Luppino v Fisher (No 2)
[2019] FCA 1100
•15 July 2019
FEDERAL COURT OF AUSTRALIA
Luppino v Fisher (No 2) [2019] FCA 1100
File number: SAD 288 of 2018 Judge: WHITE J Date of judgment: 15 July 2019 Catchwords: CRIMINAL LAW – application for judicial review of an ex parte order made by a magistrate under s 3LA of the Crimes Act 1914 (Cth) requiring the Plaintiff to provide a constable with any information or assistance which is reasonable and necessary to allow the constable to access, copy or convert data on a computer or data storage device – whether there was a denial of procedural fairness in the grant of the order – whether the order identifies the information or assistance required to be provided – whether the order specifies the period in which, and the place at which, the information or assistance is to be provided – whether the order failed to identify the particular computer or data storage device the subject of the order – whether a mobile phone is a “computer” or “data storage device” – whether the magistrate granting the order could have been satisfied by either ss 3LA(2)(c)(i) or 3LA(2)(c)(ii) – whether the order was made by the magistrate in his personal capacity or by the Magistrates Court of South Australia – application allowed and declaration of invalidity made. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Australian Human Rights Commission Act 1986 (Cth) s 46PO(4)(b)
Crimes Act 1914 (Cth) ss 3(1), 3C, 3E, 3F, 3G, 3K, 3L, 3LA, 3LAA, 3ZQO, 4AAA, 10, 23ZA, 23ZD, 23ZF
Crimes Legislation Amendment Act 2011 (No 2) (Cth)
Crimes Legislation Amendment (Serious and Organised Crime Act (No 2) 2010
Criminal Code 1995 (Cth) s 400.4(1)
Cybercrime Act 2001 (Cth)
Evidence Act 1995 (Cth) s 9(3)
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Judiciary Act 1903 (Cth) s 39B
Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) s 6(1)
Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth)
Cybercrime Bill 2001
Magistrates Court Act 1991 (SA) s 6(2)
Cases cited: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554
Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation [1984] FCA 218; (1984) 73 FLR 61
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64
Coward v Allen [1984] FCA 53; (1984) 52 ALR 320
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Grollo v Palmer, Commissioner of Australian Federal Police [1995] HCA 26; (1995) 184 CLR 348
Harts v Commissioner, Australian Federal Police (1997) 75 FCR 145
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
LDF Enterprise Pty Ltd v New South Wales [2017] NSWSC 350
LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89; (2017) 95 NSWLR 70
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Luppino v Fisher [2018] FCA 2106
National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29;(1984) 156 CLR 296
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254
Redland Bricks Ltd v Morris [1970] AC 652
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Date of hearing: 5 March 2019 Registry: South Australia Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 215 Counsel for the Plaintiff: Mr M Abbott QC with Mr S McDonald Solicitor for the Plaintiff: Patsouris & Associates Counsel for the First Defendant: The First Defendant did not appear Counsel for the Second Defendant: Mr P Hanks QC with Ms A Wells Solicitor for the Second Defendant: Australian Government Solicitor ORDERS
SAD 288 of 2018 BETWEEN: DANIEL LUPPINO
Plaintiff
AND: GREGORY CHARLES FISHER
First Defendant
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Defendant
JUDGE:
WHITE J
DATE OF ORDER:
15 JULY 2019
THE COURT DECLARES THAT:
1.The order of the First Defendant made on 30 August 2018 under s 3LA of the Crimes Act 1914 (Cth) with respect to the Plaintiff is invalid.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
Introduction
[1]
Section 3LA and its context
[8]
Approach to the construction of s 3LA
[36]
The s 3LA order made on 30 August 2018
[39]
Factual setting
[44]
An initial submission
[53]
Ground 1 – denial of procedural fairness
[58]
The submissions of the plaintiff
[64]
The submissions of the Commissioner
[75]
Consideration
[80]
Ground 2 – identification of the information or assistance required
[105]
The plaintiff’s submissions
[106]
The submissions of the Commissioner
[117]
Consideration
[120]
Ground 3 – no identification of period or place
[127]
The “period”
[132]
The “place”
[136]
Ground 4 – identification of a computer or data storage device
[155]
Ground 5 – is the Gold Samsung mobile a “computer or data storage device”?
[168]
Ground 6 – the required state of satisfaction
[190]
Ground 7 – the capacity in which the first defendant acted
[200]
Conclusion
[213]
Introduction
This is a judgment on an application for judicial review of an ex parte order made under s 3LA of the Crimes Act 1914 (Cth).
The first defendant is a Magistrate in the Magistrates Court of South Australia. On 30 August 2018, he granted an order under s 3LA of the Crimes Act requiring the plaintiff to provide to a constable any information or assistance which was reasonable and necessary to allow a constable to access data on a Samsung mobile phone and to copy and/or convert that data into an intelligible form (the s 3LA order). The Samsung phone had been seized on 27 August 2018 by members of the Australian Federal Police (AFP) from a vehicle being driven by the plaintiff while executing a search warrant issued by a different Magistrate on 24 August 2018.
The s 3LA order was served on the plaintiff on 30 August 2018 by Mr Booth, an AFP agent. Immediately after it was served, Mr Booth requested the plaintiff to provide the password, or passwords, to the Samsung phone, but he did not do so. He has not provided the password since.
On 5 September 2018, the plaintiff commenced proceedings in the Supreme Court of South Australia seeking judicial review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) of the Magistrate’s decision. On 21 September 2018, the Supreme Court transferred the proceedings to this Court pursuant to s 6(1) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth). The parties have continued to have the same designations in this Court as they had in the Supreme Court.
The first defendant did not appear in the proceedings. The Court was informed that he would submit to any order which it considers appropriate.
