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Supreme Court 13 March 2020

Joukhador v Commissioner of Police

[2020] NSWSC 227

Fraud & dishonestyPublic order & justice offences
SEARCH WARRANTS BAIL CONDITIONS CRIMINAL PROCEEDINGS TERMINATED WHETHER ORDER GRANTING ACCESS CEASES INHERENT POWER OF COURT WHETHER INFORMATION PROPERTY

Citation: Joukhador v Commissioner of Police [2020] NSWSC 227
Court: Supreme Court of New South Wales
Date: 13 March 2020
Judge(s): Beech-Jones J

Background

The plaintiff, a sole legal practitioner, had been charged with serious fraud-related offences. As a condition of his release on bail, he was prohibited from accessing his firm's electronic records system. Following an application by both parties, Fullerton J directed that copies of his firm's electronic records (via two hard drives prepared by the records vendor) and certain original hard copy client files be deposited with the Supreme Court rather than left accessible to the plaintiff.

Subsequently, the Commissioner of Police applied to Davies J for access to that deposited material in order to conduct an ongoing investigation. Davies J granted access in February 2019, expressly permitting the material to be used for investigative purposes extending beyond the charges then on foot. The Commissioner's solicitors copied the hard drives and scanned the hard copy files. In July 2019, the Director of Public Prosecutions directed that no further proceedings be taken on the charges against the plaintiff.

Once the charges were dropped, the plaintiff sought delivery up of all the deposited material and all copies of it, arguing that the Court's orders permitting police access had lapsed with the termination of the criminal proceedings. The Commissioner resisted the application, pointing to an ongoing investigation into the plaintiff's conduct beyond the original charges.

Legal Issues

  • Whether the orders made by Fullerton J and Davies J were "bail conditions" that lapsed automatically when the criminal proceedings terminated.
  • Whether the plaintiff held a "possessory title" to the information recorded in the deposited material, capable of grounding a claim for its return.
  • Whether information or electronic data constitutes "property" for the purposes of Part 17 Division 2 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), so as to entitle the plaintiff to seek its return under that regime.
  • Whether any other basis existed for the Court to exercise its inherent or implied powers to order return of the material and all copies.

Decision

Issue 1: Whether the orders lapsed on termination of proceedings

The Court found that the order made by Fullerton J directing deposit of material with the Court was not itself a "bail condition" under the Bail Act 2013. It did not depend on the plaintiff's agreement, was not contingent on his continued release, and did not lapse if breached by police (at [40]). Instead, it was an exercise of the Court's jurisdiction under section 23 of the Supreme Court Act 1970, or its inherent and implied powers, to make ancillary orders over property provided in the context of bail proceedings (at [41]-[43]).

The orders made by Davies J granting police access to the deposited material were also exercises of the same jurisdiction, not bail conditions. Critically, Davies J had expressly authorised use of the material for investigations extending beyond the charges then pending against the plaintiff. Orders of that character, analogous to orders relieving parties from the implied undertaking as to discovered documents, do not lapse on termination of the proceedings in which they were made (at [43]-[44]).

Issue 2: Possessory title to information

The plaintiff argued that, prior to the Court orders, he was in possession of the information and thereby acquired a "possessory title" good against all the world except a true owner. The Court rejected this argument. Information is not property and cannot be a chose in possession, so there is no concept of possessory title to information (at [48]). The Court noted that equitable protections for confidential information do not render information "property" in the relevant legal sense, and that copyright, being a chose in action rather than a chose in possession, also does not confer possessory title (at [48], [55]).

Issue 3: LEPRA Part 17 Division 2

The plaintiff sought orders under sections 218 and 219 of LEPRA for return of the material. The Court rejected this on multiple grounds. First, information is not "property" within the LEPRA definition and therefore cannot be in the custody of police in the relevant sense (at [59]-[60]). Second, the deposited hard copy files and hard drives remained in the custody of the Court, not the police, so the LEPRA regime was not engaged in respect of those items (at [61]). Third, even accepting that electronic data might constitute a "thing" capable of seizure under a warrant, the data here was not obtained by seizure under LEPRA but through bail conditions leading to a court deposit and subsequent court-ordered access, taking it outside the LEPRA framework entirely (at [66]).

