Smith v Victoria Police and Anor (No 1)
[2020] VSC 441
•22 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02888
| SIMON SMITH | Plaintiff |
| - and - | |
| ACTING DETECTIVE SENIOR SERGEANT STEVE THOMPSON (30366 VICTORIA POLICE) | First Defendant |
| - and - | |
| MELBOURNE MAGISTRATES’ COURT | Second Defendant |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2020 |
DATE OF RULING: | 22 July 2020 |
CASE MAY BE CITED AS: | Smith v Victoria Police & Anor (No 1) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 441 |
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CIVIL PROCEDURE – Interim injunction sought against Victoria Police investigation and to stay search and seizure warrant issued by Magistrate pursuant to s 465 Crimes Act 1958 (Vic) – Serious question to be tried – Balance of convenience does not favour granting injunction – Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – Crimes Act 1958 (Vic) s 465 – Confiscation Act 1997 (Vic) s 97 – Magistrates’ Court Act 1989 (Vic) s 131.
CIVIL PROCEDURE – Pseudonym order sought preserving anonymity of plaintiff – Whether professional embarrassment sufficient – PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513 – Open Courts Act 2013 (Vic) ss 4, 7 and 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Simon Smith appeared in person | Not applicable |
| For the First Defendant | Mr Anthony Albore | Victoria Police Legal and Prosecutions Specialist Branch |
| For the Second Defendant | No appearance | Not applicable |
HER HONOUR:
Background
The plaintiff, Simon Smith, filed a summons and originating motion for judicial review on 3 July 2020 along with an affidavit in support affirmed on 3 July 2020.
The plaintiff describes himself as a cybersecurity expert investigator. He deposes that he provides expert evidence in court cases.[1]
[1]Affidavit of Simon Smith, affirmed 3 July 2020, 1.
A search and seizure warrant numbered 1876/20 (‘the warrant’) was executed by Victoria Police at 10:30am on 7 May 2020 at 7 Kenneth Road, Bayswater, Victoria 3153 (‘the property’).[2] The plaintiff was living and working from the property. Forty items in total were seized.[3] Among the items were computer devices, USBs and mobile phones. Some of those devices were said to contain witness statements prepared by the plaintiff for his clients.
[2]Ibid, Exhibit SS-1, SS-6.
[3]Ibid, Exhibit SS-2.
The warrant was issued pursuant to s 465 of the Crimes Act 1958 (Vic) (‘Crimes Act’) by Magistrate Bate on 5 May 2020. On 15 May 2020, the result of the search warrant was brought before the Ringwood Magistrates’ Court. A direction was made that the 40 electronic items to be retained in possession of the police pending production at court if required.[4]
[4]Ibid, Exhibit SS-6.
The search warrant stated that the plaintiff was suspected of committing ‘threats to kill’ and ‘using a carriage service to harass’, which formed the basis for the search and seizure.
The first defendant filed written submissions dated 16 July 2020. At paragraphs [5] to [9] of the submissions, the first defendant asserts in relation to the offences the following:
Make threats to kill
6The plaintiff is believed to have transmitted an email constituting a threat to kill to three persons. The recipients of the email are two investigating members from Victoria Police, Detective Senior Constable Gill, Senior Sergeant Pinner and an instructing solicitor from the Commonwealth Director of Public Prosecutions, Candice Caretti.
7The email transmitted by the plaintiff purported to be from a lawyer at Victoria Police, by the name of Steven Payne using a fake email address.
8The three complainants who were the recipient[s] of the threat to kill and the person who purports to transmit the email being a lawyer from Victoria Police are known to the plaintiff as either investigating informants or lawyers that have been involved independently in protracted litigation with the plaintiff. The email transmitted is as follows:
‘Hola 4 cunts, you 4 are going to die shortly an[d] immediate and related family member of each of you is going to die. I have your identities.’