The second defendant is the Commissioner of the AFP (the Commissioner).
On 19 December 2018, I refused an interlocutory application by the Commissioner for an order requiring the plaintiff to make a form of interim disclosure of the password, with the disclosed information remaining confidential until the proceedings are concluded: Luppino v Fisher [2018] FCA 2106.
Section 3LA and its context
Section 3LA of the Crimes Act, as in force on 30 August 2018, was in the following terms:
3LA Person with knowledge of a computer or a computer system to assist access etc.
(1)A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
(a)access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ii)has been moved under subsection 3K(2) and is at a place for examination or processing; or
(iii) has been seized under this Division;
(b)copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c)convert into documentary form or another form intelligible to a constable:
(i)data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii)data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii)data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a)there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i)reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii)an employee of the owner or lessee of the computer or device; or
(iv)a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi)a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i)the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii)measures applied to protect data held in, or accessible from, the computer or device.
(3) If:
(a)the computer or data storage device that is the subject of the order is seized under this Division; and
(b)the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note:An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(4)If the computer or data storage device is not on warrant premises, the order must:
(a)specify the period within which the person must provide the information or assistance; and
(b)specify the place at which the person must provide the information or assistance; and
(c)specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
It was common ground that this was the form of s 3LA to be considered in the present case. The amendments effected by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) were not in force at the relevant time.
As is apparent, s 3LA(5) makes it a criminal offence for a person to fail to comply with an order made under subs (2). At the times relevant for these proceedings, the maximum penalty for the offence was imprisonment for two years.
Section 3LA is in Div 2 of Pt 1AA of the Crimes Act. The heading to Pt 1AA indicates its general subject matter, namely, search, information gathering and arrest. The scheme of Pt 1AA as then in force, and some of its history, is set out in Harts v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 147‑150 and in Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 at [16]‑[24] (Hart v AFP 2002).
Section 3E in Div 2 provides for search warrants of two kinds: a warrant to search premises (a premises warrant) and a warrant to undertake an “ordinary search” (as defined in s 3C(1)) or a “frisk search” (as defined in s 3C(1)) of a person. The issuing officer (which expression is defined to include a magistrate) is to include in a warrant the information required by the succeeding provisions in s 3E in relation to the kind of warrant being issued.
Section 3F identifies the activities authorised by each kind of warrant. In relation to a premises warrant, these are powers of entry, search and seizure. In relation to person warrants, these are powers of search of the person and of any conveyance recently used by the person, as well as seizure. Section 3G allows the officer executing a warrant to have assistance from certain defined persons. Section 3K permits the executing officer to bring onto warrant premises any equipment which is reasonably necessary for examining or processing a thing found on the premises, and for circumstances in which the executing officer or the constable assisting that officer may, without seizing a thing found in the search, move it to another place for examination or processing. Section 3L permits the executing officer to operate electronic equipment to access and copy data found when executing a premises warrant. Section 3LAA authorises the use of electronic equipment to access and copy data from items moved to another place for examination or processing.
Section 3LA, with which the present action is concerned, forms part of this scheme. It permits a “constable” to apply to a magistrate for an order requiring a specified person to provide “any information or assistance” which is “reasonable and necessary” to allow a “constable” to access data held in, or accessible from, a computer or data storage device on warrant premises, which has been moved under s 3K(2) to another place for examination or processing, or which has been seized under Div 2; to copy data held in, or accessible from, such a computer or data storage device; or to convert into documentary form or some other intelligible form the data held in, or accessible from, such a device.
Although a search warrant under s 3E may be issued by an “issuing officer” (defined in s 3C to mean a magistrate or justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search or arrest warrants), an order under s 3LA may be granted only by a magistrate.
The term “constable” is defined in s 3(1) of the Crimes Act to mean:
[A] member or special member of the [AFP] or a member of the police force or police service of a State or Territory.
One of the matters about which the magistrate must be satisfied before issuing a s 3LA order is that there are reasonable grounds for suspecting that “evidential material” is held in, or is accessible from, the computer or data storage device. The term “evidential material” is defined in s 3C(1) of the Crimes Act:
evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
The evident purpose of s 3LA is to facilitate the execution of s 3E search warrants by providing those executing them with a means of obtaining the assistance which is reasonable and necessary in order that a constable may access, copy and/or convert into an intelligible form data held in, or accessible from, a computer or data storage device. It provides police with a means of overcoming impediments to the ascertainment of evidentiary material in electronic data created by the use of devices such as password protection and encryption.
A number of features of s 3LA may be noted at this stage. The application for the order may be made by a constable who is not the person executing the s 3E warrant. The order must be directed to a “specified person” and not to a class of persons or to persons generally. The specified person need not be suspected of any offence, let alone the offence which led to the issue of the s 3E warrant. It will be sufficient if, for example, the person is the owner of the computer, an employee of, or a contractor to, the owner, or simply the system administrator of a system which includes the computer or device.
The s 3LA order is to be directed to the provision of any information or assistance which is reasonable and necessary to allow a constable (who may not be the applicant for the order) to carry out at least one of the specified actions. These activities concern the accessing, copying or conversion of data held in, or accessible from, a computer or data storage device. Section 3LA is not concerned with the provision of information or assistance with respect to other aspects of the execution of a search warrant, or which may arise from its execution.
The reach of the verb “access” is unclear. In particular, it is unclear whether it is confined to information or assistance necessary to “unlock” the computer or data storage device or whether it may extend to assistance in navigation through the computer or the system of which it forms part.
