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Supreme Court of Victoria - Court of Appeal |
Last Updated: 20 March 2020
COURT OF APPEAL
S EAPCI 2020 0016
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Applicant
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First Respondent
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THE MAGISTRATES’ COURT OF VICTORIA
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Second Respondent
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF ORDERS:
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11 March 2020
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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[2020] VSC 1 (Daly AsJ)
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EVIDENCE – Admissibility of documents obtained under search warrant – Whether documents subject to legal professional privilege – Collection or collation of documents – Not privileged communications – Validity of search warrant – Application for leave to appeal refused – Application for stay of criminal proceeding refused.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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In person
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For the First Respondent
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Mr B L Sonnet
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Ms A Hogan, Solicitor for Public Prosecutions
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For the Second Respondent
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No appearance
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1 Seven years ago, on 7 February 2013, the applicant was charged with 182 charges of theft, and subsequently one further charge of using a false document.[1] All of the charges relate to the alleged misappropriation of approximately $30,000 from an owners corporation managed by the applicant and occurred between May 2006 and December 2011. A contested hearing of the charges was listed to commence in the Magistrates’ Court on 16 March 2020.
2 At the instigation of the applicant and in advance of the trial, the magistrate who will hear the charges, heard an objection to the admissibility of documents obtained under a search warrant.[2] The basis for the objection was that the documents were covered by legal professional privilege (‘LPP’) and that the warrant was invalid with the consequence that the documents were unlawfully obtained and should be excluded from evidence pursuant to ss 135 and 138 of the Evidence Act 2008 (‘Evidence Act’ or ‘the Act’). The magistrate overruled both objections. An application for judicial review of the ruling failed before an associate judge of this Court, who heard it pursuant to a referral from a judge.[3] It is from the decision of the associate judge that the applicant seeks leave to appeal.
3 The application for leave to appeal, and an application for a stay of the criminal proceeding pending the hearing and determination of the application for leave to appeal, were brought on for urgent hearing in light of the impending trial.
4 At the conclusion of argument, on 11 March 2020, we made an order refusing the application for leave to appeal. These are our reasons for making that order. In light of the determination of the leave application, there was no reason to order a stay and the application for a stay was accordingly refused.
5 Two essential aspects of this case frame the issues before this Court and should be noted at the outset:
(a) The documents are original documents relating to the operation of the owners corporation and financial records of the applicant, including invoices, receipts, bank statements and the like. They are essential to the prosecution case. None of the documents were created or prepared for the purpose of obtaining legal advice or conducting litigation. The applicant contends that they were ‘collected and collated’ by him for that purpose.
(b) Strikingly, for the purpose of claiming LPP, the applicant contends that he is both client and lawyer. He contends that he is entitled to claim LPP in the documents because he is admitted as a barrister and solicitor in Victoria[4] and collected and collated them for the purpose of litigation and for the purpose of providing legal advice to himself in relation to three pieces of litigation.
Application before the magistrate
6 After a five day hearing, the magistrate rejected the application to exclude the evidence. The magistrate noted that all of the seized documents were original documents with no apparent connection to legal matters involving the owners corporation, save for ‘the VCAT and Supreme Court paperwork’.[5] The magistrate noted that many of the documents ‘reflected the mundane nature of the running of a body corporate in that there were 40 invoices or receipts from Jim’s mowing, numerous other invoices from other garden maintenance suppliers, invoices for insurance, bank statements, minutes of Body corporate meetings, notation of collection dates for fees, and deposit books for bank accounts in the name of the Body corporate.’[6]
7 The magistrate rejected the contention that the documents had been collated in a particular way for the dominant purpose of obtaining legal advice or for use in legal proceedings.[7]
8 The magistrate rejected the attack on the validity of the warrant. The magistrate held that the terms of the warrant would not be ‘unclear to the person reviewing its terms as to what the purpose of the warrant was seeking to achieve.’[8] The magistrate noted that the warrant clearly stated its purpose and identified the matters falling within it.[9] The magistrate rejected the submission that the police had embarked on a fishing expedition noting that, by the time of the execution of the warrant, the police had executed a warrant in respect of documents in the possession of the ANZ Bank and were well advanced in their investigation.[10] The magistrate also rejected a submission that the warrant entailed an unreasonable intrusion of privacy.[11]
Application for judicial review
9 The originating motion, which commenced the application for judicial review contained two grounds; namely, that the Magistrates’ Court erred in law when it found that:
(a) none of the seized documents attract LPP; and(b) there was no problem with the form of the search warrant because it applied the wrong test as to how the search warrant should be interpreted and failed to consider the relevant statutory provisions applicable to the form of the search warrant.
