practice and prima facia complies with disclosure obligations; there being no current claim for legal professional privilege placed on police at time of service: s15A(6) DPP Act.

125. I note that where the entirety of a large body of electronic material had been disclosed and made available to the defence there was no obligation on police to interrogate it. It is not for the police or Crown to anticipate or comment on the ways in which materials disclosed might assist the defence: Edwards v R [2020] NSWCCA 57 at [55].

126. Mr Foster was unable to download from the USB provided but he extracted from RMB’s file the documents referred to in the iPad extraction report that were potentially accessed as part of the Cellebrite downloads: Ex 3. 261-279. They are set out in the annexure to Mr Foster’s affidavit: Ex 3.280-416. The Exhibit 3 Annexure also includes all of the documents served on each party by Sutton on 16 January 2020; including the ODPP, as the ‘third service’ and material from RMB’s files and material produced in subpoena by the Commissioner of police, including duty books, emails and task records. Many police records were kept on a computerised system, the e@glei system.

127. USB sticks containing Cellebrite downloads and CCTV were included in the third service. The USB sticks were not tendered on the application.

128. The white iPad contained emails and attachments between RMB lawyers and De Belin’s Gmail email account. Some of those documents on their face would appear to be subject to legal profession privilege. There is some debate whether the emails themselves were subject to Cellebrite extraction. I proceed on the presumption they were, but if not, they were able potentially to be accessed by police.

129. The iPad was returned to Ms Taylor on 18 January 2020. Mr Foster notes that when the iPad was opened the first Gmail that came up, when the Gmail icon was clicked, was correspondence from “Craig O.” “Craig O” is Mr Craig Osbourne a partner in Mr Foster’s firm RMB lawyers: Ex C.4 [11].

130. Ms Taylor’s iPhone was subject to a Cellebrite download. That material was then reviewed by Sutton on 22 December 2019 and a report generated for any relevant material for 9 periods from 8 December 2018 to 7 November 2019: Ex 3.418 - 432.

131. Mr Foster said that it was intended Ms Taylor give evidence at trial. He also deposed on her behalf that as a consequence of; the search of her home, the seizure of her iPhone and police access to it, she was “shattered” and did not have the strength to give evidence at trial: Exhibit 3 [15] and [16]. This hearsay evidence was admitted over objection as falling into the interlocutory proceedings exception to the hearsay rule: s 75 Evidence Act; see separate judgement. ^[4]

     4. I note that while a permanent stay application is regarded as interlocutory for the purposes of s 5F Criminal Appeal Act 1912, the issue remains moot so far application of the Evidence Act is concerned. The difference between a final and an interlocutory proceeding often depends on context: R v King [2003] 59 NSWLR 472; Uniform Evidence Law 14 Ed, S Odgers, Law Book Co 2019 at [75.90].

Evidence on behalf of Sinclair

132. The evidence relied on by the applicant Sinclair consists of, the Affidavits of Mr Morrison and annexures: Ex 2 - 28 January 2020 and Ex 5 -tab 3, 3 February 2020. They also relied on evidence on behalf of the applicant De Belin supporting his Motion, other than that subject to De Belin’s legal professional privilege. Inferences drawn from the evidence of, and concessions made by, Adams are also relied on.

133. In his first Affidavit, Exhibit 2, Mr Morrison noted that during the course of proceedings he regularly communicated with Sinclair by email and text and that those communications were contained in Sinclair’s iPhone seized on 3 January 2020.

134. In his second affidavit, 3 February 2020, Exhibit 5, Mr Morrison set out that material in table form and annexures. While many documents were of an administrative nature, four in particular set out instructions or draft statements of potential witnesses. As some of the material was subject to a claim for legal professional privilege it was tendered subject to the Suppression Orders made by me and access to it was restricted in accordance with those orders; accordingly, where Sinclair maintained his privilege that material did not form part of De Belin’s application

135. As part of Exhibit 5 affidavits were tendered from Sinclair, his mother and Mr Ward a solicitor with Morrison’s law. None of the deponents were required for cross-examination.