Provided that there are reasonable grounds for suspecting that “evidential material” is held in, or accessible from, the computer or data storage device, then there is (subject to any condition imposed under s 3LA(4)(c)) no limit on the nature of the data which the constable may access, copy or convert into another form. It may extend to personal, confidential or sensitive material unrelated to the commission of any crime, and perhaps to the entire database in a computer system.
A s 3LA order may be made before or after the execution of the s 3E warrant and before or after the seizure of a computer or data storage device pursuant to the warrant. However, if it is made before the seizure, the order ceases to have effect on that seizure (subs (3)).
Section 3LA(2) specifies three matters about which a magistrate must be satisfied before issuing the order. Two of the three matters contain internal alternatives. The three matters may be described as an “evidential material” requirement, a “status” requirement and a “knowledge” requirement. In relation to the first, the magistrate does not have to be satisfied that evidential material is held in, or is accessible from, the computer or data storage device: the threshold of which he or she must be satisfied is lower, namely, that there are “reasonable grounds for suspecting” that evidential material is held in, or is accessible from, the computer or data storage device in question (subs (2)(a)).
With reference to the “status” requirement, the magistrate must be satisfied that the specified person has one or other of the statuses specified in subs (2)(b) or is reasonably suspected of having committed the offence stated in “the relevant warrant” (subpara (b)(i)). It is evident that the “relevant warrant” is the warrant pursuant to which the computer or data storage device was found, moved or seized. The subpara (b)(i) matter is the only matter in respect of which satisfaction of the existence of a reasonable suspicion is sufficient. If the magistrate relies on any of the other subpara (b) matters, he or she must be satisfied of that matter as a fact.
In relation to the “knowledge” requirement, subs (2)(c) requires that the magistrate be satisfied that the specified person has “relevant knowledge” of the computer or device or a computer network of which the computer or device forms part, or of measures applied to protect data held in, or accessible from, the computer or device. Satisfaction that the specified person is reasonably suspected of having “relevant knowledge” is insufficient. The term “relevant knowledge” is not defined. In context, it seems to mean knowledge concerning the computer, the device or the computer network of which the computer or device form part, or to measures applied to protect data on the computer or device which would enable the person to provide the information or assistance in question.
Section 3LA does not limit the content of the information or the forms of assistance which may be ordered to be provided, other than stipulating that their provision must be reasonable and necessary in order to allow a constable to engage in one or more of the activities specified in subs (1). The more obvious forms of information and assistance appear to be the provision of a username, password, digital fingerprint or private encryption key, but it could extend to the provision of equipment necessary to access the computer or device.
Section 3LA does not contemplate that the provision of the required information or assistance will necessarily be contemporaneous with the request for that information or assistance. That is evidenced by the requirement that the order specify the period within which, and the place at which, the information or assistance is to be provided (s 3LA(4)).
Section 3LA is a statutory abrogation of the privilege against self‑incrimination. I referred to this privilege in my decision on the Commissioner’s interlocutory application , and repeat what I said then.
The fundamental nature of the privilege against self‑incrimination is well‑established. In Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 at 294, Gibbs CJ spoke of the privilege as follows:
If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.
In Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, the privilege was considered in some detail by the High Court. In his separate judgment, Deane J said at 5:
… “The privilege against self‑incrimination is deeply ingrained in the common law”. It reflects “a cardinal principle” which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.
… The relevant question relating to those matters is whether, putting to one side the question of privilege, the Supreme Court possessed jurisdiction and power to make the order for disclosure which it made. If it did, the effect of a failure to advert or give due effect to the privilege is not something which goes to jurisdiction or power. It is something which gives rise to an erroneous exercise of jurisdiction and power.
(Emphasis added and citations omitted)
The plurality (Toohey, Gaudron, McHugh and Gummow JJ) in Reid v Howard said at 11‑14:
The privilege, which has been described as a “fundamental … bulwark of liberty”, is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641, and, by 1737, it was said that “there [was] no rule more established in equity”. More recently, the privilege has been described as “deeply ingrained in the common law”. It operates so that a person cannot be compelled “to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into peril and possibility of being convicted as a criminal’”.
…
The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without “real exception”. …
…
There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal”. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.
(Citations omitted)
The abrogation may be indirect because the subjects of the order are required only to give access to a computer or data storage device containing the evidential material and not to disclose it themselves. It is nevertheless an abrogation. It would be artificial for a distinction to be drawn in the effect on the privilege between the compulsory disclosure of information, on the one hand, and the compulsory disclosure of the means by which information which is otherwise unascertainable or indecipherable may be read, on the other.
The features of s 3LA which I have summarised indicate that, while the section may be an important adjunct to police investigatory powers, the decision to grant the order is one which should be made with some care.
An order pursuant to s 3LA has some similarity with a mandatory injunction. Some of the principles developed by the courts in relation to the framing of mandatory injunctions may be taken to be apposite to the making of an order under the section. In particular, the principle that injunctions will be expressed so as to ensure, so far as practicable, that their content is certain and that they provide clearly for what parties affected by them are bound to do or refrain from doing (Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation [1984] FCA 218, (1984) 73 FLR 61 at 62; Redland Bricks Ltd v Morris [1970] AC 652 at 666) seems apposite. Courts recognise, however, the difference between an order which is uncertain, and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance: Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64 at 72.
Approach to the construction of s 3LA
Both parties referred to the decision in Hart v AFP 2002 in which the Full Court discussed a number of matters of approach to the construction of statutes authorising the search and seizure. The matters to which the Full Court referred are:
·in accordance with Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, the primary object is “to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, at [64];
·the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them. Recognition of that purpose may yield a construction of the legislative words which is not necessarily narrowly defined. Remaining ambiguity or doubt, whether of meaning or application, will be resolved in favour of the rights and freedoms of the subject, [65];
·the search and seizure provisions of the Crimes Act are not punitive and are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms, at [67];
·effect should be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences, at [68];
·when the language of the statute authorising their use offers choices between one construction requiring “fine legal judgments” in the issue and/or execution of warrants and another which is more likely to be consistent with “operational realities”, then the latter construction is generally to be preferred, at [68]; and
·there is no requirement that the Court approach the task of construction armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power, at [68].