10 It is convenient to address the issues relating to LPP and the search warrant separately.
Legal professional privilege
11 As he had done before the magistrate, the applicant founded his claim for LPP on the basis that he had collected and collated the original documents for the dominant purpose of giving himself legal advice or for the use in three legal proceedings.
12 In this regard, he relied on the reasons of McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[12]
13 The applicant relied on a passage where his Honour said:
Part of a protected communication may even be a document that was created for a non-privileged purpose but which has been given to, and is in the custody of, a lawyer for the purpose of obtaining legal advice or for confidential use in litigation.[13]
14 The applicant also relied on the following statement of McHugh J:
To concentrate on the similarity between the original and the copy or on how the copy came to be made is to miss the whole point of legal professional privilege. The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.[14]
15 He submitted that the documents fell within these principles even though they were original documents rather than copies because, in the circumstances they were found at the time of their seizure, they could reveal his views as a lawyer or the advice he was seeking from himself.
16 In summary, on the question of LPP the associate judge held as follows:
(a) the distinction between the common law principles and statutory provisions was not relevant. Propend was relevant to what might be included in ‘confidential communications’ for the purpose of applying ss 118 and 119 of the Evidence Act.(b) LPP applies to communications. Propend established that LPP may extend to copies of non-privileged documents where they are prepared for the dominant purpose of obtaining legal advice or for use in legal proceedings because their preparation or provision may reveal the content of legal advice.
(c) Here, the documents were originals, not copies, and there were no communications between lawyer and client. The seizure and tendering of the documents would not reveal the existence or content of any communications attracting LPP.
(d) The magistrate was correct, on the findings of fact made by her as to the provenance of the documents, that no LPP inhered in the original documents and they were not inadmissible.
17 Grounds 1 and 2 of the application for leave to appeal to this Court concern the question of LPP.
Ground 1
18 The applicant contends that the associate justice erred in:
(a) holding that the applicant bore the burden of proof in establishing that the documents were subject to LPP;(b) failing to hold that the collection and collation of the relevant documents by the applicant is itself a form of communication that can attract LPP; and
(c) failing to hold that LPP may exist at common law where the applicant is both lawyer and client.
19 None of these contentions have merit.
20 The first contention can be disposed of briefly. The applicant submits that, once he had made the claim of LPP and adduced sufficient evidence to support it, it fell to the prosecution to prove beyond reasonable doubt that the documents were not covered by LPP. It is well-established that where a question of LPP arises, the onus is on the party claiming it to make it out by evidence or argument, even though it is the other party that has applied for an order for production for inspection or otherwise.[15] This is not a case where the prosecution has relied on conduct – such as the furtherance of a crime or fraud – which would displace a claim for LPP that would otherwise be made out.[16] The first limb of the attack fails.
21 In order to resolve the second and third contentions, it is first necessary to determine the governing law: common law or the Evidence Act. The applicant accepts that he could not establish that the original documents were privileged under ss 118, 119 or 120 of the Evidence Act. For reasons to which we shall return, he was correct to do so.
22 Section 9 provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment. The Act will ‘provide otherwise’ if there is a sufficient degree of contrariety between the Act and common law which means that the two bodies of law are not intended to operate together. It may arise where the two cannot operate together or where the Act is intended to fully regulate the relevant area or field.[17]
23 It necessarily follows from s 9 that the Evidence Act is not a complete ‘code’ with respect to the laws of evidence, in that it does not contain a complete statement of all law pertaining to evidence.[18] It must also be accepted that LPP is a substantive principle of law and not merely a rule of evidence. For that reason, it is not to be lightly inferred that it has been altered or abrogated by legislation.
