Giurina v Director of Public Prosecutions
[2020] VSC 1
•17 January 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 3295
| ERMANNO GIURINA | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of THE INFORMANT DETECTIVE ACTING SERGEANT ANNA LOUISE McILROY) | First Defendant |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 November 2019 |
DATE OF JUDGMENT: | 17 January 2020 |
CASE MAY BE CITED AS: | Giurina v DPP and anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 1 |
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JUDICIAL REVIEW AND APPEALS – application to set aside a decision of a magistrate to refuse to exclude documents seized pursuant to a search warrant from the evidence in a criminal procedure.
LEGAL PROFESSIONAL PRIVILEGE – seized documents collated for the purpose of preparing for actual or anticipated legal proceedings – self-represented litigant – application of the principle in Commissioner of the Australian Federal Police v Propend (1997) 188 CLR 501 – no privileged communication.
SEARCH WARRANTS – validity of form of search warrant – search warrants to be reviewed on a case by case basis from the standpoint of the ordinary person – no error in conclusion that the scope and purpose of the search warrant apparent from the face of the document – Brewer v Castles (1984) 1 FCR 55 referred to.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the First Defendant | Mr B Sonnet | Office of Public Prosecutions Victoria |
| No appearance for the Second Defendant |
HER HONOUR:
Background
The plaintiff has an interest in a unit in Headley Street, Coburg North, which is one of five residential units at that address (‘premises’), as the executor of his grandmother’s estate. His late grandmother is the registered proprietor of the unit. The premises are managed by Owners Corporation Strata Plan No 1579 (‘owners corporation’).
On 11 August 2002, the owners corporation appointed the plaintiff to act as its solicitor. On 1 September 2002, the owners corporation resolved to instruct the plaintiff in all legal matters on behalf of itself and its members. Although the plaintiff was admitted as a barrister and solicitor in Victoria in 1987, he did not hold a practising certificate during the course of his retainer by the owners corporation.
On 12 December 2004, the owners corporation appointed the plaintiff as its manager under an agreement (‘management agreement’). In his capacity as the manager of the owners corporation, the plaintiff collected fees, paid for expenses, and arranged for maintenance and repair works in relation to the common areas of the premises. He was the sole operator of the bank accounts of the body corporate.
Subsequently, there was a falling out between the plaintiff and the other members of the owners corporation regarding the plaintiff’s alleged lack of transparency regarding his management of the affairs of the owners corporation. On 24 July 2011 the management agreement was terminated by the owners corporation. The plaintiff disputed the termination, and the dispute was taken to the Owners Corporation List of the Victorian Civil and Administrative Tribunal (‘VCAT’). On 1 May 2012, in VCAT proceeding no. OC391/2012 (‘first VCAT proceeding’), a Deputy President declared that the management agreement had terminated on 24 July 2011, and required the plaintiff to return the records and funds of the owners corporation to the new manager of the owners corporation.[1] Subsequently, the owners corporation applied to VCAT to punish the plaintiff for contempt for failing to comply with the orders made in the first VCAT proceeding, and obtained a further order on 7 February 2013 for the plaintiff to produce documents.
[1]Owners Corporation No 1579 v Giurina (Owners Corporation) [2012] VCAT 643.
Also on 7 February 2013, the plaintiff was charged with 182 charges of theft and one charge of using a false document arising out of his management of the owners corporation (‘criminal proceeding’). All of the charges relate to the alleged misappropriation of approximately $30,000.00 by the plaintiff from the owners corporation between May 2006 and December 2011. The charges were laid after a member of the owners corporation had made a complaint to the police in July 2012, and after search warrants had been executed by the police on the Coburg branch of the ANZ Bank on 27 November 2012, and at the home of the plaintiff’s mother in Williams Road, Coburg North (‘home’) on 7 February 2013, where the plaintiff also lived at the relevant time. The search warrant was issued by a magistrate pursuant to s 465 of the Crimes Act 1958 (Vic).
A number of police officers attended the home on the morning of 7 February 2013 to execute the search warrant under the supervision of the informant, Detective Acting Sergeant Anna McIlroy, and seized a number of documents concerning the affairs of the owners corporation (‘seized documents’). The police officers arrested the plaintiff, and took the plaintiff and the seized documents to a police station, where the plaintiff was interviewed by police, and, following that interview, charged with a number of counts of theft. The charges had apparently been prepared prior to the execution of the search warrant.
The informant subsequently withdrew 24 charges of theft and the charge of making a false document. The substantive hearing of the criminal proceeding is scheduled to commence on 16 March 2020. In this proceeding, the plaintiff is seeking judicial review of a magistrate’s decision to refuse his application to exclude the seized documents, and document said by him to have been obtained using the information in the seized documents, being a statement by a Ms Leah Touloupas, (‘consequential evidence’), from the evidence in the criminal proceeding. It seems to be common ground between the parties that if the seized documents and the consequential evidence are excluded, the informant’s case will collapse.
Procedural history
Prior to the decision which is the subject of the current proceeding, there have been protracted interlocutory disputes concerning the criminal proceeding, all of which have ultimately made their way to this Court, as follows:
(a) on 28 March 2013, the plaintiff applied to the Magistrates’ Court for an order for permanent stay of the criminal proceeding;
(b) on 12 December 2013, a magistrate granted a permanent stay of the criminal proceeding;
(c) on 24 February 2014, the Director of Public Prosecutions (‘DPP’) brought a proceeding in this Court seeking judicial review of the decision made by the magistrate to grant a permanent stay of the criminal proceeding (‘2014 judicial review proceeding’);[2]
[2]Proceeding no. S CI 2014 00805.
(d) on 1 May 2015, Cavanough J refused an ex parte application brought by the plaintiff in the 2014 judicial review proceeding for a pseudonym order to protect his identity and to suppress the publication of various details relating to the 2014 judicial review proceeding;[3]
[3]DPP v Giurina [2015] VSC 182.
(e) on 29 January 2016, in the 2014 judicial review proceeding, Coghlan J held that the learned magistrate had erred in staying the criminal proceeding. Since not all the grounds set out in the stay application had been dealt with in the 2014 judicial review proceeding, Coghlan J remitted the stay application for rehearing before a different magistrate;[4]
[4]DPP v Giurina [2016] VSC 15.
(f) on 22 December 2016, a magistrate heard the remitted stay application, and on 30 January 2017 refused the plaintiff’s application for permanent stay of the proceeding;
(g) on 28 March 2017, the plaintiff filed an originating motion to set aside the orders made by the learned magistrate, on the basis that he made an error of law on the face of the record when he refused the plaintiff’s application for a permanent stay of the criminal proceeding (‘2017 judicial review proceeding);
(h) on 26 May 2017, Riordan J dismissed the 2017 judicial review proceeding;[5] and
(i) on an unknown date, the Court of Appeal refused an application for an extension of time to apply for leave to appeal against the decision of Coghlan J in the 2014 judicial review proceeding.
[5][2017] VSC 289.
The application before the magistrate
On 10 October 2017 the plaintiff filed an application in the Magistrates’ Court at Heidelberg seeking orders that the seized documents and the consequential evidence be excluded from the evidence in the criminal proceeding.
The plaintiff relied on two principal bases for the exclusion of the seized documents:
(a) the seized documents were protected by legal professional privilege under the common law or the Evidence Act 2008 (Vic) (‘Evidence Act’); and
(b) the seized documents and the consequential evidence should be excluded under s 138 of the Evidence Act, as the police had acted improperly in the course of executing the search warrant, and because the form of the search warrant was invalid.
The plaintiff contended that the police had acted improperly because, among other things, they had not followed the procedures laid down by the Full Court of this Court in Allitt v Sullivan,[6] which apply where a person makes a claim for legal professional privilege over documents seized pursuant to a search warrant.
[6][1988] VR 621.
