Citation: De Belin (First Applicant) v The Queen (Director of Public Prosecutions); Sinclair (Second Applicant) v The Queen (Director of Public Prosecutions) [2020] NSWDC 487
Court: District Court of New South Wales
Date: 28 August 2020
Judge: A Haesler SC DCJ
Background
Two accused men faced five counts each of aggravated sexual assault arising from an alleged incident in Wollongong in the early hours of 9 December 2018. Their trials were listed to commence at Wollongong District Court on 3 February 2020.
In the week before that date, each accused filed a Notice of Motion seeking, among other relief, a permanent stay of proceedings. The applications were triggered largely by events in December 2019, when police obtained and executed search warrants on each accused's home, seizing mobile phones and other devices. Police used Cellebrite forensic software to extract the contents of those devices, which included material subject to legal professional privilege. No protocols were in place to protect privileged communications from police inspection before the warrants were executed.
The hearing of the applications was protracted, preventing a jury from being empanelled in the available time. Further delay followed due to the COVID-19 pandemic. The judgment resolves the permanent stay applications on the merits, and includes special publication arrangements to protect privileged material in separate addenda accessible only to certain nominated persons.
Legal Issues
- Whether the search warrants executed on the accused's premises were lawfully obtained and valid
- Whether police access to, and use of, material subject to legal professional privilege amounted to gross unlawfulness sufficient to justify a permanent stay
- Whether human rights protections, including the right to privacy and the right to silence, can be read into the Law Enforcement (Powers and Responsibilities) Act 2000
- Whether the right to silence was breached by the seizure of the accused's devices
- Whether the prosecution had breached its duty of disclosure in connection with the seized material
- Whether the overall conduct of investigators and prosecutors was such that a fair trial could no longer be had
Decision
The court refused both permanent stay applications. His Honour found that while police had accessed material subject to legal professional privilege, the extent of actual use of that material by investigators was limited, and there was no evidence of deliberate or bad-faith exploitation of privileged communications. Applying what the judgment characterises as "Hanlon's razor," the court attributed the failures to ineptitude and a lack of protocols rather than malice or conspiracy.
On the validity of the search warrants, the court found no basis to hold them invalid. The legislation did not incorporate human rights protections of the kind the applicants sought to import, and the right to silence was not engaged in a manner that rendered the warrants unlawful merely because the seized devices might contain communications reflecting the accused's defence strategies.
The court acknowledged that, once an accused is known to have a lawyer, it requires no imagination to foresee that legally privileged communications may be present on a seized device, yet no protocols existed to protect privilege at the point of execution of the warrants. The court noted that protocols do exist for search warrants executed at law firms, and that the Law Society and Commissioner of Police have procedures for resolving privilege claims, but those arrangements were not known to the officers involved and were not applied here.
On the prosecution's disclosure obligations, the court found no breach sufficient to ground a permanent stay. The court accepted that the defence had been substantially informed of the relevant events and materials, and that the contamination from any derivative use of privileged material did not rise to the level that would make a fair trial impossible.
Orders Made
- Both Notices of Motion refused
- Matters listed for trial on 2 November 2020 at Wollongong District Court
- Readiness hearing and compliance with DC Practice Note 1 listed for 7 September 2020
- Pre-trial mention listed for 27 October 2020
Key Takeaways
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A permanent stay of criminal proceedings requires a finding of gross unlawfulness or conduct so seriously compromising the integrity of the justice system that no other remedy suffices. Access to legally privileged material by police, without more, did not reach that threshold on the facts here.
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The District Court found that the absence of protocols governing the treatment of legal professional privilege when search warrants are executed on an accused person's home is a significant systemic gap. The court observed that the problem of privileged material on electronic devices is foreseeable and ought to be addressed by police and Law Society protocols in the same way that protocols exist for searches of legal offices.
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Cellebrite forensic extraction technology downloads all content from a device indiscriminately. Once a device is seized, all its contents are in police possession and accessible. The court noted that this characteristic makes advance procedural safeguards for privilege claims particularly important.
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No error was established in how the search warrants were obtained, and the court declined to read human rights protections, including a right to privacy or an expanded right to silence, into the Law Enforcement (Powers and Responsibilities) Act 2000.
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Where police ineptitude and absence of protocols, rather than deliberate misconduct, explain the access to privileged material, courts may decline to characterise the conduct as the kind of "gross unlawfulness" that warrants permanently halting a prosecution.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61JA(1)
- Criminal Procedure Act 1986 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2000 (NSW)
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Evidence Act 1995 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Telecommunications (Interception and Access) Act 1979 (Cth)
- Privacy Act 1988 (Cth)
- Human Rights and Equal Opportunity Commission Act 1986 (Cth)
- Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases
- Baker v Campbell (1983) 153 CLR 52
- Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
- Glencore International AG v Commissioner of Taxation [2019] HCA 26
- Coco v The Queen (1994) 179 CLR 427
- Dupas v The Queen (2010) 241 CLR 237
- Gedeon v R [2013] NSWCCA 257
- Edwards v R [2020] NSWCCA 57
- Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314
- Baldwin v State of New South Wales [2020] NSWCA 112
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Carmody v Mackellar [1996] FCA 791
- Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16
- Abbas v NSW Commissioner of Police [2019] NSWSC 1841