BY JULES O’DONNELL

Earlier this year, the High Court unanimously ruled that the Australian Federal Police (AFP) had unlawfully searched journalist Annika Smethurst’s home in 2018. The Court held that the warrant for the search was invalid because it did not adequately describe the alleged offending, and thus failed to set clear boundaries for the search. Without a valid warrant, the entry and seizure amounted to trespass to land and goods.

A majority of the Court, however, refused to grant an injunction ordering the return of the seized material. The majority said that Smethurst had not identified an ongoing interference with legal rights: the seized documents were not her property (they were digital copies from her mobile and laptop), were not confidential, and there was no general statutory prohibition against the AFP retaining documents that were unlawfully seized.  

The majority also indicated that, even if Smethurst had identified such a right, an injunction would still have been denied on discretionary grounds (an injunction being a discretionary equitable remedy). The public interest in the possibility of the seized documents disclosing criminal activity would have outweighed the need to remedy the unlawful interference with rights. As Professor Jason Varuhas recently observed, however, a party in the AFP’s position – arguing against such an injunction – is ordinarily required to lead evidence demonstrating a significant detriment to public interest before an injunction is refused (provided other elements of injunctive relief are made out). Here, the majority took the AFP’s general appeal to the public interest at face value.

In this post, I focus on how the possible disclosure of criminal activity has operated as a public interest bar to injunctive relief. I suggest that the majority’s reasoning is in keeping with a general judicial reluctance to grant injunctive relief to prospective criminal defendants. On this view, courts undertaking judicial review of criminal procedure – particularly of the grant and execution of search warrants – should generally defer to the criminal justice system and the protections built into that system. I argue that there is a genuine balance to be struck between the interests of disclosing crime and protecting individual rights. The majority’s approach, however, inexplicably removes that balance, deferring almost by default to prosecutorial imperatives.

Search warrants: the intersection of judicial review and criminal procedure

A search warrant authorises an investigator to take actions which would otherwise amount to common law wrongs, such as trespass to land or goods. The grant and execution of search warrants are exercises of statutory power that may be subject to judicial review. This means that a person whose rights have been interfered with by search and seizure may ask a court to quash the warrant (through an order of ‘certiorari’) or to order the return of property or confidential material by way of a mandatory injunction.

If the investigators that executed a warrant are found to have acted without authorisation, a court is then likely to consider whether the injunction would, as Edelman J put it in Smethurst, ‘interfere with a clear and compelling interest of the general public’ ([274]). That requires balancing, on the one hand, the public interest in non-interference with an investigation and, on the other hand, the private interests of property, privacy or confidentiality (noting that privacy in itself is not, at least for the time being, recognised as a freestanding right in Australia).

When a judicial review court undertakes this weighing of considerations, however, the judicial analysis overlaps with matters of criminal law and procedure. This is because the legal issues raised when considering bars to injunctive relief in judicial review proceedings reflect issues that may be addressed later in the criminal process. In particular, an accused may apply to have unlawfully obtained evidence excluded under s 138 of the Evidence Act 1995 (I will refer to this provision as ‘s 138’).

Section 138 provides that unlawfully obtained evidence is not to be admitted in criminal proceedings unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way, having regard to factors such as:

  • the probative value of the evidence;
  • its importance in the proceeding;
  • the nature of the offence; and
  • the gravity of the impropriety or unlawful conduct (see s 138(3)(a)-(h)).

In other words, s 138 requires a balance of public and private interests akin to that at issue for injunctive relief. The judge adjudicating over an application to exclude evidence asks similar questions to those that would be relevant in judicial review: did the investigative official obtain this evidence beyond power? If the evidence was obtained beyond power, what should be the consequences?

Understandably, this adjudicative overlap has prompted courts undertaking judicial review of unlawful seizures of evidence – particularly those considering whether to issue an injunction – to consider how this overlap might be addressed. Should a judicial review court leave an ongoing investigation undisturbed, having regard to the supervisory role that may be assumed by a judge further downstream in the course of a criminal prosecution? Or should administrative and criminal law share this adjudicative space, providing multiple checkpoints for the protection of individual rights?