Use carriage service to menace or harass
9Candice Caretti complains of receiving unsolicited internet activity following becoming the instructing solicitor in a prosecution in relation to the plaintiff:
(a)receipt of funeral insurance with details of email and phone number
(b)Life insurance
(c)Fake Facebook account who made derogatory comments about the four officers tragically killed in the Eastern Freeway accident
(d)creation of a fake Twitter account
(e)signing up to a date website Zoosk
(f)subscription to narcotics anonymous.[5]
[5]First Defendant’s Written Submissions on Application for Injunctive Relief by Plaintiff, filed 16 July 2020 [6]-[9].
It was put to counsel for the first defendant that there was no evidentiary basis for the assertions contained in paragraphs [6] to [9] of the written submissions. Counsel for the first defendant explained that due to time constraints, the first defendant was unable to file any affidavit in response. However, the informant was in court and available to give evidence in relation to these matters. I declined to hear evidence from the informant and accepted there was some evidence contained in the first defendant’s written submissions at paragraphs [6] to [9].
On 19 May 2020, the plaintiff applied to the Ringwood Magistrates’ Court for return of his property under s 97(3) of the Confiscation Act 1997 (Vic) (‘Confiscation Act’), and s 131(1) of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’). On 2 June 2020, Magistrate Maclean heard and refused the application.
In the substantive proceeding before this Court, the plaintiff seeks, amongst other things, a review of Magistrate Bate’s decision on 5 May 2020 to grant the warrant pursuant to s 465 of the Crimes Act.
The plaintiff has made an urgent application in the Practice Court in which he seeks:
(a) Anonymisation of his name in the proceeding pursuant to the Open Courts Act 2013 (Vic) (‘Open Courts Act’) provisions for pseudonym orders;
(b) A stay on the warrant executed by Victoria Police;
(c) An injunction against Victoria Police to cease their investigation;
(d) Production by the Chief Commissioner of Victoria Police to the Prothonotary of the materials seized by Victoria Police under the warrant; and
(e) Production of an affidavit outlining the materials relied on by Victoria Police in obtaining the warrant.
Grounds for review and urgent injunctive relief
In his originating motion and supporting affidavit affirmed 3 July 2020, the plaintiff deposes that in relation to the crimes he is alleged to have committed, Victoria Police only informed him that:
(a) the victims were police officers and a prosecutor;
(b) in previous court proceedings, he made complaints against the victims;
(c) the victims received an email, a Twitter message and Facebook messages from unverified sources or accounts; and
(d) they also received calls from unknown people.
The plaintiff denies that he created the fake accounts. More specifically, he contends that there are 4.8 billion internet users in the world and that there was no evidentiary link between him and the victims, as opposed to any other internet user.
The plaintiff contends that the equipment and materials seized from the property are essential to his professional life and that he is the sole income earner for his family. This, according to the plaintiff, underscores the urgency of the matter.
This is a ruling only in relation to the plaintiff’s application for urgent injunctive relief. The only grounds I consider that warrant urgent determination are:
(a) anonymisation of his name in the proceeding;
(b) the stay on the warrant executed by Victoria Police; and
(c) an injunction that Victoria Police cease their investigation.
The remaining orders sought can be allocated to the Judicial Registrar in the Judicial Review and Appeals List for allocation and determination at a later stage.
Injunction against Victoria Police to cease the investigation and to stay of the search warrant
The test for an interlocutory injunction is set out in Australian Broadcasting Corporation v O’Neill,[6] namely, the plaintiff must establish:
(a) a prima facie case and that there is a serious question to be tried; and
(b) the balance of convenience favours the grant of an injunction.
[6](2006) 227 CLR 57 [19] (Gleeson CJ and Crennan J), [65]-[72] (Gummow and Hayne JJ).
Prima facie case and serious question to be tried
The plaintiff claims there is a prima facie case and a serious question to be tried. The plaintiff’s submissions can be broadly summarised as covering the following issues:
(a) the lack of reasonable grounds for Magistrate Bate granting the warrant;
(b) the procedural irregularities with Victoria Police’s execution of the warrant; and
(c) the scope of the warrant potentially over-including devices and documents that have no evidentiary link to the alleged crimes.
