Case: Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52
Outcome: followed
Mr Oke submits that the execution of the Birchgrove warrant was illegal and that the AFP should be ordered to return, or destroy, the hard drive image. His application raises various issues regarding the provisions of Part IAA of the Act, and the interaction of those provisions with the common law of legal professional privilege, including the principle enunciated by the High Court in Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52, that a document recording a privileged communication cannot be made the subject of a search warrant issued under s 10 (now s 3E) of the Act. 6 The validity of the Birchgrove warrant itself is not challenged. What is challenged is the validity of its execution. There are three issues to be determined on the application concerning the validity of the execution of the Birchgrove warrant: 1. Whether the execution of the search was invalid because it did not comply with s 3H of the Act, in that the copy of the warrant provided to Mr Oke at the commencement of the search did not contain the name of the issuing officer and the handwritten portion of the attestation clause; 2. Whether the execution of the search was invalid because the copy of the warrant provided to Mr Oke at the commencement of the search did not have attached a copy of the privilege notice; 3. Whether the seizure of the laptop computer was invalid because the executing officer did not have the requisite state of mind specified in s 3F of the Act or because it was the subject of a claim of legal professional privilege; Submissions were also directed to the appropriate forms of relief if any of those claims were made out. 7 A further issue arose on the amended application, but no longer arises. It concerned the purported return of the laptop computer, and then its re-seizure from Mr Oke, on 2 July 2004, apparently invoking s 3K of the Act. Senior counsel for the AFP during the hearing of the application acknowledged that the AFP's entitlement to retain the laptop computer or a copy of its hard drive was not enhanced by what occurred on 2 July 2004 or by s 3K of the Act. It is not therefore necessary to further address that issue. 101 In Baker v Campbell [1983] HCA 39 ; 153 CLR 52 , the High Court by majority concluded that, in the event that legal professional privilege attaches to and is maintained in respect of documents held by a legal firm, those documents cannot properly be made the subject of a search warrant issued under s 10 of the Act. Section 10 of the Act has since been repealed but it is similar, for present purposes, to the relevant parts of ss 3E and 3F. In Baker v Campbell it was assumed that the documents in issue were privileged, as the matter was heard on a case stated. 102 The practical difficulties which may arise in circumstances where legal professional privilege is claimed in respect of documents which would otherwise fall within the terms of a search warrant were recognised by Wilson J, who said (at 97): "It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem." 103 Following the decision in Baker v Campbell, the Law Council of Australia and the AFP entered into an agreement as to the manner in which such claims should be treated. The terms of that agreement form the guidelines contained in the privilege notice and which were attached to the original Birchgrove warrant. 104 The privilege notice reads as follows: "If a claim is made for legal professional privilege in respect of any document covered by the warrant, and if the person claiming privilege is prepared to co-operate with the executing officer, the following procedure will be followed to the extent to which it is possible to do so: 1. The executing officer or a constable assisting will prepare a list of the relevant documents in cooperation with the person claiming privilege. The list will show the general nature of each document, the ground on which privilege is claimed, and the name of the person claiming privilege; 2. The documents will be placed in an envelope or other container which will be sealed; 3. The list and the container will be endorsed with a note to the effect that, having regard to the claim for privilege, the warrant has not been executed in respect of the documents set out in the list and that those documents have been sealed in the container pending resolution of the claim; 4. The list and the container will be signed by the executing officer or constable assisting and the person claiming privilege; 5. The sealed container and a copy of the list will be delivered to a third party agreed between the executing officer or constable assisting and the person claiming privilege; 6. The third party shall hold the container and the copy of the list pending resolution of the claim for privilege; 7. Subject to any agreement to the contrary, the person claiming privilege will have four working days after delivery to the third party in which to commence proceedings to establish the privilege claimed. If proceedings are commenced within that time the sealed container and the copy of the list will be delivered to the registrar of the court in which the proceedings have been brought. The documents will then be held by the registrar pending the order of the court; 8. Subject to paragraph 9, if proceedings are not commenced within four working days, or such other period as may be agreed, the third party will deliver the documents, or such of them as the executing officer still wishes to examine, to the executing officer; 9. Nothing in this document prevents the executing officer from discussing a claim for privilege with the person raising the claim. If agreement can be reached on which documents are covered by legal professional privilege, and which are not, the third party will be asked to act in accordance with that agreement. If the person claiming legal professional privilege is not prepared to cooperate with the executing officer, it will normally be necessary for the executing officer or a constable assisting to examine each relevant document to determine whether there is a proper basis for seizure." 105 Mr Oke contended that, as a matter of law, it is not possible to "seize" an item under the Act which is subject to a claim of legal professional privilege. 106 The respondent submitted that the effect of the decision in Baker v Campbell is only that a search warrant cannot be executed in a manner which abrogates or nullifies the claim of privilege. It was said that to "seize" a document or thing means to take it into lawful possession subject to the claim of privilege being determined, so that seizure under the Act was still possible even if the seized item may ultimately be recognised as privileged. 107 I do not accept either contention. In my view, Baker v Campbell decides that a search warrant cannot authorise the seizure of privileged documents. The Birchgrove warrant must therefore be read as authorising seizure of the documents that satisfy the conditions specified, provided that they are not documents subject to legal professional privilege. Nor does it decide that a search warrant cannot authorise the seizure of documents in respect of which there is merely a claim to legal professional privilege. That question did not arise. Nor, upon my reading of the judgments in Baker v Campbell , is there anything said in that case to support such a contention. 112 I consider their Honours' conclusion is consistent with the decision in Baker v Campbell [1983] HCA 39 ; 153 CLR 52. In Baker v Campbell the documents the subject of the search warrant were assumed to be privileged from disclosure or production on the ground of legal professional privilege. In that event, they could not be the subject of a search warrant under the Act. So, here, if the laptop computer and all its contents were to be so protected, it could not have been the subject of the Birchgrove warrant and its seizure would not have been authorised. The approach of the Full Court in JMA Accounting addresses the circumstances where there is a contested claim to such privilege and the practicality that it cannot be immediately resolved (and where s 3K(2) has not been availed of).