24 Sections 118 and 119 provide as follows:
118 Legal adviceEvidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of —
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person —
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of —
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared —
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
25 Section 120 extends the immunity from disclosure of certain documents to self-represented litigants as follows:
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of —(a) a confidential communication between the party and another person; or
(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party—
for the dominant purpose of preparing for or conducting the proceeding.
26 Although ss 118, 119 and 120 refer to the adducing of evidence, s 131A extends their operation. Section 131A provides that these provisions apply to the production of documents in accordance with a disclosure requirement, including, but not limited to, a search warrant.
27 The definition of ‘client’ includes a person who engages a lawyer to provide legal services.[19] The legislation clearly contemplates the distinct roles of legal adviser and client; a person cannot engage themselves to provide legal services.
28 Sections 118 and 119 only apply to a ‘confidential communication’ or a ‘confidential document’. A ‘confidential communication’ is a communication made in circumstances that, when it was made, the person who made it, or the person to whom it was made, was under an express or implied obligation not to disclose its contents.[20] Similarly, a ‘confidential document’ means a document prepared in such circumstances that when it was prepared the person who prepared it, or the person for whom it was prepared, was under an obligation of confidence.[21] As a person cannot be under a non-disclosure obligation to themselves, ss 118 and 119 cannot apply to a self-represented litigant. It follows that, under the Act, the only avenue for such a litigant to claim LPP is s 120.
29 The magistrate was concerned with the admissibility of the documents in the trial of the proceeding and not, at least directly, whether the applicant could resist producing the documents to police under the warrant. In that context, it is useful to recall that privilege is an immunity from compulsory disclosure rather than a positive right.[22]
30 Sections 118–120 are concerned with the adducing of evidence. It follows that the issue is whether ss 118, 119 and 120 exhaustively regulate, to the exclusion of the common law, the admission into evidence of material which is said to be the subject of LPP. We conclude that they do.
31 To pick up the language of s 9, it is clear that ss 118 and 119 expressly provide for the circumstances in which privilege can be claimed for the purpose of determining the admissibility of evidence. They do so by defining the circumstances in which LPP arises and the consequences of that; namely, that evidence is not to be adduced if it would disclose privileged material.
32 Sections 118 and 119 are confined to the adducing of evidence. Treating ss 118 and 119 as governing the circumstances in which privilege may be claimed to prevent the adducing of evidence avoids the possibility that admissibility would be assessed against two different and potentially inconsistent sets of rules. Requiring a court to assess the admissibility of privileged communications under two sets of rules would give rise to uncertainty and difficulty in the application of the law. It cannot have been intended.
33 Over time there have been divergences between the common law and the relevant legislative provisions as to the scope of LPP. Grant v Downs decided that the common law test was one of sole purpose.[23] At the time Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia[24] was decided, the legislation contained a dominant purpose test in relation to the adducing of evidence. That disconformity gave rise to the dispute in that case, which concerned production of documents under discovery and not the adducing of evidence. The High Court held that ss 118 and 119 only applied to the adducing into evidence of privileged material and had no operation in relation to claims of privilege in the context of discovery. In relation to the latter, the common law applied. The Court went on to hold that the sole purpose test in Grant v Downs should be overruled and replaced with a dominant purpose test.[25] However, it is clear from the reasons that in relation to the adducing of evidence, being the focus of ss 118 and 119, the applicable test was found in the Evidence Act and not at common law. The issue was whether, in a particular area of operation, the Evidence Act or the common law applied.[26] The framing of the issue and the reasoning do not admit the possibility that they could both apply to the same activity. Rather, the case proceeds on the basis that ss 118 and 119 of the Evidence Act govern the adducing of evidence but no more.
34 Although there may be some differences between the common law and ss 118 and 119, holding that the statute governs the admissibility of evidence does not materially reduce or abrogate the protection that the common law affords. For that reason, the principle of legality plays little role in assessing whether the common law or statute covers the admissibility of privileged material.
35 The applicant relied on DPP (Cth) v Galloway (a pseudonym)[27] as supporting his submission that ss 118–120 are not an exclusive code with respect to LPP. That decision does not assist with the present question. First, that case concerned the construction of s 123 and its relationship with ss 118 and 119. Section 123 provides that in a criminal proceeding, div 1 does not prevent an accused from adducing evidence unless it is evidence of a confidential communication made between an associated accused and a lawyer acting for that person in connection with the prosecution of that person; or the contents of a confidential document prepared by an associated accused or by a lawyer acting for that person in connection with the prosecution of that person.