The application was heard by a magistrate over five days in March and August 2018. During the course of the hearing, the plaintiff gave evidence regarding what occurred during the execution of the search warrant, as did the police officers involved in the execution of the search warrant. The police evidence largely concerned the question of whether the plaintiff had made an express claim for legal professional privilege over the seized documents, either at the home or at the police station following the execution of the search warrant. The informant also gave evidence about the investigations carried out by her regarding the plaintiff’s management of the owners corporation prior to the execution of the search warrant. The plaintiff also gave evidence regarding the facts, matters and circumstances he relied upon to claim legal professional privilege over the seized documents. The transcript of evidence is in evidence in this proceeding, and the plaintiff and the informant filed detailed written submissions after the conclusion of the hearing, which are in evidence in this proceeding.
The magistrate’s reasons – legal professional privilege
On 28 May 2019, the learned magistrate made orders refusing the plaintiff’s application to exclude the seized documents and the consequential evidence, providing detailed written reasons for her decision (‘reasons’).
The learned magistrate, after dealing with preliminary matters, summarised the evidence given by the plaintiff and a number of police officers in relation to the conversations that took place when the search warrant was executed. The plaintiff maintained that he claimed legal professional privilege with respect to the documents as soon as the police attended the premises, and again during the course of his interview by the police, but this was disputed by each of the police officers who executed the search warrant. The protocols governing the management of documents seized by police for which a claim for legal professional privilege has been made requires such documents be sealed and not inspected by the police pending the resolution of any outstanding dispute by a magistrate. The learned magistrate accepted the evidence of the police officers that the plaintiff made no claim for legal professional privilege with respect to the selected documents, such that the question of whether the police officers followed the proper protocol did not arise.
Having set out the background to the criminal proceeding and its procedural history, the learned magistrate then moved on to provide reasons for rejecting the plaintiff’s application for exclusion of the seized documents on the basis that they were immune from disclosure by reason of legal professional privilege.
The learned magistrate referred to ss 118 and 119 of the Evidence Act, and examined each of the seized documents to evaluate if the documents were made for the dominant purpose of a lawyer providing to a client legal advice or professional legal services.
The learned magistrate referred to the dominant purpose test, as follows:
The case of Esso Australia Resources Ltd v Commissioner of Taxation makes clear that the test as to whether an oral or written communication is subject to legal professional privilege is whether the oral or written communication was made or prepared for the dominant purpose of a lawyer providing to a client legal advice or professional legal services.[7]
[7]Reasons [63].
The learned magistrate enumerated the seized documents, as set out below:
1.VCAT appeal paperwork with covering index.
2.Green folder containing various paperwork relating to Body Corporate 1579.
3.Blue folder containing receipts, invoices and quotes relating to Body Corporate 1579 and various paperwork.
4.Purple folder containing meeting minutes, letters and notices relating to Body Corporate 1579 and various paperwork
5.Purple folder containing Body Corporate insurance documents and various paperwork
6.Blue folder titled “General correspondence” containing quotes and other documents relating to Body Corporate 1579.
7.Blue Folder titled “Accounts and related documents containing various ANZ bank documents in relation to account Body Corporate 1579 yearly account documents prepared for the body corporate and various paperwork.
8.ANZ Access card in the name of Body Corporate 1579 Mr Ermanno Giurina.
9.Green folder containing loan documents relating to Body Corporate 1579 and various paperwork.
10.Documents including bank account documents relating to Body Corporate 1579, VCAT paperwork, meeting minutes and various receipt.
11. Various documents receipts and bills relation to Body Corporate 1579,
12Miscellaneous VCAT and Supreme Court paperwork relating to Body Corporate 1579.[8]
[8]Ibid [68].
The learned magistrate noted that all of the seized documents were original documents, and observed that most of the documents appeared on their face to have no connection with legal matters involving the owners corporation, save for a bundle of documents described as ‘the VCAT and Supreme Court paperwork’.[9]
[9]Reasons [64]-[69].
The learned magistrate made the following observations regarding the seized documents:
Of these remaining documents they reflected the mundane nature of the running of a body corporate in that there were 40 invoices or receipts from Jim’s mowing, numerous other invoices from other garden maintenance suppliers, invoices for insurance, bank statements, minutes of Body corporate meetings, notation of collection dates for fees, and deposit books for bank accounts in the name of the Body corporate. It was over all these items Mr Giurina maintained his claim of legal professional privilege.
In addition, some items, not quite as mundane, but still not highly contentious included a loan agreement between Mr Giurina and the body corporate, appointment of Mr Giruina as a manager and notice of making amendments to the official body corporate record…[10]
[10]Ibid [71]-[72].
The learned magistrate referred to the decision of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (‘Propend’),[11] which was relied upon by the plaintiff in the course of argument before her (and in this proceeding), as follows (footnotes omitted):
Mr Giurina also sought to rely on the decision of Commissioner of Australian Federal Police and another v Propend Finance Pty Limited and others (hereafter referred to as Propend). Mr Giurina submitted that legal professional privilege will also apply to copies of documents provided to a lawyer for the dominant purpose of obtaining legal advice or use in legal proceedings. The reference to copy documents is of limited relevance here as the documents on which the prosecution seeks to rely were all originals.
Mr Giurina referred to the comments of McHugh J. in Propend where His Honour stated, “Part of a protected communication may even be a document that was created for a non-privileged purpose, but which has been given to, and is in the custody of a lawyer for the purpose of obtaining legal advice or for confidential use in litigation”. The reasoning is that the way the documents themselves have been collected and collated may reveal the nature of the advice that the client was seeking or the client or lawyer’s view of the pending litigation.
It was necessary for Mr Giurina to establish that although the documents were themselves never created for the dominant purpose of legal proceedings or the obtaining of advice, their non-privileged status altered once in his possession as a lawyer.[12]
[11](1997) 188 CLR 501.
[12]Reasons [64]-[66].
Having conducted what the learned magistrate described as a laborious task of analysing each document over which the plaintiff claimed privilege and the explanation provided by the plaintiff in his evidence, the learned magistrate concluded that not one of the seized documents attracted legal professional privilege.[13]
[13]Ibid, [78].
The learned magistrate summarised her findings with respect to the plaintiff’s claim for privilege over the seized documents as follows:
I do not propose either to list what explanations Mr Giurina gave to his claim of privilege over each of the items. There was no sound or genuine reasoning provided by Mr Giurina to substantiate a claim of privilege over documents, merely a repeating of the expression “they were copies I collected and collated for the purpose of advising myself and for the purposes of the litigation”. At each turn I asked Mr Giurina to inform how it was that a document had been produced for the dominant purpose of providing legal advice. I could also not see a basis for how any of the documents could be said to have been provided to himself, to allow him to advise himself on future litigation in the VCAT and pending proceedings. The claims were at best a nonsense and designed to cloak all documents seized as privileged to thwart any future prosecutions against him.[14]
[14]Ibid [73].
The learned magistrate referred, by way of example, to a licence agreement permitting the plaintiff to use a letter box at the premises, where the plaintiff gave evidence that the document had the dominant purpose of him advising himself in relation to whether there were any moneys he had to pay to the owners corporation in relation to proceedings at VCAT. The learned magistrate went on to say:
The primary basis for the claim for privilege in respect of many of the documents was that they were to be used in the many and varied court cases Mr Gurina either had undergoing at the VCAT and Supreme Court or litigation that he contemplated in the future. The creation of these documents could not be said to have occurred for the dominant purpose of obtaining legal advice. I noted the documents may have been used for the purpose litigation but that was not the reason they had come into existence.[15]
And further:
Mr Giurina in his evidence also spoke of copies of documents and the collation of documents being such as to create privilege where none existed before. Mr Gurina placed reliance on the decision of Justice McHugh in the case of Propend. The documents relied upon here were all original documents and there was no evidence to support that they had been collated in a particular way to alter their status to that of privileged documents. I therefore do not regard the decision of Propend as having any relevance to my decision here.
