KWLD v Webb - [2024] WASC 422

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KWLD -v- WEBB [2024] WASC 422
CORAM:   HOWARD J
HEARD:   23 OCTOBER 2024
DELIVERED          :   14 NOVEMBER 2024
FILE NO/S:   SJA 1062 of 2024
BETWEEN:   KWLD
Applicant
AND
MAGISTRATE WEBB
First Respondent
JAMES PRAGNELL
Second Respondent
DARREN JAMES BLOCKLEY
Third Respondent
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Fourth Respondent

ON APPEAL FROM:
For File No:   SJA 1062 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WEBB
File Number            :   PE37364/2024 and PE37761/2024

Catchwords:

Application for review order under s 36(1) of the Magistrates Court Act 2004 (WA) - Where Magistrate dismissed applications made under ss 151(4) and 151(13)(b) of the Criminal Investigations Act 2006 (WA) and an order for suppression - Where ‘records’ were seized from the applicant - Where applicant subsequently charged with offences and seized records (and copies and derivatives) may be used against him at trial - Where applicant claims legal professional privilege over the seized records and copies and derivatives thereof - Whether s 151 of the CI Act continues to apply - Whether by the effluxion of time the applicant has waived his legal professional privilege - Magistrate did not err - Application dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Investigation Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)

Result:

Pragnell SC application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
First Respondent	:	No appearance
Second Respondent	:	J F Bennett
Third Respondent	:	J F Bennett
Fourth Respondent	:	L K Rosenthal

Solicitors:

Applicant	:	In person
First Respondent	:	No appearance
Second Respondent	:	State Solicitors Office
Third Respondent	:	State Solicitors Office
Fourth Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AW v Rayney [2009] WASC 250
Corporation International v ACCC (2002) 213 CLR 543
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543
Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180
Mohammadi v Bethune [2018] WASCA 98
Rayney v AW [2009] WASCA 203
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; (2017) 91 ALJR 936
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58

HOWARD J:

Introduction

Initially, on about 23 August 2024, KWLD, the applicant sought a review order in this Court under s 36(1) of the Magistrates Court Act 2004 (WA) (MC Act).
That application was referred to a Registrar of this Court who appears to have taken the view that the application for judicial review should not be accepted and should instead be filed as a single judge appeal.
On 3 September 2024, the applicant then filed an Appeal Notice in this Court under the Criminal Appeals Act 2004 (WA).
The decisions in the Appeal Notice were stated to be:
1.dismissal without determination of two applications filed under s 151(4) of the Criminal Investigation Act 2006 (WA) (CI Act);
2.refusal to entertain an application under s 151(13)(b) of CI Act; and
3.dismissal without determination of his suppression order application dated 3 July 2024.
The two applications referred to in the Appeal Notice were made in the Magistrates Court and are referred to respectively from here as the Pragnell MC application and the Blockley MC application.
Because the applicant was facing an upcoming District Court trial (to start on 8 October 2024), he sought his appeal/s in this Court to be determined urgently.

Steps taken in this Court

Following directions hearings on 12 and 16 September 2024, I made orders on 16 September 2024 which, in effect, treated the appeal in SJA 1062 of 2024 as two separate applications under s 36(1) of the MC Act in respect of each dismissal of the Pragnell and Blockley MC applications. From here I refer to these as the Pragnell SC application and the Blockley SC application.
I also made orders, effectively, expediting the Pragnell SC application. I referred the application for a 'review order' under s 36(1) of the MC Act through to the hearing of the substantive application.
Notwithstanding that, it was not possible to have the argument of the Pragnell SC application prior to the scheduled start of the District Court trial and, I understand that the District Court trial has been:
1.vacated; and
2.relisted in late June into July of 2025.
By a further application dated 4 September 2024 but filed 10 September 2024, the applicant made an application in an appeal applying for:
1.an order securing the records, the subject of the proceedings to which the appeal relates until the appeal is dealt with, in a manner which:
(a)prevents the records from being concealed, disturbed or lost;
(b)preserves the evidentiary value of the records; and
(c)prevents access to the information in the records by any person who would not be entitled to access the information if it were privileged; and
2.an order prohibiting publication of the applicant's identity until further order.
I note that on 16 September 2024, the Court was informed by counsel for the second to fourth respondents that:
1.all of the items which had been the subject of the Pragnell and Blockley MC applications had been retrieved by the second and third respondents respectively;
2.those items had been deposited with the Magistrates Court at Perth; and
3.undertakings were given by the second to fourth respondents that none of them would seek to use any of the items pending further order of this Court.
The Pragnell SC application was argued on 23 October 2024; and the Blockley SC application was adjourned until the judgment of the Pragnell SC application for further directions.

