Smit v Lyons

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00727

MONICA MARIE SMIT	Plaintiff
v
FIRST CONSTABLE ALEXANDER LYONS (44253) VICTORIA POLICE	First Defendant
and
SENIOR SERGEANT LUKE HOLMES (32490) VICTORIA POLICE	Second Defendant
and
DANDENONG MAGISTRATES’ COURT	Third Defendant

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2022
DATE OF JUDGMENT:	27 May 2022
CASE MAY BE CITED AS:	Smit v Lyons & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 274

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ORIGINATING MOTION — Application for a pseudonym order — Judicial review of Magistrate’s order requiring applicant to provide assistance to police to access data on mobile phones seized under warrant — Whether Magistrate’s decision unreasonable — Whether Magistrate had regard to relevant considerations — Both applications dismissed — Crimes Act 1958 (Vic) s 465AA — Open Courts Act 2013, ss 1, 3, 4, 5, 7, 17, 18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Chadwick QC	Legalbit
For the First and Second Defendants	Ms E Ruddle QC	Office of Public Prosecutions
For the Third Defendant	No appearance	No appearance

HIS HONOUR:

The plaintiff is awaiting trial in the County Court on two charges of inciting persons to breach COVID-19 laws.[1] Some time ago the police seized two mobile phones in her possession, believing they might yield evidence of the incitements. Recently, the police obtained an order from a magistrate that in effect requires the plaintiff to provide passwords and access codes for the mobile phones. The plaintiff initiated proceedings in this court to try and overturn the magistrate’s order. The plaintiff also applied for a pseudonym order.
[1]More precisely, contravene s 203(1) of the Public Health and Wellbeing Act 2008.

At the oral hearing before me on 6 April 2022, I rejected the application for a pseudonym order, indicating that I did not consider it necessary to make such an order to prevent a real and substantial risk of prejudice to her County Court trial or to protect her safety.[2] I said I would give detailed written reasons later for rejecting her application for a pseudonym order. I do so now.
[2]In relation to the latter, the plaintiff is worried about a man named Lance Simon, who has been an outspoken critic of hers and her organisation Reignite Democracy Australia.

I also reject the plaintiff’s application for an order quashing the magistrate’s s 465AA order and give my reasons below.

I note that where I refer to “the defendants” I mean the first defendant and second defendant but not the Dandenong Magistrates’ Court, which took no active part in the proceedings.

BACKGROUND
Factual background

Between March 2020 and October 2021, there were a series of “lockdowns” in Victoria due to the COVID-19 pandemic.

On 2 September 2020, Reignite Democracy Australia Pty Ltd (RDA) was incorporated.[3] RDA has been critical of the lockdowns. The plaintiff is the sole director of RDA.[4]
[3]Affidavit of Monica Marie Smit sworn 8 March 2022, [4].
[4]Affidavit of Monica Marie Smit sworn 8 March 2022, [3].

On 17 December 2020, a man named Lance Simon, who is a critic of RDA and the plaintiff, posted a video online. In that video, the plaintiff alleges Mr Simon threatened to kill her.[5] The video shows Mr Simon arriving at some property on motorbike. He then says to camera:

Hey guys, it’s just me Lance again.
I’m hunting around day and night, looking for all you crowd funding scammers, crowd funding on Go Fund Me for fake legal fees.
Avi, Serene, even Harry from Harry’s Clothing Store, Monica – especially Monica – RJ, you crowd funding rat, fake lawyer, Peter Little, speaking of fake lawyers.
All you crowd funding rats you’re going down I’m not going to stop until one of us is dead or in jail.
See you guys.

[5]Affidavit of Monica Marie Smit sworn 31 March 2022, [3].

The plaintiff reported the video to the police. She says the police were dismissive. To her knowledge, Mr Simon has not been charged with any offences related to the video.

On 1 March 2021, the plaintiff obtained an Interim Intervention Order (IIO) from Dandenong Magistrates’ Court against Mr Simon. The plaintiff alleges that there have been numerous breaches of the IIO by him.[6]
[6]Affidavit of Monica Marie Smit sworn 8 March 2022, [29].

On 11 August 2021, there was a public protest at Flinders Street Station against the lockdowns. The protest was allegedly promoted by the plaintiff and RDA. Approximately 90 protestors were in attendance.[7]
[7]Affidavit of S/Sergeant Luke Holmes sworn 31 August 2021, [21].

On 21 August 2021, there was another public protest in the CBD against the lockdowns at which approximately 4000 people were in attendance.[8] The protest was allegedly promoted by the plaintiff and RDA.
[8]Affidavit of S/Sergeant Luke Holmes sworn 31 August 2021, [43].

On 31 August 2021, several things occurred. First, the second defendant swore an affidavit (LH1) in support of applications under s 465 of the Crimes Act 1958 for search warrants in respect of the plaintiff’s Pakenham residence and her boyfriend’s (Morgan Jonas) Hampton residence and a number of vehicles.[9] The information in LH1 included the following (grammatical and typographical errors unaltered):
[9]LHI also supported applications under s 465AA of the Crimes Act 1958 in respect of any electronic devices located at those premises.