36 This Court held that s 123 did not abrogate the common law and did no more than create a statutory exception (from the privilege created by ss 118 and 119) corresponding to the exception recognised by the common law.[28] It does not stand for the proposition that the common law subsists on the question of admissibility of evidence on the ground of privilege.
37 In our opinion, ss 118–120 govern the admissibility of evidence the adducing of which may disclose legally privileged material and for that purpose defines the circumstances in which LPP arises. Given that the applicant accepted that he cannot succeed under the Evidence Act, ground 1 must fail.
38 Two further observations may be added:
(a) First, even if the issue was to be decided by reference to s 131A on the basis that the documents were disclosed under a search warrant, no different answer would be given. Significantly, s 131A provides that where a person objects to the provision of information or document(s) on the basis that it would result in the disclosure of the communication of a kind referred to in div 1, 1C or 3 (which include ss 118–120), the court ‘must determine the objection by applying’ certain provisions of the Act. That would leave no room for determining the objection on a different footing.(b) Secondly, although the governing law is that set out in the Evidence Act, that is not to say that the common law is irrelevant to the construction of those provisions; those provisions were enacted against a background of the common law. To that extent, the reasoning in Propend in relation to copy documents can equally apply to ss 118 and 119.
39 In the circumstances, it is appropriate to briefly record why the applicant could not succeed under the statutory provisions. Relevantly, ss 118 and 119 apply where the adducing of evidence would result in the disclosure of:
(a) a confidential communication made between the client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client; or(b) the contents of a confidential document that was prepared for the dominant purpose of the client being provided with legal advice or legal services relating to a legal proceeding to which the client is a party.
40 In the present case, as noted, even if one assumes that the collection and collation of original documents constituted a communication made by the applicant to himself, it could not meaningfully be said that he was under an obligation, owed to himself, not to disclose the contents of it. And, in any event, it would be a distortion of language to regard ‘communication’ as extending to the internal dialogue of a single person. Sections 118(a) and (b) and 119(a) are not satisfied.
41 Recognising that all of the documents were original documents that were prepared independently of legal advice or legal proceedings, the applicant did not contend that the documents were prepared in circumstances of confidence. Sections 118(c) and 119(b) are not satisfied.
42 Section 120 does not apply for similar reasons. The documents did not embody a confidential communication between the applicant and another person and they were not prepared for the dominant purpose of preparing for or conducting a proceeding.
43 Finally, we would add that even if the common law applied or informed the construction of ss 118 and 119, the applicant still could not succeed in his claim for LPP because LPP attaches to communications not documents.[29]
44 In the present circumstances, the mere collection and collation of documents by the applicant was incapable of communicating to anyone the contents of any privileged communication. Likewise, the tender of the original documents in evidence is incapable of disclosing any legal advice. There was simply no discernible communication of the kind required to attract LPP.
45 That being so, it is not necessary for us to consider whether there are any factual circumstances in which the common law might recognise LPP where the same individual is both client and lawyer. However, we would make the following observations.
46 The rationale of LPP is that it ‘assists and enhances the administration of justice by facilitating the representation of clients by legal advisers’.[30] The privilege belongs to the client, not the lawyer, and it protects communications. Recognition of LPP where the client and the lawyer are the same person would fall outside the purpose and rationale of the privilege. Unsurprisingly, as far as we are aware, there is no Australian authority in support of LPP applying in such a situation.
47 In Ventouris v Mountain; The Italia Express, Bingham LJ said:
The expression ’legal professional privilege’ is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client who enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied, in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs a lawyer.[31]
48 Even if that approach were to be adopted in Australia, it would not reflect LPP. It would be an entirely different protection. His Lordship was not concerned with the case where the self-represented litigant happened to be a lawyer but with an extension of litigation privilege to documents which were not previously in the possession of a party to litigation or come into existence for the purposes of that litigation but had been obtained by their solicitors for that purpose. Section 120 prevents certain confidential communications and documents from being adduced where a party is unrepresented. The applicant fails under s 120 and no common law analogue was claimed in this proceeding nor as far as we are aware has it been accepted in any Australian case.