136. In his affidavit Sinclair deposes how he was asked for and gave police the passcode to his phone after the search warrant was executed on 3 January 2020: Ex 5 tab 4 [4]. His phone was returned the following day. He states that he opened his phone soon after its return to him and accessed files on it. He said he was suspicious his phone had been accessed. When he opened his Gmail email account he saw his recent correspondence with his lawyers had been opened. The document was in the “sent” folder. The email had as an attachment a highly sensitive and privileged document [redacted - see Addendum B. He had not accessed his sent folder since sending this email on 19 December 2019.

137. Sinclair deposed that he was concerned and worried at the thought that police has accessed the document. That he had these concerns was supported by affidavits from Sinclair’s mother, Mr Morrison and Mr Ward: Ex 5 - tabs 5, 6 and 7.

Evidence on behalf of the Respondent

138. There were 10 respondent exhibits - A to K.

• Exhibit A – The Crown case statement as a December 2019.

• Exhibit B -“Tender material Voir Dire” contained 7 witness statements prepared for the trial and transcripts of lawful telephone intercepts. A table sets out the specific matters relied on in the 18 tabbed items. Those specific references highlight communications that might ordinarily be subject to ODPP requisitions of police; such as communications the police might want to investigate further.

Highlighted in from the telephone intercepts are each accused’s exculpatory statements to friends and family that also contain admissions as to their interaction with the complainant and where that interaction occurred and their opinions as to the complainant’s motivation for making false accusations. They also reveal matters might require investigation: EG: “The uber driver will back us:” Ex B - tab 5 at 6.

• Ex C - Affidavit of Adams in response to the Stay applications.

• Exhibits D - Affidavit of Mr A Barnes in response to the Stay applications.

• Exhibit E - “Crown Disclosure Bundle” includes a table and 21 statements setting out what a proposed witness said before the search warrants were executed, and after; so that possible derivative use of the legal professional privilege material might be assessed.

• Exhibits F and G - Medical certificates relating to Adams’s reasons for not attending court in February.

• Exhibit H and J – photographs of the screen shots of De Belin’s yellow Nokia (screen shots) produced by Adams’s during cross examination on July 2020 - formerly MFI 10.

• Exhibit K – Further Affidavit of Mr Barnes in response to the Stay applications.

139. Adams gave evidence.

Detective Senior Constable Adams

140. In his 3 February 2020 affidavit, Exhibit C, Adams deposed that on 22 December 2019 he reviewed the Cellebrite contents of the white iPad. The review included emails and photographs. He said: “Nothing of relevance to either of the investigations was identified:” at [14]. The reference to “either of the investigations” referred to separate Local Court proceedings involving an allegation Ms Henry had used a carriage service to harass the complainant in this trial. Ms Henry was said to be a friend of Ms Taylor and De Belin.

141. Adams then acknowledged that among the emails reviewed were communications between De Belin and Mr Foster. He deposed that: “I do not recall the details of the correspondence and have made no investigative decisions based upon them:” at [15].

428. I cannot find that Adams initiated the search warrants out of malice towards either applicant nor is there evidence that access to phones was a tit for tat response to the defence subpoena issued for access to the content of the complainants’ devices. It seems reasonable however that during the process of Cellebriting the complainant’s phone information was received by Adams about that process and that may have prompted the search warrants.

429. This in no way excuses what was done. A search warrant cannot authorise seizure of documents subject to a legal professional privilege. If legal professional privileged material is sought a search warrant application would be refused. I note that in this matter the draft application for the never acted on a warrant on the Dragons Club made the point no legal professional privilege was sought.

430. In the modern world it is understood by all that many communications, both trivial and important, are now electronic. Once a person is charged and is known by police to have a lawyer it requires no imagination to conclude that legal professional privilege communications might be on an accused’s device. And, that access to the device might breach that privilege.

