Stefanescu v Detective Sergeant Wood

[2019] VMC 13

IN THE MAGISTRATES’ COURT OF VICTORIA
AT THE SUNSHINE
CRIMINAL DIVISION

Case No. Z01271954  

GEORGE STEFANESCU	Applicant
V
DETECTIVE SERGEANT ALLAN WOOD	Respondent

MAGISTRATE:	A.G. BURNS
WHERE HELD:	SUNSHINE MAGISTRATES COURT
DATE OF HEARING:	10 DECEMBER 2019
DATE OF DECISION:	23 DECEMBER 2019
CASE MAY BE CITED AS:	STEFANESCU v DETECTIVE SERGEANT WOOD
MEDIUM NEUTRAL CITATION:	[2019] VMC013

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CATCHWORDS – Crimes Act s.465 – Crimes Act s. 83A – Magistrates Court Act s.78(6) – Return of Warrant – Claim for legal professional privilege – Irrelevant material seized under warrant.

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APPEARANCES:	Counsel		Solicitors
For the Applicant	Mr M. Lynn		Olinda Legal
For the Respondent		Mr J. Stoller		Victorian Government Solicitors office

Ruling

HIS HONOUR

1. On the 14^th of February 2019, the respondent applied for and was granted a search warrant pursuant to section 465 of the Crimes Act[1].  Following the subsequent execution of that warrant[2] on the 15^th of February 2019, the matter was returned to Court for the ‘Result of Search’ ex-parte chambers hearing on the 19^th of February 2019.  At this hearing the learned Magistrate made orders for the seized items to be retained in the possession of police and or otherwise conveyed for analysis. 

[1] 6231 of 1958. (Victoria)

[2] 130/19 Sunshine Magistrates Court Warrant Register

2. There is a dispute about what was said by the Respondent in this Chambers hearing as to whether a claim was made by the applicant for legal professional privilege (‘LPP’) over many of the documents and electronic files then under seizure.  This hearing was not recorded as is the usual practice for this type of hearing, occurring in chambers.  What is certain is that Mr Lynn who acts for the Applicant had notified the respondent in writing by email dated 17 February 2019 that a claim was made for  LLP over much of the data seized and requesting notification of the date and time that the Respondent was to appear at the Return of Warrant Hearing so as to allow Mr Lynn the opportunity to appear and make submissions.  This was not done.  The hearing proceeded ex-parte and the learned Magistrate was not told of Mr Lynn’s request on behalf of the applicant. 
3. The highest it can be put on behalf of the respondent is that he informed the learned Magistrate that ‘there may be, at some later stage a claim for LPP over some of the documents.’  This was misleading in the sense that such a claim was already made in writing, however I am unable to rule whether there was an intention to mislead or whether it was caused through inadvertence. 
4. The Applicant on ascertaining the Result of Search Hearing had proceeded ex-parte, despite his written request to be represented, subsequently applied to the Court to re-hear that hearing.  The learned Magistrate[3] who made the orders on 19 February 2019 recused himself from further hearing the matter as it appeared to him that he may not have been given all the information necessary to do justice to the matter and effectively voided the chambers orders he had made.

[3] The rehearing application commenced in the Melbourne Magistrates Court where it was re-directed to the Sunshine Magistrates court for reconsideration of the Magistrate making the orders on 19/2/19

5. The matter was then allocated to me as a hearing de-novo with respect to the Result of Search hearing and or an application pursuant to s78(6) of the Magistrates Court Act[4] for the return of property consistent with the interests of justice.