14. At 11:19am on Wednesday the 11^th of August 2021, Reignite Democracy Australia via their Telegram group posted an image of Flinders Street Station with the text “LOCKDOWN TAKES LIVES – ATTENTION DANIEL ANDREWS – IN THE EVENT OF A LOCKDOWN EXTENSION ANNOUNCEMENT, THERE WILL BE A NIGHT PROTEST ON THE SAME DAY – BE READY VICTORIA – 7PM FLINDERS STREET UNDER THE CLOCKS – TAKE SIGNAGE – COME WITH A FRIEND OR TWO – STAY TOGETHER – WE ARE PEACEFUL AND RESPECTFUL”. This post was deleted from the group following the protest.
15. As SMIT has posted a lot of self-filmed content within the group and is the founder and leader of Reignite Democracy Australia, SMIT is believed to have committed the offence of incitement, inciting persons to attend in contravention of the Stay At Home Directions (Metropolitan Melbourne) (No 2).
16. At 11:20am this image was re-shared by the “VIC – Reignite Democracy Australia” via their Telegram group. As SMIT has posted a lot of self-filmed content within the group and is the founder and leader of Reignite Democracy Australia, SMIT is believed to have committed the offence of incitement, inciting persons to attend in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 2).
17. At 12:06pm, a slightly different image was posted to the telegram group “Events Broadcasting Channel” which was even more specific with the text change of “TONIGHT 7PM. AUGUST 11^TH 2021”. Due to the extreme similarity of the image and the time between previous posts, this is believed to have been posted by SMIT who is believed to have committed the offence of incitement, inciting persons to attend in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 2).
18. At 1:11pm, an image was shared to the Reignite Democracy Australia telegram group within which the text “LOCKDOWN EXTENSTION EVENT 7PM FLINDERS STREET STATION WE’RE NOT JUST PROTESTING LOCKDOWNS WE’RE CELEBRATING FREEDOM LET’S HAVEA PARTY. BRING SOMETHING THAT MADES NOISE” This was accompanied with a text message “Mood Change Maybe? Cool.” As SMIT has posted a lot of self-filmed content within the group and is the founder and leader of Reignite Democracy Australia, SMIT is believed to have committed the offence of incitement, inciting persons to attend in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 2).
19. A short time later, an article that states it was written by SMIT appeared on the Reignite Democracy Australia website with similar wording to the telegram posts appeared with a different image. The image contained the text “LOCKDOWN EXTENSION EVENT 7PM 11/8 FLINDERS STREET STATION WE’RE NOT JUST PROTESTING LOCKDOWNS WE’RE CELEBRATING FREEDOM – LET’S HAVE A PARTY. BRING SOMETHING THAT MAKES NOISE. Our Demand is simple. Restore our Human Rights Immediately”. As such, SMIT is believed to have committed the offence of incitement, inciting persons to attend in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 2).
20. At 5:35PM, the Reignite Democracy Australia telegram sent a message “We just sent a mass email. If your subscribed and you didn’t get it, please check your spam and junk”. This further shows a connection between the telegram group, the Reignite Democracy Australia website and SMIT.
21. From 7:00PM on Wednesday the 11^th of August 2021, approximately 90 protestors attempt to attend at Flinders Street Station in which 73 arrests were made, with 69 people to be charged or issued fines over health direction breaches. This operation took substantial police resources involving in excess of 400 police, airwing, Police Service Officers (PSO’s) as well as various police departments involved in disruption and deterrence.
22. At 9:40PM, the Reignite Democracy Australia telegram group sent a message “The Melbourne protest was a flop. However, there were thousands of police running around the city like lost puppies.. maybe that’s a win. Look on the bright side. Last minute, cold weather, lockdowns..it’s hard to get people out under those circumstances. Don’t be disheartened, we live to fight another day “. Followed by a post at 10:16PM, “NEWS ALERT – the protest WASN’T a flop.. the police just upped their game. They stopped trains and diverted trams to stop people coming in…THE PEOPLE WERE THERE!!!”.
23. On Thursday the 12^th of August 2021 at 3:44PM, the Reignite Democracy Australia Telegram group posted “I’ll be live on ABC Far North Queensland in the next 5-10 minutes”. SMIT then appeared on that program, further supporting it is her posting to the masses using these encrypted messaging applications.
24. At 6:06PM on Thursday 12^th of August 2021, the Reignite Democracy Australia Telegram posted a photograph of SMIT in Reignite Democracy Australia merchandise “Freedom Fighter 2021” with text including “Will be available online tomorrow” further showing that SMIT has control of the Reignite Democracy Australia Telegram and is in control of the posting of material on the group telegram.
25. At 11:59:00PM on 12^th of August 2021, the Stay at Home Directions (Metropolitan Melbourne) (No 3) came into effect with an end date of 11:59:00PM on the 19^th of August 2021. These directions included a “5 – Direction – Staying at home other than in specified circumstances direction” and that a person who ordinarily resides in the State of Victoria during the stay safe period must not leave the premises where the person ordinarily resides other than for one or more of the reasons specified in Clause 6 (necessary goods and services),Clause 7 (care of compassionate reasons),Clause 8 (work or education), Clause 9 (exercise),Clause 10 (other specified reasons) or Clause 10A (SARS-CoV-2 vaccination).
26. At 6:37PM on Friday the 13^th of August 2021, the Reignite Democracy Australia Telegram posted images of SMIT in further Reignite Democracy Australia merchandise with language suggesting it is her doing the posting within the group which included “Please excuse the tired faces :) I promised I’d get them online today so here they are :) I probably should invest in some proper photo shoots haha..oh well it does the job”.
27. At 3:01PM on Saturday the 14^th of August 2021, the Reignite Democracy Australia Telegram posted an image from the Sydney Morning Herald with the Covid numbers update with the text which included “Surely NSW will have a big reaction to this. Learn from us Victorians… it doesn’t get better. They ease and change restrictions whenever they please. Mass civil disobedience may be the only way forward” This post further goes to the motivation of SMIT in prior and subsequent encouragements to contravene the Chief Health Officers directions and goes to her identity as the poster.
28. At 4:09PM on Saturday the 14^th of August 2021, the Reignite Democracy Australia Telegram posted a link to the Reignite Democracy Australia website which stated, “This is just a live stream of me chatting to NSW :) I do go on a few tangents though”. The article the post links to is also written by SMIT on the Reignite Democracy Australia website and accompanying video features SMIT. SMIT states in the video how “more people need to be hurting” and “more people need to wake up” and “that’s when revolution happens..when people are so much against the wall that they have nowhere else to go but to fight” followed by encouraging others to join local based telegram groups “I can’t control every group if you know what I mean”.
29. At 11:29PM on Sunday the 15^th of August 2021, the Reignite Democracy Australia Telegram posted a short Tiktok video of a mask burning ceremony with the text “I say next rally we have a mask burning ceremony :) what do you think?” going to both the identity of SMIT as well as her motivations.
30. At 11:59:00PM on 16^th of August 2021, the Stay at Home Directions (Metropolitan Melbourne) (No 4) came into effect with an end date of 11:59:00PM on the 26^th of August 2021. These directions included a “5 – Direction – Staying at home other than in specified circumstances direction” and that a person who ordinarily resides in the State of Victoria during the stay safe period must not leave the premises where the person ordinarily resides other than for one or more of the reasons specified in Clause 6 (necessary goods and services),Clause 7 (care of compassionate reasons),Clause 8 (work or education), Clause 9 (exercise),Clause 10 (other specified reasons) or Clause 10A (SARS-CoV-2 vaccination).
31. At 1:46PM on Monday the 16^th of August 2021, the Reignite Democracy Australia Telegram shared a photo with the telegram handle “EVENTS BROADCASTINGCHANNEL”, which police believe to be a group made to provide a further layer of anonymity for the protest organisers, which includes SMIT, due to the previous timings of photographs posted by the respective groups on the 11^th of August 2021. The photograph shared on this occasion includes text “NATION-WIDE RALLIES ALL CAPITAL CITIES 12PM. AUGUST 2021” as well as “COME WITH A FRIEND OR TWO”. The accompanying message was “RDA will be at the Vic one to report and document the event”. By sharing the image SMIT is further encouraging her followers to attend the planned protest for the weekend in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 4)
32. At 2:47PM on Monday the 16^th of August 2021, the Reignite Democracy Australia Telegram shared a photo of Daniel Andrews with text which included “Vic Lockdown Extended… Here’s the bright side!” with a link to the Reignite Democracy Australia Telegram website which included an article written by SMIT with the text “I know it’s hard but this HAS TO HAPPEN…or people will never fight back!” The more they lock us up, the more people will have nothing left to lose… and that’s when Australia stands up!”. In the video of SMIT on SMIT’s website she states disingenuously “IF there is a protest on the 21^st which is Saturday..RDA will be there to um to ahh broadcast it to live stream it and to report on it so you know in curfew, full on 5kms etc etc you know people are going to be angry and maybe this is going to be the biggest protest Australia has ever seen because what else have people got to do on a Saturday?”
33. At 10:08PM on Monday the 16^th of August 2021 the Reignite Democracy Australia Telegram posts a block of text which states “Hhhmmm I don’t even have kids and for some reason, I really wanna go to the playground tomorrow. I might just go buy a coffee and walk to the park with my nieces and nephews. I might not be able to control them, hopefully they comply with the tiny rope around it. Who’s to know tho. Who else feels that urge?”. This further goes to the identity of SMIT as the poster as she is recorded as living at an address in Pakenham with her family in which both her young nieces and nephews reside. This message in the context of prior and subsequent posts shows SMIT acting in a course of conduct to engage her followers in order to breach the Stay at Home Directions (Metropolitan Melbourne) (No 4)
34. At 11:59:00PM on 17^th of August 2021, the Stay at Home Directions (Metropolitan Melbourne) (No 5) came into effect with an end date of 11:59:00PM on the 26^th of August 2021. These directions included a “5 – Direction – Staying at home other than in specified circumstances direction” and that a person who ordinarily resides in the State of Victoria during the stay safe period must not leave the premises where the person ordinarily resides other than for one or more of the reasons specified in Clause 6 (necessary goods and services),Clause 7 (care of compassionate reasons),Clause 8 (work or education), Clause 9 (exercise),Clause 10 (other specified reasons) or Clause 10A (SARS-CoV-2 vaccination).
35. At 12:39PM on Wednesday 18^th of August 2021, Reignite Democracy Australia Telegram again shared an image inspiring and encouraging followers to commit offences against Stay at Home Directions (Metropolitan Melbourne) (No 5). The image included a picture within the Reignite Democracy Australia banner for a nationwide protest occurring 12PM 21/08/2021, with the Melbourne location of “CNR OF ELIZABETH AND BOURKE STREET” again with the “COME WITH A FRIEND OR TWO & STAY TOGETHER”. The separate text included “IT’S CRUNCH TIME YOU KNOW IT I KNOW IT WE ALL KNOW IT!!!”. The text accompanying the photographs was “AUSTRALIA #itstime. Watch this video and see how inspired you get!!!”. The message then provided a link to Reignite Democracy Australia website. Investigators believe the video on the Reignite Democracy Australia website is clearly designed to inspire and encourage Victorian followers to attend the protest in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 5).
36. At 7:50PM on Wednesday 18^th of August 2021, Reignite Democracy Australia Telegram shared a picture of a person using their phone with the text “EVENT ORGANISING HACK – HOW TO TEXT HUNDREDS OF PEOPLE AT ONCE PREPARE FOR FUTURE EVENTS NOW” with the further text “Event organising hack – PREPARE NOW. Every platform is infiltrated…so let’s be smarter!” with a link to the Reignite Democracy Australia website and an article written by SMIT. The website has a video of SMIT in which she explains how to create a message tree and to try and circumvent police monitoring and states in part “At the end of every message make sure you say send to all your friends.. Now guys this is serious – if 5 people message 5 people who message 5 people in 10 hops it’s 10 million people”.
37. At 10:19PM on Wednesday 18^th of August 2021, the Reignite Democracy Australia telegram shared an image “Operation Text Chain” with further text “Operation text chain – prepare today. If we can make this text chain successful we could get urgent updates and info to THOUSANDS and THOUSANDS of people within minutes. IT’S SO EASY”. The message then links to the Reignite Democracy Australia website and a further article written by SMIT with the same video explanation of how to create a message tree.
38. At 11:14PM on Wednesday 18^th of August 2021, Reignite Democracy Australia telegram sends a text message “I suggest wearing masks to any events this weekend. Wear them until you’re in a big group then take them off. It’s not cowardice it’s smart”. SMIT was clearly directing her followers to congregate in a large group at the planned protest on Saturday 21^st as well as removing their masks at the same time which would be in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 5).