Although the plaintiff accepted that the approach stated in Hart v AFP 2002 was appropriate, he did raise two qualifications. The first is that the statutory provisions in question in this case concerned the powers of a magistrate, and not those of a police officer. This meant, the plaintiff submitted, that matters of “operational realities” need not have the same significance. Secondly, the plaintiff noted that, since 2002, a number of decisions of the High Court have indicated the importance of the principle of legality, to an extent which may not have been fully understood in 2002: Australian Crime Commission v Stoddart [2011] HCA 47, (2011) 244 CLR 554; X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92; and Lee v New South Wales Crime Commission [2013] HCA 39, (2013) 251 CLR 196; Independent Commission Against Corruption v Cunneen [2015] HCA 14, (2015) 256 CLR 1.
Counsel for the Commissioner emphasised that the principle of legality is a rule of construction, and not of re‑writing: Lee v NSW Crime Commission at [313].
The s 3LA order made on 30 August 2018
The s 3LA order made by the first defendant on 30 August 2018 is in the following terms:
Crimes Act 1914
Section 3LA
Order to provide information or assistance
To: Daniel LUPPINO, born [redacted]
Whereas an application has been made by Federal Agent Nigel BOOTH, a constable as defined in the Crimes Act 1914, in relation to a search warrant issued under section 3E of the Crimes Act 1914 in respect of Daniel LUPINO (sic), born [redacted] for an order under section 3LA of the Crimes Act 1914;
And whereas I am satisfied that:
•there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, a computer or data storage device which has been seized under the warrant;
AND you are the owner or lessee of the computer or device, or
you are an employee of the owner or lessee of the computer or device, or
you are a person who uses or has used the computer or device, or
you are a person engaged under a contract for services by the owner or lessee of the computer or device, or
you are a person who is or was a system administrator for the system including the computer or device, or
you are reasonably suspected of having committed the offence stated in the relevant warrant
AND
you have relevant knowledge of;
the computer or device or a computer network of which the computer or device forms or formed a part; and
measures applied to protect data held in, or accessible from, the computer or device
I, G C Fisher, a magistrate within the meaning of the Crimes Act 1914, hereby order you to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
•access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;
•convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(1)(b) of the Crimes Act 1914;
•convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.
You must provide the information or assistance within 24 hours at Adelaide, South Australia.
The requirement on you to provide the information or assistance is subject to the condition that
NOTE: By virtue of section 3LA(5) of the Crimes Act 1914, it is an offence punishable by 2 years imprisonment for a person to fail to comply with this order.
Dated: 30/8/18
[Signed]
A Magistrate in and for the State of South Australia
The s 3LA order also has the seal of the Magistrates Court of South Australia stamped on it immediately adjacent to the first defendant’s signature. The plaintiff sought to attach a significance to the presence of that seal, to which I will return.
Apart from indicating that the application was made under ss 5 and 6 of the ADJR Act, neither the Summons by which the plaintiff commenced the proceedings or his Statement of Claim indicates the particular provisions in the ADJR Act on which he relied. I have taken the plaintiff to be invoking the following subparagraphs in s 5(1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
…
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
…
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
…
The Statement of Claim indicates that the plaintiff seeks judicial review on eight separate grounds. At the hearing, the plaintiff abandoned the eighth ground and pressed only part of Ground 4.
The Statement of Claim indicates that the plaintiff also seeks judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). In the submissions in support of the application, counsel contended that the first defendant’s order is, in a number of respects, affected by jurisdictional error.
Factual setting
I referred earlier to the warrant issued by a different Magistrate on 24 August 2018. That Magistrate (Mr McLeod SM) issued a warrant to Federal Agent Clow entitled “Search Warrant for Search of a Person” pursuant to s 3E of the Crimes Act. In that warrant, Mr McLeod SM indicated his satisfaction that there were reasonable grounds for suspecting that the plaintiff had in his possession evidential material as defined in the Crimes Act satisfying three conditions, the third of which was that identified items would afford evidence as to the commission of the offence of dealing in proceeds of crime, contrary to s 400.4(1) of the Criminal Code 1995 (Cth). The operative part of the warrant provided (relevantly):
I hereby issue this warrant which authorises you to conduct a frisk and ordinary search of the person described above.
AND by virtue of section 3F(2) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following:
•Conduct a frisk and ordinary search of the person described above, search things found in the possession of the person, and search any conveyance recently used by the person, provided that a constable assisting who is not a constable does not take part in searching a person;
•seize any evidential material found in the course of the search which satisfies ALL of the above three conditions;
…
(Emphasis in the original)
As is evident, the warrant was a person warrant.
Mr Clow deposed that he was one of a number of AFP officers who stopped the plaintiff while he was driving a vehicle on the morning of 27 August 2018 and executed the search warrant. AFP officers seized three items during the execution of the search warrant:
(a)a Samsung mobile phone in an Otterbox mobile phone case found on the plaintiff’s person (the Samsung mobile);
(b)a gold coloured Samsung mobile phone found in the centre console of the plaintiff’s vehicle (the Gold Samsung mobile); and
(c)a Hewlett‑Packard laptop (the Laptop) found in the footwell of the passenger’s side rear seat.