[4] 51 of 1989 (Victoria)

The investigation

6. The investigation underpinning the application for the warrant arose following an allegation that the Applicant, a serving sworn member of Victoria Police who is also a licenced hand gun shooter, falsified a record, required for Firearms regulatory purposes that detail the mandatory shooting events required to maintain a private handgun licence.
7. The event in question occurred on the 21^st of March 2018 where the Applicant attended the private club of which he was a member, the Melbourne International Shooters Club (‘MISC’) and completed the records to indicate he was shooting that day.  This club record is not a declaration under the Evidence Act and is required for the Club’s own records to substantiate the records a member must maintain personally so as to report to the Licencing Regulatory Division  (‘LRD’) of Victoria Police in the mandatory reporting period or 1^st of January to 31^st March the following year. 
8. The applicant was in dispute with MISC over internal issues at the time.  The Applicant despite completing the Club’s register on 21 March 2018 did not in fact shoot that day.  He asserts that he sent an email the following day noting he did not shoot and asking the club to delete or ignore his notification and noting he had deleted the shooting event from his personal records.  There was a further allegation that he had reported a shooting event at the club on 13 April 2018 as well. 
9. MISC however, perhaps motivated by animosity created over the internal dispute they were embroiled in, reported the matter to LRD who ran their own investigation.  On the 18^th of September 2018, the Applicant provided to LRD the email earlier referred to as being sent to MISC on 22 March 2018.  It is the provenance of that email that the respondent takes issue with.  Ultimately LRD cleared the applicant of any wrong doing.
10. None the less, the Respondent arrested the applicant at his work place, the Keilor Downs Police Station on 10 December 2018.  The offence then alleged was the creation of a false document being the purported shooting event record from 21 March 2018 at MISC.  The Applicant denied any wrong doing, told the informant that LRD had exonerated him and referred to the email then in the possession of LRD since 18 September 2018.
11. The offence alleged, being the making of a false document[5] was curious given an inaccurate report of attending a shooting event made in the official record of the club could never at law amount to a ‘false document’ at law because the document did not tell a lie about itself as the cases require.  It was merely a document containing a false entry, but even if done intentionally, that is not a false document as it doesn’t purport to be something which it’s not.  Therefor the investigation began upon a wholly floored premise.

[5] Pursuant to s.83A of the Crimes Act 6231 of 1958 (Vic)

12. The requirement at law for the document to ‘tell a lie about itself’ for it to be a false document is best encapsulated as the Court of Appeal observed in R v Ceylan[6]

“The essence of the crime of ‘making a false document’ contrary to s.83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document ‘tells a lie about itself’ in the sense that it purports to be something which it is not, (that is not an authentic document).

Hence a false entry in the official record of the club could never amount to a ‘false document’.  The lawfulness of the arrest on 10 December 2018 comes into question and the prosecutions conduct at that point looks at best petty and at worst malicious.

[6] [2002] VSCA 53

13. The investigation then focusses upon the email that had been provided by the Applicant to LRD on 18 September 2018.  Notionally an email purportedly drafted and sent of 22 March 2018 if it was in fact drafted much later and never sent as the respondent suspects could fall within the definition of a false document as it purports be something which it is not.  This document can only have been created between 21 March 2018 and 18 September 2018 being the book ends commencing the false entries at the club and the provision of the email to LRD. 
14. The Respondent then applied for and was granted the warrant here in question pursuant to s.465 of the Crimes Act. The warrant authorised a search of the Applicant’s home for “items believed to have been used in the commission of the offence of make false document or storage of documents related to the offence of make false document”
15. Given the limited scope of this warrant only documents of a text file nature created between 21 March 2918 and 18 September 2018 could assist the investigation.

Law

16. A warrant to search pursuant to s.465 of the Crimes Act does not create a power to seize any and all documents or things which might be relevant to the investigation. The requirement is for the executing police officer to be able to justify a suspicion on reasonable grounds that the material seized will afford evidence as to the commission of the named indictable offence.
17. The Court’s responsibility in dealing with the property seized under warrant is a grave one.  The Federal Court of Australia in Parker v Churchill[7], a case dealing with the issue of a warrant, observed with regard to the Court’s responsibility to protect against unnecessary intrusions into a citizen’s privacy, the following:

“What is required by the law is that the justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

[7] (1985) 63 ALR 326

18. The Victorian Supreme Court in Allitt v Sullivan[8], then expanded that position by finding that the Court’s obligations extends to ensuring the warrant is executed appropriately, making orders with respect to any seized property according to law.