431. Adams was not aware of any existing Commissioner of Police or Law Society protocols to deal with such a situation. None were provided to me but the Commissioner was not a party and had no opportunity to provide that information. I am not aware of any Court registry policy that requires an enquiry be made in such circumstances. The police should have done better but that does not mean what was done was unlawful or otherwise improper. As these applications demonstrate a blasé attitude to the rights of accused persons can lead to costly and potentially devastating consequences.

Right to silence

443. The police unlawfully seized and accessed material subject to each applicant’s legal professional privilege. They were denied a protection given by the common law but that protection has not been taken away. The court will guard it jealously. The ODPP must respect it. If necessary the Commissioner of Police and his employees can be compelled to respect it.

444. In Sinclair’s case in particular the breach of his legal professional privilege was significant but the accusatorial process has not been fundamentally altered here. Seizing and accessing either applicant’s legal professional privilege was wrong and breached their right to confidential communications with their lawyers but nothing done by police on or after 18 December 2018 or on 3 January 2020 could result in any impingement of an accused right to silence.

445. If each legal professional privilege document identified was read by police (and there is no evidence every document was in fact read) this could not constrain how an accused was to conduct his case. Nothing in the legal professional privilege could lock an accused into a version of events. They are not being compelled in any way to given evidence for the prosecution nor could they be. They remain free to conduct the trial however they think fit.

446. No self-incriminatory representations were compelled from them. Seizure of and access to legal professional privilege material cannot of itself or having regard as I have to that material alter the capacity of each applicant to put the Crown to proof and test the case made against each of them individually.

447. While there remains the possibility that by accessing each accused legal professional privilege material police have an advantage in that neither party knows what the other has said in confidential communications; again, those considerations remain speculative.

448. In Strickland the joint judgment made the point that it was not incumbent on the appellants to demonstrate the respects in which the prosecution had been thereby advantaged by access to the unlawfully obtained material. That was because it was practically impossible in that case to do so. That assessment of the facts in that case cannot be elevated to a statement of principle. Each case must be determined by reference to its particular facts.

449. Here, each applicant knows what documents subject to their own legal professional privilege were seized and able to be potentially accessed. They are set out in the confidential annexures of Mr Morrison’s and Mr Foster’s affidavits. The only issue is the extent of any access. We know what was distributed in the ‘third service.’ We know the ODPP say access was only in the limited form noted by their clerk. There is no evidence any legal professional privilege material was used to inform prosecutorial decisions. Those decisions were made well before 18 December 2019.

450. The defence had the opportunity to test Adams and review police records. Police actions could have been better recorded. And, we know Adams withheld some copies of photographs for some time but documentary records have been produced. Any dissemination to those with a connection to this case is limited to Adam Sutton and possibly Joerdens. If there has been further unlawful distribution of legal professional privilege material within the NSW Police and there is nothing to suggest it has, none of that information could affect the trial process.

451. It is a concern that the applicants could not test whether Sutton and Joerdens reviewed any legal professional privilege material. I have to determine these issues noting the difficulties the applicants have in identifying what if any derivative use may have been made of that information if it had been accessed. Neither applicant had the advantage of knowing what was in the other’s legal professional privilege but both were ably represented.

452. I however, have had the advantage of reviewing the legal professional privilege material and the recent 2020 statements obtained by police in Exhibit E. I have done so on the basis that access and subsequent derivative use was possible. I have done so on the basis that for the applicants to identify with precision any derivative use would be difficult if not impossible but nothing in the recent statements set out in Exhibit E indicates any hint of derivative use of the legal professional privilege set out in either the De Belin or Sinclair devices.