The mere fact that Mr Giurina might use some of the documents for the furtherance of other litigation is not the test. The test remains why the documents came into existence in the first place. I also dismissed as illogical that the fact of photocopying a document and then providing it to your solicitor altered that document into one of privilege, without more.[16]
[15]Ibid [75].
[16]Ibid [76]-[77].
The magistrate’s reasons – validity of the search warrant
The learned magistrate, having found that the seized documents were not immune from disclosure by reason of legal professional privilege, then went on to determine whether the seized warrant was invalid, or whether the seized documents were otherwise improperly obtained.
The learned magistrate referred to the form of the warrant itself, as follows:
Under the heading “Name and /or description of article, thing or material” was endorsed; Any documents, bank cards, statement or any other thing relating to ANZ bank accounts named Body corporate 1579. Any document, bank cards, statement or any other thing relating to NAB accounts in the name of Ermanno Giurina. Any document or any other electronic device capable of assisting in the managing of Owners Corporation No.1579 in respect to the properties situated at … , Coburg North.
Under the heading “Reason for search or description of suspected offence” was stated “the information requested will afford evidence of the offences of Theft and Obtain property by deception”.[17]
[17]Ibid [88]-[89].
The learned magistrate considered the authorities relied upon by the plaintiff, as follows:
Mr Giurina referred to the decision of R v Applebee Higgins J. in referring to the matter of Tillett Ex parte Newton noted the latter case was authority for the view that a search warrant must specify the things to be seized with sufficient particularity, either by reference to those things or by reference to the particulars of the offence being investigated or both. In addition, Higgins J. referred to the decision of Brewer and Castles (No3) that found that the warrant is to be interpreted from the standpoint of the ordinary person reading it.[18]
[18]Ibid [80].
Her Honour also referred to the decision of the Federal Court in Lemesk Pty Ltd v Easterby[19] where the Court found that a warrant must contain sufficient information to enable the reader to ascertain the purpose of its execution, and the decision of Island Way Pty Ltd v Redmond,[20] where the Court frowned upon the use of search warrants to ascertain whether an offence had been committed (as opposed to collecting evidence for the prosecution of an offender), in circumstances where there was a substantial delay between the date of execution and the laying of charges. She also referred to the plaintiff’s reliance upon the following statement in Crowley v Murphy[21] in support of his contention that given that the search warrant was executed at his mother’s home, a higher standard is required when determining whether a warrant should be issued in the first place, and as to the manner of its execution:
Where the premises to be searched are owned or occupied by an innocent third party…a higher standard is required, both of satisfaction by the justice before he issues the warrant and of fairness by the policeman executing it. The justice should not be easily satisfied. The information before him must clearly show the nature of the things to be searched for and how they will afford evidence of the commission of the offence. The policeman executing the warrant must restrict his search to thing pertaining to the offence alone and must not search and seize at large in the hope of eventually finding something of evidentiary value.[22]
[19](1993) 66 A Crim R 337.
[20][1990] 1 Qd R 431.
[21](1981) 52 FLR 123.
[22]Ibid, 153.
The learned magistrate also referred to the decision of Bell J in DPP v Kaba,[23] where the impropriety of police during the course of a search was relevant to the question of the admissibility of evidence obtained during the course of the search, as was the consequences of a breach of an individual’s right to privacy under the International Covenant for Civil and Political Rights (“ICCPR”).
[23][2014] VSC 52.
The learned magistrate determined that the scope of the search was not too broad, stating as follows:
Mr Giurina when giving evidence stated on being given the search warrant and having read it he was completely unsure of what the police were searching for. He stated there was a reference to bank accounts without specification, to National Bank Accounts in his name and all documents in relation to the managing of the body corporate. Mr Giurina stated in his evidence that even as a person with legal qualifications he could not be clear what the search was being undertaken to locate.
I do not agree with Mr Giurina’s evidence or submission that the form of the warrant is flawed such that it would be unclear to the person reviewing its terms as to what the purpose of the warrant was seeking to achieve. It is clearly stated that the information is sought for the affording of evidence in support of charges of theft and obtaining Property by deception. The reference to documents, bank cards and statements may be broad, but the bank is noted as being the ANZ, not any bank and specifically to accounts named Body Corporate 1579. In relation to Mr Giurina’s own banking records a NAB account has been nominated. Thereafter there is the reference to documents and electronic material in relation to the managing of the Owners Corporation No. 1579. Mr Giurina would have been left in little doubt as to what the purpose was in relation to the execution of the warrant. It was to obtain evidence as to his potential criminal impropriety in the management of the Body Corporation.[24]
[24]Reasons [90]-[91].
The learned magistrate rejected the plaintiff’s submission that the police had embarked upon a fishing expedition, stating as follows:
Mr Giurina sought to submit that the police has improperly utilised the execution of the warrant as a fishing expedition to obtain evidence against him where none was otherwise available. This assertion is clearly not correct as Mr Giurina knows the police had already executed a warrant in respect of documents in the possession of the ANZ in relation to the account in the name of the Body Corporation.
The police were well advanced in their investigation as evidenced by the fact that following interview at the police station Mr Giurina was provided with his copy of the Charge sheets. These included all the theft allegations. The only additional charge issued subsequent is one of making a false document that has now been withdrawn. It must be accepted that the police are entitled to seek to obtain evidence to assist in the prosecution of the charges as there would be no reason to execute a warrant otherwise.
There was tendered into evidence photographs taken of the Mr Giurina’s study in which the police undertook the search and seized the documents. It was clear from those photographs that there were piles of papers positioned all over the study, on the desk and in folders and loose. The police took only those documents referred to in the return of search on the warrant and the number were such that they were able to be transported in a single container.
The informant gave evidence that the other police officers present and participating in the search were given a briefing prior to the execution of the warrant. This consisted of advising of the “target” address, the suspect, the type of warrant and what they were searching for. Those officers were therefore not privy to extensive details of the investigation but were still able to locate relevant documents. The fact that some of the documents later were not identified as being of assistance to the investigation, did not however mean the warrant was imprecise or bad in its form.[25]
[25]Ibid [92]-[95].
The learned magistrate did not consider the police’s intrusion of privacy as being unreasonable having regard to the circumstances:
It may be true that the house ….. was owned and occupied by Mr Giurina’s mother, but it was equally occupied by him. When the police attended at approximately 7am Mr Giurina was found in the back yard in his pyjamas. It is true also that Mr Giurina had a bedroom in the premises and a study or office in the dwelling. It is understandable and anticipated that when a warrant is executed over a home the privacy of that home, will always be compromised. There being however no problem as to the form of the warrant the police were well within their rights to enter the premises to search.
The manner in which that search was conducted was not excessive or unreasonable. The evidence of the police is that they went into only one room of the house being the study/ office utilised by Mr Giurina. It was only this location that was searched. Mrs Giurina may have been agitated by the police presence but that is no more than one would expect under the circumstances. It is not such as to regard the police conduct as inappropriate.[26]
[26]Ibid [97]-[98].
Finally, the learned magistrate concluded that the plaintiff did not establish that the search warrant was invalid, or was executed improperly, stating as follows:
As Mr Giurina has not established any impropriety in the conduct of the police in the execution of the warrant I do not need to consider the application of section 138 of the Evidence Act or the International Covenant for Civil and Political Rights or the Charter of Human Rights and Responsibilities Act 2006.[27]
[27]Ibid [99].
The plaintiff now seeks judicial review of the refusal of the learned magistrate to exclude the seized documents and the consequential evidence from the evidence in the criminal proceeding.
Application for judicial review and grounds of review
In his originating motion for judicial review filed on 17 July 2019, the plaintiff sought the following relief:
1.An order in the nature of mandamus or certiorari bringing up the decision of the Second Defendant in Magistrates Court Case Number D10392581 (‘the proceeding”) on 28 May 2019 at Heidelberg Magistrates’ Court whereby the Second Defendant refused to grant Orders 1, 2, 5 and 6 sought by the Plaintiff as contained in the Plaintiff’s application dated 10 October 2017 for exclusion of certain evidence in the proceeding.
