Doyle v Commissioner of Police (No 2)

[2020] NSWCA 34

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Doyle v Commissioner of Police (No 2) [2020] NSWCA 34

Hearing dates:

25 February 2020

Decision date:

05 March 2020

Before:

Leeming JA

Decision:

1. In spite of any other order made in the proceedings (whether in the Common Law Division or the Court of Appeal), counsel and the solicitors acting for the Commissioner of Police in these proceedings, who have given an undertaking to the Court in accordance with Order 2 below, may inspect the contents of the item known in these proceedings as item 24 (being a silver Apple MacBook owned by Mr Barbeliuk) and the image of the hard drive of item 24.

 

2. The respondents to provide within 7 days of today an agreed form of undertaking, or, in lieu of agreement, the undertaking they propose, to be proffered in relation to the right of access given by Order 1 above.

 

3. The parties to provide minutes of any further orders as agreed, or in lieu of agreement, the orders they seek, in relation to access to item 24 and the image of its hard drive, by officers of the Digital Forensics Unit of the NSW Police Force, within 7 days of today.

 

4. Stay the operation of Order 1 above until 2 pm on 12 March 2020.

 

5. List the proceedings for directions before me at 9:30 am on 2 April 2020.

 6. Liberty to apply on two business days’ notice.

Catchwords:

JUDGMENTS AND ORDERS – question of discretionary relief remitted by Court of Appeal to single Judge of Appeal – whether open to appellants to contend that respondents should not be permitted to vary interlocutory regime so as to grant access for purpose of being heard as to discretionary relief – effect of orders and reasons of Court of Appeal

  POLICE – search warrant – computer seized by police pursuant to warrant – interlocutory injunctive relief granted preventing police from accessing computer – warrant later held to be invalid – owner sought return of computer and delivery up or destruction of image of its hard drive – whether representatives of police should be permitted to access computer for purpose of adducing evidence going on discretion

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW), ss 81, 91FB
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 217, 218, 219
Supreme Court Act 1970 (NSW), ss 31, 41, 46, 101

Cases Cited:

Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81
Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177
Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132
Carroll v Mijovich (1991) 25 NSWLR 441
Doyle v Commissioner of Police [2020] NSWCA 11
Doyle v Commissioner of Police (No 3) [2019] NSWSC 1787
Doyle v R; R v Doyle [2014] NSWCCA 4
Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
George v Rocket (1990) 170 CLR 104; [1990] HCA 26
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 93 ALJR 1164
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394; [2011] NSWCA 200

Category:

Consequential orders (other than Costs)

Parties:

Philip William Doyle (First appellant)
Mark Barbeliuk (Second appellant)
Commissioner of Police (First respondent)
Detective Senior Constable Tiffany O’Neill (Second respondent)
Deputy Registrar Cally D’Arcy (Third respondent)

Representation:

Counsel:
J Agius SC (Appellants)
P Singleton (First and second respondents)

  Solicitors:
Uther Webster & Evans Pty Ltd (Appellants)
Makinson d’Apice Lawyers (First and second respondents)
Crown Solicitor’s Office (Third respondent, submitting)

File Number(s):

2020/7681

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1787

Date of Decision:

13 December 2019

Before:

Lonergan J

File Number(s):

2018/266913

Judgment

1. LEEMING JA: The small but important issue arising in this litigation is whether the police may obtain access to information stored on a personal computer, seized pursuant to a search warrant found later to have been invalid. Two things happened shortly after the seizure: the police made an image of the computer’s hard drive, and the first appellant obtained interlocutory relief preventing the police from accessing anything seized, including the computer.

2. Some account of the background is necessary in order to explain with precision the issue to be determined by me.

The appellants

3. The first appellant, Mr Philip William Doyle, was convicted of some 38 counts of sexual assault and other sexual offences against five male children. He continues to serve the sentence imposed upon him. The judgment of the Court of Criminal Appeal, dismissing Mr Doyle’s appeals against conviction and sentence and allowing a Crown appeal against sentence, states that “broadly speaking the Crown alleged that each of the complainants were young persons who were befriended by the appellant whilst he was the proprietor of a cinema known as the Kogarah Mecca”: Doyle v R; R v Doyle [2014] NSWCCA 4 at [15]. Most recently, but following the issuing and execution of the warrant which has given rise to this civil litigation, Mr Doyle has been charged with a further 11 counts of assaults and acts of indecency upon another three boys, which are said to have occurred in 1981/1982, 1996/1997 and 2007/2008/2009. Two of the three complainants had been employed, as young teenagers, at the Kogarah Mecca. That trial was listed to commence on Monday 2 March 2020.

4. The second appellant, Mr Mark Barbeliuk, has lived in Mr Doyle’s former home in Sans Souci in southern Sydney since his term of imprisonment commenced in November 2012. He owns the computer. He was joined as the second plaintiff to proceedings in the Common Law Division when a further amended summons was filed in April 2019.

The issue and execution of the warrant in 2018

5. The precise circumstances surrounding the issuing and execution of the warrant on 27 August 2018 are described in more detail in the decision of the Court of Appeal of 14 February 2020: Doyle v Commissioner of Police [2020] NSWCA 11. For present purposes, a highly abbreviated summary is sufficient. Following receipt of a complaint by a man who has been known as AA and who is the complainant in respect of 8 of the 11 counts on the indictment, a warrant issued authorising police to search the Sans Souci premises for, inter alia, “[a]ny device or any electronically removable device that can store electronic photograph and videos data, including hard drives, memory sticks, USB, S-D cards”. Police were authorised to seize, detain and remove anything mentioned in the warrant and “any other thing found by a police officer in the course of executing this warrant that the police officer believes on reasonable grounds is connected with any offence”.

6. The execution of the warrant appears to have been recorded on video and a transcript of what was said was in evidence. Police seized some 26 items, identified on a receipt for which Mr Barbeliuk signed, including relevantly for present purposes:

1. items 2 and 3, described as a black and a white PC tower found on the upstairs dining table,

2. item 22, being five USB sticks found in the third drawer of a wardrobe in the master bedroom, and

3. item 24, a silver Apple MacBook, also found in the master bedroom. This is now established to be Mr Barbeliuk’s computer. The transcript of the execution of the warrant appears to record Mr Barbeliuk claiming it was his, but being unable to access it and that he had contacted Apple about “password issues”.

Proceedings in the Common Law Division and the Court of Appeal

7. On the afternoon of Thursday 30 August 2018, interim orders were made on Mr Doyle’s ex parte application preventing police from accessing or viewing any of the material seized pursuant to the warrant. Those orders were continued, by consent, on Monday 3 September 2018, and remained in place for many months thereafter. A judgment from the Common Law Division was given in December 2019, rejecting the entirety of the appellants’ claims: Doyle v Commissioner of Police (No 3) [2019] NSWSC 1787. On 20 December 2019, final orders were made discharging that injunction and the undertakings that had been given (orders 1, 2 and 3). However, by order 4 made on the same day, the primary judge stayed, pending appeal, the operation of orders 1, 2 and 3 in relation to Mr Barbeliuk’s computer, and also items 1, 10 and 25. Items 1, 10 and 25 were, respectively, a folder of job applications to Mr Doyle by people wishing to work at the Kogarah Mecca, certain diaries, and a box of miscellaneous items.

