Kennedy v Baker

Case [2004] FCA 562

FEDERAL COURT OF AUSTRALIA

Kennedy v Baker [2004] FCA 562

CORRIGENDUM

TREVOR JOHN KENNEDY v PETER BAKER and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

N 2366 of 2003

BRANSON J
6 MAY 2004 (CORRIGENDUM 17 JUNE 2004)
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 2366 of 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

PETER BAKER
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE:

6 MAY 2004

PLACE:

SYDNEY

CORRIGENDUM

1.In par 86 the reference to ‘William v Keetly’ should read ‘William v Keelty’

2.In par 96 the first sentence should read:

‘It is settled law that, generally speaking, those executing a warrant in respect of premises must ensure that the occupier of the premises has, having regard to the circumstances surrounding the search, an adequate opportunity to make a claim of privilege (Commissioner of Taxation v Citibank per Bowen CJ and Fisher J at 417).’

3.In par 104 the following words should be added at the end of the paragraph after the word ‘anything’:

‘contained in the imaged hard drive.’

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Branson.

Associate:

Dated:            17 June 2004


FEDERAL COURT OF AUSTRALIA

[2004] FCA 562

Kennedy v Baker

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today but form no part of the judgment.  It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

6 May 2004


FEDERAL COURT OF AUSTRALIA

[2004] FCA 562

Kennedy v Baker

SUMMARY OF EFFECT OF REASONS FOR JUDGMENT
GIVEN ON 6 MAY 2004

These reasons for judgment concern the execution on 13 November 2003 of a search warrant issued pursuant to the Crimes Act 1914 (Cth) at business premises occupied by the applicant, Mr Kennedy. On 25 March 2004 Justice Gyles published a judgment concerning the execution on the same day (ie 13 November 2003) of a warrant at Mr Kennedy’s home.

The first respondent, Mr Baker, a member of the Australian Federal Police, was the executing officer in relation to the warrant executed at Mr Kennedy’s business premises.  He was assisted by other members of the Australian Federal Police, officers of ASIC and experts in computer forensics.  During the course of the execution of the warrant, Mr Baker directed that a copy be made of the hard drive of the personal computer ordinarily operated by Mr Kennedy’s personal assistant.  The copy hard drive was removed from the business premises, with Mr Baker’s approval, by an officer of ASIC.  As yet neither Mr Baker nor ASIC has sought to access the…

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AGLC
Kennedy v Baker [2004] FCA 562
Case
[2004] FCA 562
Decision Date

CaseChat Overview and Summary

The case of Kennedy v Baker involves a dispute between the plaintiff, Mr Kennedy, and the defendants, Mr Baker and others, concerning the legality of the actions taken by Mr Baker, who was acting as an executing officer under the Crimes Act, during the execution of a search warrant. The case was heard in the Federal Court of Australia. The primary legal issues in this case were whether Mr Baker was authorised to create and remove a forensic image of a hard drive during the execution of a search warrant, and whether there was a breach of legal professional privilege.

The court examined the statutory provisions under the Crimes Act, specifically sections 3L(1A) and 3L(2), to determine the scope of Mr Baker's authority. It was argued that Mr Baker should have only imaged specific files that met the criteria outlined in the warrant, rather than the entire hard drive. The court found that while search warrant provisions are strictly construed, the language of section 3L(1A) of the Crimes Act, which refers to “any data accessed by operating the electronic equipment,” supports the broader interpretation of Mr Baker's authority. The court concluded that Mr Baker was indeed authorised to image the entire hard drive if he reasonably believed that the data contained therein constituted evidential material as per the warrant.

Furthermore, the court addressed the argument regarding the breach of legal professional privilege. Given that no party argued that there was a loss of legal professional privilege in relation to any communication accessible via the hard drive, the court found it unnecessary to delve deeper into this issue. The court also noted that no party claimed that the respondents were not entitled to access or use the imaged hard drive or any information contained therein.

In conclusion, the court found that Mr Kennedy had not established a basis for the declarations he sought regarding the legality of Mr Baker's actions. The application was dismissed with costs, and the court indicated it would hear from the parties on the appropriate orders to be made in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