39. At 7:48PM on Thursday 19^th of August 2021, Reignite Democracy Australia telegram sends a text message “Let’s share something positive that’s happened in our families or lives during lockdown? I know its hard, dig deep. I’ll go first. This COVID pandemic has helped me not to sweat the small stuff. Nothing else matters except fighting to get our freedoms back” It’s helped me focus on what’s focus no what’s important in life”. This goes to the identity of SMIT as nobody else since the telegram group history has referred to them self in the first person.
40. At 10:22AM on Friday 20^th of August 2021, Reignite Democracy Australia telegram posted another image of “OPERATION TEXT CHAIN HOW TO TEXT HUNDREDS OF PEOPLE AT ONCE – ANDROID LET ME SHOW YOU HOW”. This links to the Reignite Democracy Australia website and an article written by SMIT with the text “It’s pretty basic but it’ll work”. This further goes to the support the identify of SMIT as the poster and her encouragement of followers to attend the planned protest in contravention of the Stay at Home Directions.
41. At 12:06PM on Friday 20^th of August 2021, Reignite Democracy Australia telegram controlled by SMIT posted an image titled “TOMORROW’S RALLIES” with the telegram handle “eventsbroadcastingchannel” with the quote purportedly by SMIT “What could possibly be more important than standing up for our freedoms tomorrow at 12pm? If you’re not ready to act now… when will you be? – Monica Smit”. The post then links to the Reignite Democracy Australia website and an article written by SMIT in which she states “If you’re not ready to stand up now, after 18 months of this… when will you be ready??? This is a direct instruction and encouragement by SMIT to her followers.
42. At 6:11PM on Friday 20^th of August 2021, Reignite Democracy Australia telegram controlled by SMIT posted “Comment YES if you’re going to an event tomorrow at 12pm. DON’T SAY WHERE.”. Investigators believe this is intended to engage her followers and is encouraging them to attend the planned protest in Melbourne the following day Saturday 21^st of August 2021 and shows a knowledge of legal ramifications and organisation of the protests. This further goes to identify of SMIT and her encouragement of her followers to attend the planned protest in contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 5).
43. At approximately 12pm on Saturday 21^st of August 2021, a crowd estimated to number roughly 4000 people, largely not wearing masks or socially distancing, descended on the Melbourne Central Business District (CBD) in clear contravention of the Stay at Home Directions (Metropolitan Melbourne) (No 5) to protest various topics including Freedom. … At least 218 people were arrested and issued with in excess of $1.1 million dollars in fines.
44. At approximately 12pm on Saturday 21^st of August 2021, SMIT and JONAS appeared together in a self-filmed video, both in attendance of the unlawful gathering on Saturday 21^st of August, with neither wearing masks and SMIT livestreaming their involvement in the event on the “Morgan C Jonas” Facebook page which has attracted over 500,000 views. It is unclear if she is using her own device to do so or JONAS’s.
…
49. On the 18^th of August 2021, First Constable Lyons reviewed vehicles in SMIT’s name and ascertained she has currently registered vehicles which include a white 2013 Volkswagen Golf registration 1AO9EK …
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56. On the 25^th of August 2021, First Constable Lyons reviewed phone data for the mobile number … 585 which is registered to SMIT from 01/08/2021 to 24/08/2021. ...

The second thing that occurred on 31 August 2021 is that five search warrants were issued by Magistrate O’Donnell[10] pursuant to s 465 of the Crimes Act 1958 in respect of two premises and three vehicles. Search Warrant 882/21 related to a vehicle, a VW Golf 1AO9EK, registered to the plaintiff[11] in which, amongst other things, two Apple iPhones were found, one white[12] and one black.[13] In this search warrant, under the heading “Reasons for search or description of suspected offence”, the following information was inserted:

“The items seized will likely afford evidence in relation to the suspected offence of incitement, that is inciting persons to attend an unlawful public gathering in contravention of the Stay as Home Directions (Metropolitan Melbourne ) (No 2,3,4 & 5) as well as a nexus to the suspected offender(s) Monica SMIT and Morgan JONAS”.

[10]Affidavit for a Search Warrant of S/Sergeant Luke Holmes sworn 28 February 2022, [3].

[11]In the affidavit of Monica Marie Smit sworn 8 March 2022, [13.3], she admits the vehicle IAO9EK was her vehicle.

[12]In the affidavit of Monica Marie Smit sworn 8 March 2022, [13.3], MMS says the white mobile was not registered in her name.

[13]In the affidavit of Monica Marie Smit sworn 8 March 2022, [13.3], MMS says the black mobile was registered in her name.

The third thing that occurred on 31 August 2021 is that Magistrate O’Donnell made an order under s 465AA of the Crimes Act 1958 in respect of any electronic devices located in the premises and vehicles referred to in the five search warrants. That order was not actioned.

The fourth thing that occurred on 31 August 2021 is that the plaintiff was arrested and charged by the first defendant with five offences allegedly committed between 11 and 31 August 2021, namely two charges of inciting another person to contravene s 203(1) of the Public Health and Wellbeing Act 2008[14] and three charges of failing to comply with a direction under the Stay at Home Directions (Metropolitan Melbourne) (Nos 5) (x3).[15] The plaintiff was remanded in custody.
[14]To wit, leaving premises other than for “a specified circumstance” under the relevant Stay at Home Directions.
[15]To wit, leaving premises other than for “a specified circumstance”; by attending and participating in an unlawful gathering; by leaving her home and entering another’s home.

On 1 September 2021, the plaintiff was granted bail by a magistrate but on stringent conditions which were unacceptable to her. She refused to sign the bail undertaking and so remained in custody.

On 22 September 2021, she was granted bail by Hollingworth J on conditions which were acceptable to her. She signed the bail undertaking and was released from custody.[16]
[16]See [2021] VSC 642.

On 2 February 2022, the plaintiff was committed by a magistrate to stand trial in the County Court on the two incitement charges. The other three summary charges were transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009.

On 28 February 2022, the second defendant swore two affidavits (LH2 and LH3) in support of a s 465AA application in respect of the two mobile phones seized from the plaintiff’s VW Golf on 31 August 2021. LH3 referred to and attached LH2 which referred to LH1 in support of the application for the s 465AA order.[17] Included in LH2 was the following information:

[3] This is a supplementary affidavit to be read in addition to an affidavit I have previously provided in relation to obtaining search warrants 880.21 – 886.21, which were granted by the Dandenong Magistrates Court, Magistrate Julie O’Donnell on the 31^st August 2021.
[4] On the 31^st August , 2021, search warrant 882.21 was executed in a public place on vehicle registration 1AO9EK a white Volkswagen Golf belonging to SMIT. Five exhibits were seized, including two Apple iPhones found it (sic) SMITs possession within the vehicle. (Refer attached Result of Search – Search warrant number 882.21)
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[7] Whilst conducting the record of interview with SMIT investigators realised they had mistakenly applied for a “pre execution” Section 465AA of the Crimes Act 1958 warrant , when it should have been a “post execution” Section 465AA of the Crimes Act 1958 search warrant and as such were unable to utilise the powers granted by search warrant 886.21, as search warrant 882.21 had already been executed.
…
[9] For clarity at no stage during this investigation has SMIT had demands placed upon her by police for powers under section 465AA of the Crimes Act relating to the seizure of any electronic devices.

[17]Affidavit for a Search Warrant of S/Sergeant Luke Holmes sworn 28 February 2022, [4].

The “Result of Search” document, referred to in LH2 at [4], under the heading “Items Seized” says “refer to exhibit log”. The exhibit log, headed “police property seizure record” and dated 31 August 2021[18] states that Item 1, an “Apple iPhone white with gold case” was located in the “vehicle phone holder” and Item 2, an “Apple iPhone black with clear case” was located in the “vehicle cup holder”.
[18]Which was exhibited to the plaintiff’s first affidavit sworn 8 March 2022.

On 1 March 2022, two things happened. First, Magistrate O’Callaghan made an order pursuant to s 465AA of the Crimes Act 1958 in respect of the devices seized from the VW Golf. The order specified it had to be complied with within seven days of service of the Order. Second, the first defendant sent the plaintiff and her solicitor a copy of the s 465AA order of Magistrate O’Callaghan, indicating in the covering email that the order related to two mobile phones seized from the VW Golf pursuant to SW 882/21 and that the plaintiff had seven days to comply with the order, adding “by Wednesday 9^th of March 2022”.

On 8 March 2022, the plaintiff swore an affidavit (MMS1) in support of an originating motion.

