Abbas v Commissioner of NSW Police [2023] NSWSC 946

Abbas v Commissioner of NSW Police [2023] NSWSC 946

The police are entitled to retain seized property only while it is required as evidence in the investigation of a specific crime. As the court was not satisfied that the devices themselves, as opposed to the data on them, are required as evidence, and noting undertakings by Mr Abbas to preserve the data, it was determined that the devices should be returned to Mr Abbas by a set date.

Jurisdiction
Australia
Judgment Date
14 August 2023
Procedural Posture
Application for Return of Property / Judgment on Application
Outcome
Application granted in part; order for return of devices to plaintiff upon undertaking to preserve data; case adjourned for parties to provide agreed orders.
Legal Topics
['return of Seized Property' 'crime Scene Warrants' 'legal Professional Privilege' 'police Powers']
['criminal Law' 'property Law'] ['return of Seized Property' 'crime Scene Warrants' 'legal Professional Privilege' 'police Powers']

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Procedural Posture

Application for Return of Property / Judgment on Application

Legal Issues

  1. 1 ['Whether seized electronic devices should be returned to the owner under ss 218 and 219 of the Law Enforcement (Powers and Responsibilities) Act 2002' 'Whether the retention of physical devices by police is justified when data extraction is incomplete or for evidentiary purposes' 'Whether possession of the devices is essential for the plaintiff’s professional activities as a solicitor']

Ratio Decidendi

The police are entitled to retain seized property only while it is required as evidence in the investigation of a specific crime. As the court was not satisfied that the devices themselves, as opposed to the data on them, are required as evidence, and noting undertakings by Mr Abbas to preserve the data, it was determined that the devices should be returned to Mr Abbas by a set date.

Court Disposition

Application granted in part; order for return of devices to plaintiff upon undertaking to preserve data; case adjourned for parties to provide agreed orders.

Orders

  • ['Seized electronic devices (except for those already returned) to be delivered to Mr Abbas by no later than 4pm on 16 August 2023, subject to an undertaking from Mr Abbas to not delete any material on the devices.' 'Proceedings listed for 10am on 16 August 2023 for provision of agreed short minutes of order or...