If the police wrongfully seize a cell phone and make their own copy of the information stored on it, can the owner of that information require the police to destroy their copy and not make it available to a prosecuting authority?
This had to be decided in Smethurst v Commissioner of Police [2020] HCA 14, where the cause of action was in equity: an application for a mandatory injunction, which would order the police to cease their retention of data they had copied to their own storage device. That remedy is, where it is available, discretionary. It was sought in order to prevent the police from continuing to benefit from the consequences of their trespass by unlawful searches.
These were not criminal proceedings, and what the data disclosed was unknown. However, the plaintiffs had conceded that there might be prejudice to them with respect to possible criminal proceedings [47]. In broad and vague terms, the plaintiffs – a journalist and a newspaper publisher – might (and it’s a big “might”) have breached national security in obtaining information used as the basis for publications warning people about extensions to governmental powers of surveillance.
A full bench of seven judges grappled with the issues.
The majority comprised a joint judgment by Kiefel CJ, Bell and Keane JJ, and a concurrence in the result by Nettle J who gave slightly different reasons.
The joint judgment reasoned that there was no juridical basis for an injunction here, but even if there was, discretionary considerations would deny a grant because as criminal conduct was suspected there was a public interest in revealing criminality [99]. Just as in criminal cases improperly obtained evidence may be admissible, here the impropriety was not in itself sufficient to foreclose use of the evidence [100], [103]. This prospect of disclosure of criminal conduct was sufficient to decline the discretionary relief that was sought [104]. Injunctions protect legal rights, and here the plaintiffs had no right to protection from being investigated in relation to an offence [85]. This was not a case where the Court had to decide whether there is a common law tort of breach of privacy, as the plaintiffs did not seek to have that determined [90].
Nettle J, whose concurrence determined the outcome, agreed that potential disclosure of criminality weighed against granting the injunction [160]. He emphasised that the error by the police was honest, which meant that retention of the information was not so obliquitous so as to be inequitable [158] (a point disagreed with by Edelman J at [262]). Nettle J also considered that weighing against the injunction was an undertaking by the Commissioner of Police to only use the information as if it had been lawfully seized, which meant that if no offending was disclosed the items would all be returned without prejudice to the plaintiff [161] (also disagreed with by Edelman J at [269]). In contrast to the plurality, Nettle J thought it was not relevant to draw upon the public policy concerns surrounding discretionary exclusion of improperly obtained evidence in criminal proceedings, as here there was insufficient information before the Court about criminality [162].
Dissenting judgments were delivered by Gageler, Gordon and Edelman JJ.
Gageler J found the juridical basis for relief here in the tort of trespass [119], drawing upon the need to adapt the common law [120], [124], [126]. He discussed the guiding principles governing the exercise of the discretion concerning equitable relief [134], and emphasised that an injunction need not prevent ongoing investigation of criminality [139].
Gordon J agreed that terms could be devised [188], as did Edelman J [271]. Gordon J put the basis for relief as the excess of power [185], saying that an injunction would merely require the police to obey the law [190]. The police could still seek further search warrants [188], and the discretionary considerations favoured the issuing of an injunction [192]-[197].
Edelman J – in an impressive survey of the equitable remedy of injunction - stressed the inadequacy of the alternative common law remedy of damages [252] (a point recognised by all judges), although he acknowledged the strength of Nettle J’s reasoning at [185]-[162] which suggested that damages could be an adequate remedy. But here, Edelman J reasoned that damages would not be adequate because the statutory protections surrounding the use of lawfully seized material did not apply to unlawfully seized material, and damages would not remedy this absence [263]-[264]. It was also important, in determining the discretion, to consider the police perspective [266]. There was a paucity of facts as to criminality here [267], and the police undertaking to act as if the search warrants had been lawful did not truly reverse the consequence of their unlawful action [269]. An injunction could be drawn in terms that made it subject to the execution of a lawful search warrant [271]. This would not be against the public interest [277]-[279].
So, all the plaintiffs in this case were left with was (translating the equitable remedy of certiorari, and putting it in general terms) a finding that a warrant to search the journalist’s home was invalid. That would, if there were ever to be criminal proceedings in which information retained by the police in this case was to become the subject of discretionary exclusion, be one of the factors for consideration on that admissibility issue.
The exercise of determining the ratio decidendi of this aspect of the case (there are other aspects which will be of great interest to Australian lawyers, including the requirements for a valid search warrant, and some constitutional issues concerning injunctive relief) is one that could entertain students for several minutes. I shouldn’t offer spoilers, other than to say that a critical fact is that the police here acted in good faith in carrying out the search and seizure and copying of the electronic information. Had there been bad faith, Nettle J may have favoured issuing an injunction [158] and so joined in the result favoured by Gageler, Gordon and Edelman JJ to form a different majority. It seems that Kiefel CJ, Bell and Keane JJ would still have refused an injunction because the trespass was complete and the plaintiffs could point to no legal right for the Court to protect [68], [76], [77], [85].
The exercise of determining the ratio decidendi of this aspect of the case (there are other aspects which will be of great interest to Australian lawyers, including the requirements for a valid search warrant, and some constitutional issues concerning injunctive relief) is one that could entertain students for several minutes. I shouldn’t offer spoilers, other than to say that a critical fact is that the police here acted in good faith in carrying out the search and seizure and copying of the electronic information. Had there been bad faith, Nettle J may have favoured issuing an injunction [158] and so joined in the result favoured by Gageler, Gordon and Edelman JJ to form a different majority. It seems that Kiefel CJ, Bell and Keane JJ would still have refused an injunction because the trespass was complete and the plaintiffs could point to no legal right for the Court to protect [68], [76], [77], [85].