8. An urgent appeal was heard by the Court of Appeal constituted by Payne JA, Simpson AJA and me on 5 February 2020. The urgency was brought about by the imminence of Mr Doyle’s second trial. From the perspective of the police, it might be necessary to supplement the material disclosed by the Crown which was no longer subject to injunctive relief, with material which might be inculpatory or exculpatory of the offences with which Mr Doyle has been charged. It might also be that the Crown would wish to tender that material or otherwise use it in connection with the trial. If the Crown’s tender was opposed, then from the perspective of Mr Doyle, the validity of the warrant would be relevant to, although not determinative of, the admissibility of the material seized: see for example Gedeon v R [2013] NSWCCA 257 at [179]-[181].

9. On 14 February 2020, the appeal was allowed and it was declared that the search warrant was invalid: Doyle v Commissioner of Police [2020] NSWCA 11. That judgment was not (and still has not been) published on CaseLaw, in light of its connection with Mr Doyle’s trial. Contrary to an application made in the evening at the conclusion of the hearing before me on 25 February 2020, no order has been made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). The Court advised when judgment was delivered that it would be made available on CaseLaw when the trial was resolved, whether through conviction, acquittal or its being vacated. The same will apply to this judgment, and, as I understand it, the same approach was taken by the primary judge in relation to her judgment of 13 December 2019. The administrative course of deferring publication on CaseLaw avoids the risk of a juror accessing the decision online (presumably contrary to a direction of the trial judge). Sometimes orders under the statute are appropriate when persons accused of serious crimes bring interlocutory appeals (cf order 3 made in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309) but as presently advised no such steps are appropriate in this litigation, and no such order was sought.

10. The Court of Appeal did not make orders restoring the seized material to Mr Doyle and Mr Barbeliuk. In light of the submissions most recently made, it is appropriate to reproduce [81]-[84] of the Court’s reasons for judgment dealing with orders:

“Orders

81 The appeal should be allowed, the order dismissing the proceedings made at first instance set aside, and a declaration should issue that the warrant was invalid, on the basis that the issuing officer did not comply with s 65 of LEPRA.

82   The applicants sought further relief. In their written submissions, the applicants appeared to concede that the relief sought by them was discretionary. However, on several occasions during oral submissions, Mr Agius contended that the applicants were entitled to return of the items seized, and destruction of all copies, as of right. He relied on no authority.

83   The submission is unsound. In point of principle, insofar as the claim is based on ownership or equitable entitlement, orders for mandatory injunctions, and delivery up and destruction, are equitable and discretionary. Insofar as the orders are based on judicial review of executive action, once again it is clear that relief is discretionary. All authority to which this Court was referred points in favour of there being a discretion. Some of the decisions are contained in Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177, especially at [158]-[159]. In that appeal as in the present it appears that the appellant laboured under the misapprehension that once the warrant was found to be invalid, the items seized must necessarily be returned.

84   In a modified form, Mr Agius maintained by way of fallback that where no evidence had been adduced of the utility of any of the documents seized, the discretion should inevitably be exercised in favour of granting substantive relief. That cannot be right, in circumstances where the applicants had obtained interlocutory relief preventing the police from inspecting or using the things seized. Mr Agius’ response was that the applicants had the ability, in the two or three days after the documents were seized and before ex parte relief was obtained, to review them and put on such evidence as they had wished. We reject that aspect of the submission, and not merely because two or three days in late August 2018 before proceedings were commenced was not sufficient to permit the respondents to adduce evidence of the utility of the material. The main point is that the primary judge, on the view her Honour took on the validity of the warrant, did not reach the question of discretion, except in relation to item 25. The result of this appeal is that the discretion must be re-exercised. This appeal being by way of rehearing, that re-exercise is to take place in light of the circumstances which obtain now, in 2020. There are material differences, not least in the fact that charges have been laid, a brief served on the defence, and a trial set down for hearing in a few weeks time. That may cut both ways – it may be that what was highly probative in August 2018 may, in light of the material now available to the Crown, be of little significance in February 2020. Things seized which are not required to be retained as evidence are obliged to be returned pursuant to s 218 of LEPRA. But it is no answer to the respondents’ wish to be heard on the exercise of discretion to point to the opportunity the respondents had in 2018 to adduce evidence before the applicants obtained interlocutory relief.”

11. The judgment proceeded to explain why it was not, at that stage, possible for the Court of Appeal to re-exercise the discretion concerning relief, and concluded at [93]:

“93   All those matters compel the conclusion that there needs to be a further hearing to resolve whether orders should issue for the return of any items which the police say they are entitled to retain. The orders below make provision for that, and on an urgent basis. We have in mind any dispute as to the exercise of discretion being heard within the next fortnight. The intention of the orders is not to alter the interlocutory regime which was put in place by the primary judge pending appeal. However, it will be clear from the above that we have rejected the applicants’ submission that the discretion should be exercised without the respondents having any access to the documents which remain subject to that regime. It may be necessary for the orders to be made (as were foreshadowed by Mr Singleton last week) varying that regime, with the applicants’ position protected by appropriate undertakings. If any dispute arises, that will be resolved by a single Judge of Appeal.” (emphasis added)

12. Since the members of the Court of Appeal were familiar with the factual background and the nature of the residual issues, it seemed appropriate for any remaining contest to be resolved by a Judge of Appeal rather than (as would ordinarily be the case) the matter being remitted to the Common Law Division. It seemed that the latter course would, almost certainly, present practical difficulties in resolving any disputes in the fortnight before the commencement of the trial.

13. The operative orders made on 14 February 2020 were orders 5 and 6:

“5. Reserve for the consideration of a Judge of Appeal questions of (a) the variation of the extant interlocutory regime applicable to items 1, 10, 24 and 25, (b) the exercise of discretion in relation to items seized by the police pursuant to the warrant, and copies of those items, and (c) costs at first instance and in this Court.

6. Stand the proceedings over to directions before a Judge of Appeal on Tuesday 18 February 2020 at 9:30 am.”

14. There is perhaps a nice question whether the single Judge of Appeal is exercising the power of the Court of Appeal pursuant to s 46(2) of the Supreme Court Act 1970 (NSW), or exercising the powers of a Judge exercising the jurisdiction of the Court in a Division pursuant to ss 31(3) and 41(2), to which I shall return.