On 9 March 2022, the plaintiff filed an originating motion seeking, inter alia, judicial review of the order of Magistrate O’Callaghan made on 1 March 2022 under s 465AA. The plaintiff also sought “[a]nonymisation of the Plaintiff’s name in the proceeding pursuant to the Open Courts Act 2013 (VIC)”. There were two grounds specified in the originating motion with respect to the magistrate’s order:

1. That there were no reasonable grounds for Magistrate O’Callaghan to suspect that the data held in, or accessible from, a computer, or data storage device, described in the warrant issued on 31 August 2021 under section 465 of the Crimes Act 1958 (VIC) would afford evidence as to the commission of an indictable offence; and
2. That the learned Magistrate O’Callaghan failed to give reasonable consideration in the making of the Order to provide information and assistance (‘Section 465AA Order’) which could reveal:
a. Existence of Client Legal Privilege in the data, communications and or documents contained in the materials sought under the warrant;
b. Existence of Journalistic privilege in the communications and or documents pursuant to section 126K of the Evidence Act 2008 (VIC) contained in the materials sought under the warrant;
c. Existence of Health Information in the data, communications and or documents pursuant to Schedule 1 of the Health Records Act 2001 (VIC) contained in the materials sought under the warrant;
d. Existence of data, communications and or documents contained in the materials sought under the warrant which relate to the right to move freely within Victoria and to enter and leave it pursuant to section 12 of the Charter of Human Rights and Responsibilities Act 2006 (VIC);
e. Existence of data, communications and or documents contained in the materials sought under the warrant which relate to privacy and reputation pursuant to section 13 of the Charter of Human Rights and Responsibilities Act 2006 (VIC);
f. Existence of data, communications and or documents contained in the materials sought under the warrant which relate to the freedom of thought, conscience, religion and belief pursuant to section 14 of the Charter of Human Rights and Responsibilities Act 2006 (VIC);
g. Existence of data, communications and or documents sought under the warrant unrelated to or unconnected with in any way to the alleged offence(s);
h. Existence of data, communications and or documents sought under the warrant the identities of persons unrelated to the commission of any alleged offence(s); and
i. Existence of data, communications and or documents being property of Reignite Democracy Australia Pty Ltd (ABN 62 644 009 110), a lawfully incorporated proprietary limited company which is not subject to any related proceedings.

On 29 March 2022, the plaintiff filed written submissions dated 30 March 2022 (sic) in support of Grounds 1 and 2. She added a third ground in her written submissions, but it is unnecessary to say more about that putative ground because in oral submissions she disavowed it as a separate ground.[19]
[19]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 3.

On 31 March 2022, the plaintiff swore a second affidavit (MMS2), which was in support of her application for anonymisation of her name in the proceedings commenced by originating motion.

On 1 April 2022, three things happened. First, the plaintiff filed copies of her Notices to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commissioner (VEOHRC) under the Charter of Human Rights and Responsibilities Act2006 (the Charter). Both the Attorney-General and the VEOHRC elected not to intervene in these proceedings. Second, the plaintiff filed a Notice of an Application for a suppression order under the Open Courts Act 2013. Third, the plaintiff filed written submissions in support of her application for a pseudonym order. The plaintiff submitted that I had the power to make the order under the common law and the Open Courts Act 2013. In relation to the latter, the plaintiff submitted that it was necessary to make the pseudonym order to prevent a real and substantial risk of prejudice to the administration of justice with respect to her trial (s 18(1)(a)) and to protect her safety (s 18(1)(c)).

On 5 April 2022, the plaintiff’s solicitor, Mani Shishineh, swore an affidavit exhibiting the second defendant’s three affidavits (LH1, LH2 & LH3) referred to above.

On 6 April 2022, oral submissions were made by the plaintiff and the defendants. By consent, I made an order staying Magistrate O’Callaghan’s order of 1 March 2022 made under s 465AA of the Crimes Act 1958.[20]
[20]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 3.

Legal background

It is convenient at this point to set out the provisions of a number of Acts referred to by the parties in submissions.

Charter of Human Rights and Responsibilities Act 2006
4 What is a public authority?
(1) For the purposes of this Charter a public authority is—
…
(b) an entity established by a statutory provision that has functions of a public nature; or
…
(d) Victoria Police;
…

but does not include—
…
(j) a court or tribunal except when it is acting in an administrative capacity; or
Note
Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

…
12 Freedom of movement
Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
13 Privacy and reputation
A person has the right—
(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b) not to have his or her reputation unlawfully attacked.

14 Freedom of thought, conscience, religion and belief
(1) Every person has the right to freedom of thought, conscience, religion and belief, including—
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
…
38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example: Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
(3) This section does not apply to an act or decision of a private nature.
…

Crimes Act 1958
465 Issue of search warrant by magistrate
(1) Any magistrate who is satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place—
(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant—

may at any time issue a warrant authorizing some police officer or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law.
…
(5) In this section—
public place has the same meaning as it has in section 3 of the Summary Offences Act 1966;
vehicle includes motor vehicle, aircraft and vessel.
465AA Power to require assistance from person with knowledge of a computer or computer network
(1) This section applies if a magistrate has issued a warrant under section 465 in relation to a building, receptacle, place or vehicle (warrant premises).
(2) The Magistrates' Court may, on the application of a police officer of or above the rank of senior sergeant, make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a police officer to do one or more of the things specified in subsection (3).
(3) The things are—
(a) access data held in, or accessible from, a computer or data storage device that—
(i) is on warrant premises; or
(ii) has been seized under the warrant and is at a place other than warrant premises;

(b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a);
(c) convert into documentary form or another form intelligible to a police officer—
(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).

(4) An application may be made under subsection (2) at the same time as an application is made for the warrant under section 465 or at any time after the issue of the warrant.
(5) The Magistrates' Court may make the order if satisfied that—
(a) there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (3)(a) will afford evidence as to the commission of an indictable offence; and
(b) the specified person is—
(i) reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; 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 computer network of which the computer or device forms or formed a part; 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.

(6) A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.
(7) If—
(a) the computer or data storage device that is the subject of the order is seized under the warrant; 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 completion of the execution of the warrant.
Note
An application for another order under this section relating to the computer or data storage device may be made after the completion of the execution of the warrant.
(8) 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) to which the requirement to provide the information or assistance is subject.

(9) A person commits an offence if—
(a) the person has relevant knowledge of—
(i) the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and

(b) the person is informed by a police officer—
(i) of the order made under this section and of its terms; and
(ii) that it is an indictable offence punishable by imprisonment to fail to comply with the order; and

(c) the person fails to comply with the order without reasonable excuse.

(10) A person who commits an offence against subsection (9) is liable to level 6 imprisonment (5 years maximum).
(10A) This section applies in addition to section 465AAA, whether or not in relation to the same specified person. However, a person may be charged with an offence against either section 465AAA(4) or subsection (9) but not both.
(11) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1).

Evidence Act 2008
126J Definitions
(1) In this Division—
informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium;
journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium;
news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.
(2) For the purpose of the definition of journalist, in determining if a person is engaged in the profession or occupation of journalism regard must be had to the following factors—
(a) whether a significant proportion of the person's professional activity involves—
(i) the practice of collecting and preparing information having the character of news or current affairs; or
(ii) commenting or providing opinion on or analysis of news or current affairs—
for dissemination in a news medium;

(b) whether information, having the character of news or current affairs, collected and prepared by the person is regularly published in a news medium;
(c) whether the person's comments or opinion on or analysis of news or current affairs is regularly published in a news medium;
(d) whether, in respect of the publication of—
(i) any information collected or prepared by the person; or
(ii) any comment or opinion on or analysis of news or current affairs by the person—

the person or the publisher of the information, comment, opinion or analysis is accountable to comply (through a complaints process) with recognised journalistic or media professional standards or codes of practice.

126K Journalist privilege relating to identity of informant
(1) If a journalist, in the course of the journalist's work, has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs—
(a) any likely adverse effect of the disclosure on the informant or any other person; and
(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

Health Records Act 2001
1 Purpose
The purpose of this Act is to promote fair and responsible handling of health information by—
(a) protecting the privacy of an individual's health information that is held in the public and private sectors; and
(b) providing individuals with a right of access to their health information; and
(c) providing an accessible framework for the resolution of complaints regarding the handling of health information.