Factual background

The following, unless I have identified otherwise, come from affidavits read in the Pragnell SC application without objection, and other matters agreed at the hearing.
On the morning of 27 June 2022, Detective Pragnell and another police officer went to KWLD's address at Mount Tarcoola near Geraldton, with a warrant for his arrest for suspected contraventions of an Intensive Supervision Order (ISO) made under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
Detective Pragnell seized two mobile phones at that time.
In relation to the seizure of those two mobile phones, her Honour Judge Black has found the seizure:
1.did not occur lawfully under the HRSO Act; but
2.was lawful under s 132(5)(a) of the CI Act or, in the alternative, under s 115 of the CI Act.
The parties agreed that I should proceed on the basis that the ruling is correct, and I have done so.
KWLD was aware of the seizure of the two mobile phone devices at the time.
In the afternoon of 27 June 2022, Detective Pragnell returned to the Mount Tarcoola address (KWLD was not present) and seized a number of items.
In relation to each of the searches and seizures on 27 June 2022, Detective Pragnell completed an interim property receipt/physical material log. Without objection, KWLD handed those up during the course of the hearing.
Later, on 27 June 2022, KWLD was charged with four offences:
1.GN 2258 of 2022: against s 80(1) for a contravention of an ISO;
2.GN 2259 of 2022: against s 80(1) for a contravention of an ISO;
3.GN 2260 of 2022: against s 80(1) for a contravention of an ISO; and
4.GN 2261 of 2022: for possession of child exploitation material against s 220 of the Criminal Code 1913 (WA) which became count 1 on the Indictment IND 122 of 2022 in the District Court.
On 3 August 2022, KWLD was charged with the following offences:[1]
[1] In numbering the charges, I have followed the numbering adopted by KWLD at 'KWLD‑2' to his submissions dated 10 October and filed 15 October 2024.
5.GN 2927 of 2022: against s 80(1) for a contravention of an ISO;
6.GN 2928 of 2022: against s 80(1) for a contravention of an ISO;
7.GN 2929 of 2022: against s 80(1) for a contravention of an ISO;
8.GN 2930 of 2022: against s 80(1) for a contravention of an ISO;
9.GN 2931 of 2022: against s 80(1) for a contravention of an ISO;
10.GN 2932 of 2022: against s 80(1) for a contravention of an ISO;
11.GN 2933 of 2022: against s 80(1) for a contravention of an ISO;
12.GN 2934 of 2022: against s 80(1) for a contravention of an ISO;
13.GN 2935 of 2022: against s 80(1) for a contravention of an ISO;
14.GN 2936 of 2022: against s 59(5) for possession or copy of an indecent or obscene article;
15.GN 2937 of 2022: against s 61(2) of the CI Act; this became count 3 on the Indictment IND 122 of 2022;
16.GN 2938 of 2022: which was discontinued 15 June 2023;
17.GN 2939 of 2022: which was discontinued 15 June 2023; and
18.GN 2940 of 2022: producing child exploitation material against s 218 of the Criminal Code; this became count 2 on the Indictment IND 122 of 2022.
On 4 June 2023, KWLD was charged with two further offences, both of which were discontinued on 15 June 2023 and are not set out here.
As noted, charges 4, 18, and 15 set out above were committed to the District Court as counts 1 ‑ 3 respectively on Indictment IND 122 of 2022.
It is the trial of the charges on Indictment IND 122 of 2022 which was to occur in October 2024 and has now been listed for the middle of 2025.
I was told that the fourth respondent has the carriage of the three charges on the Indictment in the District Court:
I was further told that the balance of the remaining charges:
1.are in the Magistrates Court and are being prosecuted by WA Police; and
2.will not be heard before the hearing and determination of Indictment IND 122 of 2022.
While I would expect, in the ordinary course, that KWLD was aware of the second seizure of items on or soon after 27 June 2022, the parties were content for me to proceed on the basis that KWLD:
1.received full unredacted disclosure material electronically no later than 25 October 2023 for the charges on the Indictment; and
2.by that, became aware at about that time, at the latest, of the second seizure of items.