Ground 2
49 The applicant contends that he was denied procedural fairness before the magistrate. The basis for his claim is that the magistrate proceeded on an erroneous understanding of the onus of proof. In his submission, the prosecution had the onus of proving, beyond reasonable doubt, that the documents were not privileged and the failure of the magistrate to proceed on that basis constituted denial of procedural fairness.
50 The short and complete answer is that it was the applicant and not the prosecution who bore the onus of establishing that the documents were privileged. The premise for proposed ground 2 is not made out and it must be rejected.
51 There was no error in the magistrate’s ruling that the documents were not protected by LPP. The associate judge was correct to dismiss the proceeding in relation to the LPP grounds.
The search warrant – Grounds 3 to 7
52 The applicant contends that the terms of the warrant were too wide, involved an impermissible fishing exercise and that the warrant required a higher degree of particularity than it contained because it involved the search of a third party’s home.
53 The warrant authorised the search and seizure, at a specified address, of the following items:
Any documents, bank cards, statements, or any other thing relating to ANZ bank accounts named - Body Corporate 1579.Any document, bank cards, statements, or any other thing relating to NAB accounts in the name of [the applicant].
Any document or any other electronic device capable of assisting in the managing of Owners Corporation No. 1579 in respect to the properties situated at 5 Headley Street, Coburg North.
54 The warrant stated that the information requested ‘will afford evidence of the offences of Theft and Obtain Property by Deception.’
55 The warrant identified the relevant premises as an address in Williams Road, Coburg North. At the time the warrant was executed, the applicant and his elderly mother lived at that address. The applicant directed officers who attended the premises to execute the warrant in a study where the relevant documents were located. The search was confined to that room.
56 A brief summary of the magistrate’s reasons are set out above.[32] The associate judge concluded as follows:
In my view, no error is discernible in her Honour’s finding that the scope of the warrant was not too broad, the purpose of the search warrant was apparent on the face of the search warrant, and that the documents sought by the search warrant were sufficiently described in the search warrant. It is apparent from the reasons that the learned magistrate was familiar with and applied the relevant test in determining the validity of the warrant. The learned magistrate’s references in the reasons to what the plaintiff would have understood the purpose of the search warrant to be, or to what the police understood they were searching for, do not, contrary to the plaintiff’s submissions, indicate that the learned magistrate impermissibly applied a subjective test when assessing the form of the warrant. That much is clear from the following statement in the reasons:I do not agree with [the plaintiff’s] evidence or submission that the form of the warrant is flawed such that it would be unclear to the person reviewing its terms as to what the purpose of the warrant was seeking to achieve. (emphasis added)
The plaintiff has not demonstrated that the learned magistrate acted on the wrong principle, or that her conclusion that the purpose of the search warrant would be readily understood by a person reading the search warrant was wrong. That is sufficient to deal with the plaintiff’s submissions regarding the form of the warrant. However, going further, having reviewed the search warrant and the evidence before the learned magistrate, I agree with the learned magistrate’s conclusions regarding the form of the warrant. The apparent generality of the classes of documents and things referred to in the search warrant was confined by the subject matter specified by the search warrant. The search warrant was in the form required by the relevant regulations. Further, I agree that the offences to which the search warrant refers are sufficiently specific and generally understood. I do not accept the plaintiff’s submissions to the effect that a search warrant must enumerate the constituent elements of an offence in addition to specifying the offence itself. In my view, it would be abundantly clear to any person reading the warrant, based upon the offences specified and the types of documents and articles sought, that the police (or more specifically, the Fawkner Robbery Task Force) were investigating the alleged misappropriation of funds belonging to the owners corporation by the plaintiff.[33]
Grounds 3 and 4
57 The applicant contends that the warrant was invalid because it was not in a proper form. He submits that given the intrusion upon privacy and property which arises from execution of the warrant, strict compliance with the warrant is required. He also submits that the validity of the warrant is to be determined from the face of the document from the standpoint of the ordinary person reading it.
58 The applicant submits that the magistrate applied the wrong test because she did not refer to the ordinary person and concluded that the purpose of the warrant would not be unclear to the person reviewing its terms.[34] He submits that the failure to test against the ordinary person involved an error of principle.