3 Definitions
(1) In this Act—
health information means—
(a) information or an opinion about—
(i) the physical, mental or psychological health (at any time) of an individual; or
(ii) a disability (at any time) of an individual; or
(iii) an individual's expressed wishes about the future provision of health services to him or her; or
(iv) a health service provided, or to be provided, to an individual—

that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or
(d) other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants—
but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act;
…
Health Privacy Principle means any of the Health Privacy Principles set out in Schedule 1;
HPP means Health Privacy Principle;
…

14 Courts, tribunals, etc.
Nothing in this Act or in any HPP applies in respect of the collection, holding, management, use, disclosure or transfer of health information—
(a) in relation to its or his or her judicial or quasi-judicial functions, by—
(i) a court or tribunal; or
(ii) the holder of a judicial or quasi-judicial office or other office pertaining to a court or tribunal in his or her capacity as the holder of that office; or

(b) in relation to those matters which relate to the judicial or quasi-judicial functions of the court or tribunal, by—
(i) a registry or other office of a court or tribunal; or
(ii) the staff of such a registry or other office in their capacity as members of that staff.

Open Courts Act 2013
1 Purposes
The main purposes of this Act are to—
(aa) recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which—
(i) maintains the integrity and impartiality of courts and tribunals; and
(ii) strengthens public confidence in the system of justice;

(a) reform and consolidate provisions for suppression orders relating to information derived from proceedings applicable to the Supreme Court…;
…
(c) make general provisions applicable to all suppression orders made pursuant to the exercise of the inherent jurisdiction of the Supreme Court and by courts or tribunals under this Act;
3 Definitions
In this Act—
proceeding means a civil proceeding or a criminal proceeding.
proceeding suppression order means an order made under section 17;
suppression order means—
(a) a proceeding suppression order;
…
(d) an order made by the Supreme Court in the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in connection with any proceeding, whether or not the information was derived from the proceeding.

4 Principle of open justice prevails unless circumstances require displacement
(1) A court or tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.
(2) A court or tribunal is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
5 Abrogation of common law and no implied jurisdiction
(1) Nothing in this section limits or otherwise affects the inherent jurisdiction of the Supreme Court.
…
7 Admission of evidence and disclosure of information to a court or tribunal or party to a proceeding
This Act does not limit or otherwise affect—
…
(d) the making of an order or decision by a court or tribunal that—
(i) conceals the identity of a person by restricting the way the person is referred to in open court;
(ii) restricts the way an event or thing may be referred to in open court;
(iii) prohibits or restricts access to a court or tribunal file.

17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.

18 Grounds for proceeding suppression order
(1) A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
(c) the order is necessary to protect the safety of any person;

Privacy and Data Protection Act 2014
1 Purposes
The purposes of this Act are—
(a) to provide for responsible collection and handling of personal information in the Victorian public sector; and
(b) to provide remedies for interferences with the information privacy of an individual; and
(c) to establish a protective data security regime for the Victorian public sector; and
(d) to establish a regime for monitoring and assuring public sector data security; and
(e) to provide for the appointment of the Privacy and Data Protection Deputy Commissioner; and
(f) to repeal the Information Privacy Act 2000 and the Commissioner for Law Enforcement Data Security Act 2005 and make consequential amendments to other Acts.
10 Courts, tribunals etc.
Nothing in this Act or in any Information Privacy Principle or any data security standard applies in respect of the collection, holding, management, use, disclosure or transfer of information—
(a) in relation to its or the holder's judicial or quasi-judicial functions, by—
(i) a court or tribunal; or
(ii) the holder of a judicial or quasi-judicial office or other office pertaining to a court or tribunal in their capacity as the holder of that office; or

(b) in relation to those matters which relate to the judicial or quasi-judicial functions of the court or tribunal, by—
(i) a registry or other office of a court or tribunal; or
(ii) the staff of such a registry or other office in their capacity as members of that staff.

SUBMISSIONS REGARDING PSEUDONYM ORDER
Plaintiff
Prejudice to fair trial

The plaintiff submitted that the pseudonym order could be made under either the Open Courts Act 2013 or pursuant to this court’s inherent jurisdiction.

The plaintiff submitted that it was necessary to make a pseudonym order to prevent a real and substantial risk of prejudice to the proper administration of justice vis a vis her County Court trial.

Whilst the plaintiff accepted that her trial was not likely to take place “for a considerable period”,[21] she submitted, based on the level of previous publicity about her case, that her application for judicial review of Magistrate O’Callaghan’s order would attract a “great deal of publicity”[22] and that publicity of the material relied upon by the defendants in these proceedings could prejudice her fair trial. The plaintiff submitted that it was nothing more than assumption on the part of the police that she was the person who posted the various messages referred to in LHI at [14] to [44]. The plaintiff submitted that it was particularly concerning that the public — and potential jurors — could learn of these police assumptions or beliefs.[23] The plaintiff submitted that material included in LHI may not form part of the case against her at trial.[24] The references in LHI to the plaintiff using encrypted messaging service could also suggest to potential jurors that she was “underhand” and “deceptive.”[25]
[21]Plaintiff’s Outline of Pseudonym Order Submissions, dated 1 April 2022, [3].
[22]Plaintiff’s Outline of Pseudonym Order Submissions, dated 1 April 2022, [4].
[23]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 30.
[24]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 31–32.
[25]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 21.

Personal safety

The plaintiff also submitted that a pseudonym order was necessary to protect her from Mr Simon, whom she submitted had threatened to kill her in the video of 17 December 2020. She submitted that the only reasonable interpretation of the video was that he was threatening to kill her.[26] The plaintiff’s counsel put it this way:

So, 'One of us is going to be dead and the other one is going to be in gaol.' Why are they in gaol? Because the person in gaol killed the person who is now dead.[27]

[26]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 37.

[27]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 38.

The plaintiff submitted that Mr Simon had on several occasions breached the interim intervention order that she obtained against him on 1 March 2021. Online, he had referred to the plaintiff as “Moronica Shit”, had described RDA as a criminal syndicate, offering a reward of $45,000 for its prosecution, and, on one occasion, posted that “you can take the girl out of Pakenham but you can't take Pakenham out of the girl” (Pakenham being where the plaintiff lives).[28] In September 2021, when the plaintiff was in jail after refusing to sign her bail undertaking, the plaintiff alleges that Mr Simon referred to her online by referring to some activists being in jail. The plaintiff’s counsel conceded that this was the last occasion that Mr Simon had referred to the plaintiff online as opposed to referring to RDA online.[29]
[28]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 42–44.
[29]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 45.

The Defendants

Based on ss 3 and 17 of the Open Courts Act 2013, the defendants disputed that a pseudonym order could be made under that Act:

There is a difference between a suppression order and a pseudonym order which anonymises the name of a party. A suppression order is made under the Open Courts Act 2013 and prohibits or restricts the publication or other disclosure of information in connection with the proceeding. However, a pseudonym order only de-identifies a party or witness.[30]

[30]Defendants’ written submissions, 5 April 2022 [59].

The defendants acknowledged, however, that a pseudonym order could be made in the exercise of the court’s inherent jurisdiction. The defendants submitted that “this jurisdiction is only exercised when necessity is established in exceptional cases.”[31]
[31]Defendants’ written submissions, 5 April 2022 [59].

Prejudice to fair trial

The defendants submitted that rejecting the application for a pseudonym order would not prejudice the plaintiff’s fair trial. The posts referred to in LH1 are included in the depositions and will, on the defendants’ submissions, form part of the circumstantial case against the plaintiff on the two incitement charges.[32]
[32]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 51.

Potential jurors learning that some police believe the plaintiff posted the relevant messages online, and thus committed the relevant offences, could not prejudice the plaintiff’s fair trial. Juries will always infer that some police believe the accused committed the relevant offence from the fact that the accused is on trial. But juries decide cases, and are directed to decide cases, on the evidence, not on inferences about police beliefs regarding an accused.[33]
[33]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 52.

Even if there was some risk of prejudice from not making a pseudonym order in relation to these proceedings, the delay to trial will eliminate any risk. The defendants submitted, without demur from the plaintiff, that her County Court trial would take place towards the end of 2023 at the earliest.[34]
[34]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 54.

Personal safety

The defendants submitted that the plaintiff is sufficiently protected against Mr Simon by the IIO. It was conceded by the plaintiff that Mr Simon has ceased direct references to the plaintiff which, according to the defendants, indicates that the IIO is working.[35] The bulk of Mr Simon’s online material to which the plaintiff has taken exception relates to RDA but Mr Simon is within his rights to criticise RDA; that is just free speech.[36] Making a pseudonym order would not prevent Mr Simon criticising RDA.
[35]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 54.
[36]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 55.

The defendants disputed the plaintiff’s interpretation of Mr Simon’s video of 17 December 2020, which predated the IIO, as a threat to kill her. It was not the only reasonable interpretation. The defendants suggested that a reasonable interpretation of what Mr Simon said in the video was that he would never give up on his campaign against alleged crowd funding scammers, not that he intended to kill them.[37]
[37]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 56.

No pseudonym order previously made

The defendants submitted that the fact that no pseudonym order was sought or made in earlier proceedings in the Magistrates’ Court, County Court and this Court is a further reason not to make a pseudonym order.