The crystallisation of the present issue

15. The proceedings came before me on Tuesday 18 February 2020 for directions. One of the purposes of that directions hearing was to resolve any dispute as to the terms of the variation of the extant interlocutory regime. At that stage, constructively, the parties had agreed on a regime whereby, with the protection of undertakings, certain persons on behalf of the Commissioner could obtain access to items 1, 10 and 25. No such agreement was reached in relation to item 24. The dispute concerning item 24 was not the terms on which access should be permitted to representatives of the Commission. Rather, Mr Agius SC submitted that the Court of Appeal had not addressed a submission made by him that item 24, the computer owned by Mr Barbeliuk, fell into a different category from the other items seized which had been the subject of interlocutory relief.

16. It is as well to reproduce how this submission was formulated on 18 February 2020 at the directions hearing:

“AGIUS: Your Honour, our submission shortly put, although it relates to a significant matter, is that prior to the police having access, or to the decision about whether the police should have access, to item 24 there’s an antecedent issue and that antecedent issue has not been determined either in Caratti or in any of the cases which are referred to, either at first instance or on appeal, in Caratti, and that issue is this.

There is no evidence linking what we now know to be the Barbeliuk laptop to Mr Doyle. There is no evidence linking it to criminal activity of any kind and on the evidence it was not even in existence at the time that Mr Doyle went into custody; it certainly wasn’t available to Mr Barbeliuk. There’s no evidence that Mr Barbeliuk was involved with Mr Doyle in any criminal offending and all we know is, as the Full Court judgment in this matter reveals, as at 2020 we know that it’s Mr Barbeliuk’s laptop and we know that Mr Doyle couldn’t have recorded any material on it.

So our submission is that we be permitted to put on written submissions dealing with what we call the antecedent issue as to whether or not the police should have access to that laptop. And we’d like to be heard on that either restricted to written submissions or to address those written submissions.

HIS HONOUR: Tell me how you say that hasn’t been determined by what binds me, the decision last week of this Court. Because to be brutally candid, to get to the point of this, precisely the submission you’ve just made was made by you before the Court of Appeal less than a fortnight ago.

AGIUS: It doesn’t seem to have been dealt with, your Honour.

HIS HONOUR: So tell me how you say that comes about. Is it the meaning of “documents” in para 84? I’ve no doubt you’ve thought about how the submission you now want to put is not addressed by this Court’s decision.

AGIUS: With great respect, your Honour, I cannot see anywhere in para 84 where the Court has dealt with our submission that the Barbeliuk laptop is not connected and that there is no evidence that it is in any way connected with any offending and that before the exercise of the discretion can take place there must be evidence to that effect.

HIS HONOUR: Yes. So you read para 84 as confined to, as it says, “documents seized” as opposed to the computer?

AGIUS: Yes, because the issue is not whether or not the police should have accessed its content in the two or three days that they had before the injunction. The issue is whether or not they can access the content now in circumstances where, and we’ve succeeded on having the warrant set aside, there are findings of fact, as I’ve already outlined, in relation to the history of that laptop. Now, what we argued before the Full Court, and which I do not see referred to in this judgment, is that in relation to each of the cases referred to in Caratti there was always a connection between the documents and some other contemplated legal proceedings.

Here there is no connection between the laptop and Mr Doyle’s trial, which are the contemplated legal proceedings. There is speculation by my friend that Mr Barbeliuk may have copied documents of Mr Doyle and put them on his computer but there is absolutely no evidence of that. Now, we did argue this; I’m not denying we put submissions along those lines, your Honour. I’m not trying to be technical or difficult but we do not see anywhere, particularly our submissions in relation to Caratti and the fact that there is a link, even in the Caratti matters there was a link, in the Hill judgment there was a link. We want to put submissions on the need for there to be a link before the police gain access to that computer. And if the Court is against us ultimately in relation to that we’ll need to take instructions as to whether we will seek a stay on any orders granting the respondent access to that computer until the matter can be tested. We see it as a significant legal issue; it will refine and define Caratti.

HIS HONOUR: I understand the point.”

17. Two matters may be noted. First, there could be no doubt that the submission had been advanced earlier in February during the appeal. Indeed, its starkness was squarely confronted by Mr Agius towards the outset of that hearing:

“PAYNE JA: ... So, let’s take the computer. For, example, let’s assume – I don’t suggest for a moment it is the case – but that the computer contains the most gross child abuse images imaginable, evidencing very serious criminality, just assume that

AGIUS: But this is Mr Barbeliuk’s computer.

PAYNE JA: Assume that, assume all of that. You say there is no discretion and that the computer must, nevertheless, be returned, even on that assumption?

AGIUS: Yes.

PAYNE JA: All right.”

18. Secondly, Mr Singleton was content to litigate the issue raised by Mr Agius. He said:

“SINGLETON: Yes. The point is, and I’ll make the submission now if I may now very shortly, now that a vast bulk of material has been inspected and child abuse material has been found upon it the Court would lean in favour of allowing the last item to be inspected to see whether it also contains child abuse material.”

19. I shall return below to the evidence establishing the presence of child abuse material on other items seized from the premises.

20. Accordingly, I fixed for urgent final hearing (a) submissions on the entitlement of the police to obtain access to item 24, (b) submissions in relation to whether any other items seized by the police – to all of which they now enjoyed access unrestricted by any interlocutory orders – should be returned or could be retained, and (c) costs.

21. The parties cooperated in what was unavoidably a demanding timetable for the exchange of evidence and submissions leading to a further hearing commencing at 4.15 pm on Tuesday 25 February 2020.

22. Following receipt of the police evidence of the contents of the items seized (excluding item 24), on 24 February 2020 the appellants abandoned their claim for return of any of those items. Some of the items had been returned, and there is no reason to doubt that others will be returned, in accordance with the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).

23. In that fashion it became clear, albeit only shortly before the hearing on 25 February 2020, that the only item which had been seized on 27 August 2018 which remained in dispute was “item 24”, Mr Barbeliuk’s computer. There was no dispute that Mr Barbeliuk was its owner, as the primary judge had found. A receipt from a supplier made out to Mr Barbeliuk at the Sans Souci address dated 15 January 2015 was in evidence, and there was no challenge to Mr Barbeliuk’s evidence that he obtained that receipt, albeit some three years later, following the execution of the warrant. Most importantly, there was no dispute to Mr Barbeliuk’s evidence that Mr Doyle, who has been in custody since 2012, “has never had access to, or used the Apple MacBook”.

24. The practical consequence of the refinement of the issues was that the parties accepted that determination of the remaining issues of possession and access to the computer would not impact upon Mr Doyle’s second trial.

25. The extreme expedition given to the litigation before issues relating to items other than the computer fell away may explain two aspects of informality in relation to the evidence and orders sought. First, although there was no evidence of this, it was common ground at the bar table that shortly after executing the warrant, the police had made an image of the Apple MacBook, and both the computer itself and the image remained in police possession.