The Pragnell MC application

The Pragnell MC application was commenced on 3 July 2024, pursuant to s 151(4) of the CI Act, in the Magistrates Court of Western Australia at Perth; and was given the matter number PE 37364/2024.
The Pragnell MC application was made in response to a written notice dated 7 May 2024 given by the applicant claiming legal professional privilege[2] over the Pragnell items. KWLD's written notice is not in evidence before the Court. I have proceeded on the basis that the applicant's notice was a claim under s 151(2)(a) of the CI Act.
[2] I have used throughout 'legal professional privilege' as that is the term which appears in s 151(1)(a) of the CI Act.
The Pragnell MC application sought 'a decision on whether information in the seized record(s) set out below is privileged'. The seized records were 12 items being:
1.an Acer laptop: from the second seizure on 27 June 2022;
2.a Samsung SM-A125F mobile device: seized at the first search on 27 June 2022;
3.a Samsung SM-A127F mobile device: seized at the first search on 27 June 2022;
4.a WD Elements 1TB hard drive: from the second seizure on 27 June 2022;
5.a SanDisk 64Gb hard drive: from the second seizure on 27 June 2022; and
6.an orange USB hard drive;[3]
with the following six items 'provided by ODPP WA',[4] namely:
7.JW-1: orange USB thumb drive;
8.JW-2: portable hard drive;
9.JW-3: black SanDisk 128Gb thumb drive;
10.JW-4: black portable hard drive;
11.JW-6: black SanDisk 64Gb containing digital forensics report 81223; and
12.disk containing UFED examination of items 0005, 0006 and 0008 (the 12 together are referred to as the Pragnell items).
[3] Detective Pragnell said of this item: 'During the initial stages of my investigation, I generated a UFED download of the first phone. This is a basic investigator download. This is stored upon an orange USB and was stored in the hardcopy crime file': Pragnell MC Affidavit [35].
[4] KWLD accepted the six items listed were 'recovered' by Detective Pragnell from the Office of the Director of Public Prosecutions: KWLD's Outline of Submissions dated 10 October and filed 15 October 2024.
Detective Pragnell made an affidavit on 18 June 2024 (Pragnell MC affidavit) in support of the Pragnell MC application. The Pragnell MC affidavit deposed to how the Pragnell items were taken into police custody in June 2022 and what became of them.
At the directions hearing on 16 September 2024, Mr Whalley SC, Deputy Director of Public Prosecutions (WA) indicated the Pragnell items which will and may be used or led in evidence against the accused in the trial of Indictment IND 122 of 2022. Mr Whalley said that Pragnell items 2, 7 and 11 would be led at the trial and the balance of the items may be used depending on the issues which are in dispute at the trial.[5]
[5] ts 33 - 34, 16 September 2024.
It is not clear from the materials before the Court what the relationship is between the Pragnell items and the extant charges in the Magistrates Court. For present purposes, I have assumed, favourably to the applicant, that the Pragnell items might be used against him in those Magistrates Court proceedings.