59 For the reasons given by the associate judge recorded above, the magistrate did not commit a jurisdictional error or error of law on the face of the record. We endorse the reasons of the associate judge. The magistrate referred in her reasons to the relevant authorities, and noted that the warrant is to be interpreted from the standpoint of the ordinary person reading it.[35]
60 The magistrate correctly applied the law and the conclusion which she reached was open to her. The associate judge correctly rejected this ground for the reasons she gave.
61 The ordinary person reading the warrant would have understood it to cover documents and other things relating to the management of the owners corporation no. 1579 that would afford evidence of the commission of the offences of theft and obtaining property by deception by the applicant. There was no room for confusion.
Ground 5: a fishing expedition?
62 The applicant contends that the magistrate should have held that the warrant was a fishing expedition and, it follows, the associate judge was wrong not to find error on this ground.
63 The magistrate found that the application for the warrant and its execution did not amount to an impermissible fishing exercise. In that respect, the magistrate noted that the police had already executed a warrant in respect of documents in the possession of the ANZ Bank and the police were well advanced in their investigation.[36]
64 The associate judge found no legal error in the conclusion of the magistrate. Her Honour said:
... the learned magistrate’s finding that the execution of the search warrant was not a fishing expedition is unremarkable, and is indeed consistent with the evidence that the charges against the plaintiff had been prepared prior to the execution of the search warrant, and that a search warrant directed at the ANZ Bank had already been executed. Also unremarkable is the learned magistrate’s conclusion that the execution of the search warrant at the home was permissible, notwithstanding that it was also the home of the plaintiff’s mother, as the plaintiff also lived there and was present during the execution of the search warrant. The current case is readily distinguishable from the authorities relied upon by the plaintiff, regarding the execution of search warrants at premises occupied by innocent third parties.[37]
65 We agree. The applicant’s submission proceeds upon the misconception that a warrant is only available to fill identifiable gaps in an investigation when all other methods of investigation have been exhausted.
66 A warrant is a powerful tool of investigation. The execution of a warrant may involve a significant intrusion into the privacy and property of individuals. Relevantly, s 465 of the Crimes Act 1958 authorises a magistrate to issue a search warrant if the magistrate is satisfied by evidence on oath that there are reasonable grounds for believing that there is anything in a building that will afford evidence as to the commission of a relevant offence. That requirement was satisfied here.
67 Once the police had sufficient material to establish a reasonable belief that the relevant offences had been committed, it was entirely reasonable for them to seek to obtain evidence relating to those offences. There was an obvious basis to believe that the best evidence, in the form of financial and other business records, would be in the possession or custody of the applicant. The decision to execute a search under warrant was rational and the ambit of the ensuing search was targeted and entirely reasonable in the circumstances. In the context of the investigation it was not premature.
Ground 6
68 The applicant submits that the warrant authorised a search of premises occupied by his mother who is an innocent third party and not said to be in any way involved in the alleged offending. Given the potential for intrusion into the privacy and property rights of an innocent third party, a higher degree of precision and particularity in the warrant was required.
69 The applicant submits that the magistrate erred by treating the requirement for a higher degree of precision and particularity as unnecessary because the applicant also occupied the premises.
70 In our view, this ground fails because the warrant had a sufficient degree of precision and particularity notwithstanding that it authorised the search of the home of an innocent third party.
Ground 7
71 Ground 7 relates to a statement of a witness in the criminal proceeding. The applicant submits that the witness was identified and a statement obtained from her as a result of the police obtaining the documents under the search warrant. Given that, so it was said, the warrant was invalid, the obtaining of this statement was a consequence of wrongdoing and the evidence of the witness should be excluded pursuant to s 138 of the Evidence Act. The applicant acknowledged that the magistrate had not been asked to exclude the evidence of this witness.
72 It is immediately apparent that success on this ground depends on success on one or more of grounds 3–6. That is because its premise is that the obtaining of the documents under the warrant was unlawful. As the applicant has failed to make good that premise, ground 7 does not arise for consideration. Further, given that the magistrate was not asked to rule on the admissibility of the evidence of the witness, there is no relevant decision that could be attacked for jurisdictional error or error of law on the face of the record in the current proceeding.