Mr Clow deposed that the plaintiff supplied him with the password to the Laptop and told him that the Samsung mobile did not require a password. When he asked the plaintiff whether the Gold Samsung mobile had a “PIN or a password”, the plaintiff answered “no comment” and did not otherwise provide him with a password to that item.
On 30 August 2018, another member of the AFP, Mr Booth, made an application pursuant to s 3LA. It was that application which was dealt with by the first defendant and resulted in the issue of the s 3LA order. Mr Booth’s application was in the following terms:
In the Magistrates Court
At Adelaide, South Australia No: 1
Crimes Act 1914
Section 3LA
Application for an order to provide information or assistance
I, Nigel Ray BOOTH being a constable as defined in the Crimes Act 1914 state that a search warrant has been executed under section 3E of the Crimes Act 1914 in respect of the person specified below. I hereby apply for an order requiring the person specified below to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
•access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;
•convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(l)(b) of the Crimes Act 1914;
•convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.
Warrant premises/Person to whom the warrant relates:
Daniel LUPPINO, born [redacted]
Person in respect of whom the order is sought: Daniel LUPPINO, born [redacted]
Time period within which the assistance is sought: within 24 hours of any order.
Location at which the assistance is sought to be provided: Adelaide, South Australia
Date of this application: 30/08/2018
Name and title of applicant: Federal Agent Nigel BOOTH, Australian Federal Police
Mr Booth supported the application with an affidavit, to which it will be necessary to return.
I am also satisfied that Mr Booth provided the first defendant with the form of order pursuant to s 3LA which he sought. That order was complete in all respects save for the name of the first defendant and his signature and date.
Mr Booth’s affidavit indicates that he did not attend personally before the first defendant in relation to the obtaining of the s 3LA order. He deposed that on 30 August 2018, he had handed the application for the s 3LA order and the supporting affidavit in un‑redacted form (which included a copy of the warrant issued by Mr McLeod SM) in a sealed envelope to the Registry of the Adelaide Magistrates Court “as per standard procedure”. Later that same day, he “collected” the signed s 3LA order from the Registry. The first defendant did not make any alterations to the substantive form of the order provided to him by Mr Booth.
Mr Booth served the s 3LA order on the plaintiff on 30 August 2018 at 1.50 pm. A transcript of the conversation which ensued between Mr Booth and the plaintiff was in evidence, and the accuracy of that transcript was not in issue. Relevantly, it indicates that the following interchange occurred:
Q4:… Now, Daniel, are you able to provide me with the password to that Samsung?
A: Don’t know. Don’t know it.
Q5: You don’t know it?
A: Nah.
Q6: It was your phone.
A: Nah.
Q7: Is that correct?
A: No.
…
Q10: … and what we might do is if you – you don’t know the password at all?
A: (No audible reply).
Q11: Have you used that phone before?
A: No.
An initial submission
Senior counsel for the plaintiff submitted that the Court should infer that the first defendant had not read the s 3LA order before signing and dating it. This was a surprising submission given that it imputed a dereliction of duty to the first defendant and was not linked to any of the grounds on which the plaintiff sought judicial review.
Senior counsel relied on only two matters for the submission. First, that the s 3LA order refers on multiple occasions to the item in respect of which the order was made as “a computer or data storage device” and to “the computer or device”. He submitted that, had the Magistrate understood that the order related only to the Gold Samsung mobile, he would not have thought it appropriate to use that expression. Secondly, counsel noted the reference in the fifth bullet point of the order to a data storage device removed from “warrant premises”. That expression was inapposite, he submitted, because the warrant issued on 27 August 2018 had been a “person” warrant, and not a “premises” warrant. Had the first defendant read the order, he would have recognised that that was so.
In my view, neither of these matters can be taken reasonably to support the serious conclusion for which counsel contended. There was no reason for the first defendant to attach significance to the reference to “warrant premises” in the last of the bullet points to which counsel referred. For his purposes, nothing turned on the question of whether the Gold Samsung mobile had been seized pursuant to a premises warrant or a person warrant. An alternative, and much more likely explanation than that for which senior counsel contended, is that it was a simple oversight.
The expression “a computer or data storage device” is the expression used in s 3LA itself. It is understandable that the first defendant may have thought it appropriate for the s 3LA order to use the statutory terminology.
For these reasons, I reject the submission that it is apparent that the first defendant had not read the s 3LA order before issuing it.
Ground 1 – denial of procedural fairness
Ground 1 in the Statement of Claim raises an issue of procedural fairness.
The plaintiff contends that the power to make an order under s 3LA is conditioned, at least when made in respect of a computer or data storage device which has already been seized under Div 2 of Pt 1AA of the Crimes Act, upon the magistrate according the proposed subject of the order a hearing in accordance with the natural justice rule of procedural fairness. That condition was not satisfied in his case because he had not been given any opportunity to be heard before the first defendant made the s 3LA order.
The plaintiff claims, in the alternative, that when an application for an order under s 3LA, is made ex parte, the magistrate has a discretion as to whether to proceed ex parte and is required to consider and determine, reasonably and having regard to proper considerations, whether to do so. He submits that in the present case, it can be inferred that the first defendant proceeded to make the order ex parte simply because the application had been made to him in that way and without properly considering and determining whether it was appropriate to do so. Alternatively again, the plaintiff alleges that it was unreasonable for the first defendant to have considered and granted the order ex parte.
Counsel submitted that three considerations indicate that the making of a s 3LA order is conditioned on compliance with the natural justice hearing rule:
(a)the exercise of the power is apt to affect the rights or interests of the person to whom the order is directed: Kioa v West [1985] HCA 81, (1985) 159 CLR 550 at 615; Annetts v McCann [1990] HCA 57, (1990) 170 CLR 596 at 598; Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, (2010) 243 CLR 319 at [74];
(b)there is no express provision in the Crimes Act excluding the application of the rules of natural justice or procedural fairness in relation to applications under s 3LA; and
(c)it does not appear by a necessary intendment that the rules of natural justice, and in particular, the hearing rule, do not apply: Annetts v McCann at 598.