2.An order setting aside the decision made by the Second Defendant on 28 May 2019 but only to the extent that it refused to grant Orders 1, 2, 5 and 6 as sought by the Plaintiff in his application dated 10 October 2017 for exclusion of certain evidence in the proceeding.
3.An order that none of the documents seized from the Plaintiff by the Informant on 7 February 2013 pursuant to Search Warrant B1781/13 issued by the Second Defendant (“the Search Warrant”) including the statement of Leah Touloupas of 12 May 2017 and attachments thereto is to be admitted into evidence in the substantive hearing of the proceeding unless sought to be adduced by the Plaintiff.
4.An order declaring that the Second Defendant erred in law in refusing to grant Orders 1, 2, 5 and 6 sought by the Plaintiff as contained in the Plaintiffs application dated 10 October 2017 for exclusion of certain evidence in the proceeding.
5.An order directed to the First Defendant and Informant that all documents seized from the Plaintiff pursuant to the Search Warrant on 7 February 2013 be returned to the Plaintiff in addition to any photographs made during this seizure within 7 days of the making of these orders as prearranged with the Plaintiff.
6.An order in the nature of prohibition or alternatively an injunction preventing the First Defendant and Informant and their officers, servants and agents including all other police officers from taking steps in reliance upon the documents seized from the Plaintiff pursuant to the Search Warrant on 7 February 2013 and preventing them from using such documents in any manner whatsoever.
The grounds of appeal relied upon by the plaintiff are as follows:
1.The [learned magistrate] erred in law when it found that none of the documents seized by the Informant from the Plaintiff pursuant to the Search Warrant on 7 February 2013 attracts legal professional privilege.
2.The [learned magistrate] erred in law when it found that there was no problem with the form of the Search Warrant because it applied the wrong test as to how the Search Warrant should be interpreted and failed to consider the relevant statutory provisions applicable to the form of the Search Warrant.
Key issues and relevant legislation
The plaintiff submitted that the learned magistrate’s findings constituted ‘error on the face of the record’, being a jurisdictional error which warrants the intervention of this Court.
The plaintiff submitted that, because the learned magistrate referred to the transcript of the plaintiff’s evidence in the course of her reasons, the “record” incorporated the transcript of the hearing before the learned magistrate. That contention was disputed by the DPP, relying upon statements made in the decision of Riordan J in the 2017 judicial review proceeding. However, nothing turns upon that dispute for the purpose of the current proceeding, save to note that I have read the transcript and the written submissions of the parties in evidence before me. If the “record” does in fact incorporate the transcript of the hearing below, and the affidavits, other evidence, and submissions of the parties before the learned magistrate, my ultimate decision would be no different than if I had relied solely upon the learned magistrate’s reasons.
The first issue in this proceeding is whether the seized documents were immune from disclosure by reason of them being protected by legal professional privilege.
Sections 118 and 119 of the Evidence Act provide as follows:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Section 120 extends the immunity from disclosure of certain documents to self‑represented litigants, as follows:
(1)Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the party and another person; or
(b)the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party—
for the dominant purpose of preparing for or conducting the proceeding.
Section 131A of the Evidence Act extends the application of the Evidence Act set out above to documents produced in accordance with a disclosure requirement, including, but not limited to, documents obtained pursuant to a search warrant.[28]
[28]See s 131A(2)(g) of the Evidence Act.
There was some debate before the learned magistrate as to whether the plaintiff’s claims for legal professional privilege over the seized documents were to be determined in accordance with the relevant provisions of the Evidence Act or the common law. While the learned magistrate does not deal with this in the course of her reasons, during the course of argument, counsel for the informant referred to the following passage in the leading text book, “Uniform Evidence Law”[29] as representing the correct position:
If evidence is “relevant” in accordance with the very general definition in s 55, and not excluded by any provision in the Act, the effect of s 56(1) is that it “is admissible in the proceeding”. Any common law rule of admissibility which would render such evidence inadmissible would be inconsistent with the Act. Consequently, the effect of s 8 in the Commonwealth Act, and s 9 in the other UEL Acts, would be that such a common law rule would have no legal effect: see also below at [EA.8.60] and [EA.9.90]. Similarly, any evidence rendered inadmissible by the Act could not be saved by a common law rule to the contrary. While common law principles of inadmissibility may assist in determination of questions of relevance and discretionary exclusion, they are no longer binding legal rules.[30]
[29]Odgers, S, “Uniform Evidence Law” (Thomson Reuters, Fourth Edition, 2019).
[30]Ibid EA. Intro.120.
The distinction between the principles derived from the common law and the provisions of the Evidence Act is said to be relevant to the current case because the plaintiff relies upon the decision of the High Court in Propend[31] in support of his contention that the seized documents are protected by legal professional privilege, in that the principle that copy documents provided to a lawyer are protected from disclosure if they are provided for the dominant purpose of obtaining legal advice or for use in litigation. For reasons which will be explained in more detail later in these reasons, I do not consider that the distinction between the common law principles and statutory provisions are material to the current case: rather, the ongoing relevance of Propend[32] is that the decision is relevant to what might be included in ‘confidential communications’ for the purpose of applying ss 118 and 119 of the Evidence Act.
[31](1997) 188 CLR 501.
[32]Ibid.
The second issue is whether the seized documents were improperly obtained, on the basis that the search warrant was invalid, because it was impermissibly vague and broad, because the search warrant was obtained as part of a fishing expedition on the part of the informant, and because the execution of the search warrant represented an unacceptable intrusion into his mother’s right to privacy. If the search warrant was in fact invalid, or if the execution of the search warrant was improper, the seized documents (and, possibly, by extension, the consequential evidence) fall within the terms of s 138 of the Evidence Act, which provides as follows:
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The plaintiff also relies upon s 135 of the Evidence Act, which provides as follows:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time; or
(d)unnecessarily demean the deceased in a criminal proceeding for a homicide offence.
For completeness, the search warrant was issued pursuant to s 465(1) of the Crimes Act 1958 (Vic), which provides as follows:
Issue of search warrant by magistrate
(1)Any magistrate who is satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place—
(a)anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b)anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c)anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant—
may at any time issue a warrant authorizing some police officer or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates’ Court to be dealt with according to law.
Discussion
General
The plaintiff represented himself at the hearing of the application. As noted above, he is a qualified lawyer, but does not presently hold a practising certificate. The learned magistrate accepted that the plaintiff had been retained by the owners corporation to advise upon legal matters.
It is common ground that judicial review is available in respect of interlocutory decisions made by magistrates.[33] In DPP v Kaba,[34] the Court held that an evidentiary hearing by a magistrate with respect to the admissibility of evidence in a criminal proceeding was amenable to review on the grounds that there was an error of law on the face of the record.
[33]An appeal under s 109 of the Magistrates’ Court Act 1998 (Vic) is limited to an appeal from a final order on a question of law.
[34][2014] VSC 52.
Given that the current proceeding is an application for judicial review, rather than an appeal, the grounds for setting aside the learned magistrate’s decision are confined to, among other things, a denial of procedural fairness, and error of law on the face of the record. In the absence of any legal error, it is not open to this Court to review the merits of the learned magistrate’s decision. In the current case, the plaintiff contends that the learned magistrate denied him both procedural and substantive fairness by failing to properly evaluate his evidence regarding the capacity in which he had possession of the seized documents, and applied the wrong test when evaluating the validity of the search warrant. Further, while this was not articulated in his originating motion, the plaintiff in his written submissions in reply contends that the learned magistrate’s finding that the search warrant was valid was unreasonable.