The Blockley MC application

The Blockley MC application was commenced on 5 July 2024, by an application under s 151(4) of the CI Act in the Magistrates Court at Perth; and was allocated the number PE 37761/2024.
The Blockley MC application was made in response to a written notice dated 21 May 2024 given by the applicant claiming legal professional privilege over the Blockley items.
For present purposes, it suffices to note that the items which were the subject of the Blockley MC application are different from the Pragnell items.

Procedural history of the Pragnell MC application in the Magistrates Court

The Pragnell and Blockley MC applications were listed on 17 July 2024 and were adjourned to 15 August 2024.
On 3 July 2024, the applicant applied to the Magistrates Court for a suppression order and in response to that application, the Magistrate made an interim suppression order on 17 July 2024.
On 14 August 2024, written submissions were filed in both matters by WA Police Legal Services.
On 15 August 2024, the Magistrate adjourned both applications to 22 August 2024 and extended the interim suppression order made on 17 July 2024.
On 21 August 2024, the applicant filed and served his written submissions in response.
On 22 August 2024, in a short hearing, the Magistrate:[6]
1.dismissed the two applications: I infer that to be the case notwithstanding the transcript records that the Magistrate spoke of an application in the singular;
2.refused to entertain the applicant's application made orally on the day under s 151(13)(b) of the CI Act; and
3.dismissed, without determination, the suppression application.
[6] Transcript of the hearing on 22 August 2024 was 'LH‑3' to the affidavit of Ms Hutchinson made 1 October 2024.
The Magistrate took the view that she had to dismiss the applications because:[7]
1.the matters were already committed to the District Court;
2.she had no jurisdiction over the matters;
3.she had no power to consider any interim orders in regards to the admissibility of evidence; and
4.the applications had to be brought in the District Court as they were 'completely attached' to the admissibility of evidence in the District Court.
[7] Transcript of the hearing on 22 August 2024 was LH-3 to Ms Hutchinson's affidavit.
I also note that the Magistrate, in the short exchanges with the applicant, appears to have considered that the Pragnell and Blockley MC applications were the applicant's applications. Nothing turns on that for present purposes.

Hearing of the Pragnell SC application

I have already set out the start of what has become the Pragnell SC application above.
KWLD relied upon his affidavits:
1.made 23 August and filed 3 September 2024; and
2.made and filed 11 September 2024.
The second respondent relied on the affidavit of Laura Hutchinson made and filed 1 October 2024.

Issues to be determined

By reference to the parties' contentions, I consider that the following issues arise for determination:
1.did s 151 of the CI Act continue to apply to the Pragnell items;
2.could s 151 of the CI Act apply to the Pragnell items 4 - 12 (which were not physically seized from KWLD); and
3.must, by the effluxion of time here, KWLD be taken to have waived his legal professional privilege in respect of the Pragnell items.
Understandably, only the applicant and the second respondent made submissions at the hearing of the Pragnell SC application. Having said that, the Court records, and was grateful for, the attendance of and assistance provided by the DPP.

The applicant's contentions

The applicant contends that the Magistrate made a jurisdictional error in holding that she had no jurisdiction to hear or determine the Pragnell MC application.
The applicant asserts that the learned Magistrate also proceeded on a mistaken understanding that:
1.the Pragnell MC application had been brought by the applicant (and not the second respondent); and
2.the Pragnell MC application concerned the admissibility of evidence in the District Court trial.[8]
[8] Applicant's outline of submissions dated 10 October and filed 15 October 2024 [26].