453. I accept that at trial, even on a voir dire, that it will be potentially dangerous for the applicants to make a serious attempt at discrediting a witness, should they choose to assert that they have benefited from derivate use of legal professional privilege material. I accept that at trial such a course may be risky but so far as I am able to discern nothing in the legal professional privilege material could prevent any challenge to the critical witnesses in the Crown case nor limit any defence available to them. More importantly no submission was made to that effect, although I appreciate the difficulty involved as an applicant can’t question what he doesn’t know. That said, a permanent stay cannot be founded on speculation or conjecture about indeterminate prejudice it requires a sound foundation in direct evidence or irresistible inferences

454. It not trivialising the serious wrong done to each applicant to say that the specific forensic disadvantages advanced by them do not warrant a permanent stay. I accept that I do not necessarily need to be informed or persuaded of the specific respects in which their defences will or may be compromised in order to conclude there has been forensic disadvantage: Strickland at [79]. This is not a case where the legal professional privilege material has been broadly distributed. Nor has it been used to build a case. I do not start this analysis with a presumption there has been wide spread illegality by NSW Police.

455. The prosecution case commenced from the moment the complainant came to Wollongong police station. A case for jury trial was ready as at 17 December 2020. Additional material obtained since 17 December 2019 clarifies some matters and if it is led at trial could cause no unfair prejudice: Ex E. And if that risk can be shown it could be excluded from evidence: ss135, 136 138 Evidence Act. No legal professional privilege material seized, even if all was examined, could build that case any higher than what has been done by legitimate means, even if it could be used; and it cannot.

456. As the accusations of use of the applicants’ legal professional privilege material were not denied by Joerdens and Sutton; and Adams, who did deny it is by his own admission a perjurer, there remains a possibility that police having accessed applicants’ legal professional privilege or other than police who may have accessed the material still held by police, might be forewarned and thus forewarn witness about a matter revealed by such access. It may mean a witness might not be caught by surprise by a certain question or portion of evidence. ‘Forewarned is forearmed;’ so they may be better prepared and able to make a better and more considered response. Such tactical advantages and corresponding disadvantages are relevant considerations but here they remain so remote and speculative that while I must and will consider them they cannot be regarded as decisive.

Right to privacy

457. It is asserted by the applicants that the actions of the police in seizing and accessing all the personal communications of each accused and Ms Taylor, breached their right to privacy. Adams rejected suggestions that the search warrants were contrived in order to obtain legal professional privilege material or to intimidate each accused and Ms Taylor, giving police access to private correspondence. I note no basis for any police knowing that or why Ms Taylor was a potential witness was ever advanced.

458. It is not suggested that the prosecution here will seek to lead evidence to which s138 Evidence Act could or would apply. I cannot create a new common law right and while general privacy issues can be considered by me I have had no regard to any asserted “right of privacy” in making my determination about the stay. The applicants can preserve their position for a court that has that jurisdiction.

459. Execution of a search warrant will breach a person’s privacy. But a search warrant is a legal instrument and allows access to private communications. Police who execute warrants are still obliged to respect the privacy of others. There is nothing here to support a claim that the execution of the warrant involved a trespass. Putting to one side the legal professional privilege material which cannot be subject to a search warrant, other information obtained from electronic devices may have serious consequences for the applicants but that does not mean that the applicants have suffered damage by reason of the information being taken or that its use, in the investigation of an offence, constitutes damage recognised by the law: Smethurst at [72].

460. While the NSW Police Force is not required to comply with information protection principles their Code of Conduct and Ethics does require an employee of the NSW police force to “8. only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy:” My review of the video of the De Belin search warrant shows it was not conducted in an oppressive manner nor was any more privacy breached than was intrinsic to the execution of the warrant.

461. After a heated exchange with Mr Campbell about whether an SMS with a contact with a lawyer or barrister as a name should or should not be inspected by police Adams did make a comment indicating he had viewed private communications between De Belin and another person that had no relevance to this matter: TTp16- 23/6/20 closed. It was a breach of Rule 8 of the Code of Conduct and Ethics but not the stuff that stays are based on.

462. To use private correspondence to undermine an accused will not be allowed at trial unless directly relevant to a character issue and disclosed as such. I have no evidence before me, other than conjecture, that any breach of Article 17 ICCPR, the Privacy and Personal Information Protection Act 1998 or the NSW Code of Conduct and Ethics will occur at trial.