“The power and the duty of the police officer executing a warrant is to take what he has seized before a justice to be dealt with by him according to law: once he has seized the goods, that is his only power in relation to them.  He is not entitled, for example to retain what he has seized for the purpose of facilitating his investigations instead of taking the seized property before the justice. Cf R v banner [1970] VicRp 31; [1970 VR 240 at 249.  If the things the subject of the warrant are documents, the warrant gives the officer no power to read them except for the purpose of identifying what he is to seize.  One he has seized the documents, his task is to take them before a justice”

[8] [1988] VR 621 at 639

19. Whilst the expression used in these cases is “Justice”, that related to a time when legislation granted the necessary powers and obligations to a Justice of the Peace.  There is no reason to suspect the Court would take any different view now the responsibility falls primarily to the Magistrates Court of Victoria.
20. In noting the Court’s obligation in dealing with the return of warrant process was an important one, the Court in Allitt v Sullivan[9] said:

“Similarly, it is the duty of the issuing Justice or the justice to whom the things seized are carried, to deal with them according to law.  That is not a duty which can be treated as a formality particularly in the light of the matters discussed in these reasons for judgment”

[9] Ibid at 633

21. So it is clear that, to ‘deal with the property according to law’, the Court must not allow, inter alia any abuse of process, breach of privacy or breach of LPP.  To do this, documents irrelevant to the investigation must be returned to their owner.  The warrant authorises provisional seizure of items over which the executing officer “believed to have been used in the commission of the offence of make false document or storage of documents related to the offence of make false document.”[10]

[10] The terms specified in the ‘reasons for search’ s.465 warrant number 130/19

Conclusion and orders

22. Given that any time or event sheets belonging to MISC that involve entries alleged to be erroneous, (deliberately or otherwise), will not amount at law to a ‘false document’[11], the investigation must now centre upon the creation of an ‘exculpatory email given to LRD on 18 September 2018.  Hence the time frame during which this email can only have been created is between 21 March and 18 September 2018.  Accordingly there can be no reasonable belief (or even suspicion), with regard to any item seized under this warrant that has a creation or modification date outside that range.  In those circumstances all such items created outside that range (unless modified within it), are to be returned to the applicant within 28 days.  I allow that time frame should the respondent seek to appeal this ruling. 

[11] Pursuant to 83A Crimes Act 2958 (Vic)

23. In particular the Surface pro Tablet computer purchased after 18 September 2018 is to be returned to the applicant within 28 days without analysis. 
24. As to all other items seized, they may be analysed by eCrime to determine whether they are or contain text files modified or created between 21 March and 18 September 2018.  Given the nature of the allegation and that the only belief or even suspicion remotely plausible relates to text documents, those that can be viewed by investigators must be text files that fall within that stated range.  Any suggestion as to self recording admissions on an audio file, as the Informant has made is fanciful.  Hence upon electronic analysis all audio, video and photo files are excluded and must be returned to the applicant, without being viewed by investigators[12] within 28 days. 

[12] Other than eCrime technicians

25. Text files created or modified between 21 March and 18 September 2018 on all storage media other than the Surface pro tablet ordered to be returned, may then be viewed by the respondent or those assisting the investigation within 28 days.  Those items then reasonably believed to be evidence of an indictable offence may be kept by the prosecution pending production at Court.  All other items must then be returned to the applicant within 28 days. 
26. The admissibility of any relevant and retained items objected to as the subject of LPP or otherwise will be a matter for the Magistrate hearing any contest should the applicant ultimately be charged. It is that Magistrate who can then be asked for orders with respect to the affidavits supporting the issue of the s.465 warrant

A.G. BURNS

Magistrate

Magistrates Court of Victoria, sitting at Sunshine