The second respondent's contentions

The second respondent accepts that KWLD:
1.was a person 'aggrieved' within the meaning of s 36(1) of the MC Act by the Magistrate's dismissal of the Pragnell MC application; and so
2.has standing to make the Pragnell SC application (and the Blockley SC application).
I agree with both of those propositions.
The second respondent accepts that if s 151 of the CI Act continued to apply to the Pragnell items, the learned Magistrate made a jurisdictional error in dismissing the Pragnell MC application on the basis that she did not have jurisdiction to hear the matter.[9]
[9] Second Respondent's Outline of Submissions filed 26 September 2024 [49] ‑ [50].
I consider that concession to be properly made and have proceeded on that basis.
The second respondent contends, however, that the Order made by the Magistrate to dismiss the Pragnell MC application was correct:
1.because a number of the Pragnell items were not 'records' seized from KWLD; and
2.s 151 of the CI Act had ceased to apply to the Pragnell items at the time the Pragnell MC application was made.
Further, the second respondent submitted that if he was wrong and s 151 of the CI Act continued to relevantly apply, then this Court ought not grant KWLD a remedy because he had waived his legal professional privilege. So the privilege claim made, and which was to be agitated in the Pragnell MC application, could not succeed. That is, any remedy granted by this Court would be futile.
The only basis put by the second respondent for the waiver was the effluxion of time in this case's particular circumstances.

Did s 151 of the CI Act continue to apply to the Pragnell items

The wording in s 151 of the CI Act is open in the sense that it does not contain any express limitation on when a claim to privilege may be made under s 151(2)(a). Nor does it provide any express temporal relationship between the seizure and the claim to privilege.

