Doyle v Commissioner of Police (No 2)

The proceedings concerned a dispute between Mr. Doyle and the Commissioner of Police regarding a computer seized under a search warrant. Initially, interlocutory injunctive relief prevented the police from accessing the computer. However, the warrant was later found to be invalid. The owner sought the return of the computer and the delivery up or destruction of an image of its hard drive. The Court of Appeal had remitted a question of discretionary relief to a single judge, and the present proceedings before Leeming JA concerned whether the police should be permitted to access the computer to adduce evidence relevant to that discretionary relief.

The primary legal issue before the court was whether the respondents, the Commissioner of Police, should be permitted to vary the interlocutory regime to grant them access to the seized computer and its hard drive image for the purpose of adducing evidence relevant to the discretionary relief sought. This question arose in circumstances where the original search warrant had been declared invalid, and the owner sought the return of the property and the destruction of any forensic copies.

Leeming JA reasoned that the Court of Appeal's previous orders and reasons contemplated that the parties would have an opportunity to present evidence and arguments concerning the discretionary relief. His Honour considered that permitting the police to access the computer and its image was necessary to enable them to properly present their case on the discretionary relief, particularly in relation to the potential use of the seized material. The court applied principles concerning the proper conduct of proceedings and the need for parties to be heard on matters of discretion.

The court made orders permitting counsel and solicitors for the Commissioner of Police to inspect the contents of the computer and its hard drive image, subject to an undertaking to be provided by the police. The orders also directed the parties to provide minutes of any further agreed orders or sought orders regarding access by officers of the Digital Forensics Unit. The operation of the primary access order was stayed until a specified date, and the proceedings were listed for directions.