26. Secondly, there was no formal process identifying the terms of the orders sought. I raised this at the commencement of the hearing. Mr Agius SC for the appellants sought orders for the return of the computer and delivery up of any images made of it, or alternatively, destruction of any such images. Mr Singleton for the respondent Commissioner was commendably clear:

“[W]e seek the discharge of order 4 made on 20 December last year by Lonergan J. That was a stay of her discharge of the interlocutory restraint. In the alternative, we seek an interlocutory order granting access such as to enable either the legal team or preferably the police to inspect the content for the purpose of making a further submission and putting further evidence before this Court so we can decide the ultimate disposal.”

Further evidence

27. Detective Sergeant Anthony Karras, who was the commander of a “Strike Force” investigating allegations into Mr Doyle, made a further affidavit dealing with the contents of the material seized, what had been returned, and what was sought to be retained. Most of those details are no longer relevant. He gave this evidence in relation to items 2, 3 and 22:

“[21] Items 2, 3 and 22 are electronic items that can store photographic images. Each one of them has been found to contain photographs (including some that may have been doctored) of boys clearly under the age of 18 (including pre-pubescent boys) in various states of undress (including complete nakedness or naked genitalia), some engaged in sexual activity. These items (or images printed from them) can be made available to the Court if necessary. Item 3 also contains written stories of a sexual nature about children, including ones about relationships between adults and children.”

28. The detective sergeant stated that one other laptop computer seized (item 4) contained images of one of the complainants in Mr Doyle’s first trial, while two disks (items 5 and 6) contained, respectively, a video either of AA or of another person who if not AA should be identified for the purposes of the investigation, and photographic images of two boys. It was not said that any of these images amounted to child abuse material.

29. Detective Sergeant Karras’ evidence in relation to item 24 was as follows:

“[30] Item 24 is a laptop. Its content has not been inspected by investigating police, nor by the lawyers acting for the Commissioner. In light of the content of other electronic devices, I believe that it is likely that the laptop will contain child abuse material and that police should inspect it for the purposes of determining whether or not it contains evidence that would advance police investigations or a prosecution.”

30. No objection was taken to any of this evidence. Nor was any application made to cross-examine Detective Sergeant Karras.

31. The definition of “child abuse material” in s 91FB of the Crimes Act 1900 (NSW) extends to depictions of the private parts of children in a way which a reasonable person would regard as offensive. That value judgment requires regard to be had, inter alia, to generally accepted standards of morality, decency and propriety, the literary, artistic or educational merit of the material and its general character. While there will be contestable cases, there was no suggestion from the appellants that the photographic images found on each of items 2, 3 and 22 were anything other than clear cases of child abuse material. On that basis, I did not ask for the images to be made available, and made it clear during the hearing that I would proceed on the basis that this was a clear case.

32. The police also tendered, without objection, some of the statements which had been served in advance of the second trial. The statements of two of the complainants mention Mr Barbeliuk. One complainant, who is now aged in his early 50’s, had been employed by Mr Doyle to work at the Kogarah Mecca in 1980 or 1981 when he was 14 or 15. He gave evidence of the conduct which gives rise to the first count, an offence contrary to (former) s 81 under the Crimes Act 1900 (this provision was repealed in 1984). After that incident, when he decided to cease working at the cinema, he said that he asked Mr Barbeliuk, who was in the same year at school as him, to go and see Mr Doyle at the theatre for a job, and that shortly thereafter Mr Barbeliuk started working at the cinema.

33. Secondly, the complainant AA said that he had met Mr Barbeliuk when he and other members of his family were taken out to Chinese dinners by Mr Doyle in around 2008. His evidence was:

“[31] When Phil would take me out to Chinese for dinner there was the occasion that Phil’s friend Mark BARBELIUK would come out to dinner with us. Mark picked us up and took us to the Chinese restaurant and then he would drop us back to Phil’s. Phil always paid for dinner. I would describe Mark as about mid 30’s, Australian, wore glasses, blond hair medium length. He used to have a television show called Mark my words. It was like a chat show. Phil was in one of the episodes. Phil sent one of the tapes to Mum.”

The parties’ submissions

34. Mr Singleton’s written submissions filed on 21 February framed the Commissioner’s position as follows:

“Unless the Court is satisfied on the evidence already available that the police should be permitted to retain Item 24, the police (alternatively, the lawyers acting for the Commissioner of Police) should be permitted to inspect the contents of the item in order to inform a later decision by the Court on whether or not to order return.”

35. The submissions added the following concerning item 24:

“The available evidence – the combination of evidence about Doyle, the fact that Barbeliuk is Doyle’s attorney and was in (at least partial) occupation of Doyle’s premises, and the fact that child abuse material and other evidence has been found on other items – is sufficient to warrant a decision by this Court, in discretion, not to order the return of Item 24 until it has been inspected by police.”

36. The appellants filed submissions on the morning of 25 February 2020 which posited as the test for engaging the discretion to return seized material as whether the item “may be expected to be used in a prosecution”. It was said that there was no evidence that Mr Barbeliuk was in any way involved in the criminality alleged against Mr Doyle. The evidence of the police was that the warrant was part of an investigation of Mr Doyle’s conduct, not Mr Barbeliuk’s. The submission continued:

“The highest the respondent can put its case is that there was child abuse material found on other storage devices.

There is no evidence that the material on the storage devices is linked to Mr Barbeliuk. There is simply nothing that links the laptop to any criminality at all. The fact that Mr Barbeliuk is an attorney under power of Mr Doyle gives rise to no inference that Mr Barbeliuk has been involved in any criminal activity.

The evidence is a long way short of any suggestion that the laptop contains material that may be expected to be used in a prosecution.

...

To grant the respondents access to item 24 in the absence of any evidence linking Mr Barbeliuk or his laptop to any criminality is to give the respondents free rein to pore through a personal possession of a person where the evidence does not come close to even a reasonable suspicion that the laptop may be used in a criminal prosecution.”

37. The submissions responded to what had been said in relation to item 24 by the Commissioner thus:

“The respondents devote two paragraphs of their written submissions to item 24. In short, the submission is that the available evidence is sufficient to warrant a decision not to order the return of item 24 until it has been inspected by the police. The evidence does not sustain such a submission. The location of ‘child abuse material and other evidence’, not identified, on other storage devices says nothing about any link to Mr Barbeliuk, let alone any reasonable suspicion about his criminality or that inspection of his laptop is likely to assist in any investigation of his involvement in any criminality. It does not get close to reasonable suspicion. The criminality of Mr Doyle and the fact that Mr Barbeliuk is Mr Doyle’s attorney under power is not evidence of Mr Barbeliuk’s criminality. It is not unexpected that a person who is serving a prison sentence and who has any means would appoint an attorney under power. There can be no suspicion arising from that fact. Nor can Mr Doyle’s criminal history or suspicion about any further offending by him legitimately lead to an inference, let alone a reasonable suspicion, that Mr Barbeliuk has engaged in criminal activity.