Institutional integrity of the court

463. These applications are not restricted to whether "actual prejudice” or “practical unfairness" is demonstrated. These are but some aspects of a trial, which if it is allowed to proceed could lead to it being unfair. That said, if there is little or no evidence a trial has been impacted that is a relevant consideration when I come to weigh the competing public interests and make my discretionary decision. It is a rare case amongst rare cases that would require a trial be stayed just because of illegalities founded on a breach of legal professional privilege that had no impact on the trial. The only case I am aware of is Grant and I accept the obiter advice of the Privy Council that that case was wrongly decided: Warren.

464. Here the applicants say; such is the actual and indeterminate prejudice done to them that the criminal trial process and the requirements inherent to our system of justice have been altered in a fundamental respect. They rely on the cumulative illegalities flowing from the execution of the search warrants and access to what was on the devices of Sinclair, De Belin, and his partner. Many matters that could go to the institutional integrity of the court were raised in these proceedings. They are all important but at best they are assertions based on a worst case scenario that has, to be frank, not occurred. This is not a Lee or a Strickland or a Warren type case.

465. Police had access to the accused’s private thoughts and correspondence other than that subject to legal professional privilege. That fact is the unfortunate product of executing a search warrant on an electronic device. If matters relevant to the trial exist on that device it must be trolled though to find relevant material and trust is placed in police by those who make our laws that privacy will be otherwise respected. I have no power to change the law or make new law in this area.

466. Other than an assertion by Mr Foster about Ms Taylor and justifiable fears by Sinclair and his mother about the extent of access to his legal professional privilege no possible intimidation of witnesses because of their communications with the accused or his legal advisors has been revealed in evidence. If Ms Taylor is an important witness she can still be called and if necessary give evidence by video link. Nothing can be done to alleviate either accused’s concerns other than to afford them as fair a trial as possible.

467. What dissemination there was of Sutton’s important legal professional privilege material attached to an email on Sinclair’s phone Adams’ and possibly Sutton’s reading of the “Craig lawyer” SMS messages could not in any meaningful way impact on how they might run their trial. Nothing exculpatory was revealed. Nothing revealed could be used in evidence. Nothing revealed could impact on the legitimate forensic choices of an accused in the way they conduct their trial.

468. Nothing in the complainant’s additional statements allow for an inference to be drawn that Adams took what he knew of De Belin’s legal professional privilege material and forewarned her about it. The complainant may know what to expect at trial but that comes from the legitimate pre-trial disclosure and the Listening Device evidence.

469. So far as the privileged material on Sinclair’s phone is concerned, compared to previous cases, including Strickland, in which the effects of unlawful examination and dissemination of examination product have been considered, this cases involves only the possibility of an undocumented dissemination from Sutton to Adams and then its use by him in an indiscernible way to possibly influence witnesses who had prepared statements setting out the bulk of their proposed evidence well before the breach of legal professional privilege. If there was examination of the product it has not been demonstrated to be wide-ranging or have that possibility.

470. There are records of some dissemination of the product – as Sutton served it on the parties as art of the ‘third service’. I could draw no inference let alone an irresistible inference that his legal professional privileged material would have been discussed by investigators with the prosecution solicitors and counsel.

471. I appreciate that police who are responsible for giving evidence about the subject of their investigation come into contact with material they should not have. There is risk of what is known as ‘contextual or cognitive bias:’ that is, no matter how much a person strives to be unbiased, background or contextual information received during the investigation but not before the court and the simple pressure of wanting a result that vindicates the effort that has been put in to the investigation can have a subtle influence on the expert which was not required for the formulation of the opinion given. Such ‘context bias’ is not easily detected, nor can be fully tested by cross-examination.

472. It is of course difficult to prove a negative but there is no evidence here any legal professional privilege material has been used to build the prosecution case or inform prosecution witnesses' responses to questions that might be asked in cross-examination at trial. There could be no possible use of the material to directly or indirectly, aid the prosecutor's preparation for the cross-examination of an accused, in the event that he gave evidence.