Legal Professional Privilege
In relation to the first ground of review, the plaintiff submitted that he had a claim of legal professional privilege over the seized documents because the documents relate to three existing or contemplated legal proceedings (‘relevant proceedings’), being:
(a) the contempt proceeding at VCAT brought by members of the owners corporation pursuant to s 137 of the VCAT Act 1998 (Vic) to have the plaintiff dealt with for contempt of the tribunal on the basis of his failure to comply with orders made at the first VCAT hearing;
(b) a proceeding brought by the plaintiff at VCAT in March 2014 to remove the new owners corporation manager, Strata Connect Pty Ltd;[35] and
(c) a proceeding apparently contemplated by him when he was the manager of the owners corporation against a building company Johns Lyng Pty Ltd (‘John Lyng’) for misleading and deceptive conduct in relation to a building contract entered into by the owners corporation in or around October 2010.
[35]This proceeding was struck out because the plaintiff failed to pay the relevant application fee. An application by the plaintiff to reinstate this proceeding was refused. See Owners Corporation No 1579 v Giurina (Owners Corporation) [2012] VCAT 643.
The plaintiff filed extensive written submissions taking issue with the learned magistrate’s finding that the seized documents were not immune from disclosure by reason of legal professional privilege. He submitted, in summary, as follows:
(a)the learned magistrate failed to properly address and evaluate his evidence, which established the nature and purpose of advice being sought regarding the seized documents, and did not, contrary to the findings of the learned magistrate, amount to “using verbal formulae or making conclusionary assertions”;
(b)the seized documents which were original documents fell within the principle in Propend[36], because the fact that they were in his custody in his capacity as a lawyer could, combined with the surrounding circumstances, reveal the nature of the advice he was seeking (albeit from himself), or his view as a lawyer regarding specific issues;
(c)the learned magistrate was in error in focusing on why the seized documents were first created rather than the purpose for which they were in the plaintiff’s custody. For example, the plaintiff noted that he had given evidence that he collected the receipts provided to the owners corporation by Jim’s Mowing as being relevant to the issue of whether he had acted reasonably as the manager of the owner’s corporation, and whether he had breached the management agreement;
(d)as a self-represented litigant who is also a lawyer, he is entitled to the same protection of confidentiality as a person who had retained a lawyer; and
(e)he referred to the written submissions filed by him in support of his application to the learned magistrate, which, among other things, stated as follows:
In the present case I have deposed in my [affidavit in support] and in my viva voce evidence which was unchallenged that the documents seized by police were collected and collated by me for the dominant purpose of use in various legal proceedings as well as for advising myself in relation to those proceedings and included documents I had written and prepared in relation to these proceeding one of which I had to attend on the morning the warrant was being executed being the contempt proceeding before Vice President Macnamara which has also been confirmed by the Prosecution.
As the Evidence Act is not a code on the law of legal professional privilege and the common law still applies then a much wider range of documents will be protected because legal professional privilege under the common law is not restricted to documents only prepared by the lawyer for use in litigation or providing advice as it the case under the Evidence Act but also extends to copy documents or original documents created for a non-privileged purpose but which have been given and is under the custody of a lawyer for the dominant purpose of obtaining legal advice or use in litigation which is here the case.
[36](1997) 188 CLR 501.
In his submissions, the plaintiff referred to the reasons of McHugh J in Propend[37], including the following statement by McHugh J:
Part of a protected communication may even be a document that was created for a non-privileged purpose but which has been given to, and is in the custody of, a lawyer for the purpose of obtaining legal advice or for confidential use in litigation.[38]
[37]Ibid.
[38]Ibid, 553.
The plaintiff submitted that the learned magistrate was in error in concluding that the statements of McHugh J in Propend[39] were not relevant to his application. The seized documents were held by him in his capacity as a lawyer, albeit that he was also the client. They were collected and collated for the purpose of advising himself, and were relevant to specific issues in the legal proceedings in which he was engaged, or which he was contemplating. He gave extensive oral evidence at the hearing regarding the purposes for which the documents were being used, and the basis upon which the documents were relevant to legal proceedings which were underway or were within his contemplation.
[39](1997) 188 CLR 501.
Essentially, the plaintiff submitted that he was entitled at common law to claim privilege over the seized documents, because the seized documents were in his possession in his capacity as a lawyer, and he collated and reviewed the seized documents in the course of preparing for the current or anticipated proceedings.
The plaintiff submitted that the magistrate failed to properly address and evaluate the evidence regarding the status of the seized documents. The plaintiff referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj,[40] which concerned an alleged denial of procedural fairness. In particular, the plaintiff submitted that the learned magistrate’s reference in her reasons to the transcript of the proceeding was insufficient to discharge her obligation to properly consider his evidence, and thus her obligation to afford him procedural fairness.
[40][2002] HCA 11.
In response, counsel for the DPP submitted that the learned magistrate was correct in identifying that the critical issue in the application was whether the non-privileged status of the documents ‘altered once in his possession as a lawyer’.
Counsel for the DPP submitted that;
the magistrate has conducted a very lengthy hearing and considered each particular document and has considered the claim of privilege that’s been mounted in respect of each particular document.
In his written outline of submissions, counsel for the DPP referred to the relevant principles to be applied when ascertaining whether the dominant purpose for which a document was created was a purpose which attracted the protection of legal professional privilege, as follows (omitting footnotes):
As to the meaning of “purpose”, courts have stated some general principles as follows:
-the purpose for which a communication is made or a document is created is a question of fact.
-the purpose must be determined objectively, with regard to all of the evidence.
-the purpose is to be determined at the time the communication was made or the document was created.
As to the requirement of “dominant purpose” under the Act, courts have again stated some general principles as follows:
-the dominant purpose of the communication must be determined objectively, with regard to all of the circumstances in which it was made and its nature.
-if the document would have been prepared irrespective of the intention to obtain professional legal services, then it will not satisfy the test.
-a claim for privilege will not succeed if the document is a commercial document or has been brought into existence in the ordinary course of business (unless the court is satisfied there is a dominant purpose).
-the word ‘dominant’ has been interpreted as meaning that there must be a “clear paramountcy” of purpose’.
Counsel for the DPP submitted that the learned magistrate had correctly applied these principles, and that her finding that not one of the seized documents was created for the purpose of use in legal proceedings was a finding of fact which was open to her to make.
Counsel for the DPP noted that the plaintiff placed great reliance upon the following statement of McHugh J in Propend[41]:
To concentrate on the similarity between the original and the copy or on how the copy came to be made is to miss the whole point of legal professional privilege. The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.[42]
[41](1997) 188 CLR 501.
[42](1997) 188 CLR 501, 553.
Counsel for the DPP submitted that this statement needed to be read in context of the general principles concerning communications which attract legal professional privilege. Earlier in his reasons, McHugh J reviewed the High Court’s decisions concerning legal professional privilege, including Grant v Downs,[43] stating as follows:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.[44]
[43](1976) 135 CLR 674.
[44](1997) 188 CLR 501, 551.
McHugh J referred to the rationale for the principle of legal professional privilege, which was expressed by the High Court in Grant v Downs[45] as being the protection of the confidentiality of the lawyer-client relationship. As such, legal professional privilege:
... promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline.[46]
[45](1976) 135 CLR 674.
[46]Ibid, 685.
McHugh J then went on to say, in relation to the passage of Grant v Downs[47] extracted above (footnotes omitted):
First, the statement properly identifies the inherent tension in the doctrine of legal professional privilege: on the one hand, there is the need to protect the confidences of the client and, on the other, there is the public interest in parties to litigation having access to an relevant evidence.
Second, the statement correctly identifies the subject matter of the privilege - communications. This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.
Third, the statement emphasises the paramountcy of the principle of legal professional privilege in our legal system. In this country, legal professional privilege is more than a mere rule of evidence; it “is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts”, the best explanation of which is that it is a “practical guarantee of fundamental, constitutional or human rights”.[48]
[47]Grant v Downs (1976) 135 CLR 674, 685.