Addressing the overlap

Faced with the prospect of adjudicative overlap with the criminal justice system, judicial review courts in Australia have long tended to refuse injunctive relief to prospective criminal defendants in the context of unlawful evidence collection.

In Puglisi v Australian Fisheries Management Authority (1997), the Federal Court found that items were unlawfully seized by police pursuant to an invalid warrant. Efforts to obtain new warrants failed to correct the unlawfulness.

When Mr Puglisi sought return of the items through an injunction, however, the Federal Court refused. Justice Hill found that (405):

the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence.

This finding was based on the principle of ‘the administration and non-interference with justice’. Importantly, the plaintiff retained the right to challenge the admissibility of the evidence, pursuant to the principle in Bunning v Cross (1978) (now largely replicated in s 138): ‘the existence of this [evidential] discretion suggests to me that I should not interfere with the pending [criminal] prosecution’ (405).

Justice Hill drew support, however, from prior authority which mostly did not concern the exercise of a discretion to grant relief but, rather, matters of substantive rights and powers. For example, in Ghani v Jones (1970), the House of Lords found that police officers had a common law power to seize items beyond the scope of a warrant where those items reasonably implicated a person in ‘some other crime’ (706). In Gollan v Nugent (1988), a majority of the High Court of Australia found that proof of a plaintiff’s intent to use goods to commit offences was an arguable defence to an action in detinue (44­-5).

Neither case concerned the discretionary refusal of injunctive relief where a right to property is otherwise made out. As Gordon J remarked in Smethurst:

the prima facie right and the discretion were treated as related: they were not always clearly distinguished and were often collectively referred to as “the discretion” ([194]).

Her Honour’s assessment of these authorities was blunt: ‘that line of authority is wrong and should not be followed’ ([195]). Justice Edelman made a similar point at [276].

In Caratti v AFP (2016), the Federal Court acknowledged that it was ‘very doubtful’ that cases such as Ghani v Jones – which dealt with questions of substantive powers – were useful in the context of a discretion. Yet Wigney J largely followed Puglisi, insisting on a more careful balancing of considerations by courts considering discretionary bars to relief. Again, these considerations closely resemble discretionary factors set forth in s 138 [469]:

  • Whether criminal proceedings are on foot or ‘imminent’;
  • Whether there is evidence that the items are of particular probative value (or, alternatively, whether they are yet to be inspected by investigators);
  • Whether the seizure was deliberate or reckless, or rather the product of ‘technical deficiency or less serious conduct’;
  • The nature of the items and their importance to the owner;
  • The risk that the items will be destroyed or altered so as to frustrate the investigation;
  • The seriousness of the criminal offence being investigated.

Puglisi and Caratti, along with other Australian cases (see, eg, Cassaniti v Croucher (2000)) thus form a line of authority in which principles governing the existence of police powers shaped those governing the exercise of the discretion to refuse an injunction in equity. Caratti introduced a more careful balance of considerations and, in this respect, Gordon J was arguably too harsh in grouping Wigney J’s analysis in that case with Puglisi. But even Carratti did not place any real onus on police to prove public interest grounds for the refusal of relief. At most, this line of authority frames the discretionary bar as a neutral balancing act which, in practice, is often resolved in favour of police.

Smethurst v AFP: doubling down on discretion

In Smethurst, Kiefel CJ and Bell and Keane JJ endorsed, and even broadened, the Puglisi line of authority ([102]). Their Honours concluded that, even if Smethurst had identified a basis for an injunction, ‘strong discretionary considerations, based on the policy of the law, would deny a grant’ ([99]). By ‘policy of the law’, the plurality meant ‘the public interest in both the investigation and the prosecution of crime’, which rendered an order for the return of the seized materials ‘inappropriate’ ([104]).

The ‘public interest’, on this view, is the same public interest that informs the operation of s 138. It is a principle which recognises that unlawful seizure of evidence should not, in itself, prevent the use of that evidence ([100]). As the plurality put it, the ‘existence’ of the discretion in s 138 suggests that ‘the prospective use of the information should not be foreclosed’ ([103]).

Expanding on the principles in Puglisi, the plurality said it would not have mattered that no charges had been laid against Smethurst because ‘the prospect that criminal conduct may be disclosed [by the evidence unlawfully seized] is a sufficient reason to decline the [injunctive] relief sought’ ([104]). Justice Nettle also endorsed a broad deference to the criminal process ([160]), but did not consider s 138 to be relevant to the discretion ([162]).

