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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KWLD v Webb

Details

AGLC: KWLD v Webb [2024] WASC 422
Case: [2024] WASC 422
Decision Date: 14 NOVEMBER 2024

CaseChat Overview and Summary

The case of KWLD v Webb involved an application for a review order under section 36(1) of the Magistrates Court Act 2004 (WA) following the dismissal of applications made under sections 151(4) and 151(13)(b) of the Criminal Investigations Act 2006 (WA) and an order for suppression. The applicant, KWLD, had records seized from them, and subsequently charged with offences. KWLD claimed legal professional privilege over the seized records and any copies or derivatives, arguing that the seized records and their copies and derivatives could be used against them at trial. The legal issues that the court had to decide included whether section 151 of the Criminal Investigations Act continued to apply, and whether by the passage of time, KWLD had waived their legal professional privilege.

The court found 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. The court also found that section 151 of the Criminal Investigations Act provides a procedure for the determination of a claim to legal professional privilege. The court held that if the procedure is not utilised by a claimant, that of itself does not determine, nor render unavailable, the claim for privilege. Furthermore, the court held that if the procedure in section 151 of the Criminal Investigations 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 Criminal Investigations Act. The court found that the magistrate did not err in their decision and dismissed the application.

This decision highlights the importance of statutory provisions not being construed as abrogating important common law rights, privileges, or immunities in the absence of clear words or necessary implication to that effect. Furthermore, the decision highlights that the procedure provided by section 151 of the Criminal Investigations Act is not the only procedure available for the determination of a claim to legal professional privilege.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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; and3.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.