473. I accept that each accused aware that their legal professional privilege material is in the hands of police may feel prejudiced. Those feelings will be heighted by their listening to the heated and impassioned advocacy of their counsel. But cool heads will be required to conduct this trial. And cool reasoning will prevail. Nothing in the material tendered or able to be determined by inferential reasoning causes me to conclude they on advice of counsel cannot determine the course to take at trial according only to the strength of the prosecution case.

Derivative use

474. There is no evidence of any dissemination of the legal professional privilege material obtained to the ODPP or witnesses. There is no evidence of any derivative use was made of the legal professional privilege material. In so finding I make the distinction between a real risk and a remote possibility.

475. No evidence of any derivative use that could impact on the trial has been demonstrated. The possible dissemination of the legal professional privilege information here is limited. The applicant’s onus in this regard has not been met.

476. There is no objective evidence the prosecution has had any access to or acted upon legal professional privilege material other than that disclosed by the law clerk to Mr Barnes. The clerk’s access was limited and stopped when she realised what had been served. It could have no impact on the trial. Her attending an ODPP conference with Adams to take notes could have no impact on the trial.

477. Adams did act on the legal professional privilege material in the “Craig Lawyer” SMS messages. It got him and other police nowhere. Police still have potential access to the legal professional privilege material but no order has been sought for its return. No request has been made but as a matter of practical reality these proceedings have restrained such access. I can presume no access has been had to that material or that if access has been ad it could not impact on the prosecution of the trial.

478. There is no evidence of any actual prejudice to either applicant in how the prosecution case will be presented at trial. There is no evidence the prosecution case at trial will be any different than that expected by the defence on 17 December 2019. There is one “surprise” the contemporaneous note made by the complainant but there is no discernible way that matter could have relevance to any of the privileged material accessed.

Is there nothing a trial judge can do?

479. I have no power to make an order against the Commissioner as was done in Abbas v NSW Commissioner of Police [2019] NSWSC 1841 but that does not mean a request cannot be made for him to return all legal professional privilege material.

480. I have no power to declare a search warrant invalid or engage in a collateral determination of the validity of the application.

481. There is no need to make s 138 Evidence Act order but if an application is made I will deal with it in the manner required by law.

482. I have not yet been asked to exclude a witness from giving evidence at that trial. That might prove impossible as Adams, Joerdens and Sutton all played an investigative role but, and it is an important but, their evidence can be limited to what was done by them in a practical way. While there may remain some possibility of unconscious or inchoate use of legal professional privilege material by Adams, Joerdens and Sutton prosecution propriety and defence and judicial vigilance can guard against it if necessary by restricting each “contaminated” officer’s evidence to formal and procedural matters. As no admissions were made to any officer and no proof of an element of an offence depends on these officers’ evidence that should not be insurmountable task let alone difficult; even for a provincial list judge.

483. I cannot and will not determine how the defence are to proceed but so far as the prosecution are concerned the police evidence can be restricted to practical matters. I can say that if I, as expected am the trial judge I may not be as indulgent in allowing collateral matters to be ventilated and as I am now more aware of the issues than when we first embarked on these applications. I will strictly enforce rules relating to relevant evidence and cross-examination: ss 41, 55, 56, 102 Evidence Act. If any hint of abuse of legal professional privilege arises, even peripherally, it could not be said here that a trial judge can do nothing to relieve against its unfair consequences: X7 (NSWCCA) at [88].

484. There is no need (yet) to restrict any evidence sought to be led at trial. There is no evidence (yet) as what Sutton, Adams and Joerdens will say at trial or if they will be called and what, if anything, will be controversial or said to be contaminated or more particularly could be contaminated such as to justify raising it as an issue at trial. All are forensic decisions for trial counsel and ruling by the trial judge, if necessary.