[48](1997) 188 CLR 501, 552.
Counsel for the DPP submitted that his Honour’s reference to ‘communications’ in the passages extracted above demonstrates the fundamental flaw in the plaintiff’s position. When one applies this principle to the present case, there had not been an act of communication that would cloak otherwise not privileged documents with legal professional privilege. Counsel for the DPP submitted as follows:
When one looks at the relevant items that were placed before the Magistrates’ Court and a claim asserted over those, it is fair to say that it’s difficult to see how privilege could attract to such documents, in or of themselves. The fact they had been either bundled together or collected together in various folders, or in various, as I say, bundles or piles, didn’t alter their status.
... We say that the privilege - privilege didn’t attract to the particular documents in question, because when one looks at the bundles of documents, they didn’t directly reveal or allow any reader to infer the content of substance of any privileged communication. And that’s the critical point that is made by Justice McHugh in Propend.
Counsel for the DPP submitted that it was clear that the learned magistrate correctly applied the reasoning of McHugh J in Propend[49], noting that the learned magistrate’s examination of the seized documents did not reveal any privileged communication.
[49](1997) 188 CLR 501.
Given that the seized documents did not attract legal privilege, counsel for the DPP concluded that there had been no error in the approach taken by the magistrate and no error disclosed on the face of the record. There was no failure to accord natural justice, and no failure to conduct a fair hearing. There was no failure to properly analyse or evaluate the evidence. Indeed, the plaintiff’s criticism of the learned magistrate’s evaluation of his evidence regarding the purpose for which he collected and collated the seized documents reveals that the plaintiff is seeking to review the merits of the learned magistrate’s decision, not the legality of the decision making process.
In my view, there was no legal error on the part of the learned magistrate in refusing to exclude the seized documents from the evidence in the criminal proceeding. Her findings were findings of fact which were open to be made. She clearly considered the plaintiff’s evidence, she simply did not accept that evidence. She was entirely correct in her observation that the statement of principle in Propend[50] was not applicable to the plaintiff’s application. Further, it was open for her to find, on the evidence, that the plaintiff had not fulfilled the burden upon him to establish that the seized documents were brought into existence for the purpose of the relevant proceedings.
[50]Ibid.
The principles in Propend[51] were recently considered by this Court in Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd and Ors (No 8),[52] (‘Cargill’) where Macaulay J summarised the position as following (omitting footnotes):
“The rule in Propend, in its current form, is that a copy of a non-privileged document will attract legal professional privilege where the dominant purpose of bringing the [document] into existence is to seek or provide legal advice or for use in legal proceedings”(emphasis added)[53]
[51]Ibid.
[52][2018] VSC 193.
[53]Ibid [22].
What the plaintiff’s submissions fail to appreciate is that legal professional privilege protects communications, not documents. That much is evident from the statements of McHugh J in Propend[54] extracted above, and from the following statement in Cargill:[55]
Furthermore, the whole of a copied document warrants protection when the document is copied for the dominant purpose of obtaining legal advice regardless of the purpose for which the original was created. That is because the copy becomes a component part of the whole privileged communication, and it is the communication and not the documents per se that attract the privilege. The rationale and consequence of this principle was explained by Gummow J in Propend:
In the end, the matter turns upon the application of the basic principles outlined earlier in these reasons, in particular those (a) that communications with one’s legal adviser which satisfy the criterion of sole purpose are privileged from disclosure and (b) that this privilege extends to the various components of a communication, including material prepared for submission to the legal adviser.
It is not a question of extracting one or other of what may be numerous documents, all of which form part of the privileged communication, and declassifying those particular documents on the footing that the original or other copies exist and there is no bar to compulsory process for the obtaining of them to put in evidence. The communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for and observance of the law.[56]
[54](1997) 188 CLR 501.
[55][2018] VSC 193.
[56]Ibid [31].
Cargill[57] was concerned with the question of whether the principle in Propend[58] applies to electronic copies of non-privileged documents as well as physical copies. However, the difference between the facts in Cargill[59] and those of the current case is immaterial: the difficulty facing the plaintiff in the current case is that his evidence failed to establish the existence of any privileged communication to protect the seized documents from disclosure.
[57]Ibid.
[58](1997) 188 CLR 501.
[59]Ibid.
That the protection afforded to copies of non-privileged documents provided to lawyers for the purpose of obtained legal advice or for use in legal proceedings arises by reasons of the communication inherent in the conduct of providing the document concerned to a party’s lawyer, rather than the contents of the document itself, is abundantly clear from the statement of McHugh J extracted in paragraph 62 above, along with statements to a similar effect made by other members of the Court in Propend.[60] As stated by Brennan CJ:
If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of a solicitor-client communications would be breached.[61]
[60](1997) 188 CLR 501.
[61]Ibid, 509.
And further, according to Dawson J:
... it is confusing to regard legal professional privilege as attaching to documents rather than the information they communicate. Whilst it is not uncommon in judgments for the distinction to be ignored, to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged.[62]
[62]Ibid, 515.
And, by Toohey J:
Reference to copy documents tends to obscure the fact that privilege does not attach to a piece of paper. It attaches to a communication, written or oral, and it is the communication that is at issue.[63]
[63]Ibid, 525.
It is axiomatic that, in order for there to be a protected communication, there must in fact be a communication between two or more parties. That much is implicitly recognised by the definition of ‘confidential communication’ in s 117 of the Evidence Act, which provides that a confidential communication is:
... a communication made in such circumstances that, when it was made –
(a) the person who made it; or
(b) the person to whom it was made –
was under an express or implied obligation not to disclose its contents...
The plaintiff relied upon the decisions of the UK Court of Appeal in Ventouris v Mountain The Italia Express (‘Ventouris’)[64] in support of his contention that legal professional privilege protects documents obtained or held by a self-represented party for the purpose of conducting litigation. Ventouris[65] considered a similar issue to that which arose in Propend[66]: that is, can copies of not privileged documents be protected by legal professional privilege by reason of their being provided to lawyers. Bingham LJ, almost as an aside, made the following observation:
The expression “legal professional privilege” is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client that enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied, in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs his lawyer.[67]
[64][1991] 3 All ER 472.
[65]Ibid.
[66](1997) 188 CLR 501.
[67][1991] All ER 472, 475.
The logic of the plaintiff’s argument is that, based on the above, documents in the custody of a self-represented litigant for the purpose of conducting litigation are protected by disclosure as if the client was represented by a lawyer. Relying upon the principles in Propend[68], that protection extends to documents which were not privileged when they were originally brought into existence, so long as they were being used to prepare for litigation. Further, as the Court of Appeal in Director of Public Prosecutions v Galloway[69] (‘Galloway’) held that the Evidence Act does not provide a complete code with respect to the laws of evidence, to the extent that there is no express abrogation of common law rights (such as the protection afforded by legal professional privilege) in the Evidence Act, the common law still applies.
[68](1997) 188 CLR 501.
[69][2014] VSCA 272.
The fundamental difficulty with the plaintiff’s position is that the weight of authority in Australian jurisdictions (including, at least implicitly, the decision of the High Court in Propend[70], given the repeated references to ‘communications’) is to the effect that, as stated by Mason J in National Employers’ Mutual General Insurance Associated Ltd v Waind[71]:
...it is very doubtful whether there is a privilege for documents coming into existence as materials for the purposes of an action by a litigant in person.[72]
[70](1997) 188 CLR 501.
[71](1979) 141 CLR 645.
[72]Ibid, 654.