It was common ground that the Crimes Act does not contain any express provision excluding or limiting the rules of procedural fairness in relation to an application under s 3LA.
Despite a statute not containing an express provision, it may nevertheless be implicit that it does not require compliance with the rules of natural justice or that it intends that those rules have no content, in order that the purpose for which the power was conferred will not be frustrated: Kioa v West at 615; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [367]. The existence of a “necessary intendment” to exclude the principles of natural justice is not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [14]. The plurality in Saeed went on to explain that the requirement for exclusion by “plain words of necessary intendment” is an aspect of the principle of legality:
[15]The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts." His Honour said:
“The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”
(Citations omitted)
The submissions of the plaintiff
Counsel submitted that a number of matters are inconsistent with the exclusion of the rules of natural justice being a matter of necessary intendment in relation to applications under s 3LA:
(a)section 3LA permits the magistrate to make orders for the provision of information and assistance of diverse kinds and by diverse means and which may have very intrusive effects. Further, s 3LA contemplates orders which will require positive action by the specified person and not just that the person refrain from specified activities. Compliance with the orders may have the effect of impinging substantially on fundamental common law rights of the person, in particular, the right to silence and the privilege against self‑incrimination;
(b)in at least two of the circumstances in which a s 3LA order may be made, the computer or data storage device in question will be in the custody of, or at least under the control of, the officer executing the warrant (when the computer or device has been moved to another place for examination or processing and when it has been seized under Div 2). In the third circumstance (when the computer or data storage device remains on the warrant premises), it may or may not be under the control (or partial control) of the executing officer. This means that in most circumstances, the risk that the computer or data storage device may be destroyed, hidden or disabled if the subject of the application is put on notice does not arise. Accordingly, the circumstance which usually indicates that a search warrant may be issued without notice to its subject is not present in the case of most s 3LA orders;
(c)the matters about which the magistrate must be satisfied for the status requirement (with one exception) and the knowledge requirement are matters of concluded fact, and not just the existence of reasonable grounds for suspicion that the facts exist. Even if it be the case that the proposed subject may be able to contribute little with respect to the existence of a reasonable suspicion, he or she may well be able to adduce evidence bearing upon the magistrate’s satisfaction of matters of fact;
(d)the consequence of the grant of an order is that its subject is compelled, on pain of criminal penalty, to provide information or assistance. It is not readily to be supposed that the subject may be so exposed on the basis of the magistrate’s satisfaction of the existence of facts about which he or she has not had the opportunity to be heard; and
(e)the fact that the power is conferred on a magistrate tends to reinforce the assumption that the rules of natural justice will be observed, because it is an ordinary incident of the functions of magistrates that they do comply with the rules of natural justice when making decisions which impact upon the rights and interests of individuals.
Counsel submitted that, in the present case, procedural fairness required as a minimum that the plaintiff be given notice of the application and with an opportunity to make submissions as to whether an order under s 3LA should be made and, if so, as to its form.
In support of the submission that he may have been able to make submissions affecting the first defendant’s determination on the application, the plaintiff emphasised four matters. First, the first defendant had to be satisfied about the existence of factual matters and it is to be expected that a person may be able to adduce, or point to, evidence bearing on such matters and be able to make submissions concerning them. In this case, it ought not be assumed that submissions which he may have made bringing particular matters to the attention of the first defendant, or emphasising particular features of the statutory scheme, could not have made a difference.
Secondly, the plaintiff submitted that he could have made submissions as to the generality/specificity with which the s 3LA order should be expressed, for example, as to whether he should be required to provide any information or assistance reasonable and necessary or any particular forms of assistance.
Thirdly, the plaintiff submitted that he could have drawn the first defendant’s attention to the fact that his answers in response to the request for him to provide a PIN or password to the Gold Samsung mobile on which Mr Booth relied had been made after he had been given the caution about self‑incrimination. A submission to that effect would have supported a submission that the first defendant should attach no weight to his responses to Mr Clow’s request, because to do otherwise undermined his right to silence: Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95.
Fourthly, the plaintiff contended that he could have submitted that the first defendant was being asked to grant the warrant on a misapprehension, namely, that the s 3E warrant pursuant to which the Gold Samsung mobile had been seized was a premises warrant and not a person warrant, as indicated by the fifth bullet point in the form of the proposed s 3LA order provided to the first defendant by Mr Booth.
Some of these matters carry more weight than others. For example, it is likely that, had the misapprehension just identified been pointed out to the first defendant, it would have been quickly corrected without making a material difference to his decision.
Counsel for the Commissioner submitted that the plaintiff had not identified, on the evidence, any unfairness resulting from him not having had a hearing. In my view, that submission ought not to be accepted. I consider that the submissions made on behalf of the plaintiff as to the matters to which he could have referred had he been given the opportunity to do so should be accepted. It is plain that the plaintiff, if so advised, could have advanced matters before the first defendant which may have influenced his decision, whether as to the very issue of the s 3LA order or as to its form.
Counsel for the plaintiff accepted that a s 3LA order may be made even before the execution of a s 3E warrant as well as before the seizure of an item during the course of its execution and that the provision of notice in such circumstances may result in the subject being “tipped off” as to the imminent execution of the s 3E warrant or to the possible seizure of a computer or data storage device. He contended, however, that this should not be regarded as an indication of a “necessary intendment” that the rules of natural justice be excluded in all applications for s 3LA orders. It may mean only that in those circumstances, the content of the rules are reduced to nil.