The plaintiff also agitated on numerous occasions submissions in relation to the legal error underpinning the decision on 2 June 2020 by Magistrate Maclean to refuse the plaintiff’s application for the return of the property seized under the warrant.
As I explained above, the issue of the return of the 40 items seized is not the subject of the urgent injunctive relief sought by the plaintiff. This is ultimately the remedy that can be sought by the plaintiff when the matter is determined at final hearing. The injunctive relief relates specifically to the pseudonym order, a stay on the warrant, and an injunction on the first defendant’s investigation.
Although not directly relevant to this application, I make the following observations. As to the return of the seized property, the plaintiff deposes that he had several requests, verbally and in writing, after 7 May 2020 to have Victoria Police return the seized items. As outlined above, he subsequently made an application under s 97 of the Confiscations Act at the Ringwood Magistrates’ Court, which was refused.
Counsel for the first defendant submitted at the Magistrates’ Court that the Confiscations Act has no application in this matter given that the plaintiff’s seized items were not proceeds of a crime and there was no direction from the Magistrates’ Court that the Confiscations Act would apply. This was because the warrant was granted pursuant to s 465 of the Crimes Act.
The plaintiff now seeks an order from this Court under s 78(6) of the Magistrates’ Court Act that his property be returned to him.
In relation to the plaintiff’s arguments on the Confiscations Act, there is nothing to suggest that the Confiscations Act has any application in this proceeding, given that the warrant was issued pursuant to s 465 of the Crimes Act. Based on the first defendant’s submissions, the seized items are still required by Victoria Police for evidentiary purposes which means that the discretionary provisions in ss 465(1B) and 465E of the Crimes Act, and consequently, s 97 of the Confiscations Act regarding the return of the property, do not have any application.
While the plaintiff can apply to have his property returned pursuant to s 78(2) of the Magistrates’ Court Act, this is a discretionary provision and the Magistrate is not obligated to order the return of his property.
It is apparent from the examination of the affidavit material and submissions that there are disputed questions of fact and law that need to be determined at trial. They are not matters that I might appropriately determine. It may be that at trial, the parties would wish to have the plaintiff and informant cross-examined. The question of whether there were reasonable grounds for believing that there was anything in the plaintiff’s premises that will afford evidence as to the commission of an offence are matters of fact and it will be necessary for a judge to determine these matters. Having formed the view in accordance with the principles where an interlocutory injunction is to be granted, that there is a prima facie case and a serious question is to be tried, I then turn to the second question as to whether or not the balance of convenience favours the granting of an injunction.
Balance of convenience
The plaintiff argues that the balance of convenience favours granting the injunction to stop the first defendant from continuing the investigation. Primarily, the plaintiff asserts that the lack of access to his client’s documents and his seized devices prevents him from performing in his role as an expert witness in cybersecurity matters. There is limited evidence before the court about the kind of work the plaintiff is engaged in with these devices and documents.
The plaintiff deposes that all the equipment that was seized was used to generate the sole income for his family (he has two dependents), and he had to spend money to purchase replacement equipment to mitigate his loss.
The plaintiff submits that his inability to do his work, in conjunction with the ongoing damage to his reputation from being the subject of an investigation, points to the balance of convenience being in his favour.
Any prejudice suffered by the plaintiff if the injunction is refused, must be weighed against any prejudice Victoria Police would suffer if the injunction is granted.
The first defendant submits that no irreparable harm would be caused to the plaintiff by declining to grant the interim injunction that he is seeking. The first defendant noted that if the plaintiff succeeds on his challenge for the issue and execution of the search warrant when this matter is determined at a final hearing, the warrant will be quashed and the seized property returned, which will remedy any harm suffered by the plaintiff.
Additionally, the first defendant rejected any urgency for making an interim injunction, noting that even if criminal charges were laid immediately, it is likely that any criminal trial would not be heard until well after any final determination of the substantive matters in this proceeding.