The obiter observation of Bingham LJ in Ventouris[73] does not appear to have received much support from judicial and academic writers in Australia, where the courts have generally held that the protection afforded by legal professional privilege only arises where there is an ‘identifiable legal advisor on the one hand and a client who is the holder of the privilege on the other’.[74] That proposition is consistent with the emphasis in the authorities that privilege protects communications, not documents. In order for legal professional privilege to extend to documents in the possession of self-represented litigants, consistency with the rationale for legal professional privilege would require the somewhat artificial finding that a self-represented litigant must, when preparing for litigation, ‘communicate’ with himself or herself. Accordingly, in the absence of any privilege for self-represented litigants at common law, the principle in Propend[75] cannot apply, as it only concerns communications between clients and their lawyers. As such, discussion in Galloway[76] is also irrelevant to the plaintiff’s application, as prior to the enactment of the Evidence Act, there was no common law right that could have been modified or abrogated by s 120 of the Evidence Act.
[73][1991] All ER 472.
[74]McNichol, SB, “Law of Privilege” (The Law Book Company Limited, Sydney, 1996), p 76. See also Medina v The Queen (1990) 3 WAR 21 at 30, where Kennedy J (with whom Malcolm CJ and Walsh J agreed, stated that ‘In the absence of the lawyer/client relationship the privilege does not exist. Central to the privilege is the existence of this relationship’.
[75](1997) 188 CLR 501.
[76][2014] VSCA 272.
However, s 120 of the Evidence Act does not assist the plaintiff. In order for a document to be protected from disclosure under s 120 of the Evidence Act, the plaintiff must have been able to establish that the seized documents disclosed:
(a)a confidential communication between the plaintiff and another person for the dominant purpose of preparing for or conducting a legal proceeding; or
(b)the contents of a confidential document that was prepared by or at the direction or request of the plaintiff for the dominant purpose of preparing for or conducting a legal proceeding.
In the current case, the plaintiff would not be entitled to rely upon the first limb of s 120 of the Evidence Act, as the seized documents were not produced by third parties for the purpose of the plaintiff conducting litigation. Nor would he be able to rely upon the second limb: the seized documents were not confidential documents prepared by him or at his direction for the purpose of conducting the relevant proceedings. Arguably, some or all of the seized documents were not confidential, but in any event, they could only said to have been “prepared” for the purpose of conducting legal proceedings if the term “prepared” could be construed as including “collecting” or “collating” the seized documents.
In my view, given the ordinary grammatical meaning of the word ‘prepare’[77] extending the operation of the second limb of s 120 to documents collected or collated for the purposes of litigation impermissibly strains the language of the statute. It is tolerably clear that the legislative intention behind s 120 of the Evidence Act is to protect the work product of self-represented parties and third parties engaged by them (summaries, memoranda, draft expert reports and the like) rather than throw a cloak of legal professional privilege over documents brought into existence for purposes other than the litigation in which the self-represented party is engaged.
[77]Which includes “to manufacture, compound or compose” (Macquarie Dictionary, 7th Edition).
The position is a little different with respect to the documents concerning the owners corporations’ dealings with John Lyng (‘John Lyng documents’). The learned magistrate appears to have accepted that the plaintiff did act as the legal advisor for the owner’s corporation in the relevant period, and, as a consequence, documents in the possession of the plaintiff which were brought into existence for the purpose of anticipated litigation between the owners corporation and John Lyng would attract the operation of s 119 of the Evidence Act. However, the John Lyng documents are covered by learned magistrate’s factual finding that the seized documents (which were all original documents) were not brought into existence for the dominant purpose of conducting legal proceeding, and her finding that the decision in Propend[78] did not apply to the seized documents.
[78](1997) 188 CLR 501.
Accordingly, the learned magistrate was correct in concluding that the principles in Propend[79] did not apply to the plaintiff’s application to exclude the seized documents.
[79]Ibid.
The validity of the search warrant
The plaintiff had three complaints regarding the search warrant:
(a) first, the learned magistrate failed to apply an objective test with respect to the form of the search warrant;
(b) second, the need for precision and particularly in a search warrant is greater where the search warrant is executed at the premises of a third party, in this case, his mother’s home; and
(c) thirdly, the issue of the search warrant was in itself an abuse of process, as it amounted to a fishing expedition on the part of the informant.
The plaintiff submitted that the seized documents were obtained improperly and in contravention of an Australian law within the meaning of s 138 of the Evidence Act owing to the form of the search warrant. He submitted that the learned magistrate erred in focussing upon whether the plaintiff himself would have been left in any doubt as to the purpose of the search warrant, rather than focussing upon how an ordinary person would interpret the warrant. The plaintiff referred to a number of authorities where the courts have ruled that warrants were invalid for a lack of precision or clarity.[80]
[80]Arno v Forsyth (1986) 9 FCR 576; R v Sing: ex parte Harrison (1979) 36 FLR 322; Lee v Commissioner of Police [2017] NSWSC 1594; Healey v RSPCA (2018) 56 VR 414.
In his written outline of submissions, the plaintiff submitted that the search warrant lacked precision and particularity because:
(a)There are no time limits with respect to the documents sought. A warrant which does not specify the time to which business records relate has been held to be too wide;[81]
(b)An ordinary person would not know what was meant by “any other thing relating to” ANZ bank accounts named Body Corporate 1579 or NAB accounts in my name. Words such as “relating to” and “any other thing” as discussed in the Arno and Healey cases above make the description within the warrant quite indefinite and open-ended. As a result the warrant fails to identify the things which may be seized in a way which enables an ordinary person reading it to know with certainty whether the seizure of a particular thing is authorised by it;
(c)The reference to “any documents, bank cards, statements…relating to” the named accounts is also vague and uncertain and would not enable an ordinary person reading it to know with certainty the scope of the warrant; as seen in Arno the words “relating to” make the warrant too indefinite;
(d)There is no specific naming or description of each document sought to be seized but rather general classes so an ordinary person would not know with certainty what is sought to be seized and as seen in Arno this makes the warrant too wide and uncertain; (compare, for example, the warrant to the list of documents prepared by Ms Thorp (649-652) which approximates to something which would satisfy this specificity and would allow an ordinary person to know with a fair degree of certainty without needing to speculate or second guess whether a specific document came within the scope of the warrant).
(e)The wording of the last paragraph in the description box being any document (or other electronic device) “capable of assisting” in the managing of the specific Owners Corporation is too broad and uncertain in scope as almost any document could be capable of assisting in the managing of the Owners Corporation and therefore it becomes a general search warrant which has been decisively rejected by the law.[82]
[81]Lemesk Pty Ltd v Easterby (1993) 66 A Crim R 337, 346.
[82]Beneficial Finance Corp Ltd v Commissioner of Australian Federal Police (1991) 58 A Crim R 1, 16.
The plaintiff also submitted that the search warrant was defective in that:
(a) there was no reference to the person suspected of committing the offences;
(b) the alleged offence was not fully described in plain words;
(c) it was not clear against whom the alleged offences were committed; and
(d) the search warrant did not on its face contain any link between the description of the items to be searched for and the offences described in the warrant.
The plaintiff submitted that there was no linkage, on the face of the warrant, between the documents sought and the offence which was being investigated. The plaintiff relied on the decision of the Court of Appeal in Healey v RSPCA,[83] which analysed the wording of a warrant issued under the Prevention of Cruelty to Animals Act 1986 (Vic), and found that the use of the word ‘things’ in the relevant warrant was too wide. The Court stated: [84]
In accordance with the principles set out at [65] above, the recipient of a s 24K warrant should be able to ascertain by reference to the terms of the warrant whether a particular thing is caught by the warrant. For example, in Corbett, Callinan and Crennan JJ (with whom Gleeson CJ and Gummow J agreed) referred to the consequent need for a search warrant to be ‘properly confined’ to an identified object of the search by reference to a particular offence. Likewise, in R v Tillett; Ex parte Newton, Fox J held that a search warrant must describe the particular offence which is the object of the search with sufficient clarity.[85]
[83](2018) 56 VR 414.
[84](2018) 56 VR 414.
[85]Ibid, 443.