The fact remains that he was not a suspect when the warrant was executed and there has been no evidence since then which should lead this court to accept that he is a suspect of any criminality now.”

38. I heard oral submissions on 25 February 2020 and reserved my decision, in part because there was diminished urgency in relation to item 24. That permitted Mr Agius, on 2 March 2020, pursuant to leave granted by me, to supplement references to the evidence concerning what Mr Barbeliuk had said to police executing the warrant when they found his computer.

39. The appellants submitted that the police should not be given any access to the laptop, because of the absence of any evidence involving Mr Barbeliuk in any criminality, because the warrant was obtained as part of an investigation of Mr Doyle, and in reliance on the principles stated in George v Rocket (1990) 170 CLR 104; [1990] HCA 26 and Carroll v Mijovich (1991) 25 NSWLR 441. I shall elaborate on those submissions below.

The formulation of the issue and the need for precision

40. There was a deal of loose reference to discretion, and the “Caratti test”, in the appellants’ submissions. On the one hand, it was clear from the directions hearing on 18 February 2020 that Mr Agius was seeking to raise an “antecedent issue” which would deny access to the police, thereby side-stepping the discretionary return of item 24. But many of the submissions made on 25 February 2020 were directed to the fact that the police had, so it was said, failed to satisfy the “Caratti test” that item 24 “may be expected to be used in a prosecution”.

41. Representative of those submissions is the following exchange:

“What the police are trying to do here is to put themselves in a better position than they would have been in had they sought a warrant and in the course of lawfully exercising a warrant seized material, because in this case we know as at 2020 that that laptop could not in any way be related to Mr Doyle's criminality. Once you establish that, you then look at how could it be related to Mr Barbeliuk’s criminality and there is no evidence. If that’s the case, they shouldn’t be able to, and even with the protections, nobody should be able to look at that laptop in circumstances where there’s no evidence that it’s likely that the laptop will contain any criminal material or any illegal material. In effect, they’re getting an opportunity to find out what is in the laptop in circumstances where they could not satisfy the Caratti test.

HIS HONOUR: I think it’s important to distinguish between the material base[s] … an application for a valid search warrant is one thing. Another thing is the Caratti test which is the aftermath: what do you when you’ve got an invalid search warrant but material has been obtained, to what extent does the property rights and equity rights, and public law rights require its return, which is part of what we’re here dealing with today on Mr Singleton’s primary position. The third thing: varying an interlocutory regime to permit the party against whom you’re seeking injunctive orders to have a chance to seek to put on some evidence.

AGIUS: They have had that chance, and there’s no evidence. They’ve had the chance to put on some evidence.

HIS HONOUR: They’ve had the chance to put on any evidence about Mr Barbeliuk’s criminal antecedents, investigation, anything in the whole world except looking at the laptop.

AGIUS: Which is something that they are not lawfully entitled to do.

HIS HONOUR: When you say not lawfully entitled to do, why? Because it’s conflating two ideas, isn’t it: (1) after Thursday when you got your injunction and presumably you told them about it, it would have been a contempt for them to do it, but that’s not what you're pointing out here, is it.”

42. To be fair, the respondents’ stance may have contributed to the conflation of issues. The respondents maintained as their primary submission that the injunction in relation to item 24 should be discharged, on the basis of the evidence already adduced, and in the alternative said that it should be relaxed so as to permit access to item 24 on a restricted basis, namely, for the purpose of making submissions against its return.

43. Nettle, Gordon and Edelman JJ recently reiterated John Chipman Gray’s adage that a “loose vocabulary is a fruitful mother of evils”: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 93 ALJR 1164 at [150]. It is as well to commence with a more precise statement of what has occurred, and the issues remaining to be determined.

44. Both item 24 and an image of its hard drive are in the possession of the police. It is clear that Mr Barbeliuk owns item 24, namely, the physical computer. It is unclear how precisely the image of the hard drive is stored (in fact, the computer may well have a solid state drive, rather than a hard drive, but for clarity I shall continue to refer to a hard drive). It is clear that insofar as it is stored on a physical thing (such as a portable drive or a server), Mr Barbeliuk does not own the physical thing.

45. At present, Mr Barbeliuk has the benefit of interlocutory orders preventing the police accessing item 24 or the image. It seems likely (although the record is unclear) that the injunction was obtained supported by the usual undertaking given by Mr Doyle, in support of a claim of privilege over some of the contents of some of the items seized.

46. Those circumstances give rise to three conceptually distinct discretionary powers.

47. First, there is a discretion reposed in the Court to vary the terms of the interlocutory injunction. Very clearly, there has been a material change of circumstances since it was first obtained, ex parte, on Mr Doyle’s application, over the entirety of the material seized on the execution of the warrant. On the one hand, the original basis for interlocutory relief, namely, to protect privilege claimed by Mr Doyle, has as I understand it entirely gone away. On the other hand, the primary moving party is now Mr Barbeliuk, who has the benefit of a declaration that the warrant was invalid, and the only item remaining in dispute is item 24.

42. Secondly, Mr Barbeliuk seeks relief in the nature of orders for the return of the computer and delivery up or destruction of the image. It is not clear whether the former are said to be available at common law or in equity; the latter are necessarily equitable. Either way, I understand Mr Agius to accept that the relief he seeks is discretionary. I further understand the claim to be based on ownership of the computer, coupled with vindication of his rights under the warrant.

“HIS HONOUR: Mr Agius, [what are the] juristic bases for not only return of item 24 but also delivery up and destruction. How do your clients say they’re entitled to that order? They don’t own the copy.

AGIUS: No, but to permit the police to retain the copy would be to, in effect, give them access to material that they do not otherwise have a right to have any access to. They have made a copy whilst they’ve been unlawfully in possession of the computer, it having been unlawfully seized, and, in effect, it would work against the whole notion of us being entitled to the return of an object that we own and that we have legal title to if the police were entitled to retain a copy of it and to have access to it. It means that the protection of our personal property would, in effect, be lost. So it’s a matter of discretion.”

49. Thirdly, there are decisions holding that where police have seized items or retained copies of items pursuant to invalid warrants, the individual is not entitled to their return as of right. Rather, there is a discretion. The Court of Appeal has rejected the proposition that the owner of an item seized pursuant to an invalid warrant it entitled to its return as of right (see the conclusion of [83] reproduced above). This was repeatedly referred to as the “Caratti test”, referring to Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132, appeal dismissed Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177. It seems clear from the parties’ submissions that there may be a dispute as to the principles governing the exercise of that discretion. I am not in these reasons attempting to express any view as to that discretion, save that it exists, and will fall to be exercised in relation to item 24 and the image of that computer’s hard drive. In due course, it will be necessary to have regard to the statutory context, including relevant provisions of LEPRA, which inter alia imposes obligations on police to make seized property available to its owner (s 217) and to return seized property (s 218) and otherwise authorises applications to be made to courts (for example, s 219).