ANALYSIS REGARDING PSEUDONYM ORDER

I consider that where substantive proceedings are on foot (as in the present case),[38] this Court has the power to make a pseudonym order under the Open Courts Act 2013.[39] In submitting the contrary, the defendants gave an unduly narrow reading to the words “any part of a proceeding” in s 17 of that Act. It seems to me that the name of a party to a proceeding forms part of the proceeding. But nothing much turns on this as there is no dispute that the power to make a pseudonym order is part of this Court’s inherent jurisdiction.[40]
[38]Cf Hunter v AFL & Anor [2015] VSC 112 and ABC-1 & ABC-2 v Ring & Ring [2014] VSC 5 where no substantive proceedings were on foot at the time of the application for a pseudonym order.
[39]Smith v Victoria Police & Anor [2020] VSC 441, [39] per Incerti J.
[40]Hunter v AFL & Anor [2015] VSC 112, [4] per John Dixon J.

The principles which inform the exercise of the power to make a pseudonym order were articulated by J Forrest J in ABC v D1 & Ors[41] where he said this:
[41][2007] VSC 480.

First, … the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, … in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, … the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, … a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, … in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, … in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.[42]

[42][2007] VSC 480 at [65]–[71].

As noted by John Dixon J in Hunterv AFL & Anor,[43] this statement of principles by J Forrest J has been followed many times.
[43][2015] VSC 112, footnote 6.

I do not consider that there is a real risk that the plaintiff’s County Court trial will be prejudiced by these proceedings if a pseudonym order is not made. The jurors in her trial will no doubt infer from the fact that she is standing trial that investigating police officers believe she is responsible for the online postings said to constitute the incitements but the jurors will be directed to decide the case on the evidence (not on the opinion of others) and can reasonably be expected to do so. Further, the various online postings referred to in the relevant police affidavits are likely to form part of the circumstantial case against the plaintiff at her trial. Even if a juror recalled publicity of these proceedings and those postings, it is unlikely they will recall information that will not form part of the evidence adduced at her trial. If I am wrong about the risk of prejudice, I consider that the fact the trial is not expected to commence before late 2023 will so diminish recollections of potential jurors of these proceedings as to eliminate any real risk of prejudice.

As regards the plaintiff’s safety, she has the benefit of an IIO against Mr Simon. If he breaches that order, he can expect that the plaintiff will report the breach. That provides a measure of deterrence and protection and, although he continues to be critical of RDA, there is force in the defendants’ submission that the IIO appears to have been working. A considerable time (approximately 8 months) has passed since it is alleged that he referred to the plaintiff online directly or by nickname.

If there is a breach of the IIO which is reported by the plaintiff, I assume the police will do their duty. The fact that police did not lay charges against Mr Simon over the video of the 17 December 2020 does not strike me as a dereliction of duty. Rather, it strikes me as a realistic assessment that, given its ambiguity[44], no reasonable jury could be satisfied that it was a threat to kill or intended to be understood as such.
[44]Whether by design or accident I am not able to say.

Even on the balance of probabilities, I am not satisfied that Mr Simon was threatening to kill multiple persons, including the plaintiff. The refence to “one of us” being “dead” could be a reference to death by murder but equally it could be a reference to death by natural causes. The reference to “one of us” being “in jail” could be a reference to being in jail for murder but equally it could be for other reasons (for example, fraud or stalking).

I am not critical of the plaintiff for interpreting the video as she did but in my view there is force in the defendants submission that Mr Simon’s video can reasonably be understood as a threat to doggedly maintain his online campaign against people he believes to be crowd funding scammers rather than a threat to murder them.

I should add that I have watched Mr Simon’s video, not just read a transcript. In my opinion, the manner in which the words were spoken was not suggestive of a threat to kill.

Even if I am wrong about the nature of the threat made in the video, I struggle to see how a pseudonym order could enhance the plaintiff’s safety, let alone be necessary to protect her safety.

SUBMISSIONS REGARDING S465AA ORDER
Plaintiff
Ground One

The plaintiff submitted that that magistrate had no reasonable grounds for suspecting that she had committed an indictable offence.

The plaintiff submitted that LHI contained mere assertions that she was personally responsible for the various online postings said to constitute the incitements: whilst the “threshold of suspicion is low[45]… there must be present stronger evidence than mere assertions.”[46] The plaintiff submitted that RDA was not a “one man or one woman band”[47] and that employees or volunteers could have made the relevant postings, not her. The plaintiff submitted that “[a]n example of material that might be sufficient to induce the relevant level of suspicion could be the Device Hardware Identifier (otherwise known as an IMEI) within the metadata attached to the posts in question”,[48] but no such material was referred to in the relevant affidavits.
[45]See George v Rockett (1990) 170 CLR 104 at 115-116.
[46]Plaintiff’s written submissions, 30 March 2022, [4].
[47]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 76.
[48]Plaintiff’s written submissions, 30 March 2022, [6].

The plaintiff submitted that it was irrelevant that by the time that magistrate came to consider the s 465AA application another magistrate had formed the view that the evidence available was of sufficient weight to support a conviction on each of the incitement charges and had committed her to stand trial on those charges.

Ground Two

The plaintiff also submitted that the magistrate’s s 465AA order should be quashed because there was no evidence that he took into account what were said to be relevant considerations. If a magistrate is satisfied of the existence of the three preconditions specified in s 465AA(5), he “may”, not “must”, make a s 465AA order and the plaintiff submitted that a number of additional considerations should have informed the exercise of that discretion, but there was no indication that the Magistrate had been taken them into account.

The plaintiff submitted under Ground 2 that there were nine considerations that the magistrate should have taken into account.

Briefly stated, the nine considerations were: (a) client legal privilege; (b) journalist privilege; (c) sensitive health information (d) the plaintiff’s right to freedom of movement (s 12 of the Charter); (e) the plaintiff’s right to privacy and reputation (s 13 of the Charter); (f) the plaintiff’s right to freedom of thought, conscience, religion and belief (s 14 of the Charter); (g) data unrelated to the proceedings; (h) identities of persons unrelated to the proceedings; and (i) data being the property of RDA.

(a) Client legal privilege

In relation to Ground 2(a), the plaintiff highlighted the fact that by the time the magistrate came to make the impugned order, the plaintiff had not only been charged but had been committed to stand trial and so there was a likelihood of there being legally privileged data held on or accessible from the seized phones, a matter to which both Victoria Police and the magistrate ought to have had regard. The fact that the phones had been in possession of police since she was arrested did not mean legally privileged communications regarding her case would not be accessible from the phones: the data would be downloaded to the phones once they were powered up and opened.

The plaintiff conceded, however, that client legal privilege is not an issue when a court is deciding to grant a s 465 search warrant.[49]
[49]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 79. See also plaintiff’s written submissions 30 March 2022, at [7] citing Clifford v Adams [1998] VSC 98, [31].

The plaintiff also conceded that if unsuccessful in these proceedings, she could assert any claim she might have to client legal privilege in the County Court prior to supplying the passwords and access codes sought by the police.[50] But the plaintiff submitted that in respect of s 465AA orders issued at the same time as the s 465 warrant, a specified person’s right to client legal privilege could be undermined:

If the 465AA (order) issued at the same time as the 465 warrant had sought to be executed or enforced, on that day, 'Here's your phones, what are your pin numbers, here's an order telling you that you've got to do it…[51]

(b) Journalist privilege

[50]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 85.

[51]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 86.

In relation to journalist privilege, the plaintiff swore in her first affidavit that she worked as a journalist:

5. As part of my role and duties with RDA, I also undertake various journalistic activities.
6. As a journalist I have travelled across four (4) continents performing journalistic work starting in 2018. Some of my work includes making free promotional videos for orphanages in Thailand and Honduras. I have also documented a hurricane disaster zone in Florida (Hurricane Michael 2018) and assisted in a new program to help restrict opioid use in Florida having worked with the appropriate government authorities.
7. In May 2020 I also documented civil unrest in Ecuador when the government increased the price of petrol by a whole dollar. I also documented several pilgrimages in Spain, USA, and Ecuador.
8. Locally, I was involved in a campaign to save the Brumbies in the high country of Victoria. I worked with Mr. Bill Tiley MP and Ms. Beverly MacArthur MP on this project. I was also asked by Beverly to quote her on some promotional video work.
9. From March 2020 to the present I have also written for a number of publications, one example can be accessed online via I currently write a regular column for LIFESITE news in USA. Although I don’t offer these services currently, I had a media kit for my journalistic services which can be accessed online via type="1">
I note that the plaintiff did not advert in her two affidavits or in submissions to any confidential source of information whose identity ought be protected by journalist privilege.
The plaintiff’s written submissions did not refer to journalist privilege. In oral submissions, the plaintiff referred to a dispute between the parties as to whether the plaintiff is a journalist as defined in s 126J of the Evidence Act 2008. Although conceding that it is not for the magistrate at an ex parte hearing of an application for a s 465AA order to determine whether the “specified person” is a journalist, the plaintiff maintained that a magistrate should nonetheless consider the issue.[52]
(c) Sensitive health information
[52]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 116.
Regarding sensitive health information, the plaintiff submitted this in her written submissions:
[8] There is no evidence that the Magistrate considered the question of sensitive information pursuant to the Schedule 1 of the Health Records Act 2001 (Vic). The protections afforded in relation to disclosure of sensitive information is enshrined in the Privacy principles made pursuant to the Privacy Act 1988 (Cth) and such disclosure can only be made in limited circumstance and/or by the consent of the Applicant.
(d) The plaintiff’s right to freedom of movement (s 12 of the Charter)
(e) The plaintiff’s right to privacy and reputation (s 13 of the Charter)
(f) The plaintiff’s right to freedom of thought, conscience, religion and belief (s 14 of the Charter)
In relation to Charter related Grounds 2(d), (e) and (f), the plaintiff, relying on s 4(1)(d) of the Charter, submitted that the magistrate was acting as a “public authority” when dealing with the s 465AA application because the magistrate was acting in an administrative capacity. The plaintiff submitted that, by virtue of s 38 of the Charter, the magistrate, like Victoria Police, was consequently obliged to consider relevant Charter rights in making decisions. The plaintiff submitted that relevant Charter rights were the rights recognised in ss 12–14 of the Charter.[53] In LH1, LH2 and LH3, no reference was made to Charter recognised rights.
[53]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 98.
It was submitted by the plaintiff that given, first, “the substantial intrusion upon the rights of an individual”[54] and, second, the modest seriousness of the alleged offending — incitement of summary offences which, if proven, would only attract a financial penalty at worst — the magistrate ought to have exercised his discretion to refuse the application, even if satisfied of the three preconditions mentioned in s 465AA.
(g) Data unrelated to the proceedings
[54]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 94.
The plaintiff submitted that the magistrate should have taken into account that the impugned order would enable police to obtain access to much data that had nothing to do with the proceedings.
(h) Identities of persons unrelated to the proceedings
Likewise, the plaintiff submitted that the magistrate should have taken into account that the impugned order would enable police to obtain data about persons who had nothing to do with the proceedings.
(i) Data being the property of RDA
Finally, the plaintiff submitted that the magistrate should have taken into account that the impugned order would enable police to obtain access to data which was the property of RDA and was unrelated to the proceedings.
Defendants
Ground One
The defendants submitted that, having regard to the affidavit material, there was “a clear basis”[55] for the magistrate’s decision to make the s 465AA order. The defendants submitted that in LH1 there was “compelling”[56] material to ground a reasonable suspicion that:
·data held in, or accessible from, the two mobile phones will afford evidence as to the commission of an indictable offence, namely, incitement of others to breach COVID-19 laws (see s 465AA(5)(a) of the Crimes Act 1958); and
·that the plaintiff (the specified person) had committed the indictable offence in relation to which the s 465 warrant was issued, namely, incitement of others to breach COVID-19 laws (see s 465AA(5)(b) of the Crimes Act 1958).
[55]Defendants’ written submissions, 5 April 2022, [1].
[56]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 103.
The defendants submitted that some of the alleged posts referred to in LHI were made from the protests themselves, which supported the inference that it was reasonable to suspect that the mobile phones found in the plaintiff’s possession in her car would yield evidence of the alleged offences.[57]
[57]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 104–105.
As to whether it was reasonable for the magistrate to be satisfied that the plaintiff has relevant knowledge of the mobile phones or measures applied to protect data held in, or accessible from, the mobile phones (s 465AA(5)(c)), the defendants’ written submissions included the following:
35. In her affidavit sworn 8 March 2022, the Plaintiff deposes that:
(a) Paragraph 13.3: “… Two (2) iPhones, namely a white one not registered in my name and a black one registered to me personally…”[;]
(b) Paragraph 23: “to the best of my knowledge and belief each mobile phone seized … contains material(s) which are objectionable, namely by the” existence of variously privileged or protected material under the common law or statute.
36. Thus, the Plaintiff has deposed to one device being registered in her name and, moreover, to knowing, in some detail, the contents of each mobile phone which was seized. The Plaintiff has not deposed that she did not know that at least one phone was registered to her personally (i.e., it was registered by some fraud or without her knowledge). Accordingly, the Plaintiff’s own evidence is inconsistent with the Plaintiff’s submission that the evidence before the primary magistrate was insufficient to satisfy him, as a matter of fact, that the Plaintiff was the owner of the devices.
The defendants also submitted that it was not necessary for the magistrate to be satisfied beyond reasonable doubt that the plaintiff had committed the alleged offences.[58]
[58]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 103.
Ground Two
The defendants submitted that it was not necessary for the magistrate in determining the s 465AA application to take into account any of the nine considerations relied upon by the plaintiff.[59] There was no evidence before the magistrate that data, which the plaintiff claims is protected data, is to be found on, or is accessible from, the mobile phones.
[59]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 105.

The defendants submitted that the plaintiff was submitting that the magistrate could have, not should have, had regard to a number of considerations over and above the three mandatory considerations referred to in s 465AA(5):

my learned friend said essentially that the test was that the magistrate could, not should, have to have regard to the matters that he's taken the court to and in my submission, that's the end of the matter. He is really asking Your Honour to reassess he exercise of the discretion, in circumstances where he's failed to identify any mandatory requirements that have not been complied with, nor errors on the face of the record.[60]

[60]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 102.

The defendants accepted that proportionality is a proper consideration for a magistrate when considering a s 465AA application. If police were seeking a s 465AA order to help prove a very minor offence (for example, “jaywalking”), the disproportionality of making such an order could justify a magistrate rejecting the application.[61] But, the defendants submitted, the alleged offending here was significant, albeit it was alleged incitement of summary offending punishable only by fines. It was submitted that the protests constituted a significant risk to public health in a time of pandemic.
[61]Transcript of Proceedings, Smit v Lyons & Ors (Supreme Court of Victoria, Beale J, 6 April 2021), 110–111.

The defendants submitted that even if regard is had to the considerations relied upon by the plaintiff, none of them are so overwhelming as to make it appropriate to interfere with the magistrate’s order.

(a) Client legal privilege

The defendants submitted that “[as] the [p]laintiff concedes in her written case, the existence of privilege is not a relevant consideration for the making of the [impugned order].”[62] In any event, the defendants submitted that the plaintiff has “failed to establish any claims for [client legal] privilege.”[63]
[62]Defendants’ written submissions, 5 April 2022, [40].
[63]Defendants’ written submissions, 5 April 2022, [42].

The defendants submitted that there would not be legally privileged data on the seized phones anyway because the phones were seized by police prior to the plaintiff being charged on 31 August 2021 and have been in police custody ever since.[64]
[64]Defendants’ written submissions, 5 April 2022, [42].

The defendants also submitted that if “the plaintiff claims [client legal] privilege over any material, then there are processes under which such an application could be heard and determined, especially within the context of a criminal trial.”[65]

(b) Journalist privilege

[65]Defendants’ written submissions, 5 April 2022, [42].

The defendants submitted that even if the plaintiff is a journalist — which is disputed — there was no evidence before the magistrate that she was a journalist. Consequently at the ex parte hearing on 1 March 2022, the magistrate had no obligation to consider journalist privilege.

The defendants submitted that, in any event, journalist privilege is a limited right that can be considered in the substantive criminal proceedings if it is a real issue.

(c) Sensitive health information

The defendants submitted that the Health Records Act 2001 did not assist the plaintiff because, pursuant to s 14 of that Act, it does not constrain courts. Likewise, the defendants submitted that the Privacy and Data Protection Act 2014 does not assist the plaintiff because, pursuant to s 10 of that Act, it does not constrain courts either. In any event, the defendants submitted there was no evidence before the magistrate that a s 465AA order would impact health information.

The defendants submitted that the Privacy Act 1988 (Cth) is federal legislation which does not impact on a magistrate’s power under s 465AA of the Crimes Act 1958.

(d) The plaintiff’s right to freedom of movement (s 12 of the Charter)
(e) The plaintiff’s right to privacy and reputation (s 13 of the Charter)
(f) The plaintiff’s right to freedom of thought, conscience, religion and belief (s 14 of the Charter)

The defendants submitted in relation to Grounds 2 (d), (e) and (f) that:

[49] … [T]here is no evidence to suggest these matters are in fact impacted or relevant. To the extent that the Charter is relevant in circumstances where a warrant is being sought and specific sections of the Act applied (which is not accepted), those matters could at best impact the discretion to make the order in [the] circumstances.[66]

[66]Defendants’ written submissions, 5 April 2022, [49].