In my view, an injunction stopping the investigation would seriously prejudice the first defendant’s investigation into the plaintiff given that the electronic equipment seized, and the forensic analysis of that equipment, would form a significant evidentiary basis for the first defendant either proceeding with criminal prosecution or alternatively exculpating the plaintiff from criminal charges. This potential prejudice to the first defendant outweighs any potential prejudice suffered by the plaintiff with the current status quo being maintained. It is also important to remember the seriousness of the alleged offences in this case.
I also note that the plaintiff, by his own admission, has said that he has been able to replace some of the electronic devices that were seized, which while not completely satisfactory, appears to at least be sufficient to continue with some professional work.
In the circumstances, I am not satisfied that the balance of convenience favours granting the injunction.
Pseudonym order
The plaintiff submits that there is a real and substantial risk of prejudice against his reputation if his name is linked to any ongoing investigation, which he asserts would affect his employment. The plaintiff also submits that he had a history of cyberstalking due to the nature of his work and the public nature of his profile.
Finally, the plaintiff claims that he has had to issue sub judice contempt proceedings in the past against stalkers and has had to drop civil claims due to the extent of the bullying that he has received.
On the day of the hearing, the plaintiff provided an email exchange to the Court that was said to be from a client, referring to this proceeding being listed on the Supreme Court’s Daily List and inquiring whether the proceeding related to him.
The first defendant submitted that the plaintiff had not discharged the presumption of open justice in favour of disclosing his identity, and that any reference by clients to his proceeding is no more than a form of embarrassment in his professional life.
Pseudonym orders are orders which describe how parties, witnesses and others in a legal proceeding must be referred to. The standard purpose of pseudonym orders are to protect identity. The Court has powers under s 7 of the Open Courts Act and in common law to grant pseudonym orders. They are usually granted if the administration of justice so requires, such as to secure testimony that would otherwise not be given, or to ensure that a plaintiff is not deterred from seeking legal protection.[7] Any claimed circumstances requiring a pseudonym order must be balanced against the principle of open justice. Section 4 of the Open Courts Act codifies the presumption of open justice, and identification of the parties in a legal proceeding has been held be an important component of open justice.[8]
[7]PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513.
[8]Ibid [70]-[71].
While I acknowledge the sincerity of the plaintiff’s concerns about the impact on his professional and personal life, in this case, other than the broad assertions by the plaintiff, there is no evidence before the court that the plaintiff would suffer harm from his identity being publically disclosed. There is no evidence before the court that the risk of cyberstalking is related to legal proceedings, rather than his general online profile. Therefore, it is unclear what benefit, if any, a pseudonym order would have in respect of those matters.
There are several issues with the email exchange that the plaintiff took this Court to. First, it is unclear what relationship, if any, the other people copied in that exchange have with the plaintiff. Second, and more importantly, as counsel for the first defendant noted, the exchange does no more than cause some form of professional embarrassment for the plaintiff. The exchange does not indicate that these clients were terminating any professional relationship as a result of the plaintiff’s proceeding being listed in his name on the Supreme Court Daily List.
The plaintiff also did not submit any evidence that he would be deterred from bringing, or continuing with, this proceeding if his name on the proceeding remained public.
Therefore, I find that the plaintiff has not demonstrated that it is appropriate for him to be given anonymity and a pseudonym order for this proceeding as none of the considerations in s 18 of the Open Courts Act are sufficiently enlivened.
Conclusion
In light of my conclusion as to the balance of convenience, I dismiss the plaintiff’s application for an interim injunction to stay the search warrant issued on 5 May 2020 and that Victoria Police cease their investigation.
Further, I dismiss the plaintiff’s application for anonymisation of his name in this proceeding.
I will refer the proceeding to the Judicial Review and Appeals List for directions on the remaining matters.
In relation to costs, given that these matters are yet to be fully ventilated and determined, save for any submissions, I consider the appropriate order is that the costs of the plaintiff’s application be reserved.
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