Issue 4: Inherent jurisdiction to order return

The Court confirmed that it possessed inherent and implied powers, as well as jurisdiction under section 23 of the Supreme Court Act, to order return of the deposited material and all copies, treating it analogously to documents produced on discovery (at [72]-[74]). However, the evidence established that the investigation contemplated by Davies J's orders remained ongoing and the plaintiff had advanced no countervailing reason of sufficient weight to justify ordering return at this time (at [76]). The summons was dismissed.

Orders Made

  • The plaintiff's summons is dismissed.
  • The plaintiff is to pay the defendant's costs of the proceedings.

Key Takeaways

  • An order directing that material be deposited with a court as an adjunct to bail proceedings is not itself a "bail condition" under the Bail Act 2013; it is an exercise of the court's inherent jurisdiction or powers under section 23 of the Supreme Court Act 1970, and does not automatically lapse when the underlying criminal proceedings terminate (at [40]-[43]).

  • Orders granting police access to court-held material for investigative purposes wider than the charges then pending survive the termination of those charges; they are analogous to orders relieving parties from the implied undertaking governing discovered documents, and their continued force depends on the scope of the investigation they authorise (at [43]-[44]).

  • Information is not property and cannot be the subject of possessory title: a person's factual possession of a medium on which information is recorded does not give rise to any proprietary or possessory interest in the information itself, even where equitable or copyright protections may exist in relation to that information (at [48], [55]).

  • Part 17 Division 2 of LEPRA has no application to material deposited with and held by a court rather than retained in police custody, regardless of whether copies of that material are subsequently held by police under court-sanctioned access (at [61], [66]).

  • The Supreme Court's inherent and implied powers extend to controlling the dissemination, access, and return of material deposited with the court under conditions analogous to compulsion, including ordering return or deletion of copies held by police, but such powers will not be exercised in favour of return where a genuine, ongoing investigation remains on foot and no sufficient countervailing reason is shown (at [74], [76]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013
- Copyright Act 1968 (Cth)
- Crimes Act 1900
- Indecent Articles and Classified Publications Act 1975
- Law Enforcement (Powers and Responsibilities) Act 2002
- State Records Act 1988
- Supreme Court Act 1970
- Uniform Civil Procedure Rules 2005, r 33.13

Cases
- Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
- Breen v Williams (1995-1996) 186 CLR 71; [1996] HCA 57
- Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143
- Crest Homes PLC v Marks [1987] AC 829
- Esso Australia Resources Limited v Plowman (1994‑1995) 183 CLR 10; [1995] HCA 19
- Fantakis v Commissioner of Police [2013] NSWSC 685
- Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525; [1943] HCA 50
- Ferguson v Eakin (Court of Appeal (NSW), 27 August 1997, unrep)
- Gatward v Alley (1940) 40 SR (NSW) 174
- Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59
- Hamilton v Naviede [1995] 2 AC 75
- Harman v Secretary of State for Home Department [1983] 1 AC 280
- Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
- Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566; [2006] NSWSC 158
- Joukhador as the Principal Solicitor of Thomas Booler Lawyers v New South Wales Commissioner of Police [2017] NSWSC 1287
- Joukhador v Commissioner of Police [2018] NSWSC 872
- JT International SA v The Commonwealth (2012) 250 CLR 1; [2012] HCA 43
- Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26
- Kimberley Mineral Holdings Ltd v McEwan [1980] 1 NSWLR 210
- Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
- McQueen v Hawi [2008] NSWSC 136
- Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
- Parsons v The Queen (1999) 195 CLR 619; [1999] HCA 1
- R v Elomar and Ors [No 11] [2009] NSWSC 385
- R v Joukhador [2019] NSWSC 112
- Russell v Wilson (1923) 33 CLR 538; [1923] HCA 60
- Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209
- Telstra Corporation v Commonwealth (2008) 234 CLR 210; [2008] HCA 7
- Yanner v Eaton (1991) 201 CLR 351; [1999] HCA 69