There is a question of construction as to whether the procedure in s 151 of the CI Act no longer applied at 7 May 2024 to the Pragnell items.
The general principles of statutory interpretation are well‑established.[10] The principles were summarised by the Court of Appeal in Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36] (Martin CJ, Mazza and Beech JJA) and do not need to be re‑stated in full here.
[10] See e.g. Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58 [84] (Mazza, Beech & Vaughan JJA); and Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180 [174] (Quinlan CJ, Mitchell & Beech JJA).
The first principle which is particularly relevant here is the emphasis placed on context.[11] The Court of Appeal cited the judgment of Keifel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration:
Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[12]
[11] Mohammadi v Bethune [31] (citations omitted).
[12] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [14] (citations omitted and emphasis added).
As the Court of Appeal stated, the objective discernment of the statutory purpose is integral to contextual construction.[13]
[13] [2018] WASCA 98 [33] and the cases cited therein.
The second principle particularly relevant here concerns the structure of the subject legislation:
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.[14]
[14] Mohammadi v Bethune [33] (citations omitted and emphasis added).
The third particularly relevant principle here was stated by the Court as:
Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.[15]
[15] Mohammadi v Bethune [36] (citations omitted and emphasis added).
A further important principle which assists with the construction of the relevant part of the CI Act is that legal professional privilege is an important principle of substantive law and an important common law immunity.[16]
[16] Rayney v AW [2009] WASCA 203 [37] (McLure JA for the Court). The paragraph cited Daniels Corporation International v ACCC (2002) 213 CLR 543 [9], [11].
It is trite that statutory provisions are not to be construed as abrogating important common law rights, privileges or immunities in the absence of clear words or necessary implication to that effect.[17]
[17] Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 [11] as cited by Rayney v AW [2009] WASCA 203 [37].
Taking the last of the above into account, I have proceeded on the basis that:
1.s 151 of the CI Act provides a procedure for the determination of a claim to legal professional privilege;
2.if the procedure is not utilised by a claimant, that of itself does not determine, nor render unavailable, the claim for privilege; and
3.if the procedure in s 151 of the CI Act has not been utilised or ceases to apply to a claim for privilege, that does not, of itself, prevent the assertion, maintenance and determination of the claim in a different procedure from that in the CI Act.
I consider appreciating that s 151 of the CI Act provides a procedure which may be invoked effectively by a claimant for legal professional privilege assists with the broader question of construction as to whether the procedure remained available here.
The CI Act and the Criminal Procedure Act 2004 (WA) were passed as part of what was described in the Second Reading Speech as a 'raft of legislation known as the "criminal law reform package"'.[18] With the other statutes in that package, the CI Act and the Criminal Procedure Act were enacted by way of response to the WA Law Reform Commission's Report on Police Act Offences.[19]
[18] Second Reading Speech, Hansard, Legislative Assembly, 23 November 2005 p 7639.
[19] Review of the criminal and civil justice system September 1999.
The Second Reading Speech said that:
The Criminal Investigation Bill is an amalgamation of statutory police powers currently available to police by virtue of the Police Act and the Criminal Code; also codifies the majority of police common law power; and introduces new powers that reflects the needs of a contemporary police force. The bill introduces significant controls on these powers to ensure that individuals' human rights are protected and to minimise the opportunity for misuse of the powers.[20]
[20] Second Reading Speech, Hansard, Legislative Assembly, 23 November 2005 p 7639.
Of Pt 13 of the CI Act, the Second Reading Speech specifically said:
Pt 13 deals with seized things. It restricts the circumstances in which things can be seized and requires the list of items seized must be provided to the person from whom they were seized upon request. … Clause 146 allows officers to copy records instead of seizing them, but, where records are seized, it requires officers to provide the person from whom they were seized with a record of them if so requested. Clause 147 provides, among other things, a power for officers toward a person(s) to provide assistance to gain access to records. This latter power is especially important where records are kept as encrypted data. This part also includes a provision under which issues of privilege over material can be determined by the Magistrates Court …'[21]
[21] Second Reading Speech, Hansard, Legislative Assembly, 23 November 2005 p 7642.
Sections 18 and 19(1)(a) and (b) of the Interpretation Act 1984 (WA) provide:
18. Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
19. Extrinsic material, use of in interpretation
(1)Subject to subsection (3), in the interpretation of a provision of a a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material –
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when –
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
I have considered the Second Reading Speech and the relevant headings to sections (as below) pursuant to these provisions of the Interpretation Act.
In AW v Rayney,[22] Murray J said of s 151:
[4]… Broadly put, it can be seen that the section is designed to provide a procedure for the Magistrates Court to determine whether, and if so to what extent, the information contained in the records is subject to a maintainable claim of privilege. …
…