50. The second and third discretions overlap. But the issue presently before me is not whether or not to make orders requiring the police to return or destroy, or permitting the police to retain, item 24 and the image of its hard drive. The issue was well described by Mr Agius’ language at the directions hearing on 18 February 2020, as an “antecedent issue”. That issue is whether the police should be granted access to item 24 for the limited purpose of subsequently being heard as to the exercise of the discretion to retain or return item 24. Ordinarily, no order would be necessary from a court to permit that to occur. However, in the unusual circumstances of this litigation, what is involved is an exercise of the discretion to vary an existing interlocutory regime in light of changed circumstances.

51. When once the nature of the issue is identified, its resolution is straightforward. I consider that the police should be granted access to item 24, for the strictly limited purpose of being heard against the discretionary relief sought by Mr Barbeliuk for its return and the delivery up or destruction of the image.

52. That is so for two reasons. First, it is the consequence of the decision of the Court of Appeal on 14 February 2020. Secondly, it is correct as a matter of principle.

The effect of the judgment of 14 February 2020

53. Logically, the first question is whether what is now sought to be put on behalf of the appellants is open to them in light of the earlier judgment. The broader submissions that (a) all items should be returned as of right if the warrant were invalid, and alternatively (b) in the absence of any evidence from the police that the items were relevant to the prosecution of Mr Doyle, the discretion must be exercised favourably to the appellants, were put in the appeal and rejected in terms at [82]-[83], and [84], reproduced above.

54. I do not accept that the issue remains unresolved, or that it is open to me to determine it afresh.

55. Contrary to Mr Agius’ submission, the starting point is not the reasons for judgment, but the orders made on 14 February 2020. The orders define the scope of the remaining issues left unresolved in this appeal. My doubts that the point remained open will have been apparent from the exchanges on 18 February when it was first articulated. I returned to this on 25 February:

“HIS HONOUR: There’s another possibility as well and that is that all of this has already been decided by the orders of the Court of Appeal which proceeded on the basis that there was going to be a hearing with both sides permitted to go into evidence on what was on all of the seized items that were subject to injunctive relief. Mr Agius says no, the Court of Appeal didn’t deal with the particular case of Mr Barbeliuk's laptop. He may be right about that. That’s another possibility, I think.”

56. Mr Singleton sought to persuade me, as his primary submission, to discharge the existing interlocutory orders applying to item 24 based on the evidence summarised above. However, that is not inconsistent with his fallback submission in the alternative to vary the regime so as to permit access to item 24 for a limited purpose.

57. Order 5 made on 14 February 2020 reserved the question of any dispute about the variation of the existing interlocutory regime in relation to items 1, 10, 24 and 25, and the exercise of discretion, to a single Judge of Appeal. That order is inconsistent with there being an “antecedent issue” as to whether, in relation to item 24, there was no occasion to vary the existing interlocutory regime to permit representatives of the police to access the computer so as to enable evidence to be adduced bearing upon the residual discretion. The order referred to “the variation of the extant interlocutory regime”, as something which would necessarily be required insofar as there continued to be a dispute between the parties. The variation was required because the appellants continued to have the benefit of orders preventing access to four of the seized items, and the Court of Appeal held that the police were entitled to have access to them for the limited purpose of being heard as to the exercise of discretion.

58. On the view I take, orders 5 and 6 made on 14 February 2020 are clear. If I be wrong about that, and there is scope for saying that they are ambiguous as to whether they preclude the point now sought to be advanced, then regard may be had to the reasons for judgment in order to construe the orders. The better view, which accords with the weight of authority, may well be that ambiguity is not required: see the authorities analysed by Campbell JA (with whom Handley AJA agreed) in AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 at [98]-[104]), including what was said by Santow JA in Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [129]:

“The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order.”

59. But it is not necessary for present purposes to express a concluded view on that issue. If ambiguity is needed, there is evidently ambiguity insofar as it is contended that the orders do not preclude a submission that Mr Barbeliuk should be entitled to the return of his computer without first varying the interlocutory regime so as to permit the police to access it for the limited purpose of being heard as to the exercise of discretion for its return.

60. The reasons for judgment reinforce the ordinary meaning of the orders. What was said at [84] and [93] could not, save perhaps for one thing, be read in any way other than a rejection of the appellants’ submission. In particular, the submission is, save perhaps for one thing, squarely inconsistent with this sentence in [93]:

“However, it will be clear from the above that we have rejected the applicants’ submission that the discretion should be exercised without the respondents having any access to the documents which remain subject to that regime.”

61. The qualification is that the rejection of the appellants’ submission in [93] is expressed in terms of “documents”. That same language is found in [84]. However, although the first and third sentences of [84] refer to “documents”, the second refers to “things” while the fourth refers to “material”. Similarly, the first sentence of [93] refers to the the return of “any items”. There is nothing in the reasons to suggest that some different approach was to be taken to the diaries and job applications, as opposed to the computers and electronic storage items.

62. In this area of the law, it is not unusual for the term “document” to extend to information recorded on a computer. Thus, item 24 is a “document” as that term is defined in the Dictionary to the Evidence Act 1995 (NSW) (which includes “anything from which sounds, images or writings can be reproduced with or without the aid of anything else”). Section 217 of LEPRA refers to the “Right to inspect seized documents” and likewise is to be understood as extending to electronic documents. The references to “documents”, “items” and “material” in the paragraphs dealing with the rejection of Mr Agius’ submissions based on an entitlement to prevent the police from varying the interlocutory regime in order to be heard as to the exercise of discretion make it clear that the rejection extended to the submissions made in relation to Mr Barbeliuk’s computer.

The appellants’ submission is wrong in principle

63. If, contrary to the above, it be open to me to determine whether to exercise the discretion to order the return of Mr Barbeliuk’s computer and the delivery up or destruction of the image of the hard drive without first varying the interlocutory regime for the limited purpose of permitting evidence to be adduced of it, I would reject the appellants’ submission that I should not do so.

64. The appellants submit that I should proceed directly to the discretionary relief for the return or destruction which they seek, and exercise that discretion favourably to them, on the basis that there was no connection between it and the contemplated proceedings.

“HIS HONOUR: Let me test it this way. Do you concede that it would be wrong for me to make the orders you seek, return the laptop and destroy the copy, without hearing from the police? In other words, do you accept that Mr Singleton or some representative of the police has an entitlement to be heard before a Court make the order that you seek?

AGIUS: They’ve exercised such an entitlement. They have an entitlement to be heard.

