Doyle v Commissioner of Police (No 4) [2020] NSWCA 290

Doyle v Commissioner of Police (No 4) [2020] NSWCA 290

Although the warrant was invalid and involved a serious breach of LEPRA affecting Mr Barbeliuk's property and privacy rights, there was no evidence of malevolence, deliberate illegality, or reckless indifference. The laptop was known to contain child abuse material, and destruction would impede or prevent investigation of that material and pre-empt any future court's consideration of admissibility under s 138 of the Evidence Act 1995 (NSW). Consistently with the public interest reasoning in Smethurst, discretionary equitable relief requiring destruction should be refused and the restraints on police access discharged.

Jurisdiction
Australia
Judgment Date
16 November 2020
Procedural Posture
Consequential Orders Concerning Items Seized Under an Invalid Search Warrant / Application Before a Single Judge of Appeal for Discretionary Relief and Discharge of Restraints Following Earlier Court of Appeal Decisions
Outcome
Mr Barbeliuk's application for destruction of the laptop and hard drive copies was refused; the restraints and undertakings limiting police access were discharged to permit investigation.
Legal Topics
['invalid Search Warrant' 'seizure of Computer and Hard Drive Images' 'child Abuse Material' 'discretionary Equitable Relief' 'destruction or Return of Seized Property' 'unlawfully Obtained Evidence' 'public Interest in Investigation and Prosecution of Crime']
['police Powers' 'search Warrants' 'equity' 'criminal Procedure' 'evidence'] ['invalid Search Warrant' 'seizure of Computer and Hard Drive Images' 'child Abuse Material' 'discretionary Equitable Relief' 'destruction or Return of Seized Property' 'unlawfully Obtained Evidence' 'public Interest in Investigation and Prosecution of Crime']

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Procedural Posture

Consequential Orders Concerning Items Seized Under an Invalid Search Warrant / Application Before a Single Judge of Appeal for Discretionary Relief and Discharge of Restraints Following Earlier Court of Appeal Decisions

Legal Issues

  1. 1 ['Whether the owner of a laptop seized pursuant to an invalid search warrant was entitled to equitable relief requiring destruction of the laptop and all copies of its hard drive.' "Whether the Commissioner of Police and Detective Senior Constable O'Neill should be released from restraints limiting access to the laptop so that police could investigate child abuse material contained on it." "What weight should be given to the breach of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the owner's property and privacy rights, and the public interest in criminal investigation."]

Ratio Decidendi

Although the warrant was invalid and involved a serious breach of LEPRA affecting Mr Barbeliuk's property and privacy rights, there was no evidence of malevolence, deliberate illegality, or reckless indifference. The laptop was known to contain child abuse material, and destruction would impede or prevent investigation of that material and pre-empt any future court's consideration of admissibility under s 138 of the Evidence Act 1995 (NSW). Consistently with the public interest reasoning in Smethurst, discretionary equitable relief requiring destruction should be refused and the restraints on police access discharged.

Court Disposition

Mr Barbeliuk's application for destruction of the laptop and hard drive copies was refused; the restraints and undertakings limiting police access were discharged to permit investigation.

Orders

  • ['Discharge order 4 made by the Court in its Common Law Division on 20 December 2019 in respect of the laptop known in the proceedings as item 24.' 'To the extent necessary, the undertakings given by the legal practitioners retained by the Commissioner and members of the Digital Forensics Unit which have been...