Conclusion
73 None of the grounds are arguable.
74 We add the following. The hearing of the charges has been delayed by a number of protracted interlocutory disputes.[38] The proceedings in this Court, both in the Trial Division and in the Court of Appeal, have contributed to that delay.
75 There was never any prospect that the seizure of the documents under warrant or their admission into evidence on the hearing of the charges could have revealed or disclosed any legal advice. The claim for LPP failed at every hurdle: there was no relationship of lawyer and client; the collection and collation of documents did not disclose any communication of legal advice; and it did not occur for the purpose of obtaining advice in the context of litigation.
76 There is no reason to doubt the decision of the magistrate that the warrant and the consequent seizure were lawful. The reasons of the associate judge were, with respect, impeccable.
77 Even if the applicant had established some flaw in the warrant, or even an arguable basis of privilege, there is no justification for judicial review of the magistrate’s decision with its attendant fragmentation of the criminal proceeding. On that basis we would have refused relief. The applicant’s submission that there can be no fragmentation until the hearing of evidence on the trial of the charges has commenced is inconsistent with principle and authority. It is entirely devoid of merit.
78 However, as things have transpired, we refused leave to appeal on 11 March 2020 because the applicant failed to establish that any of his grounds had a real prospect of success.
[1] Subsequently 24 charges of theft and the charge of using a false document were withdrawn.
[2] The search warrant, which was issued by a magistrate pursuant to s 465 of the Crimes Act 1958, was executed on 7 February 2013 at premises occupied by the applicant and his elderly mother.
[3] Giurina v DPP [2020] VSC 1 (‘Associate Judge’s Reasons’).
[4] He was admitted in 1987 but does not hold a practising certificate.
[5] Reasons of Magistrate Tregent of 28 May 2019, Exhibit “EG-17” to the affidavit of Ermanno Giurina dated 16 July 2019, [64]–[69] (‘Magistrate’s Reasons’).
[6] Ibid [71].
[7] Ibid [76].
[8] Ibid [91].
[9] Ibid.
[10] Ibid [92]–[95].
[11] Ibid [97]–[98].
[12] (1997) 188 CLR 501; [1997] HCA 3 (‘Propend’).
[13] Ibid 553.
[14] Ibid.
[15] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason and Murphy JJ); [1976] HCA 63, [28]; Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 337 [11] (Batt JA, with whom Charles and Callaway JJA agreed); [2002] VSCA 59; AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 44 [44] (Young J); [2006] FCA 1234; Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936, [30] (Murphy J); Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098, [13]–[14] (Wigney J); Gunns Ltd v Marr [2008] VSC 464, [37] (Kaye J).
[16] See s 125 of the Evidence Act.
[17] Masson v Parsons [2019] HCA 21, [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
[18] DPP v Peters (a pseudonym) [2019] VSCA 193, [85] (Priest JA with whom Niall JA and Croucher AJA agreed).
[20] Ibid.
[21] Ibid.
[22] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [2019] HCA 26, [12] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Glencore’).
[23] (1976) 135 CLR 674; [1976] HCA 63.
[24] (1999) 201 CLR 49; [1999] HCA 67.
[25] Ibid 73 [61]–[62] (Gleeson CJ, Gaudron and Gummow JJ), 107 [173] (Callinan J).
[26] Ibid 54 [1] (Gleeson CJ, Gaudron and Gummow JJ).
[27] (2014) 46 VR 809; [2014] VSCA 272.
[28] Ibid [7]–[8] (Maxwell P, Neave and Coghlan JJA).
[29] See, eg, Propend (1997) 188 CLR 501, 552 (McHugh J); [1997] HCA 3.
[30] Glencore [2019] HCA 26, [27] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), citing Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 685 (Stephen, Mason and Murphy JJ); [1976] HCA 63, [19]. See also Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 487 (Mason and Brennan JJ); [1986] HCA 80, [10].
[31] [1991] 1 WLR 607, 611.
[32] See paragraphs [6]–[8] of this judgment.
[33] Associate Judge’s Reasons [98]–[99].
[34] Magistrate’s Reasons [91].
[35] Ibid [80].
[36] Ibid [92]–[93].
[37] Associate Judge’s Reasons [100].
[38] Ibid [8].
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