HIS HONOUR: Of course they have an entitlement to be heard. So then, the real question on Mr Singleton’s narrow case is whether that entitlement to be heard extends so far as adducing some evidence of the thing which, as you've said many times, they should not ever have obtained possession of. That's what this comes down to.

AGIUS: Yes, and they don’t. If there is any discretion to permit them to do that, it should not be exercised in circumstances where they have no evidence at all that the owner of that laptop is reasonably suspected of having used it in any criminal activity. There are other ways of proving the use of a laptop in criminal activity other than by looking at its content. They’re not seeking to make any case at all that [he] is otherwise suspected of possessing or being interested in child abuse material. In the absence of that evidence or even a reasonable suspicion to that effect, then the laptop is like any other possession that he had on that day. It’s just not available to the police and any discretion that it be made available for them or for their agents to look through, even on conditions, ought not to be exercised.”

65. I respectfully disagree.

66. As I have sought to indicate above, the discretion associated with the final relief sought by the appellants for the return of the computer and the destruction of the image is different from the anterior issue, namely, the ability of the respondents to obtain access to Mr Barbeliuk’s computer not for the purposes of any current or future criminal proceedings but in order to advance such case as the respondents wish to advance in support of the discretion to retain the computer.

67. It is thus incorrect to submit that granting access to the computer amounted to giving the police the fruits of an unlawful search and seizure. What is at stake is giving nominated persons acting on behalf of the police an opportunity to inspect the computer for the purposes of determining what submissions and evidence are to be advanced in relation to the discretion to retain or return the computer. A decision on that issue favourable to the police does not entitle the police to use the computer for any investigative or prosecutorial purpose. It permits the police to inspect the computer for the purposes of permitting the police to be heard against the discretionary relief sought by the appellants.

68. Accordingly, I do not accept that Mr Agius’ submissions based on the absence of evidence linking the computer with charges against Mr Doyle are to the point. That is a submission which goes to the Caratti discretion to retain or return things seized pursuant to an invalid warrant. That was the issue which was reserved for consideration by a Judge of Appeal. But the “antecedent issue” which Mr Agius seeks to agitate is quite different. It is whether a person against whom a discretionary order is sought to be made in relation to the return or destruction of certain items, who has a right to be heard, may be relieved from existing interlocutory relief so as to adduce evidence of those items.

69. It may assist to analyse the point at the level of principle. A plaintiff seeks discretionary relief for certain items’ return or destruction. It must be accepted that the defendant has a right to be heard against the orders being made. Ordinarily, that right to be heard would encompass within it the right to make submissions as to the content of the things in the defendant’s possession. However, in the present case, the plaintiff has obtained interlocutory relief preventing the defendant from examining the items in its possession.

70. I can contemplate occasions when it will be appropriate not to vary the interlocutory relief. Disputes over documents which are privileged provide an example. In such a case, the plaintiff would be seeking to vindicate its rights at law and in equity in relation to privileged, confidential information. The essence of the underlying right is that the defendant should not learn of the information. Even in such circumstances, courts must resolve issues fairly. The tension between the need for fairness whilst protecting the underlying right may be seen in Allsop P’s description in State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394; [2011] NSWCA 200 at [19]:

“Fairness may be compromised because the nature of the right or privilege asserted or claimed is one that excludes the other party from an examination of relevant material, but to disclose it to the other party for the purpose of resolving the claim of right would destroy that very right (if legitimately claimed). Further, fairness may be compromised by the court examining the material without a contradictor.”

71. The resolution there was the appointment of a “special counsel” to view the documents in respect of which there was a contested claim of public interest immunity, and to be heard in respect of those documents.

72. But what is the basis of the underlying right sustaining the interlocutory orders presently enjoyed by the appellants? As was made plain by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [8],

“When a plaintiff applies to a court for an interlocutory injunction, the first question counsel may be asked is: what is your equity?”

73. No claim of copyright or privilege or confidential information was sought to be made out by Mr Barbeliuk. His claimed entitlement was based on ownership of the computer, and his entitlement to its return consequent upon the finding that the search warrant was invalid. There are difficulties given that Mr Barbeliuk was not a party for many months, and that the amendment of the summons to claim that the warrant was invalid happened relatively late in the litigation, but those matters may be put to one side. The underlying right turns on Mr Barbeliuk’s ownership of the physical computer, and vindication of the important right of citizens to insist that police exercising compulsive powers conform to the law. In reality, bearing in mind that Mr Barbeliuk does not own the image made by police of his hard drive, his rights ultimately turn upon the latter, not the former.

74. Those rights are quite different from an equitable right to confidential information, or a legal right to privilege. True it is that Mr Barbeliuk will ultimately be entitled to the return of his computer (if for no other reason, pursuant to statute), and it may well be that the exercise of a discretion in accordance with the principles in Caratti results in its earlier return because the warrant was invalid. But I fail to see why the fact that he has obtained interlocutory relief trumps the ordinary right of a defendant against whom discretionary relief is sought to be heard including as to the contents of the computer.

75. Analogies with privilege are inapposite. If a party has in its possession a document which is said to be privileged, and disputes that claim, then that party will not ordinarily be permitted to inspect the document in order to advance its submissions. There is no balancing exercise. Either the document is privileged or it is not. If it is privileged, then the other party will not be permitted to see it, because that is of the essence of the right.

76. But Mr Barbeliuk’s submissions for the return of his computer without any variation to the interlocutory regime are not based on privilege. It is conceded that the relief Mr Barbeliuk seeks is discretionary. I do not see how it can be right, with respect, for Mr Barbeliuk on the one hand to have obtained interlocutory relief preventing access to the computer in the possession of the police, and on the other hand to say that the discretion should be exercised adversely to the police because the police have, in compliance with the orders he has obtained, not accessed the computer and cannot adduce direct evidence of its contents. The interlocutory relief should not be permitted to predetermine the ultimate rights of the parties.

77. I have put to one side, so far, the evidence which has been adduced. The unchallenged evidence of Detective Sergeant Karras is that he believes that the computer is likely to contain child abuse material. Mr Barbeliuk contends that no weight should be given to that evidence:

“AGIUS: … All that is is a statement that because there’s other material that was found in the house which contained child abuse material, therefore, there’s some reasonable suspicion that Mr Barbeliuk's laptop contains that.

HIS HONOUR: I must say I read it quite differently. I don’t read it as speaking as suspicion. I don't read it as talking about reasonable suspicion. I read it as the unchallenged evidence of this man’s belief, stronger than suspicion. He believes.

AGIUS: But there’s no evidence as to what that belief is based upon.

HIS HONOUR: Other than the words ‘in light of the content of other electronic devices’, yes.