Determination

485. Returning to my original questions:

1. Has there has been unlawful conduct or other defect in proceedings?

2. How, if at all, does or might the unlawful conduct or other defect affect the proceedings?

3. If so whether are they, individually and in combination, fundamental or profound?

4. Can court processes can ameliorate the impact of any illegality and or defect in proceedings?

5. Would permitting the proceedings to continue erode public confidence in the court's administration of justice?

6. Are any defect or defects, in combination, are so fundamental that in order to protect the integrity of the trial process it is necessary the trial be stayed?

There was a serious breach of De Belin’s privilege. There was a significant breach of Sinclair’s privilege. While there was unlawful police conduct there has been no demonstrated defect in trial proceedings. Neither individually nor in combination were the breaches of privilege, serious though they were, fundamental or profound. The unlawful access to privileged and protected communications could not significantly affect this trial let alone compromise the integrity of trial or the justice system. If necessary court processes can ameliorate the impact of any illegality should there be any hint it may intrude into the trial proceedings. As yet there is no indication that court ordered protective measures will be required.

486. Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The conviction of the guilty is a public interest, as is the acquittal of the innocent. In a just society both are needed: Gageler and Keane JJ in X7 (High Court) at [324], citing Lord Scarman in R v Sang.

“There is a substantial public interest in prosecuting persons reasonably suspected of having committed a crime, and against whom there is a prima facie case with reasonable prospects of conviction. The more serious the offence, the stronger will be the public interest and therefore the more fundamental, and irreparable, the systemic incoherence must be in order to justify a permanent stay of proceedings:” Strickland at [262] citations omitted.

487. A permanent stay should only be made as last resort when there is no other way to preserve and protect the integrity of the criminal justice system and or the accused’s right to a fair trial. A court's processes must not be misused but a permanent stay of criminal proceedings as an abuse of process, even on the ground of irremediable unfairness, has repeatedly been described as a "drastic remedy" to be confined to a case that is "exceptional" or "extreme": Strickland per Gaegler J at [166].

488. Here:

1. A permanent stay is not necessary to preserve and protect the integrity of the criminal justice system.

2. A permanent stay is not necessary to preserve and protect the accused’s right to a fair trial.

3. A permanent stay is not necessary in the public interest: Weighed in the present case, the public interest in the continuation of the trial and the disposition of serious criminal charges against each accused should prevail against any countervailing considerations.

489. The circumstances capable of giving rise to an abuse of process are not confined to closed categories. A discretionary decision is required and that decision must be determined by balancing considerations which bear in competing ways on the public interest.

490. Unlawful conduct on the part of police in investigating criminal conduct, can result in irremediable forensic unfairness and prejudice to a criminal defendant. Access to legal professional privilege material can result in irremediable forensic unfairness and prejudice to a criminal defendant. Police access to such protected communications cannot be countenanced. Police illegality cannot be countenanced but police illegality of the type shown here cannot be allowed end the trial process. Police illegality and impropriety individually or in combination can undermine public confidence in the administration of justice but if the ordering of a permanent stay of criminal proceedings were ever to become other than exceptional, "it would not be long before courts would forfeit public confidence:" Jago at 50.

491. These are unusual cases but they are not extreme. The applications do not justify the exceptional remedy of a permanent stay. The public interest in resolution of this trial by jury verdict far outweighs any countervailing factors, even if they may not be able to be ameliorated at trial, and I am confident they will. I say that after acknowledging police access to their legal professional privilege will have left each applicant with a lingering sense that unfairness has been done them.

492. Even were I to find that the competing public interests were finely balanced, and I do not so find, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime is so fundamental to our system of justice that a stay would have been refused.

493. A permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant: Strickland, per Gaegler Jat [167]. No such immunity is required here. A complaint has been made about serious allegations of sexual nature which, if they occurred, involved crimes regarded by all as abhorrent and carrying for one count the heaviest of possible penalties. That complaint raises legitimate issues that must be resolved by trial by jury.