In support of these submissions, counsel emphasised the effect of s 3LA(3). As noted earlier, it provides that a s 3LA order ceases to have effect when the computer or data storage device in question has been seized under Div 2, if the order was granted on the basis of an application made before the seizure. Counsel submitted that it should be inferred that the intention of s 3LA(3) is that, if constables continue to seek information or assistance after the seizure of the computer or data storage device in question, they should seek a new order but in circumstances in which the subject of the order will then have the opportunity to be heard.
Counsel submitted, in the alternative, that the Magistrate had, at the least, a discretion as to whether to proceed ex parte. This meant that he had been required to consider and decide, reasonably and having regard to proper considerations, whether to proceed ex parte. Counsel submitted that, in the circumstances of this case, there was no reasonable basis upon which the first defendant could properly have determined that it was appropriate to consider the application ex parte. The fact that the Gold Samsung mobile had already been seized is an important consideration in this respect.
The submissions of the Commissioner
Counsel for the Commissioner submitted that an order under s 3LA would be undermined if a magistrate is required to hear from the person to whom the order would be directed before granting it. He submitted that the “operational realities” of the execution of search warrants should be taken into account and that the grant of a s 3LA order is so comparable with the issue of warrant under s 3E that the same necessary intendment that the rules of natural justice are excluded or reduced to nothingness is present.
In support of this submission, counsel referred to the decision at first instance in LDF Enterprise Pty Ltd v New South Wales [2017] NSWSC 350 and to the decision in the same case on appeal: LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89; (2017) 95 NSWLR 70. The case concerned the exercise of a statutory right of entry authorised by legislation directed to environmental protection, and not the making of an application for a warrant or order permitting the entry. At first instance, Adamson J held:
[37]The power of entry granted by s 196 of the POEO Act, when read with s 156B of the National Parks and Wildlife Act and the objects of the latter Act in s 2A(1)(b), is plainly an important investigative power, having regard to the circumstance that objects, places and features of historical and cultural significance which may be located on private property. …
[38][T]he investigation of a possible contravention is, by its nature, inquisitorial and preliminary. These circumstances generally make it inappropriate to require the disclosure of adverse information: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296.
…
[41]The exercise of investigative powers may attract the obligations of procedural fairness, even where there is no determination of rights: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576-577. However, generally speaking, less will be required by way of procedural fairness in order to act fairly, in the investigative stage, as opposed to the determinative stage …
(Citation omitted)
The conclusion of Adamson J that compliance with the rules of natural justice did not require LDF Enterprise to have been given the opportunity to be heard before the regulatory authority exercised the power of entry was upheld on appeal. One of the reasons of Leeming JA (with whom Basten JA and Macfarlan JA agreed) was:
[38]The purpose of investigating compliance and contravention in legislation to protect the environment would not be furthered by qualifying the generally worded power of authorised officers to enter premises, so that it may only be exercised after notice has been given. It is easy to see how many investigations could be frustrated if notice were given (consider pollutants being discharged on occasion into waterways rather than in a more expensive lawful fashion). This Court is required to prefer a construction which promotes the purpose of the Act: Interpretation Act 1987 (NSW), s 33.
Counsel also referred to National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29;(1984) 156 CLR 296 at 323 in which Mason, Wilson and Dawson JJ said:
It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry.
Counsel submitted that these rationales are apposite to the exercise of the power under s 3LA.
Consideration
In my opinion, the circumstance that s 3LA is intended to facilitate the execution of search warrants is significant. In the scheme established by Div 2 of Pt 1AA, s 3LA does not operate independently of the provisions concerning search warrants. It is an adjunct to those provisions by providing a means by which those executing search warrants may obtain assistance in order to achieve the purposes of the warrant. To my mind, that points to the principles developed by the courts concerning the application of the rules of natural justice to decisions concerning the issue of search warrants being also applicable to the exercise of the s 3LA order. That is more obviously so when the s 3LA order is made before a s 3E search warrant has been executed or before a computer or data storage device found during the execution of a search warrant is removed to another location or seized. It is readily understandable that a requirement that the subject of the order be heard in those circumstances would alert the subject to the imminent search or seizure and enable the purpose of the order to be frustrated.
It is established that, when the existence of a particular state of mind is made a condition for the exercise of a power, the legislation conferring the power is treated as referring to a state of mind which is such as can be formed by a reasonable person who correctly understands the meaning of the law under which the person acts: R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42, (1944) 69 CLR 407 at 430; Wei at [33].
In the present case, the only question arising is that of whether the evidence before the first defendant was sufficient to allow him, acting reasonably and on a correct understanding of the law, to form the requisite state of satisfaction. Herein lies the difficulty for the plaintiff’s contention.
First, by reason of the redaction on public interest immunity grounds, the Court does not know all of the information which was before the first defendant. I mention that, although Mr Booth’s affidavit had been filed and served on 5 February 2019, it was not until after the commencement of the hearing on 5 March 2019 that senior counsel for the plaintiff made a challenge to the claim of public interest immunity on which the redaction was based. Senior counsel accepted that this had been insufficient notice. It was not consistent with the principles of case management contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). That circumstance, amongst other things, led to my rejecting the plaintiff’s belated challenge to the claim of public interest immunity.