Further, the plaintiff submitted that the warrant was required to comply with a ‘higher standard of particularity’, because it involved an intrusion into his mother’s property, which violated her right to privacy under the International Convention on Civil and Political Rights (‘ICCPR’). The plaintiff submitted that the learned magistrate failed to consider a number of relevant considerations, such as the lack of effort the police had made in investigating the matter before obtaining the search warrant. For instance, the informant had ample opportunity to interview persons from Johns Lyng after the initial complaint was made to police, but the informant did not undertake any substantial investigations of her own prior to applying for the search warrant.
Accordingly, the plaintiff submitted that the learned magistrate should have found that the search warrant was invalid, and the learned magistrate should have excluded the seized documents (and the consequential evidence) from the evidence in the criminal proceeding. He submitted that, rather than remitting the matter to the Magistrates’ Court, this Court should consider the relevant factors under s 138 of the Evidence Act, and exclude the evidence.
The plaintiff submitted that, notwithstanding the enactment of the Evidence Act, the common law principle governing the admissibility of improperly obtained evidence in Bunning v Cross[86] still applies. In that case, the High Court held that a court can exercise its discretion to exclude unlawfully obtained evidence in order to discourage unlawful conduct by law enforcement authorities. The matters said to be relevant to the Court’s consideration of the factors under s 138 of the Evidence Act include:
[86](1978) 141 CLR 54.
(a) none of the police officers involved in the execution of the search warrant apart from the informant had been involved in any investigations concerning him;
(b) the informant’s evidence showed that she had not assembled any evidence through her own investigations prior to the execution of the search warrants which would have supported the necessary elements of the crime of theft;
(c) the informant did not, and was not in a position to instruct the police officers executing the search warrant what documents they should be searching for;
(d) the fact that the majority of the documents in the police brief were drawn from the seized documents supports the plaintiff’s contention that the informant had not undertaken any real investigations of her own, but rather engaged in a ‘fishing’ expedition; and
(e) the execution of the search warrant amounted to a violation of his mother’s right to privacy under Article 17 of the ICCPR.
The plaintiff submitted that the consequential evidence should also be excluded, because there was a chain of causation between the seized documents and the informant obtaining the consequential evidence. In any event, the consequential evidence would also be caught by s 135(a) of the Evidence Act, as it would be unfairly prejudicial to him for the informant to be able to rely upon evidence obtained as a consequence of the illegal seizure of the seized documents.
Counsel for the DPP submitted that the magistrate correctly applied the objective approach required by the authorities, including the decision of Beaumont J in Brewer v Castles[87] where it was held each case must depend upon its own facts, and a search warrant must be read as a whole, and be viewed from the standpoint of an ordinary person. He submitted that the learned magistrate correctly observed that ‘the appropriateness of the form of the warrant must be decided on each individual case, the interpretation of which is enhanced by the views expressed in other decisions by the Courts’.[88]
[87](1984) 1 FCR 55.
[88]Reasons [87].
There was no dispute between the parties as to the applicable law governing the validity of search warrants. The starting point is the decision of the High Court in George v Rockett,[89] where the High Court observed as follows:
A search warrant thus authorizes 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. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property
...
Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. [90]
[89](1990) 170 CLR 104.
[90]Ibid, 110-111.
The key principles which emerge from the authorities are:
(a) owing to the intrusion upon privacy and private property rights which is the inevitable consequence of the issue and execution of a search warrant, strict compliance is required with the requirements as to form and process imposed by statute and the common law;
(b) whether the form of the search warrant is valid is to be determined on the face of the document from the standpoint of the ordinary person reading it; and
(c) while guidance in a particular case can be gained from the authorities, the validity of a search warrant must be determined on a case by case basis.
Further to the above, I would add that, while the learned magistrate’s view of whether the search warrant is satisfactory is, strictly speaking, not a finding of fact or the exercise of a discretion, it is an evaluative exercise analogous to the exercise of a discretion. Similar observations were made by the Court of Appeal in relation to the task facing a judicial officer under s 138 of the Evidence Act in Murray, Hale and Olsen v The Queen,[91] where the Court stated the principles of House v The King[92] applied to any review of a ruling made pursuant to s 138 of the Evidence Act. That is, a reviewing court must identify some errors in the decision below, rather than substitute its own opinion regarding the decision. Such errors can include acting upon a wrong principle, taking into account irrelevant considerations, failing to take into account relevant considerations, mistaking the facts, or if the decision is unreasonable and/or profoundly unjust. No such error is discernible from the reasons.
[91][2017] VSCA 236.
[92](1936) 55 CLR 499.
In my view, no error is discernible in her Honour’s finding that the scope of the warrant was not too broad, the purpose of the search warrant was apparent on the face of the search warrant, and that the documents sought by the search warrant were sufficiently described in the search warrant. It is apparent from the reasons that the learned magistrate was familiar with and applied the relevant test in determining the validity of the warrant. The learned magistrate’s references in the reasons to what the plaintiff would have understood the purpose of the search warrant to be, or to what the police understood they were searching for, do not, contrary to the plaintiff’s submissions, indicate that the learned magistrate impermissibly applied a subjective test when assessing the form of the warrant. That much is clear from the following statement in the reasons:
“I do not agree with [the plaintiff’s] evidence or submission that the form of the warrant is flawed such that it would be unclear to the person reviewing its terms as to what the purpose of the warrant was seeking to achieve.”[93] (emphasis added)
[93]Reasons [91].
The plaintiff has not demonstrated that the learned magistrate acted on the wrong principle, or that her conclusion that the purpose of the search warrant would be readily understood by a person reading the search warrant was wrong. That is sufficient to deal with the plaintiff’s submissions regarding the form of the warrant. However, going further, having reviewed the search warrant and the evidence before the learned magistrate, I agree with the learned magistrate’s conclusions regarding the form of the warrant. The apparent generality of the classes of documents and things referred to in the search warrant was confined by the subject matter specified by the search warrant. The search warrant was in the form required by the relevant regulations. Further, I agree that the offences to which the search warrant refers are sufficiently specific and generally understood. I do not accept the plaintiff’s submissions to the effect that a search warrant must enumerate the constituent elements of an offence in addition to specifying the offence itself. In my view, it would be abundantly clear to any person reading the warrant, based upon the offences specified and the types of documents and articles sought, that the police (or more specifically, the Fawkner Robbery Task Force) were investigating the alleged misappropriation of funds belonging to the owners corporation by the plaintiff.
Finally, the learned magistrate’s finding that the execution of the search warrant was not a fishing expedition is unremarkable, and is indeed consistent with the evidence that the charges against the plaintiff had been prepared prior to the execution of the search warrant, and that a search warrant directed at the ANZ Bank had already been executed. Also unremarkable is the learned magistrate’s conclusion that the execution of the search warrant at the home was permissible, notwithstanding that it was also the home of the plaintiff’s mother, as the plaintiff also lived there and was present during the execution of the search warrant. The current case is readily distinguishable from the authorities relied upon by the plaintiff, regarding the execution of search warrants at premises occupied by innocent third parties.
Conclusion
Accordingly, the plaintiff’s application to set aside the decision of the learned magistrate not to exclude the seized documents and consequential evidence from the evidence in the criminal proceeding will be dismissed. For completeness, if I had reached a different view on the question of the validity of the warrant and/or the propriety of the process by which the search warrant was executed, I would have remitted the application for determination of the question of whether the consideration of the relevant factors under s 138(3) of the Evidence Act warranted the admission of the seized documents into evidence, as well as the question of whether the consequential evidence was in fact obtained as a result of the execution of the search warrant, rather than make the orders sought by the plaintiff in his originating motion. Such an exercise requires a close analysis of the evidence in the criminal proceeding, including the seized documents, in order to establish the centrality or otherwise of the seized documents to the issues in the criminal proceeding, along with an analysis and evaluation of the causal connection between the seized documents and the statement of Ms Touloupas. It is not appropriate for such an exercise to be undertaken by way of judicial review.
I shall hear further from the parties on the question of the costs of this proceeding.
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