AGIUS: Yes, and that doesn’t support a belief. It certainly doesn’t support any reasonable belief simply because something else in the house was found to contain child abuse material. There’s no evidence that that something else was Mr Barbeliuk’s. There’s no evidence that Mr Barbeliuk is under investigation otherwise for being involved in child abuse. There’s no evidence that [he] is in any way a co-accused or a co-offender with Mr Doyle. There’s nothing that would lead to any conclusion or could support any conclusion that because there’s something in the same house on another device, therefore, there is a reasonable belief that it is likely that the laptop will contain child abuse material.”

78. The position is somewhat more nuanced than portrayed in those submissions. I am conscious that Detective Sergeant Karras has a deal of experience in matters of this nature. His beliefs are in part a product of that experience. Mr Barbeliuk has known Mr Doyle since he was a teenager and worked at the Kogarah Mecca. He is the donee of a power of attorney. He has been living in Mr Doyle’s home for many years. His laptop was found in the top drawer of a wardrobe in the master bedroom. The USB sticks which are item 22 and which contain child abuse material were found in the third drawer of a wardrobe in the master bedroom. The execution of the warrant records an officer saying:

“2:14 pm, we got some USB sticks 1, 2, 3, 4, 5 in a plastic bag in the third drawer on this second panel of the cupboard. It was just sitting there. Was sitting on top of the passport, I won’t seize the passport, but it is a current passport but is current for Mark Alexander Barbeliuk.”

79. That said, there is no evidence which directly implicates Mr Barbeliuk in any of Mr Doyle’s criminality. Further, it is not especially helpful to depose to a belief based on “the content of the other electronic devices”, without articulating why that supports a belief as to the likely content of a computer acquired in 2015. As presently advised, there is force in Mr Agius’ submission discounting the evidence of Detective Sergeant Karras’ belief.

80. But the only question is whether, in support of the respondents’ right to be heard against the orders for the recovery of the computer and the destruction of the image, the respondents should be relieved from the interlocutory regime which was obtained by Mr Doyle and which continues to this day. I think that the respondents are so entitled.

81. For completeness, I note the appellants’ submission, made in reply, that because the Commissioner had submitted that the evidence was already sufficient to entitle unrestricted access to be given to item 24, he should not be given limited access. It was put thus:

“If the respondents fail on their primary endeavour, which was to in effect have Caratti access to the material and be able to retain it, our submission is that they shouldn’t have another opportunity to come back and put further arguments in relation to an opportunity to look at the material. Our submission is they’ve had their opportunity, and they’ve had their opportunity to put on evidence, and they’ve exercised it. Nowhere have they claimed any right to a second bite of the cherry.”

82. I disagree. The Commissioner made it clear that the submissions were in the alternative.

Orders

83. Orders 8-10 made on 19 February 2020 (in terms formulated by the parties) are as follows:

8. In spite of any other order made in the proceedings (whether in the Common Law Division or the Court of Appeal), counsel and the solicitors acting for the Commissioner of Police in these proceedings, without admissions by the appellants, may inspect the contents of the items known in these proceedings as Items 1, 10 and 25.

9. The Court accepts the undertaking of counsel and the solicitors for the Commissioner of Police that they shall not disclose the contents of any items inspected pursuant to Order 8 other than to the solicitors for the appellants and the Court.

10. In order to facilitate the inspection of items known in these proceedings as Items 2, 3, 20 and 23 (or copies thereof) by investigating Police, officers of the Digital Forensics Unit of the NSW Police Force may obtain access to, and examine and inspect the contents of, those items (or copies thereof) for the purpose of identifying and removing each document therein and described in Annexure A to the Orders made in these proceedings on 20 December 2019 as a document over which legal professional privilege has been claimed.”

84. I shall make orders substantially equivalent to orders 8 and 9 but in respect of item 24 and the image of item 24’s hard drive. Since the order is not made by consent, no reference to “without admissions by the appellant” is required. It is appropriate to extend the regime to police officers from the Digital Forensics Unit, as was the case with the other electronic material seized. No question of privilege has arisen in relation to item 24, but I would be willing to make orders to protect the appellants’ rights to privilege if they so seek and point to a basis for such a claim. Because the orders will not immediately come into force, there will be an opportunity for both sides to be heard as to the further orders which should be made to permit the examination of the computer and the image of its hard drive for the purposes of making submissions as to their retention or release. My present view is that such orders should also include undertakings in a form which (as I understand it) has previously been acceptable to the appellants. Likewise, I am presently of the view that undertakings should be given by counsel and solicitors if they wish to inspect the computer or be told as to its contents. The substance of these undertakings will be to confirm the applicability of ordinary Harman undertakings applicable to compulsorily obtained information in civil litigation and will confirm that access is given only for the purpose of the remaining issues in this (civil) litigation. Nothing in the history of the litigation suggests that this will be controversial, but I shall grant liberty to apply against the possibility that there may be a dispute about the regime.

85. It will be necessary thereafter for the respondents to advise whether they seek to retain item 24 and the image, and if so on what evidence they rely. I shall nominate a time 4 weeks in the future for that to occur.

86. I was asked, if I were minded to permit access by the police to Mr Barbeliuk’s laptop, to stay my order so that the appellants could consider their rights of appeal. There was no opposition to that request. I will stay the operation of the order extending access to item 24 and the image for 7 days from today, until 2 pm on 12 March 2020. I see no reason for the stay to delay the necessary process of submissions and reaching agreement as to undertakings and the terms of access by the Digital Forensic Unit.

87. In the event that the appellants seek to challenge the orders, there may be a dispute whether their rights to do so lie under s 46(4) or s 101 of the Supreme Court Act. The dispute potentially arises because the appellants have raised an issue which is antecedent to what was identified in the orders made on 14 February 2020. However, as presently advised, I doubt that appellate review of either (a) the question of the legal effect of the judgment of the Court of Appeal of 14 February 2020 or (b) the issue whether the appellants are entitled to seek the return of item 24 without a variation of the existing interlocutory regime will differ depending on which route is applicable.

88. I make these orders:

1. In spite of any other order made in the proceedings (whether in the Common Law Division or the Court of Appeal), counsel and the solicitors acting for the Commissioner of Police in these proceedings, who have given an undertaking to the Court in accordance with Order 2 below, may inspect the contents of the item known in these proceedings as item 24 (being a silver Apple MacBook owned by Mr Barbeliuk) and the image of the hard drive of item 24.

2. The respondents to provide within 7 days of today an agreed form of undertaking, or, in lieu of agreement, the undertaking they propose, to be proffered in relation to the right of access given by Order 1 above.

3. The parties to provide minutes of any further orders as agreed, or in lieu of agreement, the orders they seek, in relation to access to item 24 and the image of its hard drive, by officers of the Digital Forensics Unit of the NSW Police Force, within 7 days of today.

4. Stay the operation of Order 1 above until 2 pm on 12 March 2020.

5. List the proceedings for directions before me at 9:30 am on 2 April 2020.

6. Liberty to apply on two business days’ notice.

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Decision last updated: 22 October 2020