Should the possibility of disclosing criminal activity be enough to bar relief?

As Professor Varuhas has observed, it is unusual for an Australian court to embrace such broad appeals to the ‘public interest’ in denying injunctive relief where property rights have been infringed. Usually, courts expect a defendant (that is, a defendant to the judicial review proceeding) to lead evidence of significant public detriment that would flow if an injunction were awarded against them. In Smethurst, the AFP led no such evidence (of course, not having reviewed the seized documents, it could not have).

The High Court can, of course, depart from precedent. But is this really of how the public interest should operate to bar injunctive relief?

On one level, it is trite to say that the general public has an interest in the investigation and prosecution of crime. That declaration alone does not explain why the mere possibility of satisfying that public interest carries such weight. There must be an explanation as to why this interest necessarily defeats other compelling interests at play, such as the vindication of personal rights to property, privacy, or confidentiality, and the importance of discouraging unlawful evidence gathering.

The plurality’s attempted explanation is that these other considerations can be addressed in the course of a prosecution, if that occurs. As indicated earlier, s 138 makes the admissibility of unlawful material a question of balance. This has the corollary (so the argument goes) that evidence obtained pursuant to an invalid warrant should not be subjected to an anterior, and indeed duplicative, form of judicial scrutiny.

The consequence of this approach, however, is that s 138 becomes the only opportunity to vindicate fundamental rights for a person subject to unlawful search and seizure (with the exception of cases in which damages are an adequate remedy). For those in Smethurst’s position, this is a catch-22: the opportunity to litigate the wrong arises in circumstances where you have been charged with a crime. If you are never charged with a crime, as in Smethurst’s case, vindication never comes, and whatever ‘public interest’ there was in the detection of your ‘criminal activity’ dissolves. It is difficult to see how such a result properly recognises the stringency with which the legislature regulates the grant and execution of warrants, and the strength with which law and equity normally protect property.

Another curious oversight of the plurality’s view is that the public interest in disclosing criminal activity is not necessarily compromised by injunctive relief. As Gordon J pointed out, injunctive relief would not prevent investigators from attempting to obtain a lawful warrant in the future, and the form and timing of an order can be shaped to allow that to occur ([192]).

Balancing public and private goods

The execution of a search warrant can involve a significant intrusion into and interference with a person’s private space, property and dignity. Such intrusiveness is reflected in the strict legislative terms according to which warrants are granted. Police or other investigative agencies are, with some exceptions, required to obtain a warrant by an application to a judge, who must consider whether the interference with those rights is reasonably likely to uncover criminal activity. This is the case for search warrants as well as warrants authorising the installation of listening and optical surveillance devices, or the retrieval of stored telecommunications data.

There will no doubt be cases in which the vindication of individual rights would unacceptably compromise the detection of serious criminal activity. Modern statutory powers can be technical, and good faith errors about their scope and operation should not necessarily undermine an investigation. There are also cases in which it is difficult to fully unwind the consequences of unlawful seizures. In Lee v NSW (No 2) (2019), for example, police inspected unlawfully seized materials before they were aware of the unlawfulness. The mere awareness of the material aided the investigation, creating new branches of inquiry. But while documents can be returned by injunction – an investigator’s memories cannot.

What is unsatisfactory, however, is an approach that dispenses with a balance of public and private interest entirely. General appeals to the ‘public interest’ should not be accepted at face value, and subject to little, if any, evidentiary scrutiny. If Smethurst’s was a case in which there was a sufficient possibility of disclosing criminal activity, such that the public interest weighed against granting an injunction, it is difficult to imagine an instance of unlawful seizure in which this threshold was not met. Section 138 is no substitute for the proper vindication of fundamental rights.

Jules O’Donnell is a lawyer from Melbourne. All views are his own.

Suggested citation: Jules O’Donnell, ‘Should an ongoing criminal investigation bar the return of unlawfully seized property?’ on AUSPUBLAW (4 September 2020) <https://auspublaw.org/2020/09/should-an-ongoing-criminal-investigation-bar-the-return-of-unlawfully-seized-property/>