[35]… s 151 is concerned to preserve the privilege in a case where otherwise the consequence of the lawful seizure of records would be their use to further, or in the course of, a criminal investigation. Despite the lawful seizure the privilege is maintained, and therefore until it is determined in respect of which records seized and to what extent in respect of such records, the privilege exists, the records are to be handled in such a way as to prevent access to the information, 'by any person who would not be entitled to the information if it were privileged': s 151(3)(c). That is a requirement which is obviously designed to prevent the ultimate determination about the existence of the privilege being a pyrrhic victory because of the involuntary disclosure of the information. …
[22] [2009] WASC 250. The decision was appealed: Rayney v AW [2009] WASCA 203. But the aspects quoted from the decision of Murray J were not the subject of the appeal.
As said, the text of the CI Act and Pt 13 does not expressly provide for a point beyond which the procedure in s 151 of the CI Act ceases to be available to a claimant for legal professional privilege.
In my assessment, however, there must, necessarily, be such an end point. By way of an extreme example: imagine that information from a record which had been seized from an accused (lawfully under the CI Act) was sought to be led at the trial of the accused. When that evidence was led, could the accused give notice under s 151(2)(a) of the CI Act so that the officer in charge of the investigation would have to apply to the Magistrates Court under s 151.
It is difficult to see that as an intended outcome of the provision. That is especially so when, all other things being equal, the accused could make their claim to privilege in the court hearing the trial.
It is not necessary to attempt a definitive answer, for all purposes, to the question of when the s 151 of the CI Act procedure ceases to be available.
Rather, the question for determination is whether in the present circumstances, the procedure under s 151 of the CI Act remained available at 7 May 2024.
In my view, taking into account the principles I have identified from Mohammadi v Bethune above, there is a clear linking of the seizure of items and the invoking of the procedure under s 151 of the CI Act. That linking includes, in my view, some temporal connection between the seizure and the invoking of the procedure.
In my view, that is apparent from:
1.the incorporation of ‘investigation’ into the name of the CI Act and its preamble;[23]
2. s 151 being included in Pt 13 of the CI Act which is headed 'Seizing things and related matters';[24]
3.the heading to s 151 which is 'Privileged material, procedure on seizure of';[25]
4.the obligation to make the application to the Magistrates Court being on the officer in charge of the investigation under s 151(4);
5.the securing of the record to prevent its use by s 151(3); and
6.if the Magistrate decides that all of the information is not privileged, then the record/s are to be made available to be collected by the officer in charge of the investigation under s 151(9).
[23] s 31(1) of the Interpretation Act 1984 (WA).
[24] See s 32(1) of the Interpretation Act 1984 (WA).
[25] s 19(2)(a) and s 32(2) of the Interpretation Act 1984 (WA).
The context, then, is provided by a police seizure of a record for a 'lawful' purpose if the seizing officer reasonably suspects one or more of the matters set out in ss 146(a) ‑ (e) of the CI Act. Each of those matters are prior to, or not necessarily connected with, any charges being laid against an accused.
Further, s 151 and Pt 13 of the CI Act draw a distinction between a 'record'[26] and 'information' in a record. Concluding that there was no end point to the availability of the procedure in s 151 of the CI Act would not, in my view, advance the purpose of the provision as captured by Murray J. That is, a contemplated use of seized records is that the information contained may become evidence in a later proceeding: s 146(e)(iii) of the CI Act. If the procedure under s 151 was not tied temporally to some degree with the seizure, then the or a purpose (i.e. to maintain the privilege over information which might otherwise be available for one of the lawful purposes in s 146 of the CI Act) is made more difficult to achieve.
[26] Defined in s 3 of the CI Act.
The further away from the seizure that the procedure can be invoked, the greater the likelihood that information, as is the case here, will be used lawfully and will be distributed for lawful purposes.
For example, in this case, only three of the Pragnell items were seized from the applicant; and the balance of them (which may be described as copies or derivatives) have been created in the course of the investigation and prosecution of the applicant.
If the s 151 procedure remains always available, then (as is the case) there is the real possibility of resources, which have been devoted to investigations and prosecutions, being wasted by an application being made much later in time (and potentially upheld). That does not seem to me to be a reasonable or intended outcome.
Further, in the present case, the investigation phase appears to me to have come to a close by a combination of:
1.charges being laid;
2.the applicant being committed to stand trial in the District Court;
3.the time which had passed from the seizure (and the applicant becoming aware of the same) and the giving of the notice and the procedure being invoked; and
4.the prosecution having given disclosure, presumably pursuant to its obligations under the Criminal Procedure Act (another part of the 'criminal law reform package').
If the s 151 procedure were to remain available to the applicant at the present time, then different proceedings in different courts (at least in respect of IND 122 of 2022) would be possible. That possibility, while not determinative, tends to reinforce, in my view, the conclusion that in the current circumstances, s 151 of the CI Act procedure is no longer available.
I have concluded that by no later than 7 May 2024, when the applicant claimed legal professional privilege over the Pragnell items, the procedure in s 151 of the CI Act was no longer available.
Consequently, I do not consider that the Magistrate erred in dismissing the Pragnell MC application. And, I would dismiss the Pragnell SC Application for a review order under s 36(1) of the MC Act.