494. A stay here would leave each applicant under an "irremovable cloud of suspicion". They, by their applications, have indicated that is a fate they can live with. But a stay here, given the nature of the allegations and the police actions that were the genesis for the applications, occurred well after the trial had been deemed by all, as ready to proceed. No possible access to any legal professional privilege material had an influence on the charges that were laid or the preparation for trial before 17 December 2019. No influence on any post December 2019 preparations for trial has been demonstrated. The possibility of some indeterminate prejudice during the trial itself, because some police witnesses may be better informed about the defence case, has been established but no police witness will give evidence about any relevant matter that has not already been set out in a statement made before 17 December 2019.

495. If these trials were permanently stayed in such circumstances the stay would have not just the potential for but a likelihood of, engendering within the community "a festering sense of injustice, if not cynicism:” Jago at 50. There is a public interest in the disposition of charges against each applicant - that public interest should prevail.

Orders

1. Refuse orders sought in the Notices of Motion.

2. Listed for trial - 2 November 2020 at Wollongong District Court;

3. Readiness hearing and DC Practice Note 1 compliance - 7 September 2020;

4. Pre-trial mention - 27 October 2020.

Postscript

496. As at December 2019 Cellebrite UFED 4PC and Cellebrite UFED Physical analyser enabled an operator to identify forensically acquire and present data stored on mobile device and associated media. Samples of the extraction need to be verified as accurate by comparing selected values with corresponding data on the device. Where a device is seized all its contents can be extracted and subject to an extraction report.

497. All the contents are in possession of police and could be accessed. If it is suspected relevant material is contained on the phone a search of the contents will be required. As Adams tried ineffectually to explain to Mr Campbell on 26 June 2020 at p16; it is possible that criminal correspondence may be headed to look like correspondence with a lawyer when it is not. Not all correspondence with a lawyer is capable of justifying a claim for legal professional privilege.

498. In the modern world it is understood by all that most communications are electronic. Once a person is charged and is known by police to have a lawyer it requires no imagination to conclude that legal professional privilege communications might be on an accused’s device. And, that access to the device might breach that privilege.

499. Adams was not aware of any existing Police Commissioner or Law Society protocols to deal with such a situation. None were provided to me, although the Commissioner was not a party. I am not aware or any Court registry policy that requires an enquiry be of an applicant for a warrant made in such circumstances.

500. I find it hard to conceive the problem has not arisen before with search warrants as it has with Listening Device warrants: Carmody v Mackellar [1996] FCA 791. As a practical matter privilege in relation to items seized pursuant to a search warrant is resolved by a court determining claims of privilege in respect of items seized prior to their inspection by the law enforcement officers executing the warrant. In that way privilege and confidentiality are both maintained.

501. If applications are made to a Supreme Court by those claiming legal professional privilege confidentiality would be protected. If legal professional privilege was sought to be tendered confidentiality would be protected by rejecting the tender. Once a claim is made police have obligations under the ODPP Act not to reveal that information to the prosecution.

502. Protocols have been put in pace to deal with search warrants on offices of legal professionals: Criminal Practice and Procedure [21s 48.40] p. 625,570.

503. As these applications demonstrate a blasé attitude to the rights of accused persons can lead to costly and potentially devastating consequences.

504. No forensic point was taken by the respondent but here no action was taken to protect either applicant’s claim for privilege. The warrants were executed during the traditional holiday season. But it should be more widely known that the Law Society and the Commissioner of Police have in place protocols to deal with resolution of privilege claims.

Note:

Addendum A - Summary of the Applicant De Belin’s Legal professional privileged material – redacted

Addendum B - Summary of the Applicant Sinclair’s legal professional privileged material – redacted

**********

Endnotes

Amendments

28 August 2020 - Edited catchwords

12 October 2020 - Defence application for further redactions as at 09/10/2020

07 July 2021 - Redacted judgment published

09 July 2021 - Typographical error in title and amendment to the publication restriction.

Decision last updated: 09 July 2021