The defendants submitted that the fact that Victoria Police is a public authority which is obliged to have regard to Charter considerations is irrelevant because it was the magistrate who made the impugned order. And Victoria Police were not acting unjustly or capriciously but lawfully in seizing the mobile phones under warrant and seeking the s 465AA order.

(g) Data unrelated to the proceedings
(h) Identities of persons unrelated to the proceedings
(i) Data being the property of RDA

Regarding Grounds 2 (g), (h) and (i), the defendants submitted that:

[50] It is a necessary and ancillary consequence that information may be obtained which is unrelated or unconnected to the alleged offending. As a basic example, where a mobile telephone is seized, it may contain communications between the accused and their family members wholly unrelated to the alleged offending – the possible or actual existence of such information should not prevent an order (or warrant being) issued. The legislation favours the public interest in the investigation and prosecution of crims, and such ancillary consequences cannot and should not stop the execution of a s 465AA order.[67]
[67]Defendants’ written submissions, 5 April 2022, [50].

ANALYSIS REGARDING S465AA ORDER
Ground One

In relation to the first two criteria for the making of a s 465AA order, sub-s (5) requires a magistrate to be (a) satisfied that there are “reasonable grounds for a suspicion” vis a vis the relevant device and (b) that there is a “reasonable suspicion” vis a vis the specified person. “Suspicion” is less than “belief”.

In George v Rockett,[68] the High Court said:

The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.”[69]

[68](1990) 170 CLR 104.

[69]George v Rockett (1990) 170 CLR 104, 115.

I consider the matters referred to in LH1, LH2 and LH3 provided “a factual basis” to reasonably ground the relevant suspicions required by s 465AA(5)(a) and (b) with respect to the devices (ie the mobile phones) and the specified person (ie the plaintiff). In LH1, at [15], the plaintiff is described as the founder and leader of RDA. LH1 strongly supports the inference that the plaintiff was at all relevant times in a leadership role at RDA which on the information contained in LH1 at [14]–[44] promoted online the protests on 11 and 21 August 2021. The two mobile phones were, according to LH2 at [4], located “in her possession” in a VW Golf 1AO9EK “belonging to Smit.”

The third criteria for the making of a s 465AA order requires more than a suspicion. It requires a magistrate to be satisfied that:

(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.

“Relevant knowledge” must mean more than mere knowledge of the existence of the device. What is meant by “relevant knowledge” must be informed by the nature of a s 465AA order which obliges the person the subject of the order to assist investigators with accessing, copying and/or converting data held in or accessible from the device in question. To my mind, relevant knowledge must mean knowledge of how to do those things in respect of the device in question.

In the absence of evidence to the contrary, evidence of possession by a person of mobile phones in their own car supports an inference that the person in possession is likely to have such relevant knowledge, even where there is no evidence (as here) that the phone is registered to them. The level of “satisfaction” that must be entertained by a magistrate is not satisfaction “beyond reasonable doubt.” For example, the possibility that one or other of the phones found in Smit’s possession in her car may have been somebody else’s phone (for example, her partners) did not, in my view, preclude the magistrate from reaching the level of satisfaction required by s 465(5)(c) of the Crimes Act 1958.

In coming to the above conclusion, I have not taken into account what appears in [13.3] and [25] of the plaintiff’s first affidavit, referred to in [35] and [36] of the defendants’ written submissions, as that was not information before the magistrate.

Ground One is not made out.

Ground Two

I will first make some general points in relation to Ground Two.

The plaintiff submitted that in addition to the three mandatory preconditions referred to in s 465AA(5), the magistrate should have had regard to numerous considerations in deciding whether to make the s 465AA order.

Applications for s 465AA orders are ordinarily dealt with at ex parte hearings, as happened on this occasion. A magistrate hearing such an application will in most cases not know whether ordering the specified person to provide the required assistance will potentially give the police access to data which could (and would) be the subject of a claim for privilege of one kind or another. Acceptance of the plaintiff’s submissions would require magistrates to engage in a good deal of conjecture.

Rejection of the plaintiff’s submissions would not mean that legitimate claims of privilege would be defeated. The matter could be litigated by the specified person before providing the assistance sought by the police. The judicial officer hearing such litigation, which would be evidence based, would be much better placed than the magistrate to decide whether there is a real issue to be resolved.

Furthermore, if the claim of privilege has merit, the judicial officer, in the light of the evidence, would be able to tailor his or her orders so that the privileged data was protected without entirely defeating the efficacy of s 465AA orders as an investigative tool. Acceptance of the plaintiff’s submissions would not in my view strike an appropriate balance between the public interest in the investigation of alleged crime and the public interest in the confidentiality of privileged communications.

(a) Client legal privilege

Much was made by the plaintiff of the fact that she had already been committed to stand trial when the magistrate came to consider the police’s s 465AA application. In submissions, it was suggested that it was likely that there would be legally privileged communication accessible from the seized mobile phones.

Leaving aside the fact that it was not actually claimed in the plaintiff’s affidavits that compliance with s 465AA order would give the police access to legally privileged data, the fact remains that the plaintiff has been aware since 31 August 2021 that the police were in possession of the two mobile phones. It is not to be assumed that she would have engaged in sensitive communications thereafter oblivious of that fact or believing that the police would not have the resources to “unlock” the phones without her assistance. The point is that, notwithstanding she had been committed to stand trial as at the time of the s 465AA application, it is still a matter of conjecture whether accessing the phones would give police access to legally privileged communications.

(b) Journalist privilege

Regarding journalist privilege, there was no reason for the magistrate to suppose that she was a journalist as defined in s 126J of the Evidence Act 2008.[70] The plaintiff conceded in submissions that determining whether she was a journalist was not a task for the magistrate to undertake at the ex parte hearing. That concession was appropriately made, but it makes no sense to then submit, as the plaintiff did, that the magistrate should have factored journalist privilege into his decision whether or not to make the impugned order.
[70]It is far from clear based on the information contained in her first affidavit that she fits the definition of a journalist in s 126J of the Evidence Act 2008.

Moreover, the defendants are quite right in submitting that journalist privilege is a limited privilege. The plaintiff’s submissions seemed to overlook this fact. The plaintiff’s affidavit went no further than to claim she is a journalist. The privilege only protects the confidentiality of the identity of a journalist’s source. And it only does that where the balancing of competing public interests by a court favours confidentiality. The magistrate could not know whether data that might reveal the identity of a confidential source of information was held on or accessible from the mobile phones in question. Nor could the magistrate at an ex parte hearing engage in the balancing exercise in any meaningful way.

Just as with client legal privilege, the making of the s 465AA order would not defeat a legitimate, evidence based claim of journalist privilege. That matter could be litigated prior to compliance with the s 465AA if the issue was a live one.

I am far from persuaded that the magistrate was obliged to consider journalist privilege when deciding the application for the impugned order.

(c) Sensitive health information

Once again there was no evidence before the magistrate (and there is not even evidence before me) that compliance with the s 465AA order will give police access to sensitive health information. It is all conjecture. If such information will be accessible from the unlocked seized phones, the matter can be litigated prior to compliance with the order and evidence can be put before the relevant judicial officer who can then tailor orders accordingly, protecting the sensitive information as well as preserving the efficacy of the s 465AA order.

(d) The plaintiff’s right to freedom of movement (s 12 of the Charter)
(e) The plaintiff’s right to privacy and (s 13 of the Charter)
(f) The plaintiff’s right to freedom of thought, conscience, religion and belief (s 14 of the Charter)

In my view, none of the nominated Charter recognised rights are engaged. Making a s 465AA order would not limit the plaintiff’s right to freedom of movement, nor the plaintiff’s right to freedom of thought etc. As for the right to privacy and reputation, the right is a qualified right. There is a right not to have one’s privacy and correspondence unlawfully or arbitrarily interfered with and not to have one’s reputation unlawfully attacked. Given the affidavit material on which his decision was based, there was nothing unlawful or arbitrary about the magistrate’s making of the s 465AA order.

Even if I wrong about the relevance of the nominated Charter rights, that in my view does not mean that it was not open to the Magistrate to make the order that he did. I accept the defendants’ submission that the making of s 465 AA was proportionate to the seriousness of the alleged offending.

(g) Data unrelated to the proceedings
(h) Identities of persons unrelated to the proceedings
(i) Data being the property of RDA

Finally, the fact that compliance with a s 465AA order is likely to give police access to unrelated data about the specified person and others is a normal incident of such orders. Acceptance of the plaintiff’s submissions in this regard would totally defeat the purpose of s 465AA orders.

ORDERS

I dismiss the application for judicial review of Magistrate O’Callaghan’s 465AA order of 1 March 2022.

I revoke my stay of that order which I made on 6 April 2022.

[2022] VSC 274

27 May 2022