Plainly the dispute between the parties in this case is neither abstract nor hypothetical and Mr Kennedy has a demonstrable interest in obtaining the relief that he seeks. I am satisfied that par 39B(1A)(c) vests jurisdiction in this Court to hear and determine this proceeding. There is no need for a determination to be made as to whether s 5 of the ADJR Act is an alternative source of jurisdiction.FACTS There is limited dispute between the parties as to the subordinate facts in this case. Part 1AA of the Crimes Act, which is comprised of s 3C – s 3ZX, is concerned with search warrants and powers of arrest. On 12 November 2003 an ‘issuing officer’ as defined by subs 3C(1) of the Crimes Act, acting in reliance of s 3E of the Crimes Act, issued the Warrant to Federal Agent Warren Dominic Gray (‘Mr Gray’). Later that same day Mr Gray, acting in reliance on the definition of ‘executing officer’ contained in subs 3C(1) of the Crimes Act, wrote the name of Mr Baker on the Warrant thereby conferring on Mr Baker the status of ‘executing officer’ in relation to the Warrant. The Warrant was issued on the basis that the issuing officer was satisfied by information on oath that there were reasonable grounds for suspecting that there was at the Premises ‘evidential material’ as defined by the Crimes Act which satisfied each of three conditions set out in the Warrant. The three conditions which were set out in the Warrant may be summarised as follows:(a)one, that the evidential material be originals or copies or drafts of things in certain described categories, including things in those categories stored in electronic or magnetic form, relating to the period 1 January 1991 to the present ‘together with any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things’;(b)two, that the evidential material relate to one or more of certain named persons, firms or entities, and(c)three, that the evidential material consist of ‘[t]hings for which there are reasonable grounds for suspecting they will afford evidence as to the commission of’ certain alleged offences against the laws of the Commonwealth.No party argued that the hard drive of which the forensic image was taken was a ‘storage medium or storage device’ within the meaning of the concluding lines of the first condition of the Warrant. The Warrant, amongst other things, authorised the executing officer or a constable assisting to:‘… search the premises for any evidential material that satisfies ALL of the THREE conditions specified above and to seize any such evidential material that may be found.’ The Warrant further authorised the executing officer or a constable assisting to exercise such of the powers available under Division 2 of Part 1AA of the Crimes Act as ‘are appropriate in the circumstances of the case’. Section 3L of the Crimes Act is a power available under Division 2 of Part 1AA of the Crimes Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRANSON J
In the circumstance that no party asserts that there has been a loss of legal professional privilege in respect of any communication that can be accessed by utilising the hard drive, I doubt that it is necessary for me to give further consideration to this issue. In particular, I doubt that any declaration should be made on Mr Kennedy’s application concerning the entitlement of the respondents to access or use the imaged hard drive or any copy thereof or any information contained therein. However, perhaps out of an abundance of caution, I consider it appropriate to hear from the parties before making the order that presently seem to me to be the appropriate order having regard to my above reasons, namely that the application be dismissed with costs.CONCLUSION In my view, Mr Kennedy has not established an entitlement to a declaration that Mr Baker was not entitled to create, or cause to be created, the imaged hard drive. Nor has he established an entitlement to a declaration that Mr Baker was not entitled to remove, or cause to be removed, the imaged hard drive from the Premises. I will hear the parties as to the appropriate orders to be made in the circumstances.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Section 3N is concerned with the provision of copies of things seized under a warrant relating to premises. Section 3N provides:‘(1)Subject to subsection (2), if a constable seizes, under a warrant relating to premises: (a)a document, film, computer file or other thing that can be readily copied; or(b)a storage device the information in which can be readily copied;the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.(2) Subsection (1) does not apply if: (a)the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b); or(b)possession by the occupier of the document, film, computer file, thing or information could constitute an offence.’CONSIDERATIONIdentification of grounds The written outline of Mr Kennedy’s final submissions identifies four grounds upon which Mr Kennedy contends that he is entitled to the relief sought by him in this proceeding. The four grounds are as follows:‘First, on its proper construction section 3L(1A) of the Crimes Act 1914 (Cth) (the Crimes Act) did not authorise Mr Baker’s imaging and removal of the entire content of the imaged hard drive.Secondly, the respondents, who effectively bear the onus of proof, have failed to establish that any file on the imaged hard drive (including the file that is annexure L to Mr Baker’s affidavit sworn 6 February 2004) (Annexure L) satisfied all three of the conditions described in the warrant, or in more technical terms that Mr Baker believed on reasonable grounds that any data on the hard drive might constitute evidential material as the basis for exercising the powers under s 3L(1A) of the Crimes Act.Thirdly, the first respondent failed to give the applicant any or adequate opportunity to claim legal professional privilege.Fourthly, … the imaging and removal of the content of the imaged hard drive was unlawful because the said content included communications to which legal professional privilege attached.’I shall consider the grounds upon which Mr Kennedy relies in the above order.Subsection 3L(1A) of the Crimes Act Mr Kennedy submitted:‘Even if Mr Baker formed the belief on reasonable grounds that Annexure L satisfied all three conditions described in the warrant (although as to which see further below), and might constitute evidential material, Baker was not authorised by section 3L(1A) of the Crimes Act to image and seize all of the data on the hard drive. Baker should have copied into documentary form under section 3L(2) or imaged under section 3L(1A)(a) the single file which, in his belief, satisfied the three conditions, namely Annexure L, or if circumstances permitted moved the computer under section 3K(2)The opening words of section 3L(1A) refer to “any data accessed by operating the electronic equipment”. Sub-paragraphs 3L(1A)(a) and (b) authorise the executing officer to copy “the data”. The reference to “the data” in sub-paragraphs 1A(a) and (b) must be to the same “data” referred to in the opening words of section 3L(1A): had the legislature intended to draw some distinction between the operation and effect of the word “data” appearing in the fourth and fifth lines of section 3L(1A) from its operation and effect in the second line it would have said so.Search warrant provisions are strictly construed because they concern interferences with previously existing common law rights: Crowley v Murphy (1981) 52 FCR 123 at 129; Commissioner of Taxation v Citibank (1989) 20 FCR 403, 432-433; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 296; Hart v Commissioner, Federal Police (2002) 124 FCR 384, 399-401.’