Could s 151 of the CI Act apply to the Pragnell items 4 ‑ 12

I consider this question only needs to be answered if I had decided that the s 151 of the CI Act procedure remained available.
The answering of the first question 'no' also provides the answer that s 151 did not continue to apply to the Pragnell items 4 ‑ 12.
The second respondent submits, and it appears it is not in dispute, that items 4 - 10 were not records seized from KWLD. So, it was submitted that s 151 of the CI Act could not apply to them.
The second respondent submits his contention is supported by the use of 'seized' in s 151(2) which is said, on its face, to provide that the s 151 procedure applies only to the actual records seized, rather than copies or derivatives.
A principal difficulty with that construction advanced may be thought to be that the claimant under s 151(2)(a) of the CI Act is not limited to the person from whom the record was seized. Rather, a person 'entitled to possession' of the record may make the claim and that may be a different person from the person from whom the record was seized.
A further difficulty with that construction might arise in circumstances where, for example, very soon after the seizure of an original record, it is copied and distributed. If the second respondent is correct, then even if the applicant in the scenario acted with all due haste to claim legal professional privilege, the procedure would not be available to them.
The difficulties which might arise by dealing with seized original records under s 151 of the CI Act differently from copies or derivations of them, are less present in this case. That is because, as noted above, all copies and derivatives have been identified and effectively quarantined pending the determination of the Pragnell SC application.
In any event, I do not consider it necessary to determine this issue at this time. There may be circumstances in which the issue of whether the procedure in s 151 of the CI Act applies to copies or derivatives of 'original' records seized needs to be decided. That is not this case, and I consider it better to not express a concluded view.

Waiver of legal professional privilege

There has, of course, been no determination to date of whether legal professional privilege was available to KWLD in respect of any or all of the Pragnell items. Certainly there has been no determination against the claimed privilege.
Further, other than the giving of the notices which led to each of the Pragnell and Blockley MC applications, the applicant has not articulated the basis or bases for his claim to privilege.
The second respondent, properly, did not contend in this Court that there could be no properly claimed legal professional privilege in respect of the Pragnell items.
I have proceeded on the basis that a claim to legal professional privilege may have been available to KWLD in respect of the Pragnell items at the time he gave notice on about 7 May 2024.
The submissions filed by the second and third respondents in the Pragnell and Blockley MC applications submitted that KWLD's conduct had been 'inconsistent with maintaining confidentiality' by failing to claim privilege until approximately 22 months after the records were seized and over six months after he was provided with disclosure.[27]
[27] Pragnell and Blockley submissions filed 13 August 2024 in the Magistrates Court attached as 'KWLD‑3' to KWLD's affidavit made 23 August and filed 3 September 2024 [42], [66] ‑ [67].
So, it may be noted that KWLD has been on notice since at least about 13 August 2024 (the date of the submission filed by the second and third respondents in the Magistrates Court) of the waiver asserted against his claim.
He has not filed any evidential material (in either the Magistrates Court or this Court) to support his claim for legal professional privilege, nor to counter the contention that he had waived the claimed legal professional privilege.
KWLD's position, as put at the hearing in this Court, was that as this was a judicial review hearing, questions such as the assertion of a waiver was a factual matter which ought to be properly considered in the Magistrates Court if KWLD succeeded in his application.[28]
[28] ts 48, 23 October 2024.
As I understand it, the second respondent does not rely on the absence of evidence or lack of an asserted basis for the claim to say that the claimed privilege must fail.
Rather, as was the case in the Magistrates Court, the second respondent contends that there has necessarily been a waiver of any claim KWLD had to legal professional privilege in respect of the Pragnell items.
It might be thought that there is also a larger question with the second respondent's utility submission. That is, if I accept the second respondent's submission that would appear to, or it may well, determine the applicant's claim for all purposes. That would be in circumstances where there would have been no consideration of any explanation KWLD could advance in respect of the time which has elapsed before he made his claim on 7 May 2024 in respect of the Pragnell items.

In all of the circumstances, I would not have withheld a remedy from the applicant (if he was otherwise entitled to it) on the grounds of futility.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
14 NOVEMBER 2024