However, quite apart from that consideration, it is not the case, as the submissions of senior counsel supposed, that the only information before the first defendant capable of supporting his state of satisfaction on the knowledge requirement is that contained in [6] of Mr Booth’s affidavit. Mr Booth had also deposed that, when the search warrant was executed, the plaintiff was the sole occupant of the vehicle and that there did not appear to be any items in the vehicle other than those which belonged to him. Further, Mr Booth deposed that the plaintiff had readily admitted that he did not require a PIN or password to operate the Samsung mobile phone and that he had provided readily the password for the Laptop. When asked whether there was a PIN or password for the Gold Samsung mobile, the plaintiff had answered “no comment”. Mr Booth had deposed to his experience in executing numerous search warrants that persons of interest generally freely provide the PINs and passwords to devices which have not been used for a purpose which was redacted in his affidavit, but do refuse to provide PINs or passwords for devices which have been used for that purpose. The evidence before the first defendant was rationally capable of supporting the state of satisfaction on his part that the plaintiff was a person who used or had used the Gold Samsung mobile, that that phone was protected by a PIN and/or password, that the plaintiff had knowledge of the PIN or password, and accordingly, that the plaintiff had “relevant knowledge” of the kind to which s 3LA(2)(c) refers.
Senior counsel for the plaintiff submitted that Mr Booth had not informed the first defendant that the plaintiff had answered the question about the PIN and password in the exercise of his right to silence and that this in some way affected the formation of the first defendant’s state of satisfaction. I think that there are two answers to that submission: first, as senior counsel accepted, this was not a matter about which the first defendant was informed and, secondly, even if that particular piece of evidence was excluded, the evidence was still reasonably capable of supporting the state of satisfaction formed by the first defendant.
A third difficulty for the plaintiff is that the knowledge requirement consists of alternatives, being the matters identified in subs (c)(i) and subs (c)(ii). As it happened, the first defendant indicated that he was satisfied that the plaintiff had knowledge of both, but it would have been sufficient for him to be satisfied of either. This means that the plaintiff must establish that the evidence was not reasonably capable of establishing either of the two alternatives. In my view, he has not done so.
Accordingly, Ground 6 is not made out.
Ground 7 – the capacity in which the first defendant acted
This ground turns on two propositions. The first is that the power to grant a s 3LA order is a power conferred on an individual magistrate in a personal capacity and not as a member of a court – see s 4AAA of the Crimes Act; Hilton v Wells [1985] HCA 16, (1985) 157 CLR 57 at 73‑4; Grollo v Palmer, Commissioner of Australian Federal Police [1995] HCA 26, (1995) 184 CLR 348 at 363‑4. It was in any event common ground that the power to grant a s 3LA order involves an exercise of an administrative power, which the Australian Parliament may not confer on a State court: R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 271‑2.
In the present case, the power was conferred on the first defendant and not on the Magistrates Court of South Australia.
The second proposition is that the s 3LA order bears the seal of the Magistrates Court of South Australia.
The plaintiff submitted that the significance of it having been so sealed is indicated by s 6 of the Magistrates Court Act 1991 (SA) which provides:
(1)The Court will have such seals as are necessary for the transaction of its business.
(2)A document apparently sealed with a seal of the Court will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Court.
The effect of s 9(3)(a) and (d) of the Evidence Act 1995 (Cth) is that the evidential presumption contained in subs (2) applies in these proceedings.
There being no evidence to the contrary, counsel for the plaintiff submitted that the presumption in s 6(2) applied conclusively with the consequence that it must be taken that the s 3LA order was issued with the authority of the Magistrates Court. That meant, he submitted, that the s 3LA order had been granted by an entity which lacked authority to do so, with the consequence that jurisdictional error was established.
I do not accept that submission. The typed words under the first defendant’s signature are “A Magistrate in and for the State of South Australia”. Earlier, in the operative part of the order, the first defendant described himself as “a magistrate within the meaning the Crimes Act 1914”. He was thereby indicating that he is a magistrate who has accepted the conferral of powers under the Crimes Act in his personal capacity (s 4AAA).
These two entries suggest that the first defendant granted the order in his personal capacity, albeit in the exercise of a power conferred on him by reason of his holding office as a magistrate in the Magistrates Court of South Australia. They constitute evidence to the contrary for the purpose of s 6(2) of the Magistrates Court Act.
In expressing that conclusion, I have not overlooked that Mr Booth included a heading on his application for the s 3LA order which stated:
“In the Magistrates Court At Adelaide, South Australia”
That could be taken to indicate a belief on Mr Booth’s part, and perhaps on the part of the first defendant, that it was the jurisdiction of the Magistrates Court which was being invoked. However, I do not draw that inference. I have taken into account that the application does not use a form issued by the Magistrates Court and Mr Booth did not incorporate a Magistrates Court’s heading on his affidavit. Further, neither document incorporates provision for a Magistrates Court’s file or action number.
This Court would not readily conclude that it was the Magistrates Court which had granted the order when, plainly, it lacked authority to do so and when the first defendant had, by his signature and description, indicated that he was doing so in a personal capacity.
There is no evidence of how the seal of the Magistrates Court came to be placed on the s 3LA order. However, once the first defendant had issued the s 3LA order in his personal capacity, the subsequent placement of the seal of the Magistrates Court on the order by, possibly, a person in the Magistrates Court Registry or some other person in possession of a seal could not alter that circumstance.
The presence of the seal of the Magistrates Court of South Australia on the s 3LA order does seem anomalous but, in the face of other indications in the order that the first defendant signed it in his personal capacity, the s 6(2) presumption is displaced.
Accordingly, Ground 7 fails.
Conclusion
For the reasons given above, I have found that Grounds 2, 3, 4 and 5 in the plaintiff’s Statement of Claim have been made out, and that Grounds 6 and 7 fail. I have not found it necessary to express a concluded view on Ground 1.
There will be a declaration that the order of the first defendant made on 30 August 2018 under s 3LA of the Crimes Act with respect to the plaintiff is invalid.
I will hear from the parties with respect to costs.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 15 July 2019
37
14